Privatization of Corrections: A Violation of U.S. Domestic Law, International Human Rights, and Good Sense

Abstract

In the 1980s the U.S. criminal justice system faced rising numbers of inmates and overcrowded prison conditions. The federal government and many state governments looked to the private sector for some relief.1 The result was the emergence of a new concept: the privatization of corrections, occasionally known as “prisons for profit,” “punishment for profit,” or “dungeons for dollars.”

Prison privatization differs from private industries in prisons, which seek to turn prisoners into productive members of society by having them work at a decent wage and produce products or perform services that can be sold in the marketplace. Privatization is also different from the situation in which some of the services of a facility — such as medical, food, educational, or vocational services — are operated by private industry. Rather, the idea is to have the government contract with a private company to operate — and sometimes own — the total institution. The practice quickly spread abroad, with countries such as Australia, New Zealand, and the United Kingdom privatizing parts of their correctional systems.

Sir Nigel Rodley, former United Nations Special Rapporteur on Torture, explains that “the profit motive of privately operated prisons … has fostered a situation in which the rights and needs of prisoners and the direct responsibility of states for the treatment of those they deprive of freedom are diminished in the name of greater efficiency.” Where the safe and fair treatment of prisoners is compromised by private corporate goals, national law and international human rights instruments should protect them. In Professor Cosmo Graham’s words, there is an attendant tension “between a human rights approach and an approach to policy delivery that emphasizes the virtues of market based delivery mechanisms.” This article argues that the concept of privatization of corrections is bad policy, is based on a tenuous legal foundation, and has profound moral implications.

Keywords: Prisons, Privatization