Prison Privatization: An Unsurprising Outgrowth of American Political Culture

Keenan Weatherford GOVT 3141 Prof. Mary Katzenstein TA Martha Wilfahrt Paper #2 11/11/2010

So much effort has been spent debating the merits of private prisons are they more efficiently run? Provide better quality? Drive economic growth? that it is difficult to step back and realize exactly how private prisons fit into a distinctly American political culture and structure. For all their benefits and drawbacks, it is not particularly surprising that private prisons have become such a major partof this countrys criminal justice system. Regardless of ones personal opinion on the value of private prisons, it is imperative to understand how and why they have grown into the cultural phenomenon that exists today. Without that understanding, it will be difficult for anyone to take meaningful action to remedy the problems that undoubtedly exist in both public and private prisons. Merchandizing Prisoners, by Byron Eugene Price, points an accusing finger at profit-seekers, painting them as the dastardly robber barons that created the private prison network and corrupted the criminal justice system. In a sense, he is correct businessmen and women are indeed running the companies that now operate and invest in private prisons. And, these businesspeople do indeed lobby for policy that benefits themselves and their businesses, often to the detriment of other segments of society. But this is far from unique to private prisons this is the same story that has been told, for better or for worse, throughout all of American history. At the risk of sounding overly clich, the United States was built on the spirit of entrepreneurship and capitalism two qualities that inevitably render some classes as winners and some as losers. Price spends much of the book critically assessing the veracity of the typically stated merits of private prisons: efficiency, effectiveness, and quality. He comes to the same conclusion about all three that their accuracy cannot be verified, and therefore must not be the reasons driving the prison privatization movement. The primary reason for prison privatization, Price claims, is profit-seeking. I agree that profit-seeking, or other self-interested goals, may be the motives for many of the elites who actually pass the laws and sign the checks. However, I think Price underestimates the importance of the typically stated merits and other factors which I believe contribute significantly to the citizens failure to rein in prison privatization. Whether or not they are true in the case of private prisons, efficiency, effectiveness, and quality are three values that Americans cherish; they are a part of our political culture.

I do not doubt that many of the individual actions taken by legislators and businesspeople in the prison industry are for personal gain. Politicians want campaign contributions and businesspeople want money that is no secret. Some argue that the prison industry is a tool for social control, or a way to reframe the civil rights battle (Davis, Weaver). But, politicians are not operating in a bubble completely divorced from voter and public accountability. The political culture in the United States has allowed profit-seekers and politicians to advance prison privatization. That culture rather than the fairly blatant motives of profit-seekers and politicians merits further discussion. Because while businesspeople will never stop seeking profits and politicians will never stop seeking votes, it is possible to work within the U.S. political culture and empower voters to take an informed, motivated stance, be it for or against privatization. It is important to avoid being sucked into the trap debate about the merits of private prisons: efficiency, effectiveness, and quality. As Prices book shows, it is currently impossible to reach a conclusion and verify or discredit any of the merits. And frankly, it does not matter. All that matters is that voters think they are true, or are at least sufficiently distracted by the trap debate to avoid holding politicians accountable for their decision to privatize prisons. While the debaters are talking in circles about the implications of private prisons for a states budget sheet, elite decision-makers can continue to use their positions for personal gain. Until hard, reliable, unarguable evidence is unveiled to either support or discredit the various presumed merits of private prisons, voters as a collective will be unable to decide if private prisons are ultimately a good or bad influence on society. And lack of reliable evidence is not the only factor hindering execution of the democratic process politicians themselves are contributing to the distracting fracas. As Eric Schlosser noted in his story for the Atlantic Monthly about the prison-industrial complex, get tough on crime rhetoric really made a meaningful impact on policy for the first time in 1973. Despite the fact that Mainstream opinion considered drug addiction to be largely a public-health problem, not an issue for the criminal courts, (p. 56), the governor of New York demanded that every illegal drug dealer receive a mandatory life sentence without parole. Although the laws eventually passed

