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August 20, 2016

Notable academic pitch: "Don’t end federal private prisons"

Sasha Volokh has this interesting lengthy commentary explaining his negative response to the announcement this past week (discussed here) that the Justice Department plans to end its use of private prisons. I recommend the full piece (with all its links) for anyone interested in a serious understanding of modern prison policies and practices. Here is how it gets started:

Yesterday, the DOJ announced that it would gradually end its use of private prisons.  You can read the memo by Deputy AG Sally Yates here.  She writes: “I am directing that, as each contract [with a private prison corporation] reaches the end of its term, the Bureau [of Prisons] should either decline to renew that contract or substantially reduce its scope in a manner consistent with the law and the overall decline of the Bureau’s inmate population.”

Why?  The Yates memo says: “Private prisons . . . compare poorly to our own Bureau facilities. They 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 Inspector 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.”

This is unfortunate, for two reasons.

First, Yates seems to be exaggerating what empirical studies tell us about private vs. public prison comparisons.  They do save money (though how much is a matter of dispute).  And they don’t clearly provide worse quality; in fact, the best empirical studies don’t give a strong edge to either sector.  The best we can say about public vs. private prison comparisons is a cautious “We don’t really know, but the quality differences are probably pretty minor and don’t strongly cut in either direction.”  The Inspector General’s report doesn’t give us strong reason to question that result.

Second, even if all the bad things people say about private prisons were true, why not pursue a “Mend it, don’t end it” strategy?  there’s a new trend in corrections to develop good performance measures and make payments contingent on those performance measures.  If the private sector hasn’t performed spectacularly on quality dimensions to date, it’s because good correctional quality hasn’t been strongly incentivized so far.  But the advent of performance-based contracting has the potential to open up new vistas of quality improvements — and the federal system, if it abandons contracting, may miss out on these quality improvements.

Just some (of many) prior posts about private prisons:

August 20, 2016 at 12:01 PM | Permalink


I'll give an anecdote as to why I am against private prisons. In Winton, North Carolina there is a private prison facility called Rivers Correctional Institution. It is run by GEO Group. In or about 2007-08, a putative class action (Bivens claims + state law claims) was filed against the prison in federal court by the inmates represented by a big Washington DC firm. The court dismissed the suit because under 4th circuit precedent, as private employees, they were private actors and no plausible Bivens claim. The claims were re-filed in state court but due due North Carolina's local rules ( Rule 9(j)), before filing a negligence or medical malpractice claim each individual plaintiff must be examined by an independent physician (impossible in a prison setting). In the end, the suit went no where.

If this was a BOP facility, this would not have happened. The claims were horrendous: (1) inmate beatings leading to a loss of an eye by one inmate, (2) withholding HIV medication, (3) malpractice in a prostrate cancer case, and (4) leaving certain disabled inmates to live in their own feces....It was simply disgusting.

Posted by: Ex-Economist | Aug 20, 2016 2:32:11 PM

The first comment is a major concern. The solution there might be to change the law to ensure that even if it is a "private prison" that it would be a public matter for the purposes of liability. One or more comments at the link at Volokh Conspiracy (I read the author's arguments there in the past) argues that this basally should be a matter for the public. Though I'm unsure if this should be taken to the extreme (I gather some sort of punishment, including a half-way home etc. will be run by private hands at some point without it being by definition illegitimate or a bad idea), I lean that way. Private prisons, including the profit motive involved, are troubling. But, it's not something I studied enough to say one way or the other. OTOH, liability issues like the first comment offers does provide a strong warning.

Posted by: Joe | Aug 20, 2016 3:47:53 PM

There is something disturbing about approaching incarceration with a profit motive. The incentives it could promote (see Philadelphia juvenile judge) are scary and about as immoral as they come. Prisons are a necessary evil and should be viewed as a societal cost, a penalty for failure if you will. Reducing prison costs is a legitimate goal, but the first order of business in a civilized society is reducing the number of prisoners, not the cost at which they can be incarcerated.

I'm all for privatizing government function, where feasible, but like the military, prisons are an intrinsic government function.

Posted by: Fat Bastard | Aug 21, 2016 1:00:15 AM

I'm all for reducing the number of prisoners as well. My preferred method of dealing with them also happens to ensure a very low recidivism rate.

Posted by: Soronel Haetir | Aug 21, 2016 2:06:38 AM

Would the matter ever arise in some sort of non-profit realm?

Consider some sort of group who has a beneficial purpose of handling a certain type of prisoner, realizing they will be incarcerated but wishing to do so in the best way possible. Perhaps, they wish to use a novel or experimental system of incarceration that reflects that (to cite a recent article) that in certain European countries.

They are "private" but are not doing it for profit. If it was legal, I can also imagine prisons run by religious institutions or the like. They too would not be in it for the money and it could be non-profit.

Posted by: Joe | Aug 21, 2016 10:10:42 AM

Why not ask and get input of the prisoners about their experiences?

Posted by: LC in Texas | Aug 21, 2016 11:37:39 AM

And the study by DOJ's IG does not address at all the use of private prisons for pretrial detainees, which are contracted by the U.S. Marshals Service. In Puerto Rico, although we have a federal detention center, MDC-Guaynabo, our pretrial detainees are regularly removed after about one month following arrest to a GEO facility in Lovejoy, GA. We do have capacity to video teleconference, but it is very difficult to maintain rapport with a client through this mean.

Posted by: Tom Lincoln | Aug 21, 2016 12:46:11 PM

CCA has a long history of civil rights violations and actions, that if dealt with honestly by the state entities that contract with them, would amount to cruel and unusual punishment. All you have to do is google "Lawsuits against CCA" and you'll find a plethora of suits where horrendous acts of callous indifference to inmate welfare are set forth. I say end all privatized corrections at every level and then make these sorry pieces of human trash live in the same conditions and be treated the exact same way they treated the inmates in their custody for at least a good 15 calendar year period so they can see what it's like not to get effective medical care. Maybe in 15 years they'd contract diseases and develop other life-threatening health issues. Then they could be sent back to their cells with maybe a motrin or two. Let them see what it's like to suffer calloused medical neglect all in the name of saving a dime. I wish nothing but utter ruin to all who work for, support, or profit from any privatized corrections entity.

Also, look at the PA judges sentenced to prison for selling kids to private juvenile facilities. Corruption is rampant in the private prison industry.

Posted by: Will Crump | Aug 21, 2016 6:08:45 PM

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