The Unconvincing Case Against Private Prisons

37 Pages Posted: 21 Jan 2015

See all articles by Malcolm M. Feeley

Malcolm M. Feeley

University of California, Berkeley

Date Written: October 23, 2013


In 2009, the Israeli High Court of Justice held that private prisons are unconstitutional. This was more than a domestic constitutional issue. The court anchored its decision in a carefully reasoned opinion arguing that the state has a monopoly on the administration of punishment, and thus private prisons violate basic principles of modern democratic governance. This position was immediately elaborated upon by a number of leading legal philosophers, and the expanded argument has reverberated among legal philosophers, global constitutionalists, and public officials around the world. Private prisons are a global phenomenon, and this argument now stands as the definitive principled statement opposing them. In this Article, I argue that the state monopoly theory against privatization is fundamentally flawed. The Article challenges the historical record and philosophy of the state on which the theory is based, and then explores two other issues the theory wholly ignores: private custodial arrangements in other settings that are widely regarded as acceptable if not exemplary and third-party state arrangements that are universally hailed as exemplary. The Article presents first-of-its-kind empirical data on private prisons in Australia, discusses the implications of readily available information on juvenile facilities, and explores interstate compacts on prisoner transfers. The Article maintains that the state monopoly theory erroneously asserts that privatization is inconsistent with the modern state, and concludes with a call for policymakers and judges to imbue their future privatization decisions with local knowledge and time-honored pragmatism.

Suggested Citation

Feeley, Malcolm M., The Unconvincing Case Against Private Prisons (October 23, 2013). Indiana Law Journal, Vol. 89, No. 4, 2014; UC Berkeley Public Law Research Paper No. 2552862. Available at SSRN:

Malcolm M. Feeley (Contact Author)

University of California, Berkeley ( email )

310 Barrows Hall
Berkeley, CA 94720
United States

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