"Private Prisons, Public Functions, and the Meaning Punishment"

The title of this post is the title of this new article by Mary Sigler now available on SSRN. Here is the abstract:

As the prison population in the United States soars, states and the federal government have come to rely increasingly on private prisons.  In 2007, private detention facilities housed more than seven percent of incarcerated adults in federal and state prisons.  The primary impetus for the private-prison boom of the 1980s was the belief that for-profit corporations could deliver correctional services more efficiently than could the state.  One recent study found that private prisons may reduce the cost of housing inmates by as much as fifteen percent.

Some critics have questioned the validity of these findings; others contend that if private prisons achieve any cost savings, they come at the expense of inmate well-being.  That is, in order to turn a profit, private prison operators skimp on personnel training and staffing; offer only minimal educational programming and vocational training; and save space by housing inmates in cramped quarters.  In addition, public accountability for prison conditions is undermined to the extent that public officials must rely on reports of abuse and mistreatment from within the private prisons themselves.  Finally, the profit motive creates perverse incentives to extend inmate sentences and promote criminal justice policies that yield more and longer prison sentences regardless of whether they are in the public interest.

While these important policy considerations may be reason enough to worry about the proliferation of private prisons around the world, this paper defends the position that an even more basic consideration concerns the nature and justification of legitimate punishment.  In a liberal democratic polity, punishment is an inherently public function.  It is inflicted for public wrongs in the name of the people themselves.  Outsourcing punishment to nonpublic agents thus represents the abdication of a core state responsibility.  Moreover, because retributive considerations dominate the public’s conception of criminal justice, punishment is meaningful not primarily as a means to an end.  Rather, punishment constitutes justice.  Delegation through privatization attenuates the meaning of punishment – for punisher and punished alike – treating justice as a mere commodity.  To be sure, state-run prisons routinely rely on private providers for food service, waste management, and even medical care.  But these services are commodities that have practical rather than social significance; what matters is that they are competently provided, not the identity of the provider.  Central to punishment, however, is the relationship between punisher and punished, for it transforms otherwise socially objectionable conduct – such as the deprivation of liberty – into a legitimate instrument of social control. Accordingly, the institution of punishment must be, and must be seen to be, the work of public agents.