Breaking In

The prison industrial complex has been shaping criminal justice for decades, writes Lauren Mulvihill – but what are the implications?

It’s unusual to hear of anyone trying to break in to prison, and yet something to this effect has been happening since the 1980s. The past few decades have seen a massive increase in the number of prisons being passed from states to private contractors. This is known as privatisation, and while non-state actors have been involved in the management of prisons and jails since their inception, the practice of delegating the exclusive management and care of prisoners to private citizens raises a number of ethical issues.  In an increasingly globalised world, governments’ desire to compete in the international free market has led to the development of a ‘prison industrial complex’. But should we be allowing private citizens to break in to the prison market?

Before getting into the issues and debate surrounding the topic, it’s useful to understand exactly what is meant by ‘privatisation’. In many instances, privatisation is not a straightforward concept, as it can cover a range of activities: the private sector may be involved in, for example, providing professional services to prisons including counselling, vocational training, and education programmes; they may provide laundry or catering services to inmates and staff; or they may construct the prison facilities that are later acquired by the state, without necessarily assuming responsibility for the everyday management of the prison. The Irish Prison Service (IPS) refers to these bodies as “stakeholders”. There are instances, however, where governments have sold the right to hold those convicted of crimes to non-state actors in private facilities. The largest of these entities was founded in 1984 under the name Corrections Corporation of America.

Now known as CoreCivic, the company held 52.28% of the market for private correctional facilities in the US in 2001, translating roughly to 43.66% of the global market share.

Prison privatisation has a long history, extending at least as far back as the debtors’ jails of  18th century England, but the market potential of the prison industry has reached unprecedented levels due in large part to a very modern phenomenon known as mass incarceration. This “prison industrial complex”, a system wherein government bureaucrats, politicians, and private industry work together to transform the detention of prisoners into a profit-making exercise, has grown in tandem with an increase in private sector involvement in the use of inmate labour.

The Republic of Ireland is currently home to fourteen prisons, eleven of which operate as ‘closed’ institutions, and none of which are fully privatised. The Minister for Justice and Equality is responsible for the Irish prisons system, and the Irish Prison Service operates as an executive agency within the Department for Justice and Equality. Simply put, the incarceration of prisoners is seen as a responsibility of the state. According to the Irish Penal Reform Trust (IPRT), the imprisonment rate in Ireland is approximately 79 per 100,000 of the population. While issues of overcrowding and poor sanitation still require urgent action, the confinement boom experienced by the United States and – to a certain extent – the UK largely bypassed the Republic of Ireland, although a significant rise in the inmate population did occur from the 1970s onwards.

In the US, rising imprisonment rates in the closing decades of the 20th century necessitated a large-scale prison building programme, the likes of which hadn’t been seen since the mid-19th century. The national crime rate had skyrocketed under the Reagan administration, primarily as a result of new ‘tough on crime’ policies including the introduction of a ‘three strikes’ rule and mandatory minimum sentences. Harsh anti-crime measures of this kind are typically associated with conservative politics; the capture and punishment of stigmatised offenders aims to reassert traditional values, and less efforts are put into tackling the underlying social and structural factors that influence crime. US crime policy has been heavily influenced by decades of sensationalist coverage of criminal violence – coverage which nurtured the climate of fear that led to an initial widespread public support for mass incarceration. The private prisons industry thrived under this climate, experiencing a revival under Bush, and it appears as though Trump’s presidency has given new hope to shareholders: CoreCivic’s stock price plummeted in August 2016 following a statement by then-President Obama pledging to phase out the use of private contractors in prison facilities, but saw a steep rise following Trump’s election in November.

Trump’s hard-line stance on immigration is largely thought to be the underlying cause of the jump: private prisons, after all, are currently responsible for approximately two-thirds of detentions under immigration legislation.

Put simply, building and running a prison is an expensive venture. Aside from the everyday expenses of feeding and housing an adult population, the costs of wages, medical care, and facility maintenance must all be accounted for. Privatisation allows governments to build more institutions, and imprison more people. Proponents of the practice argue that privatisation therefore tackles the problem of rising crime rates in a more economically efficient manner than the public sector. Private prisons typically operate under contract with a state agency, and are paid a fixed sum per prisoner taken in. Generally speaking, supporters have assumed that, if private prisons can be shown to be more efficient than state-run prisons, then privatisation should be embraced. Although privatisation has historically led to the abuse and exploitation of inmates – physically and economically – it’s argued that modern human rights protections will prevent such abuses from occurring. The prison industrial complex, however, is more – well, complex than these arguments suggest. Many are based upon problematic assumptions and obscure the fact that privatisation is, at best, ethically dubious, and may potentially breach international legal standards.

