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Why Bernie Sanders Is Wrong About Private Prisons

Closing private correctional facilities would make life worse for prisoners and taxpayers.

Last week, Senator Bernie Sanders (I-Vt.) joined three House Democrats in introducing criminal justice reform legislation—the "Justice is Not For Sale Act of 2015"—that includes provisions banning the use of all private prisons by federal, state and local governments within two years.

Setting aside that this is likely a political nonstarter in the current Congress, it should also be a policy nonstarter too. The proposed private prison ban is the sort of pandering pablum that may appeal to Sanders’ progressive, anti-corporate base, but it confuses symptom with disease and would have little impact on lowering incarceration rates nationwide. In fact, it would be more likely to raise the costs of corrections by returning prisons to government monopoly control and, worse, increase overcrowding in public facilities.

As German Lopez helpfully pointed out in a recent Vox explainer, for all the outsized attention that private prisons receive in the media and in criminal justice policy debates, they only hold a tiny fraction of the total federal and state prison population. According to Reason Foundation’s Annual Privatization Report 2015, private prisons housed 141,921—or a paltry 9 percent—of the total 1.57 million federal and state inmates in 2013.

While that’s up from 6.5 percent in 2000, it still hovers in the single digits and may have reached a plateau; the private prison share has remained relatively consistent since the total federal and state prison population peaked in 2010.

Lopez notes that given these small numbers, private prisons "don't hold a lot of sway over the whole system," but that "it's good politics" for Sanders to try and appeal to the parts of his base that believe that private prisons somehow caused mass incarceration, not the other way around. In reality, the growth of the private corrections industry has been a response to the tough-on-crime, lock-em-up policies that took hold in the 1970s and 1980s (a point Lopez details further in his piece).

To be fair, Sanders even acknowledged these small numbers in a recent press release, yet still claims a private prison ban would be a “good step forward” to reforming a broken criminal justice system. What's left unexplained is how banning those that operate 9 percent of the system will make any dent whatsoever in improving outcomes for the remaining 91 percent. 

It might just do the opposite.

Take California as an example. Already stressed public prison systems in states like California—which alone accounted for one of every 13 inmates held in private prisons in 2013—would need to absorb thousands of inmates into overcrowded government-operated prisons. In fact, California ramped up its use of private prisons in the late 2000s as part of a strategy to reduce chronic overcrowding in state-run facilities and comply with a federal mandate to reduce the state’s total prison population. 

Left unanswered is why Sanders believes that the answer to reducing prison overcrowding is to potentially create more of it, and why it is the federal government’s prerogative to overrule states' decision making on how to manage their own prison populations. (As an aside, also note the irony of a progressive like Sen. Sanders seeking to undermine a progressive state like California's work to improve conditions in its prison facilities by reducing criminogenic overcrowding.)

And while there has been a long-running policy debate over the cost-effectiveness of private prisons, with conflicting evidence on both sides, it's safe to assume that in at least some cases, the costs of in-house operation could be significantly higher than in contracted facilities, especially when pension, retiree healthcare and infrastructure costs are taken into account. Rather than inmates, the beneficiaries of a private prison ban would really be public sector correctional officers and the unions like California’s CCPOA that represent them.

Further, while focusing on the use of prison contracting by federal agencies may be an appropriate topic for congressional debate, using federal legislation to unilaterally break dozens—if not hundreds—of state and local prison contracts would constitute a blow against federalism and would no doubt raise the ire of state and local politicians who entered into their contracts in good faith. Just because the U.S. Constitution's Contracts Clause does not expressly forbid the federal government from impairing existing contracts doesn't mean that it makes sense to do so.

Certainly, some private prison opponents will worry about private prisons being less safe for inmates or that companies might lobby for more people to be incarcerated. On the former point, notwithstanding recent events in places like Oklahoma and Arizona, the overall track record for incidents in private prisons tends to be comparable to government-run prisons. After all, prisons are difficult environments, and bad things happen even in well-managed prisons, public or private. 

There's a key difference, however, between privately run prisons and government-run counterparts: the contract mechanism, which provides a vehicle for accountability. If dissatisfied with performance, a government can cancel a prison contract with a private company. By contrast, the government tends not to fire itself, and the watchmen ultimately watch themselves.

