This issues paper (revised 2/99) was originally prepared in 1997 by Douglas A. Holien, Board of Corrections (BOC) field representative, at the request of the Executive Steering Committee of the Adult Standards Revision Project. The primary focus is on local adult detention facility issues. Many issues impact a variety of laws and standards and are hotly debated, highly complex, and subject to substantial differences of opinion. This issues paper does not constitute legal opinion or advice; public entities should consult with their legal counsel on specific questions involving privately operated detention facilities.

The BOC is the primary state-level agency responsible for helping ensure that California's jails, juvenile halls and camps (local detention facilities) are properly built, managed and safely operated pursuant to the requirements of the Penal Code (PC 6024-6037). In addition to other duties, the BOC promulgates necessary selection (hiring) standards, training standards, and minimum standards for physical plant and operations, and inspects for and reports on compliance with the requirements of Titles 15 and 24 of the California Code of Regulations (CCR).

1. What are the general laws and regulations involved in privately operated local detention facilities?

The BOC does not operate any of California's jails, juvenile halls or camps. Management and operational authority is vested with local public entities (counties and cities) pursuant to a variety of statutory authorities (described later in this paper) depending on the type of detention facility. Sheriffs’ and police departments or local departments of corrections are responsible for the operation of the vast majority of jails, although some California cities and counties have opted to contract with private operators to run Type I city jails (permissible according to State Attorney General’s opinion) and Type IV county work furlough facilities (allowable by statute). Probation departments are responsible for the operation of juvenile halls and camps; law prescribes that these facilities shall be under the management and control of the county probation officer.

Law and regulation define jails, juvenile halls and camps as local detention facilities (PC 6031.4, WIC 209, WIC 885, Title 15 CCR, Section 1006). This includes publicly operated jails (county, city, county/city, regional, etc.) or privately operated jails under contract to a public entity. The critical public safety nature of local detention facilities involves many other state statutory and regulatory authorities affecting construction, operations, fire/life safety, medical, and staffing/personnel issues (e.g. PC 4000 et seq.; Titles 15, 19 and 24 CCR; H&SC 13146.1; H&SC 101045; PC 830 et seq.; among others). As a result, legal and regulatory questions and issues can be quite complicated.

Local public entities have limited authority to contract with private firms to operate jails (discussed specifically in the next section of this paper). Any privately operated local jail must operate pursuant to a written contract with the county or city (PC 6031.6). Law and regulation governing the day-to-day operation of local detention facilities generally applies equally to public and private operators (PC 6031.4; PC 6031.6, and Title 15 CCR, Section 1006).

State statute PC 6031.6 makes clear that privately operated jails, under contract to public entities such as counties or cities, must operate in compliance with all appropriate state and local building, zoning, health, safety, and fire statutes, ordinances and regulations, and with the minimum jail standards established by regulations adopted by the BOC as set forth in Subchapter 4 (commencing with Section 1000) of Chapter 1 of Division I of Title 15 CCR. In addition, the law requires privately operated jails to select and train its personnel in accordance with the selection and training standards established by regulations adopted by the BOC as set forth in Subchapter I (commencing with Section 100) of Chapter 1 of Division 1 of Title 15 CCR (commonly known as the Standards and Training for Corrections (STC) Program).

Private operators' failure to comply with PC 6031.6 shall result in sanctions being applied by the public entity, or contract termination if deficiencies are not corrected within 60 days. This is an important statutory requirement that places a performance duty on cities or counties to ensure that private operators comply with all relevant laws and regulations while under contract. This is consistent with many court decisions that affirm government responsibility for the performance of private contractors and indicate that government liability cannot be reduced or eliminated by delegating a governmental function to a private entity.

2. Under what authority can public entities contract with private operators for the day-to-day operation of local detention facilities?

County Juvenile Halls and Camps

Counties are responsible for the establishment of a suitable place of detention for juveniles (e.g., juvenile halls) and some also operate juvenile camps for adjudicated offenders. Management and control of these local juvenile detention facilities shall be under the county probation officer (WIC 852). County probation departments operate all of California’s juvenile halls and camps. There is no statutory authority for private firms to operate juvenile halls or camps.

