Prisons

Biden's Private Prisons Executive Order: A Solution in Search of a Problem?

Our incarceration system needs reform: how about reforming it by increasing private prisons instead?

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Yesterday Pres. Biden issued an Executive Order on Reforming Our Incarceration System to Eliminate the Use of Privately Operated Criminal Detention Facilities. The operative bit is simple enough: "The Attorney General shall not renew Department of Justice contracts with privately operated criminal detention facilities, as consistent with applicable law." The policy section before it is worth quoting in full:

More than two million people are currently incarcerated in the United States, including a disproportionate number of people of color. There is broad consensus that our current system of mass incarceration imposes significant costs and hardships on our society and communities and does not make us safer. To decrease incarceration levels, we must reduce profit-based incentives to incarcerate by phasing out the Federal Government's reliance on privately operated criminal detention facilities.

We must ensure that our Nation's incarceration and correctional systems are prioritizing rehabilitation and redemption. Incarcerated individuals should be given a fair chance to fully reintegrate into their communities, including by participating in programming tailored to earning a good living, securing affordable housing, and participating in our democracy as our fellow citizens. However, privately operated criminal detention facilities consistently underperform Federal facilities with respect to correctional services, programs, and resources. We should ensure that time in prison prepares individuals for the next chapter of their lives.

The Federal Government also has a responsibility to ensure the safe and humane treatment of those in the Federal criminal justice system. However, as the Department of Justice's Office of Inspector General found in 2016, privately operated criminal detention facilities do not maintain the same levels of safety and security for people in the Federal criminal justice system or for correctional staff. We have a duty to provide these individuals with safe working and living conditions.

This picks up on the anti-private-prison memo issued toward the end of the Obama Administration, which I wrote about back in 2016. In particular, I find the reliance on the Inspector General's 2016 report to be misplaced, since the IG's report doesn't truly show that the private sector underperforms the public sector.

I agree that the incarceration system needs reform. (And not just the incarceration system itself: I would also look at the mass of criminal laws, including drug laws; and the investigation, prosecution, and sentencing processes. But O.K., let's also look at the incarceration system.) But well-intentioned prison reformers too often blame private prisons for problems that plague incarceration generally. For some, this may relate to a broader skepticism of markets; for some, this may relate to a view that profitmaking (while possibly appropriate elsewhere) is inappropriate for prisons. I believe that, on the contrary, the problems of incarceration aren't particularly attributable to private prisons, and aren't generally greater in private prisons than elsewhere; the moral objections are insubstantial; and perhaps those of us who want to reform prisons might consider increasing the use of private prisons:

  • Are private prisons better or worse than public prisons? Relatedly, do private prisons really save money? (And if so, a lot or a little?) These questions turn out to be surprisingly hard to answer. The cost question is difficult because of different accounting conventions between the private and public sectors. And the quality question is difficult because of the general failure to adopt performance standards and measure consistent quality numbers between sectors. Nonetheless, there have been a few good-quality studies, and these don't generally find consistent differences between the public and private sectors. Public prisons outperform private prisons on some indicators, and do worse on others. See Part I of my Emory Law Journal article for more details on this. This is a challenge for defenders and critics of private prisons alike: if private prisons were such a humanitarian disaster, shouldn't we clearly see that in the data? But if the magic of the market made private prisons so much better, shouldn't we see that as well? In reality, we don't see either strong result.
  • Do private prisons lobby for greater incarceration? It turns out there's little solid evidence of this. Of course they lobby for greater privatization and to get more contracts, so you can see plenty of evidence of private prison lobbying. How about lobbying in favor of pro-incarceration policies, like stronger sentences or stricter enforcement? It's hard to see strong evidence of this. By contract, it's not hard to see evidence of pro-incarceration lobbying by public correctional officers' unions. See my Stanford Law Review article for more details on this. Moreover, it's not clear that greater privatization would make this problem greater; plausibly, it might alleviate the problem by splitting the industry up into a greater number of actors who would have more incentives to free-ride off each other.
  • Are there moral, non-consequentialist problems with prison privatization? (I.e., put aside any issues of cost, quality, accountability, and political influence, which are empirical issues that can be proven or disproven by the data, and merely focus on the supposed inconsistency of prison privatization with liberal values, expressive harms, etc.) I argue that there are no such problems. When we say "the state must punish", we really mean that state employees must punish. But state employees are private people who agree, by contract, to do the state's bidding in exchange for money. And this is the same thing that private prison providers agree to do. At this high, abstract level, there's no morally significant difference between public employees and private contractors. Of course the form of the contract matters: different types of contracts can have different incentives and lead to different actions—which relates to how well prisoners are treated, and all sorts of other morally significant dimensions of incarceration. But those are empirical questions—and the possible details of how contracts are structured are infinitely various, so even if private prisons do badly, the response could just be "mend it, don't end it". See my UC Davis Law Review article for more on this.
  • This last point is significant: if we can't see much of a difference between private and public prisons in the data, perhaps this is because we haven't really begun to explore the possibilities of contracting. As I noted above, contracts generally aren't performance-based. But the Bureau of Prisons and state Departments of Corrections could make more of an effort to move in that direction. Why not incentivize rehabilitation by making a substantial part of contract payments depend on recidivism two years out, and/or releasees' employment outcomes? Why not make a substantial part of contract payments depend on positive health outcomes for prisoners, floor space, in-prison security, and so on? If private corporations are so profit-grubbing, they'll be glad to maximize whatever their contracts tell them to maximize. So performance-based contracting can be central to a comprehensive plan of prison reform. See Parts II and III of my Emory Law Journal article for more on this. (This could be done in public prisons too, through performance-based payments to public prison wardens. But there's probably more room to experiment with compensation schemes in private contracting, and private firms would probably have greater flexibility to experiments, if their contracts allow them to.)
  • One source of skepticism of privatization might come from "guilt by association". Perhaps prison privatization has been pushed, in part, by conservatives who don't have much interest in prison reform or prisoner welfare. If so, that means that the Biden Administration is the perfect time to increase federal prison privatization. Prison privatization should be overseen by people who are more likely to invest in meaningful prison monitoring, more likely to insist that good performance measures be written into contracts, and more likely be willing to penalize underperforming contractors.

