Changing the Guard: Private Prisons and the Control of Crime

Edited by Alexander Tabarrok, Foreward by Charles H. Logan
Oakland, CA: The Independent Institute, 2003.

Canadians often fit somewhere between American and western European opinion. We are perhaps less suspicious than Europe but less accepting than Americans of corporate power and less suspicious than Americans but less accepting than Europeans of state power. Post-Enron, it may also be true that policymakers now have a somewhat less benighted perspective on the state’s ability to steer after relinquishing its capacity to row. In Latin America, forced privatization under IMF structural adjustment programs has evacuated policy options, exacerbated income disparities, and engendered a powerful backlash against neoliberal globalization.

Another qualifying observation before commencing a review of the edited book, Changing the Guard: Private Prisons and the Control of Crime (edited by Alexander Tabarrok). At a time when even mass media news organizations are publicly acknowledging the bias behind the headlines and discounting the possibility of ideologically-free discourse, more and more think-tanks, both on the left and the right, are pumping out content in order to influence what remains of the decision-making purview of the polity and policymakers. With privatization generally and with the privatization of corrections specifically, public perception is informed too often and too powerfully by vested interests and ideologically-informed opinion. Difficult as it is to utter in postmodern times, the reason universities and university professors are still sometimes relied upon to help policymakers and the lay public to find a propitious course is because they may be more likely to offer a less interested opinion.

Alexander Tabarrok, an economist, edits this book published by the Independent Institute, at which he was also formerly a vice-president. If I can summarize in one or two lines, The Independent Institute is for a more Hayekian approach to domestic affairs and a more realist approach to foreign policy: less government intervention except in defence of security and less government monopoly of security delivery. It calls for a reduction of Leviathan and sees the war on drugs with welfare distributions as wasteful and wrongheaded. The book is a collection of essays organized on the view that ‘after several decades of experience’ Americans are now able to evaluate what is known about prison privatization. This includes knowledge about the triumvirate of penal policy: cost, effectiveness, and quality or humaneness. The conclusion offered is that private prisons are less costly, no less able to deliver quality, and no less effective.

Tabarrok argues in the introduction that real savings will take place when policy has moved from ‘governmentalization’ – in which contractors have to follow government specifications down to the meal plan – to a less constrained model under which the ‘private sector is given room to innovate and experiment’. (2) Here, he notes the important distinction between contracting out and privatization, in which the former still sees the government as the buyer of privately contracted goods and services and the latter understands the government as no longer involved as buyer or seller. It is really contracting out which is being assessed, although privatization is the term used almost exclusively by Taborrok and the other authors. Tabarrok is particularly keen to argue that the gains from contracting out will increase as firms come to plan on repeat business and get more open-ended contracts in an environment of movement toward privatization. His view is that when private firms are not competing with public bureaus but with each other elevated competition will enhance efficiencies. An alternative view, however, is that monopolies will develop (they have already) at the same time that the buyer (the state) loses its capacity to make good on any buy-back threat. Worse still, WTO devices like the General Agreement on Trade in Services will be used by private industry to pressure governments to allow bids by transnational corporations.<\p>

Most Canadian criminologists will, I am fairly sure, take an initially dim view of the admixture of neoclassical and neoliberal viewpoints and econometrics that informs this collection. In the second chapter, on the economics of prisons by economist Ken Avio, we are told that ‘constitutional contractarian models applied to punishment can rationalize independent constraints on social-cost minimization’ (10), that ‘modern prisons may be viewed as mutiproduct firms providing incarceration days and rehabilitation opportunities’ (11) and that ‘the typical prisoner has a relatively low disutility of prison term’. (11) Such terminology is jarring to social democratic sensibilities. Avio cautiously informs us that of the two consumables (incarceration days and rehabilitation), ‘rehabilitation’ may pull in the opposite direction of reducing recidivism, so the rehabilitative opportunity product may have limited or no value. The utility of incarceration days, however, is generally supported, so that, for example, a doubling of the prison population is said to reduce the level of crime by ‘about 16%’ (citing a study by Spelman, 38).

That said, there is much value in Avio’s dispassionate accounting of the econometric and some other literatures (generously citing James Q, Wilson and Richard Herrnstein). This chapter is more nuanced than Tabarrok’s claims in the introduction. Recalling to my way of thinking celebrations of fascist train schedules, Avio recognizes that potential success with the technology efficiency of prison privatization is great enough to threaten a transition in which incarceration becomes the singular means of social control (21). He also mentions, although almost as a footnote, that studies claiming prisons ‘as worthwhile social investments’ will rarely compare them to investment in preschool enrichment programs, which may be even more cost efficient (40). Avio also contributes suggestive insights on the problem of rehabilitation, recidivism and incapacitation, such as the (not unchallengeable) summary of the question of who it pays (rapists) and who it does not pay (most drug offenders) to imprison. (38)

The third chapter, an assessment of the recent history of correctional privatization in America by Charles Thomas, is far less nuanced. Thomas’ target in the chapter is the correctional officer unions, particularly their effectiveness in lobbying state legislators to pass favourable laws and pro-union industry regulations. These are contributing to draconian laws such as California’s ‘three strikes’ and are pushing up penal populations. However, Thomas concludes this review of the status of privatization to say that while, for instance, the Corrections Corporation of America has grown to a billion dollar company servicing 60,000 prisoners in only 20 years, the recent downturn in prisoner population growth since the mid 1990s shakes optimism that there will be more robust changing of the guard to private prisons. In other words, prison numbers are important to both public and private providers.

Tabarrok points out that Thomas has ‘plenty of experience’ in the area of the confluence of politics and the power of special interest groups, but this is a risky statement given that readers may on their own discover, as I did through a simple Google search, that Dr. Thomas’ credibility with respect to research on privatization has been hurt by a 1999 State of Florida Commission on Ethics ruling ordering him to pay $20,000 in civil penalty for violating sections of the Florida statutes pertaining to conflict of interest. He had a contractual relationship with the Correctional Privation Commission and a contract with a company related to the private corrections industry causing a conflict concerning ‘his duty to objectively evaluate the corrections industry’.

In the fourth chapter, Bruce Benson asks whether the production of more efficient prison services is really something that adds social value. Here again, the context of prison privatization is of importance. Following up on Avio’s parenthetical notation above, Benson says that the value of prison must be seen in the context of other uses of public resources, including school, hospital and housing construction. Particularly in using public monies to fund prison building for drug offenders, he cites good evidence that money would be better spent on treatment. He argues that the ‘validity of allocative efficiency and liberty norms cannot be determined without consideration of the politics of crime and punishments.’ (165) He argues that lower costs of prisons that can result from contracting out might be an attractive and convenient political solution but that it may be nevertheless undesirable. This argument is particularly telling when a good deal of the growth of prisons is dependent on that ‘soft’ population of drug offenders.

One of the chief tensions in this book, then, is this question of whether public or private delivery of prisons will put greater pressure on policymakers for prison expansion. Tarbarrok comes out in favour of the argument that public prisons, largely for reasons advanced by Thomas, will be the greater juggernaut. He adds that private prison workers cannot form the demand group of the public unions and private corporations aren’t likely to lobby for such a shared interest, given their selfishness (my term). This brings us back to the big picture of neoliberal globalization and the reference to Enron. On the contrary, private interests are indeed capable of forming powerful lobbies, of manipulating demand and supply, and of cozying up to and hoodwinking policymakers once mergers and then monopolies take root and swell profit margins. In the meantime, as Nils Christie has lamented, we (and ‘we’ become irrelevant) give away for exchange value the precious conflicts that may define and civilize us.