Prison Accountability and Performance Measures
Emory University School of Law
October 4, 2013
Emory Law Journal, Vol. 63, 2014, Forthcoming
Emory Legal Studies Research Paper No. 13-263
A few decades of comparative studies of public vs. private performance have failed to give a strong edge to either sector in terms of quality. That supposed market incentives haven’t delivered spectacular results is unsurprising, since by and large market incentives haven’t been allowed to work: outcomes are rarely measured and are even more rarely made the basis of compensation, and prison providers are rarely given substantial flexibility to experiment with alternative models.
This Article argues that performance measures should be implemented more widely in evaluating prisons. Implementing performance measures would advance our knowledge of which sector does a better job, facilitate a regime of competitive neutrality between the public and private sectors, promote greater clarity about the goals of prisons, and, perhaps most importantly, allow the use of performance-based contracts.
Performance measures and performance-based contracts have their critiques, for instance: (1) the theoretical impossibility of knowing the proper prices, (2) the ways they would change the composition of the industry, for instance by reducing public-interestedness or discouraging risk-averse providers, and (3) potentially undesirable strategic behavior that would result, for instance manipulation in the choice of goals, distortion of effort away from hard-to-measure dimensions or away from hard-to-serve inmates, or outright falsification of the numbers. I argue that these concerns are serious but aren’t so serious as to preclude substantial further experimentation.
Number of Pages in PDF File: 79
Keywords: prisons, privatization, performance measuresAccepted Paper Series
Date posted: October 6, 2013 ; Last revised: October 31, 2013
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