County Work Furlough Facilities

PC 1208 contains authority for counties to contract with private firms to operate only Type IV work furlough jail facilities. However, a "work furlough administrator" must be appointed and that this administrator must be the sheriff, probation officer, director of corrections, or superintendent of farms or road camps. The work furlough administrator, in turn, may run the facility as a county operation or, with the approval of the board of supervisors, contract with a private firm for day-to-day facility operations. In either case, the work furlough administrator is a county employee and continues to have administrative responsibility of the facility on behalf of the county.

In addition, the provisions of PC 6031.6 also apply whereby private operators must comply with all appropriate state and local building, zoning, health, safety, and fire statutes, ordinances, and staff selection and training regulations, and minimum jail standards as established by regulations adopted by the BOC.

Two counties currently have three work furlough facilities operated by private firms (Los Angeles and San Diego). In each of these counties, the private firms operate under contract to the probation officer who is the work furlough administrator.

City Jails

City jails are used mainly to incarcerate arrestees until arraigned by the court. Several cities have either contracted, or are considering contracting, with private firms to operate city jails. Can cities legally enter into contracts with private firms to operate a local detention facility or city jail? In the absence of any known statutory authority, the BOC requested an opinion of the State Attorney General to answer this question. The Attorney General's opinion (Number 91-104, July 10, 1991) concludes that cities have the legal right to do so in the absence of any known law which would prohibit a city from establishing a privately operated detention facility. The opinion also notes that there is nothing in the law with respect to how a city jail is to be acquired or how it is to be administered.

There are currently 10 cities that have contracted with private firms to operate city jails: Alhambra, Baldwin Park, Bell, Chino, Irvine, Montebello, Palm Springs, San Bernardino, Seal Beach, and South Pasadena, and others are reportedly considering this option.

County Jails

PC 4000 et seq. gives the county sheriff the authority to operate county jails. Courts have held that the electorate expects the sheriff to operate county jails and there may be a right not to have such expectations negated (Beck v. County of Santa Clara (1988), 204 Cal.App.3d..789), although Beck allowed for transfer of control of the Santa Clara County Jail from the elected sheriff to an appointed county department head with county voter ratification of the transfer of function. Currently, only Madera, Napa and Santa Clara counties have transferred function of the county jail from the sheriff to an appointed county department head, and in these cases the county jail is operated as a local department of corrections (a publicly operated facility).

No county jail currently operates under contract to a private firm (except the aforementioned Type IV work furlough facilities). There is no statutory authority for county jails other than work furlough to be operated by private firms. In addition, the Attorney General's opinion of GC

31000 is that without statutory authority, a general law county may not contract with persons to provide the same level of services, but at less expense, than presently performed by its civil service employees (76 Op.Atty.Gen. 86, 55-93).

Private firms reportedly continue to lobby for specific statutory authority to be able to operate county jails (and other types of local detention facilities). As of the writing of this issues paper, there has been no legislative action on this issue, and it is not possible to predict the course of potential future legislation.

A legal memorandum of July 1, 1996, prepared by Rex L. Brady, Esq., on behalf of the Corrections Corporation of America, a private for-profit firm, indicates that it is his opinion that the State Legislature would have to enact a statute authorizing county boards of supervisors the specific authority to transfer jail operations to a private firm. He speculates that courts would uphold the Legislature's power to define sheriffs' duties, and as such allow for transfer of jail operations. He also speculates that voter approval may not be needed if specific statutory authority exists and if boards of supervisors arrange to transfer sheriffs' duties concurrent with the next term of office. He and others that follow this issue believe that it is probable that constitutional and legal issues will be raised if legislation is sought that would change sheriffs' authority to operate county jails.

