Private Prisons In America

Private Prisons

Renda B Walker

Appalachian State University

Private prisons are not a new occurrence in America. The first jails and prisons in the country were all private entities run for profit. They were not concerned with operating as an institution, but only as a business model, charging the government and prisoners’ families for their keep (Ogle, 1999). The commercial model of using prisoners as free labor and making profits from punishment began around 1825 with prisoner lease programs where prisoners were leased out to business as workers (Jing, 2010). These programs didn’t end until 1940 with the Summers-Amhurst Act (Jing, 2010). The early private prisons failed either because they lost legitimacy due to corruption and abuse,

or they were unable to sustain an economic profit (Ogle, 1999).
When society’s concerns over the treatment of prisoners brought about legislation that ended private corrections, the government took over the responsibility of punishment until the modern idea of private prisons came about in the 1980’s (Jing, 2010). The Percy Amendment, passed in 1979, opened the door to the private prison industry as it is known today (Price & Riccucci, 2005). Texas was the first state to implement private corrections, opening the first private prison in 1983 (Price & Riccucci, 2005). Modern private prisons are funded by the government, unlike the earlier institutions which were funded through inmate labor (Jing, 2010).
The same trends that created private prisons in the 1800’s are also responsible for the growth of private prisons currently, namely, a surge in the number of prisoners and cash strapped states. Jing (2010) contends that the prison population has grown by 577% in the years 1970 until 2000; others note a 700% increase in prisoners in the past 30 years (Price & Riccucci, 2005). Needing a place for so many prisoners, many states looked to the private sector to house their overflow of inmates. As of 2001, Texas had 42 private prisons, Alabama had 22, and Florida, Oklahoma and New Mexico were utilizing 8 private facilities each (Price & Riccucci, 2005). Not only are states contracting out to private prisons, but the federal government also deals with privately contracted prisons with 12.6% of federal inmates being held in private facilities compared to 5.7% of state prisoners (Jing, 2010).
With the nation’s prison population growing and the need to house these inmates, state governments and the federal prison system have been forced to turn to the private sector for help. Citizens do not want to pay higher taxes to build new prisons (Price & Riccucci, 2005), and many feel that privatization would be more effective and efficient. The instrumental objectives of private prisons are to reduce overcrowding, acquire beds quickly, have operational flexibility, cost savings, and lower construction costs (Jing, 2010). The flexibility private contractors have, enable them to build prisons of higher quality with less resources compared to governments that have more regulations and are hamstrung by bureaucracy (Lukemeyer & McCorkle, 2006).
The economic reasons for prison privatization are often the most touted. Proponents conclude that the private sector can 1) build prisons more quickly and cheaply to alleviate overcrowding, thus saving money through cost effectiveness; 2) private prisons are able to operate more effectively and efficiently than the government and still make a profit; 3) a competitive market ensures that private prisons keep costs low and provide higher quality services than public prisons (Ogle, 1999). As noted earlier, private contractors are able to build prisons more cost effective than public entities because state governments are often restricted by labor unions and strict purchasing guidelines with other state agencies that the private sector is not bound by (Price & Riccucci, 2005).
The idea that private prisons can operate more effectively and efficiently than public prisons is somewhat controversial. Jing (2010) contends that with over half of a prison’s budget going to salaries and wages (65%), one way private prisons cut costs is by paying their correctional officers less. On average, private correctional officers only make 59% of what public correctional officers make. However, states with a higher per inmate operating cost do see significant savings in privatization over those states with lower per inmate operating cost. These operating cost vary from state to state with Maine having the highest cost per inmate at $44,379 per year, to the lowest cost of $8,128 in Alabama (Jing, 2010).
The belief that private prisons operate in a competitive market environment, and therefore have incentives to keep costs low, while still providing a higher quality of service than government run prisons, may be a misnomer since there is really not a competitive market environment. There are only 14 private firms managing private prisons, and of these 14 firms, Corrections Corporation of America (CCA) and Wackenhut Correctional Corporation (WCA) hold 75% of the contracts (Jing, 2010). Jing (2010) emphasizes that there is a lack of choice for “customers” or inmates in where they serve their sentences, enabling private prisons to offer fewer or inferior services than their public counterpart. To be truly successful, a private prison must be able to balance their profitability with their integrity as an institution (Dunham, 1986).
Politics have become another reason to privatize prisons.

According to Jing (2010) conservatives see it as conducive to smaller government and a way to break unionization. Conservative social control in the legislatures has contributed to the overcrowding of prisons with laws that are “tough on crime”. The three strike laws and truth in sentencing statutes have caused a decline in prisoner releases and increased the time inmates are serving. Prison privatization allows states to expand social control by easing the overcrowding and financial strain of so many prisoners in the system (Jing, 2010).

