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                       FAD OR FUTURE                           




                 Lt. David K. Burright

              Linn County Sheriff's Office

                       Albany, OR



     Very few people would dispute that this Nation's prison 

system is in serious trouble.  Corrections administrators are 

faced with grossly over-crowded conditions, shrinking revenues, 

and increased competition for operating capital.  These problems 

are combined with soaring crime rates, a public cry for more jail 

sentences and longer incarcerations of criminals, and a Federal 

judiciary which all too often imposes sanctions and restrictions 

in an effort to force needed change.                              

     It's no wonder that in response to these pressures, public 

officials are grasping for ideas and solutions to the prison 

problem.  One major idea continually being proposed is the 

private contracting and operation (privatization) of adult 

correctional facilities.                                          

     The concept of privatization fuels a very controversial and 

heated debate. Most arguments center on whether private 

contractors can truly provide a better service at a lower cost 

than public practitioners while still not sacrificing quality, 

i.e., physical security, inmate programs, and support.  An even 

more difficult issue involved in this controversy is whether 

corrections should either philosophically, ethically, or morally 

be turned over to private enterprise.  However, questions still 

remain.  Is privatization a panacea for the ills of corrections 

in the United States? Is it a fad or is it the future?            


     The concept of private operations of correctional 

facilities is not a new one. After the Civil War, many States 

entered into contracts with private businesses to operate State 

prisons.  The inmates, however, were used virtually as slaves, 

and the practice degenerated to ``...a well documented tale of 

inmate abuse and political corruption.'' (1)  By the late 1800's, 

the practice of complete operation of prisons by private vendors 

had been abolished and control was taken by the States and 


     Since then, public opinion and pressure have vacillated 

regarding the treatment of lawbreakers.  At times, public opinion 

has been one of ``reform,'' with the idea that criminals should 

be treated and not necessarily incarcerated.  This was evident in 

the 1960s and early 1970s when the building of new prisons and 

jails was very unpopular and thought unnecessary.  Many 

practitioners believe this is the one reason that there is such a 

shortage of jail/prison beds today.                               

     In the meantime, private businesses recognized a potential 

market and began offering specialty programs and began 

contracting for medical and food service and housing for 

low-security juveniles and illegal aliens being held for the 

Immigration and Naturalization Service (INS).  However, it was 

not until these private vendors began pressing for the 

opportunity to take over the complete management and operation of 

full-scale adult prisons and jails that opposition began to 

mount.  Even so, by 1987, three States had adopted legislation 

authorizing the private operation of the  State facilities, and  

a dozen more were actively considering it. (2)  Today, there are  

64 private companies in this business, and several States and 

counties have prisons being operated by these companies. (3)





     The proponents of the private operation of prisons and jails 

offer a variety of arguments to support their position.  Many 

believe the government has not done a good job of management. 

``Costs have soared, prisoners are coming out worse off than when 

they went in, and while they are in they are kept in conditions 

that shock the conscience, if not the stomach.'' (4)  Because the 

work would be performed under a service contract, proponents say 

that vendors can be forced to perform or face termination of the 




     Private vendors believe they can operate the facilities for 

a much lower cost, saving 10-25% of the Nation's corrections 

budget.  These savings are possible because the vendors are 

unencumbered by politics, bureaucracy, and civil service that 

influence public operations.                                      

     An additional incentive to economize is the competition from 

other private vendors.  Others claim that costs can be lowered by 

reducing employee turnover through better training, recruiting 

and supervision, and reduced use of overtime.                     



     Many private vendors employ administrators who are highly 

experienced in corrections; in fact, a large number have served 

in the public sector. (5)  When facilities are transferred to the 

private sector, the public employees on staff are offered the  

opportunity to be hired by the private operators in most 

instances, thereby assuring trained, qualified employees are 

manning the prisons.  A private business could also contract with 

two adjoining States to house prisoners in a common facility, 

resulting in increased efficiency for both the public and the 




     Some vendors have agreed to indemnify the government should 

lawsuits be filed against the facility.  As a means of further 

reducing the government's potential for liability, these 

operators consent through their contracts to run the facility in 

accordance with American Correction Association (ACA) standards.  




     Opponents to privatization strongly question whether there 

will be any real savings by contracting out the operation of 

prisons and jails. (6)  They argue that cost cutting can only be at 

the expense of humane treatment or security measures.  Since the 

majority of operating costs center on personnel, especially in 

maximum security facilities, any significant reductions would 

have to be made in the daily costs of inmate care or in measures 

that would jeopardize the security of the facility.               

     Even though vendors point to lower inmate costs per day of 

the current privately run operations, opponents state that most 

of the private experience is with short-term minimum security 

facilities and special program operations (juvenile facilities, 

INS lock-ups, halfway houses, etc.).  Operating expenses for 

these facilities are much less than for a maximum security prison 

or jail, which requires additional staff, security measures, and 

inmate programs.                                                  

     Opponents also question whether the ``lower costs'' include 

the full cost of contract administration and management.  To 

ensure the vendor is complying with all contractual obligations, 

especially in a large multifacility operation, would require 

governmental monitoring and administration resulting in an 

additional level of bureaucracy. (7)




     Opponents fear that once private vendors take over facility 

operations and the government dismantles its organizational 

structure, it will significantly reduce the public's leverage on 

contracts negotiated in future years.  This reduced leverage and 

lack of alternatives could result in huge future costs.           

