State Punishment and Private Prisons
Dolovich, Sharon, Duke Law Journal
To date, the debate over private prisons has focused largely on the relative efficiency of private prisons as compared to their publicly-run counterparts, and has assumed that, if private contractors can run the prisons for less money than the state without a drop in quality, then states should be willing to privatize. This "comparative efficiency" approach, however, has two significant problems. First, it is concerned exclusively with efficiency, despite the fact that the privatization of prisons arguably implicates more urgent values. Second, it accepts the current state of public prisons as an unproblematic baseline, thus failing to consider the possibility that neither public prisons as presently constituted nor private prisons in the form currently on offer are adequate to satisfy society's obligations to those it incarcerates. In this Article, Professor Dolovich examines the private prisons issue from a third perspective, that of liberal legitimacy. On this standard, if penal policies and practices are to be legitimate, they must be consistent with two basic principles: the humanity principle, which obliges the state to avoid imposing punishments that are gratuitously inhumane; and the parsimony principle, which obliges the state to avoid imposing punishments of incarceration that are gratuitously long. After sketching the foundation for this legitimacy standard, Professor Dolovich then applies it to the case of private prisons. Approaching the issue of private prisons from this perspective helps to reframe the debate in two ways, both long overdue. First, it allows for a direct focus on the structure and functioning of private prisons, without being derailed by premature demands for comparison with public-sector prisons. It thus becomes possible to assess directly the off-heard claim that the profit incentive motivating prison contractors will distort the decisions made by private prison administrators and lead to abuses. Second, it makes it possible to see that the state's use of private prisons is the logical extension of policies and practices that are already standard features of the penal system in general, thus throwing into sharper relief several problematic aspects of this system that are currently taken for granted. In this sense, the study of private prisons operates as a "miner's canary," warning that not just the structure of private prisons, but also that of American punishment practices more broadly, may need reconsideration.
TABLE OF CONTENTS Introduction I. The Emergence of the Modern Private Prison A. Historical Antecedents B. The Corrections Crisis of 1980s America C. Enter the Private Sector II. A Liberal Standard of Legitimate Punishment A. A Rawlsian Model of Legitimate Punishment B. The Humanity and Parsimony Principles Derived III. Private Prisons and the Humanity Principle A. Understanding the Humanity Principle B. Framing the Issues C. A Thought Experiment: The Profit Motive Unconstrained D. Available Accountability Mechanisms and Their Limits 1. The Courts 2. Accreditation 3. Monitoring 4. Competition and the Threat of Replacement E. Private Prisons: Problems and Prospects F. Public Prisons: A Satisfactory Alternative? IV. Private Prisons and the Parsimony Principle A. Understanding the Parsimony Principle B. Influencing Time Served from the Inside: "I'm the Supreme Court." C. Influencing Incarceration Rates from the Outside: "The Most Powerful Lobby You've Never Heard Of" D. CCA & CCPOA: "Protecting the Public Interest"? E. Prison Building as Economic Development: "Recession-Proof Jobs". F. Private Prisons as Miner's Canary Conclusion
During the 1980s and 1990s, the population of America's prisons and jails soared to unprecedented levels. …