Health Care Problems in Prisons Won’t Go Away If Government Stops Using Private Providers
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Commentary

Health Care Problems in Prisons Won’t Go Away If Government Stops Using Private Providers

The problems and difficulties of administering health care services to over two million inmates in U.S. jails and prisons.

An article in the most recent edition of The New Yorker sheds a great deal of much-needed light onto the problems and difficulties of administering health care services to over two million inmates in U.S. jails and prisons.

In addition to identifying many key problems in providing health care for incarcerated individuals—such as the inappropriateness of the prison environment for overcoming the addictions with which many inmates struggle, and the difficulty of deciding when outside hospitals must be relied upon to provide care—the author and his supporting researchers go to great lengths to present varying viewpoints over many issues surrounding prison health care administration.

While largely informative and tone-neutral, the piece suffers from a few blind spots that lead it to unfounded conclusions over prison health care services and of prison facilities themselves.

As the article notes, American prisons are typically filled with sick people, both mentally and physically, in environments conducive for spreading contagion. Decisions made over care are many, and mostly, routine. As in the health care system outside of prisons, however, mistakes and accidents are made—and sometimes with tragic consequences.

Public and private health care providers face the same incentives in providing care. In many cases, private providers of health care in prisons, unlike their public counterparts, operate under contracts that penalize for failing to meet standards of performance.

While The New Yorker article presents a variety of viewpoints and avoids taking a direct stance against all private contracting of prison health care and of operating prisons, some information is presented in contexts that are likely to lead readers to mistaken conclusions about contracting. For example, the article’s treatment of lawsuits, which provides data about two private health providers without any additional context for comparison. Lawsuits related to health care are common, both in prisons and outside of them. Naturally, inmates having the legal means to fight for rights and present legal challenges are important mechanisms to help remedy wrongs in prison health care. While bureaus of correction still typically share some sort of liability when they contract out health care, when contracting is banned the corrections bureaus must assume all such risk. Having the ability to transfer risks (and to choose between providers public and private) are vital advantages lawmakers and agency heads should not dismiss.

Given the legal exposure of health care providers (in prisons and outside of them), a careful reader should also ask for additional contexts for figures provided in the article. A couple of the larger private providers did get sued in excess of 1,500 times over a five-year period, but no context is provided to show that the figures are out-of-the-ordinary for prison health care providers.

Typically implicit in the contracting out of services by a government agency is an admission by the agency that private providers can do a better job of providing a service than the government could provide with the same resources. The question of whether any improvement in the quality of service would come from ending private contracting and moving operations in-house is an open one.

In the article, the American Civil Liberties Union’s David Fathi, said, “I don’t mean to suggest that government-run prison health care is perfect. It’s often appallingly deficient. But, at least when a government is providing the service, there is some measure of oversight. There is some measure of democratic control.” 

He’s right to note the deficiencies of government- and privately-run health care operations. But trying to suggest there is a difference in democratic control or oversight is incorrect. In fact, decisions over prison health care providers are administered by contracts and one of the most beneficial aspects of privately-run health care providers should be those contracts. If our leaders and citizens want corrections health care providers to deliver specific services, meet a set of quality of care standards and deliver on other metrics, the most effective way to make that happen is to build them into the contract. To make a meaningful assessment of prospective providers, officials must examine contracts themselves for cost, risk management, and accountability measures on their own merits.

In terms of accountability, what can hold a private prison provider more accountable than making them liable for a parolee’s behavior post-release? Private prison operators have targeted recidivism specifically, going so far as to enter contracts tying their performance to reduced recidivism in Australia and New Zealand. Pennsylvania has entered contracts with similar provisions for its community corrections (“halfway house”) system. The need for accountability in corrections is a universal stance among criminal justice reform advocates.

Extending the article’s suggestion that public agencies are good and private companies are bad from just health care to the full operation of prisons, it goes on to praise then-Deputy Attorney General Sally Yates’ response to a 2016 Inspector General report (IG report) regarding private prison operation in the federal Bureau of Prisons (BOP). Yates said:

“[Privately-operated prisons] simply do not provide the same level of correctional services, programs, and resources; they do not save substantially on costs; and as noted in a recent report by the Department’s Office of lnspector General, they do not maintain the same level of safety and security. The rehabilitative services that the Bureau provides, such as educational programs and job training, have proved difficult to replicate and outsource—and these services are essential to reducing recidivism and improving public safety.”

As I stated in a 2017 paper, Yates’ comments concerning the IG report do not support the contents of the report itself. Indeed, the then-acting director of the BOP responded to the report by urging people not to compare apples to oranges: “(W)e continue to caution against drawing comparisons of contract prisons to BOP-operated facilities as the different nature of the inmate populations and programs offered in each facility limit such comparisons.”

Criminal justice reform advocates agree on the need for dramatic improvements in prison health care services. There’s also widespread agreement that the system must improve in ways that increase the likelihood of parolees successfully re-entering society and life outside of prison. Public-private partnerships have already been responsible for some reforms. Denying private entities any role to work toward those ends will not bring reforms more quickly. In fact, by shielding public entities from competition, it would be more likely to delay them.

Austill Stuart is a policy analyst at Reason Foundation, a non-profit think tank advancing free minds and free markets.