The opposite of conservatism, neoliberalism, also contributes to prison privatization. Neoliberalism encourages minimal bureaucracy and government control and seeks to create an integrated market for correctional labor. This philosophy perceives private prisons as operating more efficiently and for less cost by incapacitating correctional unions (Jing, 2010). It is important to note, that although conservative ideology promotes prison privatization, Democratic controlled states have also been forced to privatize because of prison overcrowding and fiscal constraints (Price & Riccucci,

2005).
The American judicial system has added to prison privatization in modern times. The courts often use incarceration as the first choice of punishment, even for minor offenses, in the war on drugs sending more people to prison and compounding the overpopulation dilemma (Price & Riccucci, 2005). Courts then rule that the overcrowded prisons are a violation to inmates’ rights and order a solution to congested prisons. These orders favor private prisons because they can be built more quickly and with less bureaucracy than public prisons (Jing, 2010).
There are several concerns with the privatization of prisons.

One of these apprehensions is the personnel hired in private prisons. There is fear that they are not hiring adequately credentialed staff and that the staff may not be properly trained to operate at the correct security level, or the significant turnover rate of staff prevents correction officers from gaining expertise in their field (Gran & William, 2007-8). Some experts contend that the only way private prisons can operate for less cost than public prisons is to hire fewer staff, pay lower wages, and reduce staff training (Dunham, 1986). Jing (2010) also notes that private correctional officers are paid on average 59% less than their public counterparts, have less training, and a higher turnover rate. With private contractors having a financial interest in parole release proceedings, there is also a risk that staff members will supply parole boards with biased or misleading information in order to keep their facility populated at capacity (Dunham,

