
                                                                  

                 PRIVATIZATION OF PRISONS: 
                       FAD OR FUTURE                           
                                                                  
                           By
 
                 Lt. David K. Burright
              Linn County Sheriff's Office
                       Albany, OR
                                          
                                                                  
     Very few people would dispute that this Nation's prison 
system is in serious trouble.  Corrections administrators are 
faced with grossly over-crowded conditions, shrinking revenues, 
and increased competition for operating capital.  These problems 
are combined with soaring crime rates, a public cry for more jail 
sentences and longer incarcerations of criminals, and a Federal 
judiciary which all too often imposes sanctions and restrictions 
in an effort to force needed change.                              

     It's no wonder that in response to these pressures, public 
officials are grasping for ideas and solutions to the prison 
problem.  One major idea continually being proposed is the 
private contracting and operation (privatization) of adult 
correctional facilities.                                          

     The concept of privatization fuels a very controversial and 
heated debate. Most arguments center on whether private 
contractors can truly provide a better service at a lower cost 
than public practitioners while still not sacrificing quality, 
i.e., physical security, inmate programs, and support.  An even 
more difficult issue involved in this controversy is whether 
corrections should either philosophically, ethically, or morally 
be turned over to private enterprise.  However, questions still 
remain.  Is privatization a panacea for the ills of corrections 
in the United States? Is it a fad or is it the future?            

BACKGROUND                                                        

     The concept of private operations of correctional 
facilities is not a new one. After the Civil War, many States 
entered into contracts with private businesses to operate State 
prisons.  The inmates, however, were used virtually as slaves, 
and the practice degenerated to ``...a well documented tale of 
inmate abuse and political corruption.'' (1)  By the late 1800's, 
the practice of complete operation of prisons by private vendors 
had been abolished and control was taken by the States and 
counties.                                                         

     Since then, public opinion and pressure have vacillated 
regarding the treatment of lawbreakers.  At times, public opinion 
has been one of ``reform,'' with the idea that criminals should 
be treated and not necessarily incarcerated.  This was evident in 
the 1960s and early 1970s when the building of new prisons and 
jails was very unpopular and thought unnecessary.  Many 
practitioners believe this is the one reason that there is such a 
shortage of jail/prison beds today.                               

     In the meantime, private businesses recognized a potential 
market and began offering specialty programs and began 
contracting for medical and food service and housing for 
low-security juveniles and illegal aliens being held for the 
Immigration and Naturalization Service (INS).  However, it was 
not until these private vendors began pressing for the 
opportunity to take over the complete management and operation of 
full-scale adult prisons and jails that opposition began to 
mount.  Even so, by 1987, three States had adopted legislation 
authorizing the private operation of the  State facilities, and  
a dozen more were actively considering it. (2)  Today, there are  
64 private companies in this business, and several States and 
counties have prisons being operated by these companies. (3)
         
ARGUMENTS--PRO                                                     

     BETTER PERFORMANCE
                                                
     The proponents of the private operation of prisons and jails 
offer a variety of arguments to support their position.  Many 
believe the government has not done a good job of management. 
``Costs have soared, prisoners are coming out worse off than when 
they went in, and while they are in they are kept in conditions 
that shock the conscience, if not the stomach.'' (4)  Because the 
work would be performed under a service contract, proponents say 
that vendors can be forced to perform or face termination of the 
contract.                                                         

     COST SAVINGS
                                                 
     Private vendors believe they can operate the facilities for 
a much lower cost, saving 10-25% of the Nation's corrections 
budget.  These savings are possible because the vendors are 
unencumbered by politics, bureaucracy, and civil service that 
influence public operations.                                      

     An additional incentive to economize is the competition from 
other private vendors.  Others claim that costs can be lowered by 
reducing employee turnover through better training, recruiting 
and supervision, and reduced use of overtime.                     

     EFFICIENCY
                                                        
     Many private vendors employ administrators who are highly 
experienced in corrections; in fact, a large number have served 
in the public sector. (5)  When facilities are transferred to the 
private sector, the public employees on staff are offered the  
opportunity to be hired by the private operators in most 
instances, thereby assuring trained, qualified employees are 
manning the prisons.  A private business could also contract with 
two adjoining States to house prisoners in a common facility, 
resulting in increased efficiency for both the public and the 
vendor.                                                           

     REDUCED CIVIL LIABILITY
                                      
     Some vendors have agreed to indemnify the government should 
lawsuits be filed against the facility.  As a means of further 
reducing the government's potential for liability, these 
operators consent through their contracts to run the facility in 
accordance with American Correction Association (ACA) standards.  

ARGUMENTS--CON                                                     

     REDUCED COSTS OR SERVICE?
                                    
     Opponents to privatization strongly question whether there 
will be any real savings by contracting out the operation of 
prisons and jails. (6)  They argue that cost cutting can only be at 
the expense of humane treatment or security measures.  Since the 
majority of operating costs center on personnel, especially in 
maximum security facilities, any significant reductions would 
have to be made in the daily costs of inmate care or in measures 
that would jeopardize the security of the facility.               

     Even though vendors point to lower inmate costs per day of 
the current privately run operations, opponents state that most 
of the private experience is with short-term minimum security 
facilities and special program operations (juvenile facilities, 
INS lock-ups, halfway houses, etc.).  Operating expenses for 
these facilities are much less than for a maximum security prison 
or jail, which requires additional staff, security measures, and 
inmate programs.                                                  

     Opponents also question whether the ``lower costs'' include 
the full cost of contract administration and management.  To 
ensure the vendor is complying with all contractual obligations, 
especially in a large multifacility operation, would require 
governmental monitoring and administration resulting in an 
additional level of bureaucracy. (7)
                                 
     UNCONTROLLABLE FUTURE COSTS
                                       
     Opponents fear that once private vendors take over facility 
operations and the government dismantles its organizational 
structure, it will significantly reduce the public's leverage on 
contracts negotiated in future years.  This reduced leverage and 
lack of alternatives could result in huge future costs.           