by the state legislature were not quite as harsh as those envisioned by the governor, they set in motion a skyrocketing incarceration rate, and were the first of many increasingly punitive laws all across the United States. When it first appeared, the now-familiar get tough rhetoric reflected a shift in public perception of the dominant purpose of sentencing, from rehabilitation of individuals to a combination of: public denunciation of crime, deterrence from crime, and incapacitation of potential criminals. That shift was not invented by politicians or businesspeople it was shepherded along by public opinion, too. When explaining the increase in get tough on crime politics, it is difficult to know if the chicken (rhetoric) or the egg (lobbying) came first. In one scenario, politicians used a troublesome crime rate as a political platform, touting their toughness on crime as a reason they should be elected. Once elected, they increased punitive laws; and businesspeople in the prisons industry took notice of their rising windfalls and established a powerful lobby to push for even tougher laws. In the other scenario, a creative businessperson in the prison industry noted that punitive laws would likely increase the industrys profits, and set up a lobby, which then influenced politicians get tough rhetoric. Although the second scenario seems more nefarious, it does not really matter which is more historically accurate since the outcome is the same: todays incarceration situation.Both scenarios lead to a self-reinforcing punitive enthusiasm, which involves the general public, judiciary, and media in addition to politicians and the prison industry (Webster p. 8). This enthusiasm might come from what Webster calls a belief in the possibility of legislating away the crime problem (p. 17). In less loaded terms, I think this fits in with an American tendency to focus on the governments area of control (creation and administration of crime law) rather than a more holistic, society-level approach, such as social justice programs targeted to steer away from crime individuals in segments of the population that are traditionally more prone to crime. As one lawyer commented in Schlossers (p. 52) story: No matter what the question has been in American criminal justice over the last generation, prison has been the answer.

Prison as the answer to all criminal justice questions makes perfect sense considering the dominant attitude on crime in the late 1960s and early 1970s. Conservatives such as James Wilson saw criminals as rational individuals who weighed the costs and benefits of a crime, and decided to commit that crime. There was nothing inherently different about these criminals; the government simply was not doing a satisfactory job of deterring crime. So, the government tried harder. Mandatory sentencing laws and three-strike laws drove up incarceration rates, but conservatives did not see that as a problem, simply a byproduct of the new deterrence policies and a milestone on the way to achieving less crime. The scores of moral arguments that can be made against the prison industry fall on deaf conservative ears, because in their minds, crime is a choice, and prisons are the way to deter people from making that choice. In fact, to make an extremely broad generalization, conservatives tend to value all of the typically stated reasons for prison development and privatization. While most, if not all, Americans value efficiency, effectiveness, and quality, political conservatives seek to derive those merits from more general principles that align perfectly with prison privatization,like free markets and small government. The notion that more competition forces all parties to maximize efficiency is an idea held dearly by conservatives, and one that further legitimizes the use of private prisons. That the merits of private prisons would appeal particularly to conservative voters helps explain one of Prices findings regarding prison privatization trends: the more conservative the citizens are in the state, the more agreeable they are to privatization as an alternative to solve government problems (p. 79). Since Price found the governors party and the state legislatures ideology to both be unrelated to the decision to privatize, these findings suggest that the citizenry was more important than their representatives in determining the policy choice considering prison privatization (p. 79). This supports my theory that because of the United States political culture, prison privatization is not being driven solely by a few self-motivated decision makers. Politicians still require the support whether outspoken or implicit of the electorate, so they distract or entice voters with the typically stated merits and get tough rhetoric, while making the final decision based on calculations of personal gain.

