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August 7, 2010

"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.

August 7, 2010 at 08:54 AM | Permalink


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The objections are resolved when one accepts 1) the role of government is security; 2) only public safety should be the concern of the criminal law; 3) incapacitation and deterrence of the individual criminal serve public safety, and should the sole goals of the criminal law; 4) coerced rehab, therapy, even medications do not work anyway, the inmate must ask for these for them to help, so "no frills" is OK; 5)the government does nothing well due to partisan politics, so privatization is a good rebuttable presumption. If inmates want more services and privileges, they should be allowed to pay for or earn them.

As to the idea, we are having relationship between the government and the punished inmate, that is not a fact in nature. As an inmate, I am in a cage. it does not matter who is keeping me there.

Posted by: Supremacy Claus | Aug 7, 2010 2:39:09 PM

"As an inmate, I am in a cage. it does not matter who is keeping me there."

The same could be said for Jaycee Dugard - it matters a lot who kept her there.

Posted by: Gritsforbreakfast | Aug 7, 2010 8:40:24 PM

@SC: Those are some mighty big bites you're taking. I mean, IMHO any one of your five propositions standing by itself rouses the skeptic in me, but all of those taken by together seems to be a bit much. To be fair I do think there's a kernel of truth to them -- but just that (for example, while security is certainly one role of government, it is not the only role).

As for myself, I think there's a lot to be said for this article. Coincidentally I have recently studied the issue of corrections privatization in my state and beyond and, as far as the downsides go, I think that this very issue is one of the most significant of them (if not the most intangible).

Posted by: Guy | Aug 7, 2010 11:31:36 PM

Grits: Dugard is an example of government failure, I thought. Was the parole supervision outsourced, or something? Parole officers spoke to her during their visits!

Her $20 million dollar settlement brings another matter all together. As late as 2004, the Supreme Court held the police had no duty to the individual citizen. In that horrible case, the murder victim had a judge's protection order for the police to enforce, and they refused. The husband killed her. The duty of the police is to the entire town. This is a ridiculous, since the town is made up of individuals, who pay the police salary to protect them. Those multiple decisions have not been overturned, since the settlement came from the legislature, and not a court in a lawsuit.

Allowing for the way the law is now, I have a new lawsuit for a class action lawyer. Does the police have a duty to a neighborhood, smaller than a town, bigger than an individual? Does it have a second duty to not herd crime into a neighborhood, to maintain home prices elsewhere?

I think the police should be held to a professional standard of care. If they deviate from their own professed standards, and an individual is harmed by crime, and it can be shown, there were no intervening causes for the harm, the police should compensate the crime victim. Prof. Berman opposes torts as a solution to the problems of the criminal law. I believe in torts. I think he believes in torts for corporations, not for government. As stated before sovereign immunity has its origins in a belief, the King speaks with the voice of God (Henry of Bracton). This is a psychotic delusion, and not the firm basis for any policy.

Posted by: Supremacy Claus | Aug 8, 2010 1:19:54 AM

See interesting commentary on this subject here:


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