Academic journal article Fordham Urban Law Journal

Prison Privatization and Inmate Labor in the Global Economy: Reframing the Debate over Private Prisons

Academic journal article Fordham Urban Law Journal

Prison Privatization and Inmate Labor in the Global Economy: Reframing the Debate over Private Prisons

Article excerpt

Introduction I.  Prison Privatization as a Domestic Face of Globalization       A. The Global Context: Privatization and         Neoliberalization       B. Privatization, Outsourcing, Deregulation, and         Globalization: A Historical Perspective       C. Private Prisons and the Myth of Efficiency           1. Revisiting the Rationales for Privatizing Prisons           2. The Chronology of Prison Privatization II. Prison Privatization and Prison Labor       A. Prison Industry Enhancement (PIE)       B. Federal Prison Industries (UNICOR) and the Debate         Over Prison Labor       C. Reforming Prisons Through Privatization: Two         Models         1. Privatizing Inmate Labor: Chief Justice Burger's           Task Force Model         2. Privatizing Prison Financialization: President           Reagan's Privatization Commission Model         3. The Task Force and the President's Commission,           Compared Conclusion 

INTRODUCTION

The pragmatics of privatization are terrain for a critical understanding of the relationship between government and business under the conditions associated with the globalization of neoliberal capitalism. (1) Prison privatization is especially significant in this context, given the fact that--for privatization advocates and critics alike, in the United States and elsewhere--prisons represent a bellwether for broader questions about the scope of government. (2) As John Donohue writes, "[f]ew roles in our American society seem more inherently 'public' than those of the police, the judges and the jailers." (3) Given the traditional association of prisons with core governmental functions, (4) prison privatization is strategically key to privatization proponents, as a test of the very notion of core government. (5) Core government--implying a non-delegable "duty to govern"--is itself an issue in debate. (6) The centrality of prison privatization to wider debates about privatization gives us our starting point in this Article. We agree with Frank Michelman's assessment that privatization raises constitutional questions in a way that globalization does not, at least not automatically. (7) Taken to an extreme, or in its most ideological form, one might imagine--with Michelman--that privatization makes government an "empty shell." (8) However, as Elaine Genders and others have noted, in the prison context, privatization does not automatically challenge the idea of core governmental functions since it does not automatically remove the state altogether from the process. (9) Setting up contractual terms, standards, monitoring procedures, accountability, and conditions for rescission may all remain with the state. (10) What, then, is the problem with prison privatization? In what follows, rather than discuss this question in traditional binary terms--public versus private, or more efficient versus less efficient--we read the private prison debate as a test of the government's ability to mediate the public's responsibility for the human conditions of citizenship. This enables us to take a broader perspective on what is at stake in these debates, especially for the prisoners involved, when the state decides to privatize.

Our findings, thus, challenge assumptions that would situate prison privatization as a test of government's scope. For one thing, privatization itself is a form of governmental action, and may involve various forms of control on the part of the contracting agencies. (11) More fundamentally for our purposes, the history we relate shows that privatization is not a unified phenomenon; prison privatization has a long and particular history that compels attention to diverse rationales and approaches. (12) Moreover, that same history shows that prison privatization became a test of government's scope only after a priority on limiting government was politicized and set in place as a matter of policy under the Reagan and Bush Administrations (and continued thereafter). …

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