Monday, November 17, 2014

PF Dec 2014 - For-Profit Prisons - Pro Position

Resolved: For-profit prisons in the United States should be banned.

For part one of this series, click here.

Pro Position

Private (for-profit) prisons for adult offenders have been operating in the United States for at least three decades and juvenile offenders even longer and now the Pro position is calling for them to be banned.  They should not be scaled back or reformed or more tightly regulated.  They should be banned. To justify such a position there must be a compelling problem that scaling back, reformation or regulation will not solve.  For this article, I will include many of the expected positions dealing with economics and quality and I will look at the civil and moral implications of for-profit prisons, but the underlying theme will be, the existence of the profit motive as perhaps the biggest flaw of all.

No Cost Benefit

The Con cannot legitimately claim a cost benefit to allowing governments to shift prison operations to private entities.

Central to the argument in favor of privatization is the perceived inefficiency of labor costs in the operation of prisons. In using mostly nonunion labor and by controlling wages and fringe benefits, private prison companies maintain that they can efficiently reduce the costs of labor and thereby net substantial savings for the government. The promise of meaningful savings, however, is specious at best. Research to date has concluded that there is little evidence that privatization of prisons results in significant public savings. In a 1996 General Accounting Office (GAO) review of several comparative studies on private versus public prisons, researchers acknowledged, “because the studies reported little difference and/or mixed results in comparing private and public facilities, we could not conclude whether privatization saved money.”7 A study by the Bureau of Justice Assistance (BJA) released in 2001 had similar conclusions, stating that “rather than the projected 20-percent savings, the average saving from privatization was only 1 percent” and “the promises of 20-percent savings in operational costs have simply not materialized.” These modest savings, furthermore, “will not revolutionize modern correctional practices.” [pages 1-2]

Cody Mason of the Sentencing Project cites a 2009 meta-analysis at the University of Utah looking at eight studies which concluded there was no clear fiscal advantage or disadvantage when compared to publicly managed prisons [Mason 2012:7]

Mason 2012:
Results vary somewhat, but when inconsistencies and research errors are adjusted the savings associated with investing in private prisons appear dubious. Even minimal savings are far from guaranteed, and many studies claiming otherwise have been criticized for their methodology. The available data belies the oft-claimed economic benefits of private contracting, and points to the practice being an unreliable approach toward financial stability.[page 17]

No Quality of Service Benefit

Con should not be able to cite any significant increase in the quality of care or services provided by private (for-profit) prison operations.  In the past, private prisons routinely degraded the quality of their services in the interest of higher profits [Austin & Coventry 2001:17]. To justify continued shift toward privatization in light of past abuses may require a genuine act of faith in the benevolence of corporations.

Austin & Coventry 2001:
The current movement to reprivatize primary facility management assumes that modern entrepreneurs are somehow more benevolent and humanistic so that the exploitations of the past will not reoccur (Walker, 1994). Critics, however, contend that privately managed facilities will bring new opportunities for corruption. Given poorly paid, undereducated, and inadequately trained staff, opponents question the professionalism and commitment that privatized staff will bring to the job.

[Alexander] Sasha Volokh wrote a revealing piece published in the Washington Post which examined the research which attempts to answer the question, "Are private prisons better or worse than public prisons?" [Volokh 2014]. Volokh compares several important aspects for determining which is measurably better.  Frustrated with the lack of good cost comparisons he looks at the question of quality of service.

Volokh 2013:
Moving on to quality comparisons, the picture is similarly grim. As with cost comparisons, sometimes no comparable facility exists in the same jurisdiction. Some studies solve that problem by looking at prisons in different jurisdictions, an approach that has its own problems. (If one had a large database with several prisons in each jurisdiction, one could control for the jurisdiction, but this approach is of course unavailable when comparing two prisons, each in its own jurisdiction.) Many studies just don’t control for clearly relevant variables in determining whether a facility is truly comparable. Often, the comparability problem boils down to differences in inmate populations; one prison may have a more difficult population than the other, even if they have the same security level. Usually prisons have different populations because of the luck of the draw, but sometimes it’s by design, as happened in Arizona, when the Department of Corrections chose “to refrain from assigning prisoners to [a particular private prison] if they [had] serious or chronic medical problems, serious psychiatric problems, or [were] deemed to be unlikely to benefit from the substance abuse program that is provided at the facility.” It’s actually quite common to not send certain inmates to private prisons; the most common restriction in contracts is on inmates with special medical needs.