It would be unfair, however, to claim that elected officials are the only parties concerned primarily with personal gains. Voters of any ideology and political culture might view a prison as a welcome economic stimulus to their city or state, or a solution to a host of factors such as budgetary constraints and prison overcrowding (Price 2005, p. 232). Once voters, whether due to their political culture or desire for economic benefit, are sufficiently on board with the idea of prison privatization, a few aspects of the structure of American government further reinforce the privatization movement. The federalist structure of American government leaves almost all decisions regarding criminal law up to state and local governments. These regional governments are more susceptible to pressure -- from a populace hungry for punishing criminals, or a local prison hungry for profits to increase punishment laws. In contrast, Canadas provincial governments administer crime laws, but those laws are decided by the federal government. Webster (12) argues that this separation insulates the federal lawmakers from localized populist pressure that may call for more punitive laws, such as the grassroots citizens movement that led to Californias three-strikes law. The American government is also uniquely vulnerable to pressure from an iron triangle a collaboration between an interest group, lawmakers, and the executive branch agency responsible for enforcing those laws. These iron triangles can be found in almost every realm of United States politics. With the expanding prison system, the lawmakers are politicians who, for one reason or another, vow to get tough on crime; the agencies are police departments and public prisons that enjoy an increased share of taxpayer money to fund the get tough policies; and the interest group can be comprised of citizens who want to legislate away crime, or the prison industrys lobby. Perhaps one of the reasons that pressure from the prison industrys iron triangle seems so unrelenting is the crossover between interest group and executive branch agency. When private prisons enter the picture, they are arguably filling both roles they play a part in enforcing of the law (or at least benefit from its administration in the same way government agencies might) and have a powerful lobby in state and federal legislatures.

Price seems to imply that lobbying is primarily responsible for the growth of private prisons in nonconservative leaning, non-impoverished areas -- the areas that would theoretically be most supportive of private prisons. I do not doubt that lobbying plays a huge role in garnering momentum for prison privatization, but I think its important to not overlook the role of the electorate in agreeing to privatize prisons. Voters might be hoping for the economic boost provided by a prison. They might be stirred up by get tough on crime rhetoric. They might be convinced, or at least sufficiently distracted, by the typical merits of privatization: efficiency, effectiveness, and quality. Whatever voters reasons for supporting privatization, they play a key role in the decision politicians and the prison lobby could not go it alone. The best way to empower voters to make an informed decision on prison privatization is to work within the U.S. political culture and use the cultural factors that have thus far passively supported prison privatization. Citizens care about efficiency, effectiveness, and quality. So if reports conclusively showed that private prisons were or were not more efficient, more effective, and of a higher quality than public prisons, then voters would have no problems making a choice. Unfortunately, as Price points out, such reliable reports do not currently exist. And because the prison industry and its allied politicians have their hands in much of the independent research on the topic, conflicts of interest abound and reliable, conclusive information is likely a ways in the future. Voters can be manipulated by rhetoric, particularly of the fear mongering variety implied by get tough on crime speech. But politicians rhetoric does not call for more arrests and incarceration, it calls for less crime. Advocacy groups could work to channel this punitive enthusiasm into more intelligent sentencing laws. In Canada, for example, there are conservative crime laws such as mandatory sentencing and complex parole procedures (Webster, p. 5). But, the mandatory sentences are imposed when crimes are committed with firearms not on everyday drug offenders. And only violent criminals must navigate the more complex parole system; non-violent offenders actually enjoy an accelerated parole procedure. Whatever the strategy, it is key that advocates on either side of the debate consider ways to empower voters to move away from their current position of passive acceptance of private prisons, which, due to the structure of U.S. government, leads to a firmly entrenched and relatively unchallenged industry

interest. A motivated and confident electorate is the only thing that stands a chance of stopping or legitimizing the private prison movement.

References: Davis, A. Are prisons obsolete? Chapter 5: The Prison Industrial Complex, p. 84-101. Retrieved from Blackboard. Price, B. E. (2006). Merchandizing prisoners: Who really pays for prison privatization? Westport, CT: Praeger Publishers Schlosser, E. (1998). The prison-industrial complex. The Atlantic Monthly. Dec 1998, p. 51-77 Weaver, V. M. (2007). Frontlash: Race and the development of punitive crime policy. Studies in American Political Development. Fall 2007, p. 230-265 Webster, C. M. (2006). Countering punitiveness: Understanding stability in Canadas imprisonment rate. Law & Society Review. Retrieved from http://www.allbusiness.com/legal/3586391-1.html