tl;dr: Yes, let's reform prisons. How about if we reform by increasing prison privatization rather than abandoning it?

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  1. any discussion of costs or benefits is a distraction. This is purely a gift to the public employee unions who vote and donate to Democrats.

    Let the public employee unions take all the blame for the horrid conditions in prisons, including the rampant corruption. I have no idea why anyone would slow that down.

    1. “This is purely a gift to the public employee unions who vote and donate to Democrats.”

      Sure it is! And they’d get away with it too, if it wasn’t for DWB68 and those meddling kids!

      Oh, wait. Are you trying to say that privatized prisons have been in the news for the last 6+ years as being a huge problem for a lot of people? It’s, like, a major issue? That as long ago as 2016, the DOJ had a report about how they were more dangerous? That the prior administration had been trying to phase out their use?

      That this has been a huge issue for criminal justice reform?

      Naw. Has to be the unions!

      1. I know its hard for internet noobs to believe politicans lie and make up reasons to distract you, lol.

        1. As I wrote, you are the true master of the internet. You figured it out when no one else could! Some day, I hope to be as handsome and perspicacious as you.

          Take care!

          1. Perspicuity seems to be your strong suit, since you claim to discern dwb68’s handomeness over the internet.

            1. I have to assume he is good looking, since I think it is unlikely he would otherwise get far in life with a personality like that!

              1. Loki must be stunning.

                1. Oh hey! It’s the guy who keeps thinking his nom de plume is clever!

                  You know what’s nice? When you never reply to me, and I can continue to pretend that you, your infantile handle, and your insipid comments don’t exist, and you can return the favor to me.

                  Now, go play in traffic.

                  1. Just ravishing.

                    1. Aren’t there some women you can put down? That’s what you’re known for.

                      Seriously, you combine the veracity and legal knowledge of Dr Ed with the racial and gender sensitivity of Aktenberg.

      2. Private prisons account for fewer than 10% of all federal and state prisons. Are private prisons a problem? Maybe. Are they a huge problem, bigger than all the known problems in government run prisons? Not by any objective measure.

        1. Private prisons account for fewer than 10% of all federal and state prisoners.

      3. WHY are they more dangerous?

        Could it be that more dangerous criminals were sent to them?

      4. The OP says in this article that the 2016 DOJ report does not actually say that. I assume you’re disputing that assertion?

        1. Why don’t you look at the report yourself? It’s the DOJ OIG Report (“Review of the Federal Bureau of Prisons’ Monitoring of Contract Prisons”).

          It’s available on-line. And SV’s criticism (that the prison populations aren’t perfectly comparable) was already noted in the report as an issue; but that wasn’t the entirety of the report.

