Are Private Prisons As Effective as Government-Run Facilities?

• August 21, 2015
• by Kimberly Faber

A private prison is a contract with a company to run a facility just like contracting out building maintenance or road maintenance. . . You actually have more accountability, arguably, with a private prison. In a typical government prison there are a bunch of people who work for the system in there running the prison, so your accountability is the system itself.

Adrian Moore, The Reason Foundation

In the growing debate of whether or not prisons should, in some cases, be run by private companies, issues like jail overcrowding, prisoner rights, violence, and recitivism rates are paramount, but other points regarding financial motivation, transparency, and legislation also come into play. A recent discussion on Legal Talk Network’s Lawyer2Lawyer program delved into many of these concerns, with opposing viewpoints provided by Susan N. Herman, president of the American Civil Liberties Union (ACLU), and Adrian Moore of the Reason Foundation, a non-profit organization that supports privatization and free markets. Though the two shared the viewpoint that there is a tremendous over-incarceration problem in the United States, their opinions diverged on the topic of private prisons and whether or not they have a positive effect on the criminal justice system.

Moore explains how a private prison system works. “A private prison is not an overseas independent country,” he said. “A private prison is a contract with a company to run a facility just like contracting out building maintenance or road maintenance.” He notes that the big difference in the case of a private prison is that there is authority over individual lives, but he also shares that the contracts for private prisons are more heavily regulated. In addition to a thicker contract, private prisons are audited daily by monitors who spend their days walking around facilities and making sure that the private companies are abiding by their contracts and that the inmates are being treated well. “You actually have more accountability, arguably, with a private prison,” Moore said. “In a typical government prison there are a bunch of people who work for the system in there running the prison, so your accountability is the system itself.”

But even with a seemingly straightforward structure, Herman voiced major concerns about information availability and transparency with private prisons.

“One of the concerns that the ACLU has about private prisons compared to prisons that are run by governmental entities at the federal, state, or local level, is that any governmental agency, federal agencies, for example, are subject to the Freedom of Information Act,” she said. In short, if the ACLU wants to know what’s happening inside a prison, like how the inmates are being treated or where cuts are being made financially, they can make a demand for that information; and in scenarios where the government will not provide that information, the ACLU can go to court and find out what’s happening. So, the question becomes: how does this differ from private prisons?

According to Herman, private entities are not required to provide the same transparency as government-run entities. She noted that a proposal has been in Congress since 2005 that would require private prisons to make available the same information about their activities as public prisons are required to do. “The industry has successfully lobbied against having Congress pass that statute five times,” Herman said. “So one of the problems is that we just don’t have transparency. We don’t have the information.” Moore stated that the only information that is not publicly available surrounds internal finances, something most private companies would not want to share with the public, but Herman believes that information is important when determining how inmates are being treated and what level of staff is being used.

In the scope of legislation, Herman also noted that with legislation that would increase incarceration rates there is opportunity for private prisons to provide financial backing to support their preferred outcome.

“The private prison industry does not lobby for more incarceration,” Moore stated firmly. “I challenge the ACLU to come up with an example where a private prison company has given money to a campaign for a piece of legislation to increase incarceration.” He also noted that government prison guard unions make what he described as tremendous amounts of money every year to tough-on-crime laws that would cause for more incarceration.

Herman countered that although the private prison industry may not donate money to a specific campaign, it does provide financial support to candidates that plan to push for harsher sentencing laws. “The idea that you can keep political influence out of this is just not true,” she said, but her point travelled to a potential conflict of interest that comes into play with private prisons. Herman suggested that the private prison industry would have little-to-no interest in taking any steps that would decrease incarceration rates as it would have a negative effect on business.

“Everyone agrees that there is a potential incentive problem here,” Moore responded, noting that the goal is not to create a prison-industrial complex where there is a big incentive for the industry to lobby for more people to go into prison. He suggests taking advantage of the nature of the contractual agreement by providing financial incentive for private prisons to decrease recitivisim rates, rehabilitate prisoners, and push for better outcomes.

Herman doubts the effectiveness of that type of contract, saying, “When you have people who are making million of dollars in having more prisoners, it’s just an uphill battle to try to convince those people or give them financial incentive to do things that are not really consistent with their main motivation here, which is to make money.”

With this, the host raised a pertinent question in the debate, asking, “Do privately run prisons have a negative impact on the prisoners who are housed there?”

“Well,” Moore responded, “no, they don’t.” He stated that a number of studies have looked at quality measures to determine that inmates are being treated properly. “There is no evidence that there are any worse outcomes in private prisons then there are in public prisons.”

Herman cites other studies, including a 2010 Department of Justice study suggesting that, “in fact, the record of private prisons is far worse than the record of public prisons with respect to inmate abuse, inmate on inmate assault, and inmate on staff assault.” Referring back to the discussion of finances, she noted that how private prisons save money needs to be looked out, suggesting that they pay their employees less and therefore have fewer and less-experienced guards which means less people keeping an eye on what’s happening on a day-to-day basis. “There have been studies in quite a number of states showing that as soon as private prisons have taken over things have gotten worse,” she said. As an example, she referenced a prison in Ohio whose number of inmate assaults against staff tripled and doubled against other inmates 18 months after the prison went from public to private.

With the discussion coming to a close, Moore shared that private prisons are a tool and not the solution for every instance. Again noting that he and Herman agree that the outcome and goal should be to reduce incarceration rates, he shared, “Susan and I agree on the outcome, and to me, private prisons is a tool, it’s not a panacea.” Stating again that he does not believe every prison should be privatized, he noted, “If you can use it effectively, you out to. I think the research and experience over the decades has shown that it can be.”

The full program is available for listen on Legal Talk Network and through iTunes.

For more information on private prisons from Herman and Moore, visit the following links:
The Reason Foundation: http://reason.org/areas/topic/prisons-and-corrections
The ACLU: http://www.acluohio.org/archives/issue/prisoners-rights

Full podcast on Legal Talk Network: Private Prisons, Profits, and Prisoners’ Rights
Free download on iTunes: Private Prisons, Profits, and Prisoners’ Rights