     The public must also be prepared to reassume control of the 
facilities on short notice should the contracting vendor be 
unable to fulfill its contract.  In this situation, unlike in the 
public sector, the government would not have the option of simply 
shutting down the operation, and the resultant problems and 
costs of regaining control would be staggering.                   

     LATERAL HIRING OF PERSONNEL
                                  
     Corrections administrators fear that the private sector will 
lure away the best, most experienced employees, making it even 
more difficult to manage the facilities remaining under 
government control.  Unless carefully monitored, the private 
vendor may also attempt to have low-security inmates assigned to 
their facilities, thereby leaving the high-risk, higher cost 
inmates to the government.                                        

     CIVIL LIABILITY
                                              
     Opponents to privatization argue that the government cannot 
contract away its civil liability as it relates to the proper 
management and operation of corrections facilities, and this 
position appears to be supported by the courts. (8)   Also, the 
mere fact that a contractor agrees to abide by ACA standards 
does not guarantee that a civil rights complaint will not be 
successfully litigated, as the courts have not recognized any set 
standard to be followed in these cases. (9)
                          
     With regard to indemnification, although promising in 
appearance, there has not yet been a court case to be able to 
judge the practicality of this.  In addition, opponents are 
concerned as to if and how vendors will be insured. Will they be 
able to financially survive in the face of a large settlement, 
and if not, who will bail them out?                               

     CONSTITUTIONAL/MORAL/ETHICAL ISSUES
                               
     Probably the most important of all arguments against 
privatization deals with the question of whether the government 
should delegate the authority for such a traditional and 
important governmental function as the deprivation of freedom to 
citizens (criminals).  Opponents say that corrections centers on 
issues at the very core of American government and that it has no 
business being in the hands of private enterprise.                

     For instance, absent any special legislation or 
deputization, private contractors have only the authority of a 
private citizen to arrest, use force in defense of themselves or 
others, and to carry firearms.  They have no special police 
powers or authority. (10)  This has tremendous implications when 
considering incarceration and the use of force to maintain 
control and security.    
                                         
     Another important constitutional issue deals with decisions 
affecting parole.  The American Civil Liberties Union's position 
on the issue is quite clear:                                      

     ``...we do see civil liberties implications in the 
        situation where private entities or persons can 
        affect or impact the length or duration of con-
        finement of a prisoner.  Plainly it is in the 
        interest of private entrepreneurs to increase the 
        number of prisoners in facilities because they are 
        paid by the head ... any decision which impacts 
        these numbers must be made by government officials 
        with no ties to a private contractor.  A concrete 
        example is in the disciplinary realm where jail or 
        prison officials are empowered to take away good 
        time or file adverse disciplinary reports which 
        will in turn affect parole release.'' (11)
                                                      
CONCLUSION                                                        

    The move toward the privatization of adult correctional 
facilities in America is more than a passing fad.  Private 
enterprise is showing a willingness to commit millions of dollars 
in an attempt to break into what it believes to be a very 
lucrative market.                                                 

     But, is it really the future?  On this, the ``jury is still 
out.''  Both sides present convincing arguments.  Proponents tout 
reduced costs and increased efficiency, while opponents ask if 
the savings are real and question the basic legitimacy of 
privatization.  The problem is that neither side has been able to 
conclusively prove its case.                                      

     The President's Commission on Privatization has recommended 
that ``proposals to contract for the administration of entire 
facilities at the federal, state, or local level ought to be 
seriously considered.'' (12)  Perhaps that's good advice, but the 
issue will have to be ultimately decided by the people within 
the affected jurisdictions and the courts.                        


FOOTNOTES

(1) John J. DiIulio, Jr., Private Prisons (Washington, DC:  
Government Printing Office, National Institute of Justice, 
1989), p. 3.                                                      

(2) Ibid., p. 1.                                               

(3) Telephone interview with Dean Moser, National Sheriffs' 
Association, Alexandria, VA, January 19, 1989.                    

(4) House of Representatives, 99th Congress, Hearings Before 
the Subcommittee on Courts, Civil Liberties, and the 
Administration of Justice of the Committee of the Judiciary, 
Privatization of Corrections, quoting statement of Ira P. 
Robbins, Concerning Privatization of Corrections (Washington, 
DC:  Government Printing Office, 1985), p. 6.                     

(5) Ibid., p. 38.                                               

(6) Opposition or concern has been voiced by the American Bar 
Association, American Civil Liberties Union, National Sheriff's 
Association, and various labor organizations.                     

(7) Corrections Corporation of America (CCA) includes the cost 
of 1 government monitor in the cost of their contracts.           

(8) Medina v. O'Neill, 589 F.Supp. 1028 (S.D. Texas, 1984), 
which held the INS responsible for constitutional violations 
against 16 illegal aliens who were held at the direction of the 
INS by a private contractor.                                      

(9) Bell v. Wolfish, 441 U.S. 520, 995 S.Ct. 1861, 60 L.Ed.2d 
447 (1979).                                                       

(10) Private Security Advisory Council, Scope of Legal 
Authority of Private Security Personnel (Washington, DC: 
Government Printing Office, Department of Justice, 1976), p. 1.  

(11) Supra note 4, quoting ACLU Position on Privatization of 
Prisons and Jails, p. 3.                                          

(12) Report of the President's Commission on Privatization 
(Washington, DC:  Government Printing Office), p. 150. 



