Holding Private Prisons Accountable: A Socio-Legal Analysis of "Contracting Out" Prisons

Introduction IN THE CONTEXT OF A PRISON BOOM (GOTTSCHALK, 2002), THE RAPID ESTABLISHMENT of private prisons over the last few decades (Ratliff, 1997) reflects a heightened belief that private entities can perform public functions as well as public entities can (Gilman, 2001). In private prisons, the public functions of punishment, detention, rehabilitation, and general interests of public safety are performed largely by for-profit corporations. For some, shifting punishment from public to private raises grave concerns. A common belief is that governments are disinterested parties from the perspective of personal benefit--that is, they are accountable directly to the public, and therefore have an interest in protecting the public through an effective corrections system. However, private corporations are seen as profit-maximizers with a rational incentive to make as much money as possible (Ratliff, 1997; but see Fairfax, 2004). The possibility of a private prison yielding a profit based on imprisoning individuals raises justifiable skepticism. Despite concerns arising from shifting the public function of punishment into the private sphere, governments domestically and abroad have recently been willing to argue that private companies can do just as good a job as they can. Governments contract out government responsibilities to private corporations, attempting to have private entities perform a public function while still holding these corporations publicly accountable. This article presents a study of three aspects of accountability that are essential to the contractual relationship established by government and the private firm managing the private prison: formation, maintenance, and liability. Through formation, the government-firm relationship sets out expectations of what the prison and its management will require, such as the physical plant and staffing. Maintenance consists of day-to-day operations, which includes expectations of relationships between prisoners and between prisoners and staff. Liability indicates expectations of what government and the private prison can anticipate if the firm fails to meet contractual or other obligations. Through the contractual components of formation, maintenance, and liability, accountability may be enforced, social groups protected, and justice pursued. In this article, we compare contracts for private prisons in Australia, Canada, and the United States to examine how governments support democratic accountability, protect disadvantaged groups, and promote justice in prisons. These three countries share features important to social policy organization, including federalist governments and common-law systems (Castles, 1993). The purpose of this examination is to determine whether and how the contractual relationship is used to strengthen public accountability of government-private relationships. The Powerful Trend of Public to Private When governments shift their responsibilities to private actors, does accountability weaken? Perhaps part of renewed efforts of political liberalization (Chibundu, 1997: 3), contemporary privatization suggests the dividing lines separating public and private are blurring (Minow, 2000:1061-1062; Dolovich, 2005:448). Research demonstrates, however, that government-private delegation is neither dichotomous nor one directional. Freeman's (2003: 1285) conception of publicization is a useful idea for studying the establishment of relationships between government and private firms. Publicization occurs when the government reasserts control over part of a private effort, a shift of private responsibility back to government. Publicization likewise indicates a process of shifting responsibilities between the government and the private firm (Freeman, 2003: 1314; Davidson, 2006: 275). Constitutional questions exist about many of these government-private relationships, particularly whether it is legitimate for government to delegate responsibilities to private firms (DiPiano, 1995: 2; Casarez, 1994-1995: 261; Froomkin, 1995: 548, 574-577; Duitsman, 1998). …

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