Privatised Prisons in Malaysia: Neither Necessary Nor Sufficient
By: Jefferi Hamzah Sendut
Tags: Criminology, Prison Reform, Human Rights, Criminal Justice Reform, Malaysia

The Former Pudu Prison Site in Kuala Lumpur (Photo By Joseph Gan)

The Malaysian government is currently in the early stages of evaluating whether to introduce privately managed prisons into the country. Last week, Deputy Home Minister Datuk Mohd Azis Jamman instructed the Prisons Department to begin a feasibility study, after a visit to a private prison in the UK.

In his reported remarks, YB Mohd Azis identified three considerations which he thought might be productively addressed through Malaysian prison privatisation: (1) inmate and staff welfare, (2) overcrowding, and (3) financial efficiency.

The superficial appeal of prison privatisation as a means of tackling these issues is easy to understand. Market forces would be harnessed in allowing companies to bid for prison management contracts. These companies would have a profit incentive to remain competitive by maintaining good standards in prison management. Remaining public prisons would also be encouraged to improve standards, using private prisons as a benchmark.

However, the reality is unfortunately not as simple. The government should exercise caution before it decides to pursue prison privatisation. Compelling reasons are required to justify granting private companies direct power over the basic freedoms of individuals, and no compelling case appears possible.

The results of prison privatisation in the UK, the model which appears to have directly contributed to the government’s interest in the endeavour, have been mixed at best. With respect to England and Wales, the UK’s introduction of private prisons from 1992 has not solved existing problems affecting their prison system. Prison privatisation has also introduced new problems.

This is evident when English and Welsh prisons are evaluated with reference to the same three considerations YB Mohd Azis raised as relevant to Malaysia.

(1) Inmate and staff welfare

Despite private prisons now holding an estimated 17.8% of prisoners in England and Wales, inmate and staff welfare within the prison system as a whole has worsened in recent years. Rates of death in prison have almost doubled in the last decade, with 317 inmates dying in the year to March 2019, while the rate of serious assaults on staff more than tripled from 2013 to 2018.

Private prisons do not seem to have alleviated existing safety and security weaknesses. They do not offer a consistently better-performing alternative to public prisons. While some private prisons do perform better than public ones, results are hugely variable — the best and worst performing prisons in England and Wales are private prisons.

The experience of HMP Birmingham has shown that there can be erratic standards of performance over time even in a single private prison. The prison, which was considered to be providing better standards of living post-privatisation, was put back under state control in August 2018 following a safety crisis.

In some ways, private prisons are particularly unsuited to addressing safety concerns. Private prison officers are generally paid less, and enjoy weaker union protections than their public sector counterparts.

In a 2015 study conducted by University of Cambridge academics, it was found that these work conditions have led to a high rate of staff turnover in private prisons. As a result, their officers tended to lack the experience needed to exercise their authority over inmates appropriately. Discipline and security were therefore put at risk.

(2) Overcrowding

No doubt, overcrowding is a significant contributor to the above problems. Too many inmates in a prison leave prison officers overstretched, and increase opportunities for violence.

This stark reality was underscored by the findings of the 2006 inquiry launched after the racist murder of inmate Zahid Mubarek by his cellmate. A factor which led to the murder was the practice of ‘doubling up’ — Mubarek was forced to share a cell designed for a single person with his killer. A 2014 review found that the practice persists.

Prison overcrowding was already an issue in England and Wales before the introduction of private prisons. However, the evidence shows that privatisation has not had any noticeable impact in mitigating the problem. In May 2019, 62% of the English and Welsh prisons were classified as overcrowded.

The government should hence be mindful that the English and Welsh privatisation endeavour has not had an appreciable impact on reducing overcrowding.

(3) Financial efficiency

In addition, prison privatisation in England and Wales has distracted from alternative policy options which are more likely to deliver sustainable and cost-effective solutions to overcrowding.

As the government has recognised in the Malaysian context, suitable rehabilitative provision in prisons is a vital element of an effective prison system. Cutting reoffending rates by providing inmates a pathway out of crime is a way to reduce overcrowded prison populations, and all of their attendant consequences. A prison system is not operating in a financially efficient manner if those who enter it simply return shortly after release.

The failure of prison privatisation in England and Wales to promote rehabilitative initiatives, and thereby cut reoffending rates, should be of concern to the government. Reoffending rates in England and Wales remain high. For adults who had completed a prison sentence of less than 12 months, the most recently available UK government statistics put the rate at 62.2%.

Payment-by-results schemes designed to incentivise private prisons to lower reoffending have seen mixed success. Moreover, prison privatisation appears to have negatively affected the rehabilitative capacity of some remaining public prisons. The UK House of Commons Justice Committee received evidence of lower staff morale and higher illness rates in public prison officers following the introduction of private sector competition.

Towards genuine policy innovation

The Malaysian government should not take the prospect of introducing private prisons lightly. Prison privatisation should not be seen as a value-neutral project. The language of markets, competition and efficiency can easily obscure what is a highly ideological endeavour, with specific priorities and biases. The experience with private prisons in England and Wales provides a useful insight into what these biases are, and how they play out in practice.

Drawing direct lessons from an analysis centred on two constituent nations of the UK for Malaysian policy-making is not always possible. But laying out the deficiencies of a model likely to be used as a template reinforces what citizens already suspect — prison privatisation is unlikely to be a desirable way forward for Malaysia.

Private prisons would complicate existing issues, and distract from the real changes which need to be made. They are neither necessary, nor sufficient. Instead of opting for privatisation as an easy policy choice, the government should instead pursue a genuinely innovative policy agenda.

Sufficient investment and oversight mechanisms are needed to address the extremely serious deficiencies in prison conditions and healthcare provision which have been highlighted by SUHAKAM. The centrality of rehabilitative aims in the criminal justice system should also be affirmed. Most importantly, Malaysia should move towards a sentencing framework which genuinely treats a prison sentence as a last resort.