Are Private Prisons to Blame for Mass Incarceration and its Evils? Prison Conditions, Neoliberalism, and Public Choice

ABSTRACT One of the frequently criticized aspects of American mass incarceration, privatized incarceration, is frequently considered worse, by definition, than public incarceration for both philosophicalethical reasons and because its for-profit structure creates a disincentive to invest in improving prison conditions. Relying on literature about the neoliberal state and on insights from public choice economics, this Article sets out to challenge the distinction between public and private incarceration, making two main arguments: piecemeal privatization of functions, utilities, and services within state prisons make them operate more like private facilities, and public actors respond to the cost/benefit pressures of the market just like private ones. This Article illustrates these arguments with several examples of correctional response to the conditions caused by the Great Recession, showing how public and private actors alike adopt a cost-minimizing, financially prudent approach, sometimes at the expense of prison conditions and inmate human rights. This Article ends by suggesting that, in a neoliberal capitalist environment, prohibitions and litigation alone cannot improve prison conditions, and that policymakers need to consider proper market incentives regulating both private and public prisons. TABLE OF CONTENTS Introduction I. Mapping and Questioning the Traditional Arguments on Private Incarceration A. The Ethical Argument B. The Incentive Argument: For-Profit Incentives in the Neoliberal State Lead to Worsened Conditions C. The Efficiency Argument: Public Choice and Its Critics II. Questioning the Public/Private Divide A. Private Prisons' Share in Mass Incarceration B. Even Public Prisons Are Privatized III. Public Actors as Market Players A. Public Incarceration Conditions and the Ugly Pig Contest B. Profit-Seeking Aberrations and the Banality of Evil Conclusion They are telling this of Lord Beaverbrook and a visiting Yankee actress. In a game of hypothetical questions, Beaverbrook asked the lady: "Would you live with a stranger if he paid you one million pounds?" She said she would. "And if he paid you five pounds?" The irate lady fumed: "Five pounds. What do you think I am?" Beaverbrook replied: "We've already established that. Now we are trying to determine the degree." (1) INTRODUCTION Anyone seeking a reason to rail against the American correctional system will find plenty of easy targets. With approximately 2.2 million people behind bars (2)--1 in 100 American citizens, (3) with more in certain states* 4--the American system is a frightening colossus of confinement and the world leader in incarceration rates. (5) Vastly more people are under some form of correctional control--probation or parole--raising the number of people supervised by the criminal justice system to 7.3 million. (6) Between 1980 and 2012, the total number of state and local prisoners in the United States rose from 501,886 to 2,228,400--a 344% increase (7)--while the U.S. population grew in the same time only from 226.5 million to 313 million--a 38% increase. (8) Shockingly, these numbers are not justified by the need to control crime. Rather, crime rates have declined since the 1980s. (9) Scholars studying the connection found little causal connection between the increase in incarceration and the decrease in crime, attributing only 10% of the decline, at most, to incarceration. (10) The conditions of incarceration, while diverse across the nation, are so appalling that many state prisons and county jails are under some form of federal court supervision. (11) Most recently, the Supreme Court found the physical and mental health care in California prisons appalling--one inmate dying needlessly from iatrogenic causes every six days (12)--indeed, so appalling that they could not be improved without considerable population reduction. …