Philosophical Objections to Prison Privatization

My new post, Philosophical Objections to Prison Privatization: Israeli Supreme Court strikes down privatization statute on “liberty” and “dignity” grounds, is up on the Reason Foundation website. Here’s an excerpt:

This month is the fourth anniversary of an important date in privatization history. On November 19, 2009, in Academic Center of Law and Business, Human Rights Division v. Minister of Finance, the Israeli Supreme Court struck down a statute passed by the Knesset (the Israeli parliament) allowing for private prisons.

This opinion is interesting for Americans for a number of reasons. First, it held private prisons unconstitutional based on the most general of constitutional provisions, the rights to “liberty” and “dignity,” and based on very high-level political theory—rather than predictions about how the different sectors might violate inmates’ rights, which one would expect in the U.S. constitutional tradition. Second, the decision is part of an emerging series of recent rulings by foreign courts on private delegations of coercive power (see my October 2013 post about a decision by the German constitutional court). Third, the Israeli Supreme Court enjoys substantial respect in comparative constitutional law circles worldwide, so there’s a possibility that similar reasoning will spread to other countries.

. . .

The Israeli opinion is interesting both for what it might portend in other countries and as an example of the sort of high-level political-theory reasoning about privatization that seems foreign to the U.S. constitutional tradition.

Prison litigation is important in the U.S., but always in terms of instrumental concerns like the constitutional rights of prisoners and the accountability of prison authorities. Private prisons are considered state actors in the U.S., so public and private prisoners have all the same constitutional rights. (Which isn’t to say they always have the same remedies: see my May 2013 Annual Privatization Report piece on the tort liability of federal private prisons.) Thus, one can always claim that prisoners are suffering cruel and unusual punishment as a result of bad prison conditions, or aren’t being afforded due process, or are being denied their First Amendment rights to freedom of speech or free exercise of religion; if conditions are worse at private prisons, then presumably private prisons will lose cases more often, but the public or private status of the prison typically doesn’t enter into the argument directly.

How different our approach is from that of the Israeli court, which explicitly held, based on the most brief and general text, that private purposes and social meaning made prison privatization invalid, regardless of the effect on inmates. Though a philosophical discussion of the legitimacy of the privatization of force is always welcome, the Israeli court’s approach relies heavily on conclusory assertions about public and private motives and purposes. The court doesn’t seriously consider the deep similarity between public and private employees, who after all are just people under a contract of some sort with the government, both agreeing to do the state’s bidding for money and neither necessarily sharing the public purposes that justify incarceration as a philosophical matter. The type of contract matters, but because different contracts have different incentives and lead to different actions, not because one kind is “the state acting” and the other kind isn’t. (I discuss the issue further here.) As a result, the court’s approach is interesting but ultimately disappointing.

You can read the whole thing here. This issue (and my take on it) will be familiar to those who have read my UC Davis L. Rev. article on Privatization and the Elusive Employee-Contractor Distinction, or who were around when I serial-blogged it earlier.

My previous Reason blog posts are available here, including my post on Contract Clause issues in public pension reform, the D.C. Circuit’s recent private delegation decision involving Amtrak, the Fourth Circuit’s recent antitrust ruling regarding the North Carolina Board of Dental Examiners, and the Supreme Court’s recent state-action antitrust immunity decision in FTC v. Phoebe Putney.

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