The Profit Motive

One of the most important arguments which justify the Pro position is found in the profit motive.  Corporations are in business to make money and increase returns for their share-holders.  Granted, one may claim it is in the best interests of the corporation to provide quality services at a fair price, but in fact such balance for the long term is not normal.  The directors are driven to continually ratchet-up the returns.  In the prison industry, corporations can leverage the popular idiom, 'keep the criminal off the streets' to maximize profits.

Cheung 2004:
As an industry, private prison companies are beholden to the bottom line and maximization of profits. In a March 1997 Securities and Exchange Commission filing, CCA acknowledged that “the rate of construction of new facilities and the Company's potential for growth will depend on a number of factors, including crime rates and sentencing patterns in the United States.” Thus, higher profits require more inmates. And because most private prisons operate on a per diem rate for each bed filled, there is a financial incentive not only to detain more inmates but also to detain them for a longer period of time. The profit motive of private prison companies inherently creates a problematic entanglement between interest in profit and public policy. Corporate Contributions and Sentencing Policy-- Private prison companies deny that they are motivated to take proactive steps in pursuing legislation to keep their private facilities filled. Yet, both CCA and Wackenhut are major contributors to the American Legislative Exchange Council (ALEC), a Washington, D.C. based public policy organization that supports conservative legislators. ALEC’s members include over 40% of all state legislators—representing a serious force in state politics. One of ALEC’s primary functions is the development of model legislation that advances conservative principles, such as privatization. Under their Criminal Justice Task Force, ALEC has developed and helped to successfully implement in many states “tough on crime” initiatives including “Truth in Sentencing” and “Three Strikes” laws.[page 4]

Ari Melber, writing for MSNBC describes how cost-cutting by private prisons resulted in law suits filed in Mississippi when mentally ill inmates were denied food and medical care and in Florida, prisoner health care was cut up to 50% raising concerns of mistreatment [Melber 2014].

Melber 2014:
Many criminal justice experts say that a business built on incarceration can’t help but support incarceration. A 2011 report by the Justice Policy Institute, “Gaming The System,” documents how private prison companies, including CCA, have sought to advance “pro-incarceration” policies at the state and federal level. “Private prison companies have had either influence over, or helped to draft, model legislation such as three-strikes‛ and truth-in-sentencing‛ laws,” the report explains, “which have driven up incarceration rates.” 

It is also widely reported thanks to increasing incarceration of undocumented persons living in the U.S., private corporations are seeing large profit increases as more and more of these individuals are transferred to private facilities.

Shen 2012:
As the AP explains, these remarkable profits come in the wake of an equally remarkable lobbying campaign. In the past decade, three major private prison companies spent $45 million on campaign donations and lobbyists to push legislation at the state and federal level. At times, this money has gone to truly nefarious legislation. A 2011 report found that the private prison industry spent millions seeking to increase sentences and incarcerate more people in order to increase the industry’s profits. 30 of the 36 legislators who co-sponsored Arizona’s now mostly invalidated immigration law — which would have landed many more people in detention — received campaign contributions from private prison lobbyists or companies, including CCA and GEO. According to a report released last year, CCA spent over $900,000 on federal lobbying and GEO spent between $120,000 to $199,992 in Florida alone during a short three-month span in 2011. $450,000 went to the Republican national and congressional committees, while Democrats received less than half that number. House Speaker John Boehner (R-OH) and Sen. John McCain (R-AZ) were also among the private prison lobby’s top benefactors.

For those who wish to extend the impacts of this contention, I suggest going back and reread the January 2013 PF topic on the Citizens United decision.  The amount of political influence corporate America can "buy" is virtually unlimited if politicians are willing to open their hands.

Civil Responsibility

Corporations as well as people and governments have a responsibility to be good citizens under the social contract.  This generally means no one has the right to infringe the basic civil and human rights of others in society.  Many feel that prisoners give up their rights when they enter the penitentiary but that simply isn't true.  Many basic rights are retained founded in fundamental human rights.  For example, they retain the right to be safe, to not be denied health-care, to continue to receive basic human needs including sufficient sustenance. After all, the constitution does grant everyone should be free from cruel or unusual punishment. When these things are denied, social organizations along with prisoners will sue.  Some authors note an increasing number of lawsuits being filed charging private prison facilities with various civil offenses which many believe result from poorly constructed contracts between the government and the corporation and cost-cutting measures in the interest of increasing profits.

