Are Private Prisons to Blame for Mass Incarceration and its Evils? Prison Conditions, Neoliberalism, and Public Choice

Abstract

One of the frequently criticized aspects of American mass incarceration is privatized incarceration, which is frequently considered worse by definition, than public incarceration, both for philosophical-ethical reasons and because its for-profit structure creates a disincentive to invest in improving prison conditions. Relying on literature about the neoliberal state and on insights from public choice economics, this Article sets out to challenge the distinction between public and private incarceration, making two main arguments: piecemeal privatization of functions, utilities and services within state prisons make them operate more like private facilities, and public actors respond to the cost/benefit pressures of the market just like private ones. The paper illustrates these arguments with several examples of correctional response to the conditions caused by the Great Recession, showing public and private actors alike adopting a cost-minimizing, financially prudent approach, sometimes at the expense of prison conditions and inmate human rights. The paper ends by suggesting that, in a neoliberal capitalist environment, prohibitions and litigation alone cannot improve prison conditions, and that policymakers need to consider proper market incentives regulating both private and public prisons.

Keywords: prison, private prisons, privatization, public choice

JEL Classification: H40, H41