At present, there are more than twenty companies in the United States, taking in more than $250 million in annual revenues, that operate private jails and prisons. These companies incarcerate about 50,000 inmates, a relatively small portion of the estimated 1.5 million individuals in jails and prisons across the country. Still, such private facilities are growing at four times the rate of state facilities. The administration of legal punishment has long been the province of the state. But the growth in private prisons indicates that, to some extent, governments are modifying their traditional roles in relation to legal offenders.
We are, by now, familiar with proposals to privatize various government operations. It is also commonplace for government agencies to contract with private industries for the provision of certain goods and services. But there are differences between these sorts of real or proposed government-industry relations and those exemplified by the private prisons boom.1 It is quite possible to conceive of the state without presupposing that one of its essential functions is, for instance, to supply postal services to its citizens. However, the enforcement of law, an aspect of which includes the administration of punishment, has been for many political theorists a crucial part of the raison d'etre of the state. Punishment has been seen as a state function in order to limit if not eliminate the influence of private interests over the detection, trial, and sanctioning of lawbreakers -- in short, to ensure that all individuals are treated equally before the law. In theory we strive to create institutions and procedures that punish all and only those who have broken the criminal law. In reality, of course, we know that we often fan short of this ideal.
If the criminal justice system is viewed as a continuum that starts with policing and ends with the return of lawbreakers to society, privatization is making inroads at both ends of this continuum. We have private security firms engaged in the detection of law-breaking, and private companies of various kinds involved in the sanctioning of lawbreakers. At first glance these appear to be alarming trends since they represent the intrusion of private interests into the criminal justice system, an intrusion that is officially recognized, indeed encouraged, by the state. Yet perhaps it is possible to see the criminal justice system as consisting of different functions, some of which must remain in the hands of public authorities and others of which can be safely assigned to private enterprises overseen by public authorities. That, at least, is what proponents of privatization maintain.
In his book on the subject, Charles Logan argues that, compared to existing public prisons along a range of dimensions, private prisons fare no worse than public ones and may fare better. Logan's discussion covers, among other things, the quality, cost, and security of private prisons. Many of his arguments are quite persuasive. As he makes clear, private prisons are not completely private -- they operate only under the control and authority of the government. This is a crucial point to keep in mind throughout the discussion that follows. We might be skeptical about the effectiveness of such government oversight, but we must concede to the proponents of private prisons that it is presupposed in their arguments. I will also concede that private prisons might provide incarceration facilities that are at least as secure, efficient, well-run, and humane as existing public jails and prisons. As Logan admits, that may not be conceding much, but it is not along these dimensions that my concerns lie.
What is striking about Logan's analysis is what it leaves out. He does not question the recent alarming increase in the use of incarceration in the United States, taking it as a given that local, state, and federal governments will require expanded prison facilities. …