On the latter concern, while claims that private prison companies have directly lobbied to lock more people up tend to be based largely on innuendo, government prison guard unions have routinely done so.

In critiquing Sanders’ proposed private prison ban, Fordham Law School professor John Pfaff makes an astute observation that "[b]y focusing on 'private!' not 'incentives!' Sanders is emphasizing form over substance." 

This is especially true when one considers that we are in the early stages in a major rethinking of how correctional contracts can be designed and harnessed to better target redicivism reduction and offender rehabilitation, both cited by Sanders as motivations for reform. As some quick examples: 

  • In 2013, Pennsylvania cancelled all of its contracts with private operators of community corrections centers and rebid them on a performance basis, tying vendor compensation to their performance at reducing recidivism rates among the populations they manage. The state corrections agency recently announced an overall 11.3 percent reduction in recidivism across its 42 contracted community corrections centers between July 2014 and June 2015, marking the second consecutive year of decline.
  • That same year, Pennsylvania awarded a five-year correctional mental health services contract that was updated to significantly enhance performance expectations, including financial incentives to reduce the number of misconducts for mentally ill offenders, the number of inmates recommitted to prison mental health units, and the number of recommitments to prison residential treatment units. Conversely, the state can impose financial penalties on the contractor if it fails to achieve targeted baseline results for those same metrics.
  • The U.K. has piloted similar recidivism-based, pay-for-success contract models for prison operations in recent years.
  • A number of pay-for-success (or "social impact bond") contracts have been implemented in Massachusetts, New York State, New York City, the U.K., and elsewhere to provide private-sector sector financing and nonprofit delivery of inmate programming aimed at reducing reoffending among those nearing release from prison.

The common theme here is that rather than avoiding a private sector role in corrections, forward-thinking jurisdictions like Pennsylvania and the U.K. have accepted the fact that after roughly 30 years in existence, the private corrections industry is here to stay. Hence, rather than wishing the industry away as the Sanders crowd would prefer, the more pragmatic view is to try to make better use of privatization and focus the contracts (and the economic incentives underlying them) toward moving the needle on the persistent challenge of recidivism.

Photo Credit: truthout

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  • Chip the Chipper||

    Why do these fucking statists think that the state is a fair player? Oh the corporations are so evil and the cause of the problems. Let's have the state do everything because they sure as hell don't have the power of force behind them.

    I mean really. You can fire a corporation. You can switch your provider of cell phone service, food, clothes, etc, but if the state runs all of that then you are fucked cuz there ain't no changing the government (realistically).

  • jmg09||

    It makes no sense. A corporation at least has the incentive to keep you happy or lose your business. Government has zero incentive to provide good service. If anything, their incentive is to provide crap service, since the answer to bad government is always, "More money!"

  • DesigNate||

    Yes, but in the case of prisons, the only people they have to worry about keeping happy are the government.

    And we all know the government doesn't give two shits about prisoners.

  • LynchPin1477||

    It is because they think corporations (and the private sector more broadly) are beholden only to profits, and I don't think they can shake the idea that profits are deep down exploitative. They also don't think that "the people" can influence the private sector to work for "the common good".

    Government, through democracy, gives them an ostensible way of influencing policy in a way that benefits, if not everyone, that at least who the majority favors. They think it is a counterbalance to the power of the private sector, which supposedly only looks out for the rich and powerful.

    Of course they can point to examples of bad behavior in the private sector, which does exist. But since they are predisposed to favor government, they put undue weight on private sector abuse while simultaneously downshifting government abuse.

    In other words, people see what they want to see. That's true of everyone to a degree.

  • Mickey Rat||

    Of course, they also do not realize that their single vote is a blip that barely registers.

  • macsnafu||

    Right. Coca-Cola may have been involved in a few dozen murders in a third world country, and that "proves" that corporations are evil

    http://killercoke.org/

    But governments kill thousands or millions in a war, and few people consider government as evil.

    Double standards suck. Even in politics.

  • Toast88||

    Kkkorporations are EVIL!

    The government is benevolent.