State Prison

PC 6250 et seq. and PC 2910 et seq. provides authority for the State Department of Corrections (CDC) to contract with public agencies or private firm to operate community correctional facilities (CCFs) to incarcerate CDC inmates. Currently, CCFs are being operated by local public entities (several small cities and Lassen County) and by private firms. State inmates housed in CCFs remain under the legal custody of CDC and are subject to detention at any time in public facilities. In addition, CDC parole agent peace officers or correctional officers are stationed on-site at public and private CCFs.

Private Prisons for "Pay for Stays"

Currently, private firms are building two detention facilities on speculation ("spec" prisons) in California and reportedly plan to seek contracts with public entities (federal, states, counties, cities) to house prisoners for a daily fee ("pay for stays"). There has been increased media attention on such arrangements in recent years. For example, the lead article in the December 1998 edition of The Atlantic Monthly magazine entitled, The Prison-Industrial Complex, examines many policy issues.

Law and regulation of private "spec" prisons in other states has tended to be reactive in responding to the so-called "interstate commerce" movement of prisoners. Unlike prisons or jails that operate under a written contract with public entities, sometimes there is little, if any, oversight of "spec" prison arrangements involving housing inmates on a per diem basis as "pay for stays." It is currently unclear what laws or standards apply to such facilities in California, especially if inmates from other states are housed. Specific questions about facilities that are not operating under direct public contract or public entity oversight include who is responsible for:

Apprehending escapees?
Quelling riots or disturbances?
Investigating allegations of misconduct?
Ensuring that facilities are properly built, managed, staffed, and safely/securely operated?

3. Can public entities delegate public/peace officer powers to privately employed civilian staff?

Although there are currently certain specific or implied authorities for private firms to operate some types of jails, the powers able to be exercised by privately employed jail staff are limited. There is no statutory authority for public entities such as cities or counties to delegate public officer or peace officer powers to privately employed jail staff (PC 830 et seq.). The body of state law is extensive regarding authority, duties and powers to be exercised by public officers and peace officers, and indicates that important duties affecting personal liberties and public safety should be only entrusted to such officers. Civilian detention staff employed by private firms cannot perform certain duties such as: tactical use of force (chemical agents, lethal and less than lethal weaponry); search, seizure and arrest; accessing confidential records; among others.

The inability of public entities to delegate public officer or peace officer powers to civilians is a major issue to consider before contracting with private operators. Since such duties cannot be performed by civilians, cities and counties must address how such duties will be performed and who will perform them if detention facilities are privately operated.

In addition, in 1997 the U.S. Supreme Court resolved conflicting lower court rulings about whether private prison guards have the same legal protections of qualified immunity from certain lawsuits as do public officers and peace officers (Richardson v. McKnight) and held that private prison guards do not have the same qualified immunity protection.

4. What are some of the pros and cons, and evaluation results, to guide policymakers considering privatization?

Detention facility privatization is a hotly debated topic nationally and engenders strong opinions (even among those without a vested interest). During the past 15 years, private firms have entered into various contracts with states or counties to run some prisons and jails (usually minimum or medium security facilities); still a small number in the total prison/jail system, but a growing trend nationwide. In addition, as previously noted, private firms have built privately financed prisons on speculation (often in remote rural areas) and then sought agreements to house out-of-state prisoners as "pay for stays."

Privatization proponents claim that government monopolies should be broken and that the private sector should be allowed to compete and show that they can operate correctional facilities better and/or more cost-effective than a government agency. They also claim that private "spec" prisons allow correctional systems a way of handling the variability of demand for bed space thereby avoiding massive public capital outlays and the time consuming process of prison construction.

Opponents claim that overall cost-effectiveness claims are illusory when studied in-depth (including costs of necessary public and regulatory oversight) and that the public safety and personal liberty responsibilities of corrections, like police or military, involve staff duties and authorities that should be operated directly by the government and its public officers or peace officers.

