Alexander Volokh
Printed in 115 Harv. L. Rev. 1838, 1868 (2002) as part III of
Developments in the Law: The Law of Prisons
Be sure and check the paper copy or
Lexis/Westlaw before citing or quoting!
Private prisons are on the rise. Privately operated juvenile facilities — mostly community-based group homes or halfway houses — and federal adult halfway houses have been common in the United States since the 1960s.[1] In 1979, private firms began contracting with the Immigration and Naturalization Service to detain illegal immigrants pending hearings or deportation.[2] Private, large-scale investment in the construction and management of conventional prisons and jails dates from the mid-1980s.[3] Prison privatization has been driven not only by the growing support among lawmakers and the public for private provision of traditional government services,[4] but also by exploding prison populations resulting from stricter drug and immigration laws and changes in sentencing procedures.[5]
By the end of 2000, there were 87,369 state and federal prisoners
in private detention
facilities in the
Comparative studies on the cost and quality of private and public prisons give reason to be cautiously pleased with private prison performance.[12] The empirical evidence is consistent with economic theory, which predicts that with privatization, costs will fall and quality (however defined) may rise.[13] The idealist could ascribe the satisfactory performance of private prisons to the power of market incentives; the cynic could point out that given public prisons’ bleak history and patchy present, private prisons perform satisfactorily compared to a rather low baseline. Each would be right.
Public prisons are not the most accountable of government systems; in fact, under certain circumstances, private prisons may be more accountable. In the qualified immunity context, recent Supreme Court decisions such as Richardson v. McKnight[14] and Correctional Services Corp. v. Malesko[15] have held private prisons to at least as high a standard of constitutional protection as public prisons.[16] Judges’ and juries’ greater skepticism of private agencies than of government may also make private prisons more accountable; moreover, government oversight of private prisons may be less deferential than government oversight of its own operations.[17] In addition, private prisons have substantially greater market accountability because they are concerned with winning new contracts and renewing old ones, and with avoiding both adverse publicity and drops in stock price.[18] The continued promise of private prisons requires three concurrent innovations. First, evaluators must develop a rich set of performance measures, and prison data must be gathered and publicized.[19] Second, the government must implement performance-based contracts that tie compensation to actual results.[20] Finally, the government should maximize the efficiency gains from privatization and minimize opportunities for capture by institutionalizing competition between public correctional departments and private prison firms and making contract monitoring independent of both the public and the private sectors.[21]
Critics have argued that statutes authorizing private prisons unconstitutionally delegate core government functions to private parties.[22] This contention has never been tested in court, but such arguments seem dubious given the uneven history of the nondelegation doctrine and the Supreme Court’s recent decision in American Trucking Ass’ns v. Whitman.[23] True, private prison officials “determine when infractions occur, impose punishments and . . . make recommendations to parole boards,”[24] but as long as they implement well-defined correctional policy with sufficient oversight, this delegation seems unobjectionable on federal constitutional grounds.
One modern-day objection to private prisons stems from opposition to corrections and criminal policy generally: if the problem is the incarceration of too many people, making prisons cheaper or more efficient is a false solution and may exacerbate the problem.[25] Another objection is the “expressivist” critique “that to turn over responsibility for administering prisons and jails to private, for-profit companies at some level compromises the legitimacy of the state’s exercise of its authority to punish.”[26] This Part takes a frankly consequentialist view of private prisons and this does not address these critiques. Private prisons might be inherently problematic under some moral theories and acceptable under others (both consequentialist and deontological),[27] but space constraints preclude engaging this debate.
What about the specter of corruption? Industry lobbies government, and regulatory agencies can be captured by the entities they regulate; the private prison industry is no different.[28] Not only may private prison companies lobby for preferential treatment, they may also, as entities that directly profit from incarceration, influence substantive criminal legislation by supporting tough-on-crime candidates, scaring the public about crime, and advocating tougher sentencing.[29] The story is plausible,[30] but it does not explain current levels of prison privatization or modern-day demand for more and cheaper prisons because the forces leading to the explosive growth of the prison population substantially predate the modern growth of the private prison industry.[31]
Moreover, though private prison companies do lobby state and federal governments, so do prison guard unions, which also benefit from increased incarceration rates and prison construction.[32] Prison guard unions generally
contribute vastly more money to politicians than do private prison companies.[33] The
Quite apart from whether political influence
peddling distorts criminal policy, does such peddling weaken the case for privatization? Not necessarily, particularly when one considers different
kinds of influence peddling: corruption
and patronage. If a politician is corrupt and uses his power to extract money from the contractor, then privatization is likely to be inferior to public provision. Conversely, if a politician
is involved in patronage and uses his power to pursue other political objectives, like serving politically powerful interest groups such as public employees’
unions, private provision
is preferable.[35]
1. Obstacles to Effective Assessment. — Effectively evaluating prisons requires specifying goals and objectives, developing measures and indicators, and collecting comparison group data. Unfortunately, the political process does not value rigorous evaluation highly.[36] Some states require only cost evaluation;[37] only a handful require comparisons of both cost and quality, often to comply with statutory targets.[38] Some neglect evaluation altogether. What monitoring data exist are often inadequate for outcome evaluation.[39]
As if that were not enough, “cost” and “quality” are not clearly defined. Public agencies and private firms measure costs differently. Public prison budgets usually exclude various central administrative and support expenses,
such as medical, legal, and personnel administration services, which other state agencies typically handle. Private budgets include these costs but do not include the government’s costs of preparing
and monitoring contracts.[40] As for quality, definitions differ across studies, and quality is difficult
to compare in any case. If one facility has fewer assaults but more escapes than another, is it better or worse?
Few studies are rigorous.[41] Even reasonably good studies leave much to be desired. No study seriously controls for many important factors that influence misconduct rates, such as staff-to-inmate ratios, custody technology, correctional policies, or age and race of inmates.[42]
Furthermore, comparative studies do not adequately address serious overcrowding problems.[43] Overcrowding, which may increase inmate violence and the incidence of infectious and stress-related diseases,[44] thereby contributing to unconstitutional conditions,[45] is a serious problem in prisons and jails. Less expensive prisons allow for more capacity because the same prison budget can build more prisons, and increased capacity can relieve overcrowding. (Of course, cheaper prisons do not guarantee greater capacity, and greater capacity does not guarantee decreased crowding; still, it is reasonable to expect that cheaper prisons will not exacerbate crowding.) Thus, to the extent that private prisons decrease costs,[46] privatization can improve conditions in both public and private prisons. Comparative studies between private and public prisons at a specific moment in time cannot register this across-the-board quality increase.
Finally, most studies do not analyze both cost and quality and thus are of limited value in assessing private prisons. Studies that do not look at both elements simultaneously cannot begin to analyze the costs and benefits of private prisons.[47]
2. Evidence from the Studies. — Studies that look at cost or quality alone do, however, provide some information. The most rigorous studies[48] find clearly positive cost savings.[49] On the quality side, comparisons are trickier, as there is no single metric representing quality. But none of the more rigorous studies[50] finds quality at private prisons lower than quality at public prisons on average, and most find private prisons outscoring public prisons on most quality indicators.[51] Most of these quality studies do not examine cost, but as