    That's literally their viewpoint. I once pointed out to my statist cousin that corporations can't exist without providing a good or service that consumers have deemed valuable, whereas the government exists and operates by force. I buy things from a corporation. The government, on the other hand, literally steals from you.

    His counter, without a hint of irony: "Don't you get it, man? Corporations actually kill people." When I responded that the government is responsible for infinite more deaths, he went on a diatribe about how the government is benevolent because it's run by representatives of the people.

    These people literally just spew talking points at this point and are unable to follow through on their logic.

  • AlgerHiss||

    Even if I was a raging leftist/Marxist/American liberal/communist/progressive/DNC supporter (Let’s be honest: They’re all the same thing), I still could not support this guy because of all that corn stuck in his teeth.

    That corn… I can’t get past the corn.

  • Bill Dalasio||

    Sanders and his followers don't give a shit about not locking people up or reducing recidivism. It's all about the private part for them.

    Let's put it this way. If someone put an amendment in the bill that broke up the prison guards' unions, how long do you think it would be before Sanders dropped the bill like a hot potato.

  • MJGreen - Docile Citizen||

    Yep. It's pretty clear that to many of them, what they want to fix about "private prisons" is the private part, not the prison part.

  • Devil's Candy||

    Gun Control....is about the Control
    Private Prison....is about the Private
    Gender Equality....is about Gender
    Socialized Medicine....is about Socialism
    ...and those are just the word game issues. There are also the bait and switch games.
    Helping the poor is about destroying the rich.
    Protecting the climate is about destroying capitalism.

    ...and on it goes.

  • newlibertarian||

    A nanosecond.

  • LynchPin1477||

    I don't feel strongly about this, but I do understand the Sanders camp problem with private prisons. Doesn't seem like a good idea to create a lobby that will be interested in increasing the prison population (well, another lobby). At the same time I agree it's treating a symptom and not the disease.

  • Chip the Chipper||

    Why do prisons need more lobbies? They are in prison genius. It is not a fucking hotel.

  • DesigNate||

    It's not the prisoners that lobby chip.

  • Devil's Candy||

    the joke, it is missed. (hint: hotel lobby)

  • Jay Dubya||

    in all fairness, it was not a funny joke

  • Bill Dalasio||

    If anyone pushing the banning of privately operated prisons were worried about the consequences of lobbying for increased incarceration, they would have been pushing to disband the prison guards' unions years ago.

  • Jay Dubya||

    umm ... I have been pushing for years to both disband prison/police unions and private prisons.

  • DeadSerious||

    I am...
    End them both.

  • Flowingwords213||

    Honestly, nobody should be profiting from locking up citizens. They have an incentive to keep the prison population high (hey- marijuana should remain legal. Let's donate to the prohibitionists!) Not to mention, they have no need to provide a minimum standard of care for prisoners who are still human after all. And if they did, at the behest of the state, then why not just have the state look after them anyway? The goal of any business is to get more business. That is bad for all of us when it comes to the prison population.

  • Bill Dalasio||

    And again, you favor the disbanding of prison guards' unions?

  • Intn'l House of Badass||

    You either can't read or didn't read the article. Either way, you're too stupid for words.

  • Scarecrow & WoodChipper Repair||

    Too stupid for words? There's the problem -- he's illiterate!

  • Curt2004||

    Or heaven forbid they could do an excellent job and get more contracts to increase their business...

  • LarryA||

    The goal of any business is to get more business.

    The goal of any bureaucracy is also to get more business. Everything you said about private prisons goes double for government-run prisons, except for oversight by someone more powerful than the corporation.

  • Stephen54321||

    The goal of any bureaucracy is also to get more business.

    Really? Could you provide some examples of this to demonstrate your claim?

    The reason I ask is that one of the consequences of your claim would be that the "goal" of a government-run prison system would to get more prisoners. That in turn would appear to mean that government prison systems are actively encouraging law-breaking among the public so as to get more prisoners for their prisons.!

    Could you kindly provide some examples of this and tell us how they are encouraging new "business" for their prisons.

  • DeadSerious||

    Good point. Funny how the trolls ignored this post. You're right. I say we shouldn't allow private prisons or prison worker uninons to lobby. Seems obvious how that is and can have an impact on the freedoms and liberties of the people.

  • Brian||

    Federalism.... My doggie ears hear racism.