The first question that must be asked concerns legitimacy. Can and should states have the ability to delegate the punishment of private citizens to other private citizens? To some, the answer is ‘yes’, because the allocation and imposition of punishment are not the same thing. Those who subscribe to this view argue that only the allocation of punishment is the essential role of the state. The first issue to arise from this stance is that of human rights protections. Imprisonment by its very nature requires individuals to live in such conditions which, in any other circumstance, would constitute a serious breach of their human rights; for the state to allow private actors to assume responsibility for imprisonment would therefore require an extremely high level of monitoring to ensure that abuses don’t occur. Whereas in England every private facility has an on-site controller to monitor terms of government contracts, and the state will withhold funding from institutions that fail to comply with agreed terms, a preoccupation with cost in the US has meant that the monitoring of private prisons has become a less urgent concern – contracts, for example, do not require a state monitoring clause.

Issues extend beyond legality. A major cornerstone of liberal democracies has been the idea that the state should have a monopoly on the legitimate use of physical force. The ‘use of physical force’ extends beyond military and police power to cover the sort of force that is essential in the governance of prisoners, such as physical separation from both the outside world and other inmates; the strict regulation of how time is spent within the institution; and the use of force to physically restrain inmates under certain circumstances. If the use of legitimate force is generally seen as peculiar to the state, contracting private actors to undertake its imposition raises a lot of ethical dilemmas. For example, since building and maintaining prisons is so expensive, and prisoners tend to be drawn overwhelmingly from socioeconomically deprived populations, privatisation is essentially allowing the wealthy to punish the poor for material gain. And what about societies wherein the imposition of punishment is highly racialised? Incarceration is one of the most intrusive ways in which the state exercises power over its citizens – it can’t be justified in purely financial terms.

Even in terms of finance, privatisation isn’t quite as economical as some would argue. As was said before, privatisation was originally offered as a solution to rising crime rates: that a number of new prisons may themselves have influenced growing incarceration rates is rarely considered (with all that extra cell space, judges are undoubtedly less likely to worry about overcrowding). There is also no convincing evidence to suggest that private prisons are more economically efficient than state-run prisons: a number of studies have concluded that private prisons in the US perform to around the same standard, if not slightly lower, than public prisons. Of course, proponents now argue that the main benefit of the private prison industry is that it provides competition for state-run facilities, and this supposedly encourages more efficient spending.  

More cynical observers have pointed out that ‘more efficient spending’ may in reality be shorthand for ‘cutting corners’ – almost all aspects of prisoners’ lives, from the food they eat to the bed they sleep on, are closely regulated, and in turn are accompanied by high profit-making potential.

Creating and maintaining a prison-industrial complex requires three things: a strong belief in the idea that criminality can be targeted primarily through punishment, so that underlying causes are ignored; the racialisation of crime; and a relationship between correctional institutions, politicians, and the corporate sector. That last one is key, as the rise in private prisons has coincided with a rise in the use of inmate labour by private corporations The use of prisoners’ labour itself leads not only to ethical problems, but often teeters dangerously closely to being in breach of international law. In the US, contractors such as CoreCivic and Geo Group were joined by multinationals including McDonalds and Walmart to lobby politicians to introduce harsher and longer sentences for non-violent offences. Laws that made inmate labour more difficult to access in order to protect local jobs were overturned as a result. The US is home to around 22% of the world’s entire prison population, and working inmates typically earn an hourly wage of between $0.12 and $1.15. Corporations stand to profit massively from employing prisoners rather than those on the outside. Not only this, but inmate labour has the knock-on effect of helping corporations bust unions by providing surplus workers. In Ireland, where the ILO Convention 29 was ratified in 1931 and essentially prohibited slavery, this practice becomes extremely problematic as it is dangerously easy to cross the line between legal convict labour and unethical labour practices – it is, after all, very difficult to gauge whether a prisoner is working willingly or not.

The privatisation of prisons has led to exploitation, political laziness, and a neglect of social problems over the past several decades. It is also ethically questionable at best, legally objectionable at worst, and most likely played a key role in the confinement boom it allegedly sought to contain. If Ireland were to privatise the prison system, the legitimacy of the state would be called into question, and possibly lead to state corruption and abuses of power both by private prison contractors and outside firms aiming to capitalise on convict labour. Overall, the bodies of citizens, whether they be convicted criminals or not, can’t morally be used as fodder to help a country compete in a global marketplace. This isn’t an idea we should be buying into.