Charles H. Logan, Ph.D., a professor of sociology at the University of Connecticut, is a leading proponent of privatization and has written extensively on the subject. Attached to this issues paper are Arguments Against and For Private Prison Contracting as identified by Dr. Logan. The attached arguments appear to capture the vast majority of opinions on the issue as identified in the overall literature on privatization and merit careful review and consideration by any public entity considering privatization.

There are significant differences of opinion in the academic, correctional, and legal community regarding privatization of major government functions such as detention. Some point to historical failures when critical government functions have been turned over to the private sector. Others point out that privatizing government functions simply create a kind of underground and under-regulated government more prone to cover-up and abuses. Many have significant concerns about incentivizing overzealous cost cutting, and that profit motives will have long-term negative affects on the public interest. Some believe that privatization will ultimately result in higher government costs because after potential initial cost reduction (margin improvement), private-for-profit firms will necessarily seek to "grow the business" by raising prices in follow-on contracts (higher fees for detention) if they are unable to gain market share (by adding more beds). Merit-based opponents of privatization are concerned that without sufficient checks and balances, the basic tenets of capitalism (desire to maximize profits over time for shareholders or principals) may conflict with tenets of government (constitutional and public interest protections) in ways that lead to failure.

Proponents can cite examples where privatization has worked effectively and opponents can cite examples where it has not worked. Conflicting claims are made in the literature about costs and quality of service. Proponents cite examples of decreases in construction and operating costs; less litigation, lower rates of escapes and disturbances; better programming and overall public entity satisfaction. Opponents cite examples of the opposite: same or higher overall costs; more litigation, higher rates of escapes and disturbances; worse programming and less public entity satisfaction than when facilities were directly operated by a government agency.

Conflicting claims and opinions make it difficult to reach conclusions and to generalize about privatization. An assessment was provided in an August 1996 report by the federal General Accounting Office (GAO), an arm of Congress, which reviewed several studies. The report, Private and Public Prisons: Studies Comparing Operational Costs and/or Quality of Service, reviewed studies of privatization in five states: California, Louisiana, New Mexico, Texas, and Tennessee. Three of the studies (California and two studies of Tennessee) compared costs between currently operating private and public facilities:

The California study compared one private CCF with two city operated CCFs and found equivocal cost results. The private facility's average annual costs per inmate ($15,578) were higher than comparable costs for one of the public facilities ($13,195) but were lower than such costs for the other public facility ($16,627).

In Tennessee, the state Legislature's study also compared one private facility with two public facilities. It found little difference in average daily operational costs per inmate for the three facilities: $35.39 for the private facility, versus $34.90 and $35.45, respectively, for the two public facilities.

A state of Washington study of the same Tennessee data set found slightly lower average daily operational costs per inmate for the private facility ($33.61) than the two public facilities ($35.82 and $35.28, respectively).

One study of Texas compared operational costs of four private facilities with costs of hypothetical state facilities and concluded that privatization might save 14 to 15 percent. A state of Washington study of two Louisiana private facilities and one Louisiana public facility using projected data found virtually identical average daily operating costs between the private and public facilities.

As a result of a review of all studies, the GAO report concluded that "because the studies reported little difference and/or mixed results in comparing private and public facilities, we could not conclude whether privatization saved money." On quality of service measures, the picture is similarly inconclusive among the studies. The California study could not reach conclusions due to small, non-random survey samples. Texas did not conduct an empirical assessment of quality of service. New Mexico reported equivocal findings. Two studies of Tennessee found no difference in quality of service between private and public facilities. The basic conclusion of the GAO report was that "the few studies that we reviewed do not permit drawing generalizable conclusions about the comparative operational costs and/or quality of service of private and public prisons."

The GAO report results and its methodology have been vigorously disputed by privatization proponents. These disputes illustrate differences of opinion generally regarding privatization and are good examples of why it is difficult for policymakers to obtain similar information and clear-cut direction on privatization from expert sources.

5. Is it wise to privatize detention facilities?

The question of whether it is wise to privatize detention facilities is at the heart of most of the debate and extensive rhetoric, and it is this question that appears subject to the greatest difference of opinion for many of the reasons previously identified. The GAO report cited previously did not find significant cost or quality of service differences between private and public operators. The report will lead some to ask, "why privatize?" while others will ask, "why not privatize?"