  • MJBinAL||

    oh come on! Why is Bernie Sanders on this kick? You already answered that.

    "Rather than inmates, the beneficiaries of a private prison ban would really be public sector correctional officers and the unions like California’s CCPOA that represent them."

  • bassjoe||

    it’s safe to assume that in at least some cases, the costs of in-house operation could be significantly higher than in contracted facilities

    Seriously? This is taken for well-reasoned analysis? "At least in some cases, X is true." You can say that about pretty much anything. Good job. Got me convinced.

  • biljay||

    Both the private and government prison guards and staff lobby for more and more laws. The more laws on the books the more customers the prisons have, which is good for funding their careers and promotions. Eliminate the non victim crimes.

  • XM||

    Reason took a break from the daily Trump bash a thon to talk about the Socialist who might become president.

    When his policies hit immigrants, the republicans win.

  • josh||

    just thought i'd share. i've mentioned it before and it keeps popping up. the claims keep getting better. now it's not just it'll all cost nothing, it'll pay down the existing debt we have. math has really changed since i went to school.

    http://reverbpress.com/.../rob.....ins.../...

  • josh||

    link sucks....anyway, it's the robert reich video praising sanders freebies as costing nothing.

  • Rockabilly||

    Need it be said?
    Sanders is a snake when it come to the drug war.

    What’s his view on recreational marijuana use?

    Bernie believes that he needs more information about the effects of legalization before he can make an informed opinion about the subject.

    http://feelthebern.org/bernie-.....ug-policy/

    typical statist - need more studies by the central committee

  • DeadSerious||

    That isnt true at all. http://feelthebern.org/bernie-.....ug-policy/

    "Recreational Use of Marijuana: Bernie has said he would vote yes as a resident of a state considering legalization. For federal legalization, he has said that he supports ending the federal prohibition on marijuana, allowing states to opt for legalization if they so choose."

  • James_R||

    I generally like anything to do with privatization but private prisons aren't exactly the free market in action. The prisoners don't have the ability to pick and choose their captors and it's not like our politicians will strive for better prices and services. They'll simply award contracts to big donors and push for additional laws that create more criminals.

  • Stephen54321||

    The author of this article might want to study the consequences of his own arguments more closely in future.

    On the one hand he tells us:

    According to Reason Foundation’s Annual Privatization Report 2015, private prisons housed 141,921—or a paltry 9 percent—of the total 1.57 million federal and state inmates in 2013.

    On the other hand he argues:

    [Ending private prisons] would be more likely to raise the costs of corrections by returning prisons to government monopoly control and, worse, increase overcrowding in public facilities.

    If the proportion of private prisons is as "paltry" as he claims then just exactly how will ending them "raise the costs of corrections" or "increase overcrowding in public facilities" by any significant amount? As distinct from a merely "paltry" amount.

    I also note that his claims that closing private prisons would lead to overcrowding seems to presume that ending private prisons would mean CLOSING those prisons and shifting the inmates to public prisons--as distinct from merely taking them over the private prisons and running them as public ones.

  • SimonJester||

    Indeed. Theft, this is the solution. Private company creates asset in good faith with government contract. Public opinion goes against decision. Government seizes asset because FYTW. Theft is always a good answer.

    Oh, and I guess you have never lived with another human being. If a building has a fire rating of 500 people, increasing that by 1 person increases the risk significantly. Adding 141,000 people requires beds, guards, etc. Government prisons are crowded, too, or do you think they just have a couple hundred thousand beds not in use with guards they send home early because they aren't needed. Yes, 9% is a small percentage, but they still need housing and food and the rest of it, and ALL prisons are overcrowded -- that is how private prisons got their start.

  • Stephen54321||

    Government seizes asset because FYTW. Theft is always a good answer.

    Could you point to the place where I advocated taking them over withOUT payment?

    Yes, 9% is a small percentage, but they still need housing and food and the rest of it, and ALL prisons are overcrowded -- that is how private prisons got their start.

    There is another reason private prisons are "overcrowded". As I understand it in at least some US states state governments are required by the contracts they have with the private prison operators to pay those operators even when they have empty beds and empty cells.

    Small wonder that the states try to keep their private prisons filled!

