Found at: 0x1bi.net:70/textfiles/file?law/feb01.law

FEBRUARY 1990                                                     

                       FAD OR FUTURE                           
                 Lt. David K. Burright
              Linn County Sheriff's Office
                       Albany, OR
     Very few people would dispute that this Nation's prison 
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 
n 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 
correctional facilities.                                          

     The concept of privatization fuels a very controversial and 
contractors can truly provide a better service at a lower cost 
than public practitioners while still not sacrificing quality, 
.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 
n 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 
and the practice degenerated to ``...a well documented tale of 
nmate abuse and political corruption.'' (1)  By the late 1800's,
the practice of complete operation of prisons by private vendors 

     Since then, public opinion and pressure have vacillated 
be treated and not necessarily incarcerated.  This was evident in 
the 1960s and early 1970s when the building of new prisons and 

     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 
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  
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 
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 
nfluence public operations.

     An additional incentive to economize is the competition from 
other private vendors.  Others claim that costs can be lowered by 
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 
n the public sector. (5)  When facilities are transferred to the
opportunity to be hired by the private operators in most 
nstances, 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, 

     Some vendors have agreed to indemnify the government should 
lawsuits be filed against the facility.  As a means of further 
operators consent through their contracts to run the facility in 
accordance with American Correction Association (ACA) standards.  


     Opponents to privatization strongly question whether there 
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 
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, 
these facilities are much less than for a maximum security prison 
or jail, which requires additional staff, security measures, and 
nmate 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 
additional level of bureaucracy. (7)
     Opponents fear that once private vendors take over facility 
operations and the government dismantles its organizational 
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 
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 
vendor may also attempt to have low-security inmates assigned to 
their facilities, thereby leaving the high-risk, higher cost 
nmates 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 
mere fact that a contractor agrees to abide by ACA standards 
     With regard to indemnification, although promising in 
appearance, there has not yet been a court case to be able to 
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 
mportant governmental function as the deprivation of freedom to
citizens (criminals).  Opponents say that corrections centers on 
ssues 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 
others, and to carry firearms.  They have no special police 
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 
n 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 
the savings are real and question the basic legitimacy of 
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 
ssue 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, 

(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, 
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), 
against 16 illegal aliens who were held at the direction of the 

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

(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 

(12) Report of the President's Commission on Privatization 
(Washington, DC:  Government Printing Office), p. 150.