Our assessment of currently available information and data related to privatization indicates that public entities should carefully assess the potential rewards and risks, and the attached arguments pro and con, before making a decision to privatize. In doing so, interested public entities should conduct their own site-specific research to determine whether privatization is merited in their locale.

Before exploring cost and operational issues, a principle identified by Dr. Logan merits consideration by policymakers conducting site-specific research: "……. I have discovered that while each side of the debate has some valid arguments, there is one key principle that is absolutely crucial to thinking clearly about the issues involved. That principle is this: There must be no double standard. When discussing private prisons, it is not enough to identify potential, or even actual, problems. Nor is it helpful to raise questions or concerns about private prisons and just walk away, as critics so often do, without applying those same questions and concerns to prisons run by the government....." (from the paper Prison Privatization: Objections and Refutations). Dr. Logan's principle of no double standard is also useful to consider in the context of formation of law and regulation and is captured in the essence of PC 6031.6 whereby public and private jail operators under contract to public entities must meet the same standards of jail construction and operations.

Costs

Since potential cost savings is an often reported reason for considering privatization, public entities should assess specifically how private firms will operate at less cost, while concurrently meeting law and standards for safe and secure operations, and generating financial profits for their principals or shareholders. Staffing and operating expenses represent at least 90 percent or more of the cost of a detention facility over a 30 year life span. Literature identifies salary, benefit, and staffing cuts as one of the factors in how private operators reduce costs.

If savings are claimed in lower staffing levels, an assessment should be made of whether safety or security is jeopardized. Likewise, if savings are claimed in lower wages/benefits, an assessment should be made of whether a suitable local labor pool is available that can be hired and retained by the private operator at lower wages and benefits (since there is reportedly high staff turnover at the line level in many private facilities). The local labor pool must also be able to supply candidates that have sufficiently "clean" backgrounds and the ability to be able to learn to effectively perform job duties. Some duties may have to be performed by public officers or peace officers. Contracting should not compromise staff character, competency, and experience, or operational areas that could jeopardize security or public safety, or place the county or city at risk of non-compliance with laws and standards.

Another major area identified in the literature where a private operator saves costs is in facility construction. In this regard, costs may be saved by private financing and construction or by building to different standards than public facility construction. Additionally, it appears that private firms, like their public counterparts, are building "new generation" facilities based on podular design to replace "old generation" linear design facilities which may result in cost savings. Costs are also reportedly saved by private purchasing and procurement systems.

In sum, it appears that private operators' potential ability to operate more cheaply than public operators is based largely on a combination of factors such as lower staffing levels; hiring private staff at lower pay and benefit rates who work outside of government personnel merit systems; private purchasing and procurement systems; and in some states adhering to different construction and operational regulations, standards, or practices than are applied to public facilities.

Operations

One of the difficulties in attempting to generalize about success or failure of privatization is that conclusions of success/satisfaction or failure/dissatisfaction may be directly related to the management and operation of a particular correctional system or facility before privatization. For example, if a government-run facility is poorly managed and not meeting standards, or is having major operational problems as evidenced by higher than normal rate of escapes, riots, disturbances, deaths or injuries of staff/inmates, or other measures, privatization and its changes might bring improvements. On the other hand, if the same government-run facility was previously well-managed and meeting standards, and was operating normally, identical privatization might not be viewed as better.

Another factor to be considered is the possibility that private operators may do a worse job than the previous government operators or run facilities in ways that compromise security or public safety. Several incidents are cited in the literature, including incidents at private prisons in Texas that provide some lessons to consider: After a series of escapes and riots in 1996 at private facilities, the Texas Board of Criminal Justice indicated that the facilities were not regulated; voted to limit its response to such incidents, and to require private firms to reimburse the state for costs if state employees are called to quell disturbances or recapture escapees (Corrections Digest, November 29, 1996). Many private prisons in Texas also house inmates from other states as "pay for stays" and escapes of Oregon sex offenders from private Texas facilities have sparked calls for state oversight (Corrections Digest, August 16, 1996).