    If a union did that same sort of thing it would be denounced as "featherbedding". When a corporation does it it's called capitalism.

  • akze||

    This is such bull shit. Privatising any pubic service is nothing more than legalized embezzlement. Graft plain and simple. Any time business finds a way to raid the public tough, you better believe politicians get a huge cut in the form of massive campaign contributions and 7 figure jobs when they retire from public office. They get the kicbacks and the spigot gets cranked on to full blast. Time and time and time again, we sit here and watch them who get government contracts commit massive fraud from the MIC, to Charter schools, to banks etc. This has been a permanent fixture of all states since the beginning. The one place I always found huge common ground with libertarians is their hatred of crony capitalism and monopolies. When you get a government contract the goal in not to provide a service, the goal is to slash overhead to the bone. It's nothing more than a loot a leave game. You extract as much money as you can, get popped for fraud and pay a fine that amounts to pennies on the dollar from what you stole, and if you lose the contract who cares you still made out like king. It's a bust out.

  • scareduck||

    I remain utterly amazed that Reason continues to flog this dead horse.

    The same perverse incentives that pollutes public discourse with prison guard unions also exists with prison contractors, i.e. an incentive to keep the jails full. It provides political reinforcement for the War on Drugs. No.

  • scareduck||

    On the latter concern, while claims that private prison companies have directly lobbied to lock more people up tend to be based largely on innuendo, government prison guard unions have routinely done so.

    This is a justification for eliminating public employee unions, not doubling down on the same mechanism with a different name.

  • Richard Stallman||

    Your basic point is correct, that the number of prisoners is mainly determined by laws and sentencing practices, not directly by prisons. However, some private prisons have signed contracts where the state commits to always providing a large minimum number of prisoners. This must pressure the state, even if it does not absolutely compel the state, to keep the number of prisoners up.

    Private prisons must extract their profit from the prisoners or from the guards. They gouge prisoners in various ways, such as for phone calls. The article acknowledges that private prisons are likely to leave their workers short on pay, pensions, and health care. They are also likely to be short on staff, which sometimes leads to neglect of prisoners who need medical care.

    Unprivatizing prisons does not have to increase overcrowding, because the buildings of the private prisons can be converted into publicly operated prisons.

  • SimonJester||

    Quite right. "Private prisons can be converted into publicly operated prisons." Just takes a bit of legal theft and we're all good. After all, public good, right? Just have a private company build something on the promise of a contract then, when public sentiment turns against you, take the private assets! Brilliant!

    And, by the way, private prisons don't "extract their profit from prisoners or guards," you, Mr. Stallman, they are paid by the government per filled bead. (Or did you not rtfa?) If the employer (in this case the government) does not like the way a contract is being handled, it is within their right to renegotiate the contract.

    But that, after all, is work, and theft is easier and gets more votes.

  • DeadSerious||

    Not only are you ignoring the fact that Private Prisons would be paid for the transferring of the prisons. You are completely ignoring that the vast majority of the prisons were built as publicly owned in the first place and later transferred to private ownership. By your logic, the prisons were stolen from the taxpayers.

  • electrotectic||

    Public justice, private prisons. The exercise of state power against individual rights, to the extent that it occurs at all, necessitates public responsibility.

  • Dava S.||

    The government may or may not be able to provide such service cheaper. Both side of that argument can quote studies and stats that support their point of view. So past that debate, there is still a fundamental concern regarding privatization. When sentences handed down include jail terms or incarceration, specifically with non-violent offenders, the sole purpose of the incarceration, is not punishment. Currently, and for many decades before, governmental entities have supported rehabilitation and supportive services as crucial components to the process. Providing services and opportunities to offenders can lower recidivism. Government does have a significant interest in actions that lower likelihood of repeat offenses and improve outcomes and opportunities for former inmates. Private entities do not have a motivation to do so. They answer to stockholders and their Boars of Directors. They do not have to answer to society as a whole. And corruption could be reduced if there was oversight but there is not.
    I would also like to point out that while the government still controls the justice system, several judges in the past few years have been found to have a financial interest in private correctional businesses and/ or were receiving kick backs for decisions that led to placement in private institutions. The justice system can be corrupt too.

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