Responding to Critiques of Correctional Privatization

Recent Reason Foundation articles examine different aspects of the debate

One of the more contentious areas of privatization policy debate involves competitive contracting in corrections, including the operations and management of prisons themselves, as well as specific support services like correctional healthcare. Four recent Reason Foundation articles examine different aspects of the debate and find that the related issues are often much more nuanced than they may first appear.

First, I recently authored a critique of two articles posted as part of the Palm Beach Post‘s month-long series exploring the private prison industry in Florida. As I wrote, I found these articles to be “the latest in a long line of one-sided journalism that does a disservice to substantive policy discourse.” More specifically, I write that the Post failed to provide a balanced view on two key issues related to prison privatization-cost savings and quality/safety-as I explain further in the article. In essence, it never ceases to amaze me when I see overly reductionist journalism that effectively demonizes the private sector-which houses roughly eight percent of the federal and state prison population-while failing to account for the public sector responsible for housing the other 92 percent of the prison population.

Second, in late September I authored an article responding to a report by the advocacy group In the Public Interest that examine the use of prison bed occupancy guarantee clauses in some private prison contracts, arguing that such provisions impose a hidden “low-crime tax” on governments and undermine the prospects for criminal justice reform. I disagree, finding that the report mischaracterizes the subject and fails to provide important context on an inherently nuanced issue. I explain why public agencies may opt to use such contract provisions, noting that they are not inherently good or bad-rather, they’re a technical tool that may have value in certain situations.

Third, in his latest article on legal issues in privatization, Emory Law School associate professor Alexander Volokh examines philosophical objections to prison privatization as manifest in a 2009 Israeli Supreme Court ruling that struck down on constitutional grounds a statute allowing for private prisons. Volokh finds that the ruling relied heavily on conclusory assertions about public and private motives and purposes, and did not “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.”

Last, in a recent blog post, Reason colleague Sal Rodriguez examined the need for further reforms in California’s correctional healthcare system, which after eight years of federal receivership and billions in spending has yet to achieve a constitutionally acceptable level of care. Rodriguez cites reports by The Pew Charitable Trusts and the state’s independent Legislative Analyst’s Office that make the case for contracting out-either to universities or, for more potential savings, for-profit correctional healthcare firms-some or all of the state’s prison healthcare to better control costs and improve services delivered. While there are certainly critics that believe that prison healthcare delivery should be considered an inherently governmental function and shielded from the profit motive, California provides a real world, albeit extreme, example of how government monopolies protected from competition can achieve total failure, with spiraling costs and inadequate services. Public-private partnerships “have been successfully utilized in controlling costs and streamlining stagnant correctional health systems across the country,” according to Rodriguez, including a number of California county government jail systems.

Overall, it is my hope that the above articles present some balance on the contentious issue of prison privatization, as I find the issue to be emotionally charged and prone to hyperbole. I disagree, however, with those who believe there’s no role for competitive contracting in corrections. Like any privatization, it can be done well or done poorly, but if undertaken with due diligence, performance-based contracting and rigorous oversight, then correctional privatization can be a powerful tool for lowering costs, improving accountability and getting better outcomes in service delivery.

Leonard Gilroy is director of government reform at Reason Foundation and is the editor of the Privatization & Government Reform Newsletter, available here.