          Seriously- go and look at it. I used the shorthand of “more dangerous,” but I could have stated that they were “more dangerous on a number of qualities based upon comparing them to similar prisons, 2/3 of the private prisons visited were using isolation unites in contravention of policy (!!!), all private prisons in the study had numerous additional violations requiring more oversight, and (this will shock you) do not appear to be observing the proper BOP-required health services.”

          But instead of asking me (or trusting SV, who is, perhaps, the foremost advocate of prison privatization that I am aware of), maybe just read up on this yourself.

          1. If they’re more dangerous, it’s because the feds are the customer. If the feds want less dangerous prisons, they can make there own prisons less dangerous, or they can make sure the private prisons that they contract with are less dangerous. It’s a question of incentives, not business model.

            1. Hey- if you ever want a substantive response …

              DIAF. Thanks!

      5. Based on your analysis, it doesn’t appear you read the article and the sections regarding the 2016 DOJ report or much of the other analysis discussed in the article.

  2. Ugh. No.

    We desperately need to reform the criminal justice system, and the incarceration rate. But the criminal justice system, from the courts to the prisons, is quintessentially a government function. There a lot of reasons for this, from accountability to the public to the very concept that the State is putting people away, and that’s a moral obligation that should not be “contracted out.”

    But more fundamentally, there is something almost bizarre about the very premise of the assertions in this article. On the one hand, Sasha Volokh would like us to believe that privatization of prisons will reap all the benefits of cost-savings that competition and free enterprise will normally bring (I will set aside qualms about market competition being less-than-perfect in the prison industry, and accept that as fact simply because private companies will be incentivized to cut costs in order to maximize profits).

    Yet he also simply assumes that private companies … will have no desire, whatsoever, to grow or increase their market! Weird. So, unlike any other private company or industry, we are to believe that private prison companies will have to interest whatsoever in trying to increase their revenues by ensuring a steadily increasing stream of customers? O RLY?

    To believe the points being made empirically here (which default to, “It’s hard to find evidence, perhaps because a lot of this would require research at level and documentation that is not easily available),” one has to assume that you get all the stuff that the free markets provide (such as competition and a drive to reduce costs), yet companies, strangely, would have no desire to increase their revenues or market shares!

    Sure. And Milton Friedman was a closet fan of Trotsky.

    1. Hi Loki, if you take a look at the Stanford Law Review article that I linked… I actually ASSUME that the private prison firms WILL want to grow their market. I merely show that their incentives to do so might be reduced because of free-riding, and that public-sector actors have substantial incentives as well, so the net effect of privatization might be to reduce total pro-incarceration lobbying.

      1. The Stanford Article is from 2008. There have been significant developments since then (as you are aware).

        The first issue with the analysis in your 2008 article is your conflation of different sources when it comes to public unions. I will start by stipulating that in some cases, a public union will monetarily support a pro-incarceration policy (California’s Three Strikes). In other cases, they won’t (California’s correctional unions uniformly support measure to decrease overcrowding).

        From there, though, you start mixing in completely different things, including anecdotes about supporting “tough on crime” politicians (even though they also, sometimes, support “liberal” politicians), or providing endorsement (not monetary support) for certain policies. Moreover, you cite generally to the idea that it is possible (in places like Florida) for Correctional and Police unions to be intermixed, and also possible for Correctional Unions to be part of a larger union that takes positions that would reduce incarceration.

        In other words, the sum total that I read, from your evidence in 2008, is that you have no actual evidence that public-sector unions tend to produce pro-incarceration policies. Now, as you know, unions are very serious about this whole thing … the “terms and conditions of employment,” so their overall effect on incarceration rates should be minimal, other than the notable, and known, issue that public-sector correctional unions, similar to police unions, tend to be more “conservative” than unions generally, and as such would be more likely to endorse conservative positions or conservative politicians- “tough on crime.” That’s because of the nature of the people within the unions.

        On the other hand, companies that derive their entire income from lobbying the government and getting contracts from the government tend to be much more attuned to these issues than even public sector unions. So I have a feeling that if you updated your 2008 paper and tried to get some dollar figures (which, again, good luck since most of this goes down at the state level and with private corporations, so…. not likely), you’d quickly realize the error in your ways.

        TLDR; having a great deal of prior experience with both public- and private-sector unions, as well as a lot of current experience with private entities that deal with the government, I find this analysis … lacking.