Riots, disturbances, and escapes can happen at public or private facilities, but when they occur they can have major political, fiscal, legal, and public safety implications, and often lead to close examination of operational practices and compliance with law and regulation. Inmates, staff, or the public also may be injured or harmed in other lower profile ways due to improper intake screening or classification; use of force; response to medical emergencies; inadequate inmate supervision, physical plant deficiencies, among many others. Allegations of harm resulting from such events should be anticipated and illustrate the need for careful inmate classification and assessment. Local public entities should also assess the capability of private firms to appropriately perform and whether insurance, or indemnification provisions of contracts, will adequately protect from lawsuits or judgments arising from these kinds of incidents or other operational failures.

In addition to conducting site-specific research into the areas identified in this paper and its attachment, public entities also have to address a very basic question: How "comfortable" is the city or county in having administrative responsibility of the jail, while at the same time turning over its direct day-to-day operations to a private operator? Given the same general research assessment findings, it is possible that various cities and counties may reach different conclusions regarding privatization. If a private jail operator is contracted by a California county or city, besides performing contract compliance monitoring, there may be significant administrative oversight necessary to ensure that the private operator complies with the provisions of PC 6031.6.

6. Conclusion

Is the public interest, and management interest of counties and cities, adequately protected by private operators of detention facilities? Are there risks to the public interest in allowing private firms to operate outside of merit system rules and other governmental system procedures? What laws and regulatory safeguards are necessary regarding private "spec" prisons that house inmates from other jurisdictions as "pay for stays?" There are different views about the answer to these questions and many others; the attached arguments could easily merit separate lengthy monographs assessing individual issues. The one point that is quite clear and generally agreed upon by courts and most interested parties is this: Government is responsible for the appropriate performance of its private contractors.

It does appear clear from the federal GAO report that it is difficult to generalize about privatization of correctional facilities. The overall literature cites successes and failures, some of which may have been impacted by many factors that researchers have often had difficulty isolating and measuring. As a result, comparisons are difficult to make; some of the research is either inconclusive or amounts to little more than anecdotal information and opinion/editorial commentary.

Academicians and legal scholars (like practitioners and policymakers) are divided on the merits of privatization. This is an issue that often polarizes interested observers who frequently develop strong opinions pro or con. Overall, the GAO report indicates that privatization of detention facilities generally is not a panacea for lower costs and better services and it certainly suggests that there is no substitute for good site-specific assessment by public entities considering contracting with private operators.

Law in some cases limits authority to contract with private operators, and whether or not to contract is a decision of cities and counties. Available information suggests that a thorough and complete assessment of both potential rewards and risks should be done by public entities before contracting.

This issues paper has described the general state of detention facility privatization to date and has identified some legal and policy issues. Many of the issues impact a variety of laws and standards, and are hotly debated, complex, and subject to substantial differences of opinion. Public entities should consult with their legal counsel regarding specific questions of contracting with private firms for detention facility operations.

Some major points are clear:

Authority is limited for local public entities to contract with private facility operators.

Law and standards regarding jail operations generally applies equally to public operators and private operators running facilities under contract to public entities.

State statute PC 6031.6 places a performance duty on counties and cities to monitor privately operated jail compliance with laws and standards; correct deficiencies within 60 days, or terminate contracts. Counties and cities cannot abdicate oversight and administrative responsibility of jails if they elect to contract with private firms for staffing and the performance of day-to-day jail operations.

Privately employed jail staff do not have the same powers to perform certain duties that are vested with public officers and peace officers, and do not have the same legal protections of qualified immunity.

There are evolving legal, regulatory and policy issues related to privatization, especially involving "spec" prisons housing inmates as "pay for stays."

Privatization of detention facilities is receiving increased media attention that highlights policy issues, successes, and failures. There are many articles, sources of information, and opinion/commentary currently available that can be accessed by interested parties.