1986).
There is a fear that inmates’ Constitutional rights maybe violated while in private prisons. Although they are incarcerated, prisoners are still protected under the Constitution. The Eighth Amendment protects them from cruel and unusual punishment, while the Fifth and Fourteenth Amendments guarantee them due process. Adequate security, medical care and educational opportunities are considered necessary in the correctional setting and private institutions must provide these while balancing economical management (Dunham, 1986). Dunham (1986) considers private prison officials as constitutionally unqualified to conduct good-time forfeiture hearings and violate prisoners’ due process rights as they have an economic interest in maintaining prisoners.
The legitimacy issue of punishing people for profit is probably the most pressing issue in the private prison debate. Authors agree that with private prisons receiving a monetary per diem fee per prisoner, it encourages these entities to lobby for policies on mandatory minimum sentencing in order to keep the prison industry growing (Lukemeyer & McCorkle, 2006) (Price & Riccucci, 2005). Others feel that prisons should not be privatized because of their ideological significance and the belief that punishment and detention should be a power reserved for the state (Ogle, 1999) (Dunham, 1986).
In order for a private prison to have legitimacy it must first operate effectively as an institution, but for it to survive, it must also thrive in a competitive market environment (Ogle, 1999). Private prisons must operate in these two opposing environments in which the actions it takes to survive in one, violates the obligations of the other. In the organizational behavior theory, organizations are seen as open systems that are active and interactively engaged in their external environments in order to survive and thrive. Private prisons must operate in both a technical environment, where they produce a product or service and are then rewarded for their effective and efficient performance; but they must also operate in the institutional environment, where there are no tangible rewards, and where they are judged by their use of correct structures and processes according to societal beliefs (Scott, 1992) as cited by Ogle (1999). Thus for an entity to function in an institutional environment, it must operate by doing what society has predetermined to be its set goals, in the way that society has deemed appropriate, regardless of the outcome and cost effectiveness. Public prisons have obtained legitimacy over time because of the belief that prisons should both rehabilitate and serve retribution on prisoners, but with the expectation of humanness and fairness. Prisons are not judged on the technical outcomes of whether offenders are changed or on a reduced crime rate (Ogle, 1999).
Oliver (1991), as cited by Ogle (1999) contends that organizations manage these conflicting environmental constraints and increase the likelihood of their survival in five ways. The first is acquiescence, which means they comply with the constraints and are passive. This method is not likely to be used by the private prison industry. The second method is compromise which private prisons tend to use by hiring inferior personnel and paying them lower wages. Next would be through avoidance, where they put off or postpone hiring the professionals as required in order to avoid paying the higher salary. The fourth method is defiance, where the institution simply ignores its contractual obligations. With private prisons often operating outside of public scrutiny, with their performance only reviewed once every three years, or at most, twice a year, the fulfillment of their obligations is not assured (Dunham, 1986). Finally, in order to ensure their survival, private corrections can use manipulation. This is done by lobbying for legislative changes to increase the use of incarceration, or lower ideological expectations and offenders’ rights, these institutions gain more control over their environment and less restrictions (Ogle, 1999).
Private prisons must be held accountable to the taxpayers, who are ultimately paying for the services, local residents who live in the communities these prisons are located in, and the inmates themselves in fair and humane treatment (Gran & William, 2007-8). It is difficult to hold private prisons accountable to the public when their records are not made public, and administrators are not appointed by government officials and are impeachable. The local residents must be safe guarded from the inmates, but at the same time, they may come to rely on the prison for jobs and tax revenue. However, a private firm may decide not to renew their contract and close the prison without regard to the impact on the community. Prisons held by private interests profit from keeping inmates incarcerated for as long as possible and fairness to the prisoners must also be maintained. The question remains whether private prisons can ensure safety and integrity to the inmates, local citizens, and taxpayers while maximizing profits (Gran & William, 2007-8).
By using contracts, states hope to hold private prisons accountable and give protection to social groups who are disadvantaged by contracting out, and ensure that the prisons promote justice. Contracts are used in the formation of the prison, which includes the actual building of the prison and ensuring that it will securely contain the inmates as well as safeguarding the prisoners’ wellbeing. They also hold the firm accountable in hiring qualified staff and maintaining order in the facility. Contracts are also used in the day to day operations of the prison and ensuring that maintenance issues are covered, but most importantly, they are used to hold private prisons accountable in liability issues when things go wrong. Using contracts to hold private institutions constitutionally accountable, and require them to operate like the government is referred to as publicization (Gran & William, 2007-8).
Courts have determined that private, non-state actors may be held accountable, just as the states are under certain circumstances. The public function doctrine states that a state cannot free itself from constitutional limitations in the operation of its traditional functions by delegating those responsibilities to the private sector. Thus, when a private entity assumes the role of the state in performing a public function, like corrections, they become subject to the same limitations (Dunham, 1986).
Using the nexus test, courts attempt to identify points of contact between private contractors and the state which allows them to impose constitutional limitations on the private enterprise. Thus prisoners are protected in the private prison, just as they would be in a state facility, and if he were to be injured, could hold both the prison and the state accountable (Dunham, 1986). Under these circumstances, the state retains legal liability and can still be legally responsible for the actions of a service provider over which they have little control (Ogle, 1999).
There are safeguards that can be implemented to hold private prisons accountable and ensure they are constitutionally compliant. Dunham (1986) lists four ways that states can ensure that private institutions are complying: 1) operating contracts that clearly define services to be provided; 2) regular and frequent inspections; 3) establishment of grievance procedures for inmate complaints; 4) having performance incentives and penalty clauses in wardens’ contracts. Ogle (1999) contends that any savings a state expects to see in using private prisons, will be lost by the cost of monitoring them to ensure they are following the regulations set forth in their contracts or in settling lawsuits for violations.
Despite all of the concerns presented, most indicators show that the majority of private prisons out performed state run facilities. While the most touted reason to privatize has been economic reasons, studies have been inconclusive on whether private prisons really are more economical that state run institutions. Most researchers agree that it is nearly impossible to make a true comparison between the two as there are so many varying factors such as jurisdiction, security level, age and design of buildings, or even what expenses are included in the reports as states and private businesses account expenditures differently. The studies that have been done show only marginal differences in the cost of private and public facilities although private companies do have more incentive to innovate and cut costs (Lukemeyer & McCorkle, 2006).
Although it has been discussed that private prisons pay their staff less than public corrections, staff in private prisons seem more enthusiastic and interested in their work with the inmates and had higher morale state staff. This may be due to the fact that the employees had more responsibilities and felt that decisions were made more quickly and with more flexibility than in government run institutions. They were also more aware that their advancement depended on their performance rather than on bureaucratic decisions. Staff in the private intuitions tend to be younger with less experience, but researchers found that “youthful enthusiasm beats job burnout” in job satisfaction and performance (Lukemeyer & McCorkle, 2006).
Violence is another key area to compare between public and private prisons. With private prisons being smaller and less crowded than state and federal prisons, one would expect lower numbers of violent incidences in the private prison. Private prisons did have fewer assaults than state prisons for the most part, and had about the same number of assaults as federal prisons. There were exceptions to this, and while most private prisons were able to avoid violence, those that reported violence had about the same number of incidents as state run prisons, but many more assaults than federal prisons reported. The private prisons reported more inmate on inmate violence, but less assaults on staff by inmates than state institutions. One reason for this may be that private institutions on average have a higher staff to inmate ratio than state run prisons. While federal prisons average 15 staff per 100 inmates, state institutions have about 25.6, and private prisons have approximately 21 staff members per 100 inmates. It should also be noted that private prisons can choose which inmates they will house. This process called “creaming” allows them to take the “cream of the crop” of inmates and choose the ones without violent tendencies (Lukemeyer & McCorkle, 2006).

References
Dunham, D. (1986, November). Inmates' rights and the privatization of prisons. Columbia Law Review, 86(7), 1475-1504. doi:198.86.8.2
Gran, B., & William, H. (2007-8). Holding private prisons accountable: A socio-legal analysis of "contracting out" prisons. Social Justice, 34(3-4), 173-94.
Jing, Y. (2010). Prison privatization: A perspective on core governmental functions. Crime Law Social Change, 263-78. doi:10.1007/s10611-010-9254-5
Lukemeyer, A., & McCorkle, R. (2006, June). Privatization of prisons: Impact on prison conditions. American Review of Public Administration, 36(2), 189-206. doi:10.1177/0275074005281352
Ogle, R. (1999, September). Prison privatization: An environmental catch-22. Justice Quarterly, 16(3), 579-600.
Price, B., & Riccucci, N. (2005). Exploring the determinatnats of decisions to privatize state prisons. The American Review of Public Administration, 35, 223-35. doi:10.1177/0275074005277174