The Problem with Private Prisons Is Not that They Are Private
The Brennan Center for Justice recently published a collection of essays, all written by far-left politicians, about how the United States might solve the problem of mass incarceration. Bernie Sanders contributed an essay titled “Abolish For-Profit Prisons.” His essay should come as no surprise; during the 2016 election, he made headlines after proposing the Justice Is Not For Sale Act. Sanders is hardly alone in targeting private prisons as the culprit in over-imprisonment. In the first primary debate of 2019, Elizabeth Warren (falsely) claimed that private prison stocks have grown rapidly since President Trump took office. The specter of private prisons is a popular talking point among Democrats, but the facts about the prison system do not support their diagnosis of the mass incarceration problem.
At the outset, it is always worth clarifying that private prisons are “private” in only the loosest sense of the word. It is true that the profits from these facilities are privatized, but as with any crony enterprise, the costs are socialized. State governments use taxpayer dollars to fund the contracts, and they stipulate the terms of operation. Many people see private prisons as an indictment of capitalism, failing to recognize that these prisons are wholly dependent on the beneficence of the government — the very entity that people like Bernie Sanders want to take control over the prisons as a solution to the problem.
But even if we grant this delusional view of capitalism, which fully equates all organizations that are not fully nationalized, private prisons would still fail to explain mass incarceration. This has hardly softened the demagoguery about for-profit prisons, of course. In 2018, the Equal Justice Initiative ran the headline “Private Prison Populations Skyrocket.” The article reports that private prisons hold 128,063 prisoners. This, apparently, is “skyrocketing” growth from the 2008 numbers in which private prisons held 128,525 prisoners.
The alleged “increase” is only derived from the percentage change from 8 percent of the total prison population in 2008 to a whopping 8.5 percent in 2016. Apparently, skyrocketing growth entails a proportional growth rate of less than a tenth of a percent per year, and even this only occurred because the total population of prisoners decreased, fully undermining the claim that for-profit prisoning is the cause of mass incarceration.
The reality is that exclusively attacking private prisons does more to preserve mass incarceration. The concern is that private prison lobbyists will spend money to ensure a constant flow of prisoners. This is not an unreasonable concern; incentives matter, and the prison industrial complex is rife with perverse incentives. What the focus on private prisons obscures, though, is not only that these same incentives also apply to public institutions, but they are far more significant in the public sector. As Stanford Law Professor John Pfaff points out:
While private prison groups spent $13 million on lobbying efforts between 1986 and 2014, educational groups (mostly primary and secondary education, like the American Federation of Teachers and the National Education Association) spent over $256 million, medical groups over $360 million, and — perhaps most importantly — public employee groups (which include, but certainly are not limited to, prison guard unions) over $132 million.1
In fact, during these years, total lobbying at the state level only amounted to $36 billion, making the $13 million spent by private prisons amount to 0.03 percent.
Public unions also carry more leverage than merely the lobbying dollars they have to spend. When Florida tried to transfer 14,000 prisoners to private facilities in 2012, the Republican-controlled state government supported the plan, which would have meant the estimated loss of 3,000 guard jobs. Thanks to pressure from public corrections unions, enough Republicans crossed the aisle to help the Democrats vote the bill down. A similar defeat took place in 1998, when Tennessee attempted to contract out its entire prison system.
The interests of public unions are not exclusive to preventing private contractors from taking over their industry. The fear — a valid one — with private lobbying is that they will spend money to increase arrests, convictions, and prison terms. In the “Kids for Cash” scandal, two Pennsylvania judges were convicted of accepting bribes from for-profit detention centers to impose harsher sentences on juvenile delinquents. This is a genuine problem created by the perverse incentives built into the criminal justice system.
But public unions have the same interests, as fewer prisoners means fewer jobs. Not only do they spend more money lobbying to preserve and expand the prison industry, but they use political leverage to help elect politicians with “tough-on-crime” positions. This includes publicly elected sheriffs, prosecutors, and magistrates, in addition to legislators. The difference between public and private lobbying, aside from scope, is that private organizations and their beneficiaries actually face legal consequences for their actions. Following the Kids for Cash trial, both judges were given lengthy prison sentences, and the owner of the detention facility was imprisoned and forced to pay restitution to the victims. We may argue that the penalties and awards did not go far enough (the restitution the individual victims received was meager), but punishment and restitution in fully state-run enterprises is practically non-existent, despite a far more severe track record of abuses.
None of this is meant to defend private prisons or suggest that they are a solution to mass incarceration or the injustices of our legal system (they clearly are not). There are plenty of reasons to oppose private prisons. However, it is important to recognize why people like Bernie Sanders oppose them. Sanders hardly makes any objection to the prison system per se, except to call for abolishing for-profit organizations. He is against private prisons because he is against private companies; he and many other pseudo-reformers show little concern for the prison system as such, evident from their conspicuous denial that public facilities face the same incentives, with more political leverage and virtually no consequences for misbehavior. Mass incarceration is, indeed, a problem, and the Democrats (and Republicans and Libertarians) who want to address this problem are right to do so. But if their only solution is to abolish private prisons, they are not combating mass incarceration, they’re working to preserve it.
- 1. John F. Pfaff, Locked In: The True Causes of Mass Incarcertation — and How to Achieve Real Reform (New York: Basic Books, 2017), 86.