ARGUMENTS AGAINST AND FOR PRIVATE PRISON CONTRACTING

Source: Charles H. Logan, Private Prisons: Cons and Pros (New York: Oxford
University Press, 1990), pp. 41-48

ARGUMENTS AGAINST CONTRACTING

1. Propriety

Contracting for imprisonment involves an improper delegation to private hands of coercive power and authority.

Contracting may put profit motives ahead of the public interest, inmate interests, or the purposes of imprisonment.

Contracting prisons raises legal questions about the potential use of deadly force.

Contracting creates conflicts of interest that can interfere with due process for inmates.

Contracting may face legal obstacles in some jurisdictions.

Contracting threatens the jobs and benefits of public employees; it is anti-labor.

Contracting may threaten corrections officers' sense of authority and status, both inside and outside the prison.

2. Cost

Contracting is more expensive because it adds a profit margin to all other costs.

Contracting creates the special costs of contracting: initiating, negotiating, and managing contracts, and monitoring contractor performance.

Contracting may cost more in the long run as a result of "low-balling"--initial low bids followed by unjustifiable price raises in subsequent contracts.

Contracting may cost more in the long run if high capital costs inhibit market entry and restrict competition.

Contracting lacks effective competition in "follow-on" contracts, which are commonplace.

Contracting costs the government extra for the termination, unemployment, and retraining of displaced government workers.

Contracts with cost-plus-fixed-fee provisions provide no incentive for efficiency.

Contracting may have a higher initial marginal cost than would expanding government services.

3. Quality

Contracting may reduce quality through the pressure to cut comers economically.

Contracting may "skim the cream" by removing the "best" prisoners and leaving the government prisons with the "worst," which will spuriously make the private prisons look better by comparison.

Contracting will decrease the professionalism of rank and file prison employees because they will be underpaid and insecure and thus not able to develop a career orientation.

4. Quantity

Contracting creates incentives to lobby for laws and public policies that serve special interests rather than the public interest; in particular, private prison companies may lobby for more imprisonment.

Contracting, simply by expanding capacity and making imprisonment more feasible and efficient, may unduly expand the use of imprisonment and weaken the search for alternatives.

Contracting on a per-prisoner, per-diem basis gives private wardens an incentive to hold prisoners as long as possible.

Contracting creates a kind of underground government, thus adding to total government size.

5. Flexibility

Contracting may limit flexibility by refusal to go beyond the terms of contract without renegotiations.

Contracting may be stopped in advance, or suddenly reversed in midstream, by adverse public reaction, legal challenges, partisan politics, or organized opposition by interest groups, including public employee unions.

Contracting reduces ability to coordinate with other public agencies (police, sheriff, probation, parole, transportation, maintenance, and the like).

6. Security

Contracting may jeopardize public and inmate safety through inadequate staff levels or training.

Contracting may limit the ability of the government to respond to emergencies, such as strikes, riots, fires, or escapes.

Contracting increases the risk of strikes, which may not be illegal for contractor personnel.

Contracting may cause high employee turnover at transition.

7. Liability

Contracting will not allow the government to escape liability.

Contracting may cost the government more by increasing its liability exposure.

Contracting shifts risk away from the government, which is the party best able to bear it.

8. Accountability

Contracting reduces accountability because private actors are insulated from the public and not subject to the same political controls as are government actors.

Contracting diffuses responsibility; government and private actors can each blame the other.

Contracting may encourage the government to neglect or avoid its ultimate responsibility for prisons; supervision may slacken.

Contracting reduces accountability because contracts are difficult to write and enforce.

9. Corruption

Contracting brings new opportunities for corruption (i.e., political spoils, conflict of interest, bribes, kickbacks).

10. Dependence

Contracting lowers the government s own capacity to provide services, which makes it dependent on contractors.

Contracting carries the risk of bankruptcy by the vendor.

Contracting may involve exclusive franchises that simply replace public monopolies with private monopolies.