        1. Can you not see why the guards unions wants to reduce overcrowding? It’s not because they want to reduce incarceration (they demonstrably want to increase incarceration, as shown by your own link). It’s the same reason teachers want to reduce class size while also banning charter schools, private schools, and home schooling: requires more staff for the same number of prisoners (and I mean that for both unions).

          1. The reason they want to reduce overcrowding, not to be far too basic, is because it demonstrably increases the safety of their job. It’s that “terms and conditions of employment” thing.

            But the measures that decrease overcrowding that were cited decreased the overall incarceration rate as well. That was the whole point. *shrug*

    2. No. Yes. Sort of.

      Contract companies (whether its food service company that runs a stadium or rest stop, or a prison) work either on a fee basis or profit/loss basis. Either way, the contract incentivizes the contract company to lower costs. In a P/L based contract the savings directly go to P/L and the contractor makes extra money. In fee based contract the contractor makes bonuses by hitting labor cost or other targets.

      Private companies have various management & process formulas that they think drive results. The principal way that they often deliver is lowering labor costs. read: non union labor or lower union benefits. They can also add value through technology and improve worker productivity.

      Private companies are *much* better at lowering labor costs and increasing productivity. But of course, that hurts a major Democratic constituent, the public sector unions.

      Notice that there is no mention of actual reforms that would reduce the prison population, like rescheduling pot. Theoretically Biden could commute the sentences of a lot of non-violent offenders in federal prison too. reducing incarceration would be *actual* prison reform. This executive order is nothing but political masturbation- feels good accomplishes not much in the way of reform.

      1. “Notice that there is no mention of actual reforms that would reduce the prison population, like rescheduling pot. Theoretically Biden could commute the sentences of a lot of non-violent offenders in federal prison too. reducing incarceration would be *actual* prison reform. This executive order is nothing but political masturbation- feels good accomplishes not much in the way of reform.”

        I agree. This, by itself, does very little. Much more needs to be done.

        But this is not a “gift” to unions. This was a very big deal in 2016, and continues to be for a lot of people.

        To refresh your recollection- the Obama Administration ordered the phase out in 2016. The Trump Administration (due to heavy lobbying by the private prison industry), reversed that in 2017. And now the Biden Administration is going back to the prior policy.

        This is hardly surprising, or a gift.

        1. Well, it’s not a gift in the sense that unions and related interests spent a lot of money on lobbying and campaigns to get it done, so I guess I would agree with that. It certainly is a significant benefit, though, you can’t deny that.

          1. lol, good point. not a “gift” because they spent a lot of money lobbying for the changes. So noted.

          2. I am unclear on why anyone thinks that this is surprising? What, and anyone is shocked that the Border Patrol Union (NBPC) supported Trump (ahem).

            To repeat- this is the policy of the Obama administration, pursuant to a lot of pressure and the DOJ report. Do you know who else was in that administration?

            Then the Trump administration reversed it – again, heavy lobbying.

            Biden specifically campaigned on this issue. It was in speeches. It was on his campaign website. I am somewhat amazed.

            If you don’t like this as policy, that’s fine. Argue the policy grounds after you at least understand the history. But c’mon- this wasn’t something that was “lobbied” for or snuck it. This is something that has been well-known for some time.

  3. The biggest “profit-based incentive” in the American legal system is/are prison guard and police unions, and legislators trolling for votes.

    Perhaps Biden should take the Econ 101 course that all politicians dodge, and learn what “incentive” actually means.

    1. Moreover, it’s not clear that greater privatization would make this problem greater; plausibly, it might alleviate the problem by splitting the industry up into a greater number of actors who would have more incentives to free-ride off each other.

      The only fly in this ointment is that the public sector correctional guards unions would quickly use the government hammer to become mandated private guards unions too.

      1. Guess you two didn’t read the comments.

  4. “If private corporations are so profit-grubbing, they’ll be glad to maximize whatever their contracts tell them to maximize. ”

    Unless of course the contracts tell them to do things that are very expensive with compensation rates too low to be profitable.

  5. Let’s privatize elections while we’re at it. /s

  6. So long as these prisoners are kept in prison, I don’t care. The money is still coming from Uncle Sugar.

    1. It is always fascinating to watch right-wingers attempt to imitate decent, reasoning people.

  7. “Prison privatization should be overseen by people who are more likely to invest in meaningful prison monitoring, more likely to insist that good performance measures be written into contracts, and more likely be willing to penalize underperforming contractors.”