     The public must also be prepared to reassume control of the 

facilities on short notice should the contracting vendor be 

unable to fulfill its contract.  In this situation, unlike in the 

public sector, the government would not have the option of simply 

shutting down the operation, and the resultant problems and 

costs of regaining control would be staggering.                   



     Corrections administrators fear that the private sector will 

lure away the best, most experienced employees, making it even 

more difficult to manage the facilities remaining under 

government control.  Unless carefully monitored, the private 

vendor may also attempt to have low-security inmates assigned to 

their facilities, thereby leaving the high-risk, higher cost 

inmates to the government.                                        



     Opponents to privatization argue that the government cannot 

contract away its civil liability as it relates to the proper 

management and operation of corrections facilities, and this 

position appears to be supported by the courts. (8)   Also, the 

mere fact that a contractor agrees to abide by ACA standards 

does not guarantee that a civil rights complaint will not be 

successfully litigated, as the courts have not recognized any set 

standard to be followed in these cases. (9)


     With regard to indemnification, although promising in 

appearance, there has not yet been a court case to be able to 

judge the practicality of this.  In addition, opponents are 

concerned as to if and how vendors will be insured. Will they be 

able to financially survive in the face of a large settlement, 

and if not, who will bail them out?                               



     Probably the most important of all arguments against 

privatization deals with the question of whether the government 

should delegate the authority for such a traditional and 

important governmental function as the deprivation of freedom to 

citizens (criminals).  Opponents say that corrections centers on 

issues at the very core of American government and that it has no 

business being in the hands of private enterprise.                

     For instance, absent any special legislation or 

deputization, private contractors have only the authority of a 

private citizen to arrest, use force in defense of themselves or 

others, and to carry firearms.  They have no special police 

powers or authority. (10)  This has tremendous implications when 

considering incarceration and the use of force to maintain 

control and security.    


     Another important constitutional issue deals with decisions 

affecting parole.  The American Civil Liberties Union's position 

on the issue is quite clear:                                      

     ``...we do see civil liberties implications in the 

        situation where private entities or persons can 

        affect or impact the length or duration of con-

        finement of a prisoner.  Plainly it is in the 

        interest of private entrepreneurs to increase the 

        number of prisoners in facilities because they are 

        paid by the head ... any decision which impacts 

        these numbers must be made by government officials 

        with no ties to a private contractor.  A concrete 

        example is in the disciplinary realm where jail or 

        prison officials are empowered to take away good 

        time or file adverse disciplinary reports which 

        will in turn affect parole release.'' (11)



    The move toward the privatization of adult correctional 

facilities in America is more than a passing fad.  Private 

enterprise is showing a willingness to commit millions of dollars 

in an attempt to break into what it believes to be a very 

lucrative market.                                                 

     But, is it really the future?  On this, the ``jury is still 

out.''  Both sides present convincing arguments.  Proponents tout 

reduced costs and increased efficiency, while opponents ask if 

the savings are real and question the basic legitimacy of 

privatization.  The problem is that neither side has been able to 

conclusively prove its case.                                      

     The President's Commission on Privatization has recommended 

that ``proposals to contract for the administration of entire 

facilities at the federal, state, or local level ought to be 

seriously considered.'' (12)  Perhaps that's good advice, but the 

issue will have to be ultimately decided by the people within 

the affected jurisdictions and the courts.                        


(1) John J. DiIulio, Jr., Private Prisons (Washington, DC:  

Government Printing Office, National Institute of Justice, 

1989), p. 3.                                                      

(2) Ibid., p. 1.                                               

(3) Telephone interview with Dean Moser, National Sheriffs' 

Association, Alexandria, VA, January 19, 1989.                    

(4) House of Representatives, 99th Congress, Hearings Before 

the Subcommittee on Courts, Civil Liberties, and the 

Administration of Justice of the Committee of the Judiciary, 

Privatization of Corrections, quoting statement of Ira P. 

Robbins, Concerning Privatization of Corrections (Washington, 

DC:  Government Printing Office, 1985), p. 6.                     

(5) Ibid., p. 38.                                               

(6) Opposition or concern has been voiced by the American Bar 

Association, American Civil Liberties Union, National Sheriff's 

Association, and various labor organizations.                     

(7) Corrections Corporation of America (CCA) includes the cost 

of 1 government monitor in the cost of their contracts.           

(8) Medina v. O'Neill, 589 F.Supp. 1028 (S.D. Texas, 1984), 

which held the INS responsible for constitutional violations 

against 16 illegal aliens who were held at the direction of the 

INS by a private contractor.                                      

(9) Bell v. Wolfish, 441 U.S. 520, 995 S.Ct. 1861, 60 L.Ed.2d 

447 (1979).                                                       

(10) Private Security Advisory Council, Scope of Legal 

Authority of Private Security Personnel (Washington, DC: 

Government Printing Office, Department of Justice, 1976), p. 1.  

(11) Supra note 4, quoting ACLU Position on Privatization of 

Prisons and Jails, p. 3.                                          

(12) Report of the President's Commission on Privatization 

(Washington, DC:  Government Printing Office), p. 150. 

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