I am not going to include specific articles for this contention.  You will have no trouble finding many specific examples which speak to the horrors experienced by some prisoners and the lawsuits brought before the courts.  One import thing to consider, however is what happens if the corporation decides to shutdown a facility or files bankruptcy?  Think about it.

The Normative View

Until now we have tended to look to the practical measurables of cost, quality, and so forth.  We may also include in that evaluation, recidivism or numbers of violent incidents.  In most cases and as exposed by scholastic researchers, there are very few "good" studies from which one may draw an overwhelming conclusion.  The Pro may leverage these facts to conclude there is no reason to believe that for-profit prisons are capable of solving harms more effectively than government facilities.  Since the resolution states "should be banned" we are open to explore the normative question as to why for-profit prisons "should" be banned.  What important values are being harmed or is there a moral imperative to ban these corporations.

At the root of the value debate is the some-what repugnant notion it is okay for individuals to profit from the misery of others. On face it is a clear violation of Immanuel Kant's categorical imperative and the prohibition against using individuals as a mere means to an end. Most moral theorists recognize the necessity to punish criminals. This issue is, how the punishment is carried out and by whom is it carried out?  This is a tricky contention because addressing philosophical issues in Public Forum debate is not common so I caution against diving deeply into the discussion and losing the judge.

For example, consider the theory of justice espoused by John Rawls who suggested a thought experiment to determine if choices are just or moral.  If one was placed behind a veil of ignorance and did not know when the veil lifted would she be a free citizen or stand guilty of some crime, what choices would be made as to how the punishment should be carried out. Behind Rawls' veil where no one knows their status until the veil is lifted, people will tend to make choices which favor the least advantaged.

Dolovich 2005:
Behind the veil, the parties know nothing of their own social position or personal particulars, but they do know that they will have some conception of the good that they will want to realize. They also know that they are choosing principles of punishment for a partially compliant society, that is, a society with some measure of crime, where innocent people are sometimes wrongfully convicted and punished, and in which social goods are unjustly distributed. The parties will thus anticipate a threat to their security and integrity from both crime and punishment, and they will seek principles that best protect these goods...The parties will thus select those principles of punishment that provide the greatest possible protection for the security and integrity of the worst off. This means the parties would not agree to principles that could compromise the security and integrity of the worst off in order that other better-off members of society might satisfy their less urgent interest in accruing financial advantage—an interest that is less urgent because it is unconnected to the protection of anyone’s security and integrity.[page 465-466]

The impact for a government which allows its criminal justice system to operate in a way repugnant or immoral to its citizens is a loss of public trust and ultimately loss of legitimacy. Under the social contract, citizens have delegated the responsibility for criminal justice to the state to act as a neutral, unbiased administrator of justice.  Is it just or moral to hand that responsibility over to private concerns whose first motivation is profit? That is the basis of the normative debate.


Austin, J., Coventry, G. (2001). Emerging issues on privatized prisons. Washington, DC: U.S. Dept. of Justice, Office of Justice Programs; accessed 11/1/2014:

Cheung, Amy. 2004. Prison Privatization and the Use of Incarceration. The Sentencing Project, accessed 11/3/2014:

Dolovich, S. (2005) STATE PUNISHMENT AND PRIVATE PRISONS, Duke Law Journal, Vol. 55, No. 3, December 2005. Accessed 11/5/2014:

Mason, C, (2012); Too Good to be True Private Prisons in America, The Sentencing Project, January 2012; accessed 11/4/2014:

Melber, A (2014), Presumed guilty: How prisons profit off the ‘war on drugs’, MSNBC, 08/14/13 —Updated 07/29/14. Accessed 11/10/2014:

Shen, A. (2012), Private Prisons Spend $45 Million On Lobbying, Rake In $5.1 Billion For Immigrant Detention Alone, ThinkProgress, Aug 3, 2012, accessed 11/12/2014:

Volokh AS, Are private prisons better or worse than public prisons?, The Washington Post, February 2014. Accesssed 11/14/2014:

Note: the original Volokh report was published in 2013 under the following citation:
Volokh, A (2013), Prison accountability and performance measures, Emory Law Journal, Vol 63:339.  Accessed 11/10/2014:

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