    We could trust the government to act in the interest of prisoners, but that’s not how you reap the benefits of privatization. The only people I really trust to act in the interest of prisoners is prisoners themselves. Keep private prisons running, let prisoners choose what prison they want to go to, and don’t pay for empty beds.

    The government would just be responsible for setting a minimum standard and a price point. They could even open their own nonprofit prisons – everyone there is someone they don’t need to pay the market to house.

    If prisons had to convince prisoners, not bureaucrats, that their job training programs and visiting hours were better than the ones down the street, I think the system would end up being much more humane.

    1. I have an article exactly about that: “Prison Vouchers” in University of Pennsylvania Law Review: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1856108

  8. The assumption that a company that profits from its prisons, would do anything except make sure its prisons stay full, and lobby for greater incarceration, is perverse.

    1. The assumption that a public sector union, such as the police union and correctional officers union, would do anything except make sure that lots of people are arrested and prisons are full, is perverse.

      1. “… is demonstrably perverse.”

    2. “lobby for greater incarceration”

      Any evidence that actually occurs?

    3. Fewer than 10% of all US Federal and State prisoners are housed in private prisons.

      It’s not that anyone is assuming that the private prison operators don’t lobby for greater incarceration, it’s that any such lobbying done by the private prison operators is dwarfed by the public sector prison guard unions lobbying for greater incarceration.

      Getting rid of the private prisons will result in more government run prisons and more lobbying for greater incarceration by the public sector prison guard unions, not a net reduction in such lobbying, so it’s a non-issue.

  9. There can in general be problems when the person who pays is different from the person who receives the services. The provider has an incentive to cut services and quality to save money. And this can be done without the provider being aware of it.

  10. Faux “privatization” of state activities is just a way of shoveling corporate welfare to cronies and shifting accountability off of the politicians’ shoulders.

    Here’s what real privatization would look like: “The state will no longer be involved in X, full stop.”

  11. Just force the private prisons to guarantee “prevailing wages” and unionization and the Dem’s will say everything is hunky-dory. Of course, there is no evidence or research to substantiate hate for corporations when you can have good old union bosses running everything and making nonpolitical donations.

  12. There is threshold question. Are some state functions inherently wrong to privatize? The state has different kinds of powers, with differing needs for accountability. A question of legitimate power to govern accountability must be part of the analysis.

    Some government powers are purely administrative. To accomplish bureaucratic tasks, the state needs a power to purchase bureaucratic supplies. Accountability for a task like that is needed, of course. Performance is readily measurable, and moral implications minimal. There isn’t much government compulsion going on. The sovereign power of government is not much implicated. Whether a government function like that is done publicly or privately may be of little consequence, except with regard to measurable efficiencies.

    Other state functions do involve compulsion. Drafting soldiers into the military. Collecting taxes. Punishment of criminals. Exercise of those powers takes the state into a different moral universe. Use of compulsion makes those sovereign functions of government. A legitimate sovereign owes certain duties to subjects it does not owe to business partners, or even to business customers.

    All 3 of the sovereign functions I mentioned have some history of privatization. For the draft function there was the practice of private payments to substitutes. For the tax function there was tax farming. And for corrections, private prisons.

    It is striking that the first two, draft substitutes and tax farming are pretty widely rejected these days, on moral grounds. In those instances, using government power to privatize compulsion and enable profit strikes most folks as repellent. It also introduces a risk of more compulsion than necessary, for the sake of more profit. For each of those two instances, there is also a subtler problem regarding legitimate sovereignty, which I will briefly mention after considering private prisons.

    Private prisons ought to get the same rejection, for the same reasons, as draft substitutes and tax farming. Inherently sovereign powers of government must be performed directly by government, to assure political accountability without excuses, and especially to avoid the moral horror of making government compulsion a matter of private interest. Do that, and by exercise of sovereign power the interested party becomes a partner with the sovereign, above the government as the sovereign is, and likewise unconstrained. If you suppose that takes things too far, then you have yet to view the matter from the vantage of the subjects most concerned, the prisoners themselves.

    With that said, we arrive at the nub of the problem. It is not for government to say who shall exercise sovereign power. Only the sovereign People exercise sovereign power. To permit government to set up a private business to exercise on the sovereigns’ subjects the sovereign power of punishment, is to stand American constitutionalism on its head. Only a decree from the sovereign People could legitimately empower government to do that. And no such decree exists. Thus, after we think it through, we ought to conclude that private prisons are unconstitutional.

  13. “There is threshold question. Are some state functions inherently wrong?”

    Fixed, no charge.

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