ARGUMENTS FOR CONTRACTING

1. Propriety

Contracting enhances justice by making prison supply more responsive to changes in demand, both upward and downward.

Contractual wardens have an incentive to govern inmates fairly in order to enhance their legitimization, induce cooperation, lower costs, and ensure renewal of contracts.

Contracting does not jeopardize due process; private and public wardens are equally subject to the rule of law and accountable to the same constitutional standards.

Contracting, in conjunction with governmental monitoring, adds a new layer of independent review of correctional decisions and actions, thus improving due process.

Contracting can help clarify the purposes of imprisonment and the rules and procedures that define due process.

Contracting for operating prisons is compatible with federal law and the laws of many states; specific enabling legislation has been passed in some states.

2. Cost

Contracting allows prisons to be financed, sited, and constructed more quickly and cheaply than government prisons; also, private firms are more apt to design for efficient operation.

Contracting across jurisdictions permits economies of scale.

Contracting may reduce overly generous public employee pensions and benefits.

Contracting typically indexes fee increases to the Consumer Price Index, while government costs have been shown to rise faster dm the general level of inflation.

Contracting discourages waste because prodigality cuts into profits.

Contracting counteracts the motivation of budget-based government agencies to continually grow in size and to maximize their budgets.

Contracting makes true costs highly visible, allowing them to be analyzed, compared, and adjusted.

Contracting avoids cumbersome and rigid government procurement procedures; vendors can purchase more quickly, maintain lower inventories, and negotiate better prices and values.

Contracting, through more effective personnel management, better working conditions, and less overcrowding, may increase employee morale and productivity while lowering absenteeism and turnover.

3. Quality

Contracting provides an alternative yardstick against which to measure government service; it allows for comparisons.

Contracting motivates both governmental and private prisons to compete on quality as well as cost.

Contracting, by creating an alternative, raises standards for the government as well as for private vendors.

Contracting adds new expertise and specialized skills.

Contracting promotes creativity and enthusiasm by bringing in "new blood" and new ideas more often than is possible under civil service.

Contracting promotes quality and high standards by forcing officials and the public to evaluate expenditures carefully, rather than masking costs through overcrowding and substandard conditions.

Contracting will expand the political constituency concerned about legislative reforms of the correctional system.

Contracting could hardly do worse than some current (public) prisons, in terms of quality.

4. Quantity

Contractors can help alleviate today's capacity crisis by building new prisons faster than the government can.

Contracting will allow quicker response in the future to meet changing needs or to correct mistakes resulting from inaccurate predictions or faulty policies.

Contracting facilitates the distribution of inmates across agencies or jurisdictions, thereby maintaining occupancy rates at an efficient level (i.e., near capacity but not overcrowded).

Contracting helps limit the size of government.

5. Flexibility

Contracting allows greater flexibility, which promotes innovation, experimentation, and other changes in programs, including expansion, contraction, and termination.

Contracting can avoid capital budget limits through leasing, or spread capital costs over time through lease purchasing.

Contracting reduces the levels of bureaucracy (red tape) involved in management decisions.

Contracting reduces some of the political pressures that interfere with good management.

Contracting avoids civil service and other government (and sometimes union) restrictions that interfere with efficient personnel management (i.e., hiring, firing, promotion, and salary setting; assignment of duties, work schedules, vacations, and leaves; adequate staffing to avoid excessive overtime).

Contracting reduces the tendency toward bureaucratic self-perpetuation.

Contracting promotes specialization to deal with special needs prisoners (protective custody, AIDS patients, and so forth).

Contracting relieves public administrators of daily hassles, allowing them to plan, set policy, and supervise.

6. Security

Contracting may enhance public and inmate safety through increased staffing and professionalism.

Contracted corrections officers are less likely to go on strike because they are more vulnerable to termination.

7. Liability

Contracting may decrease the risks for which government remains liable, through higher quality performance and through indemnification and insurance.

8. Accountability

Contracting increases accountability because market mechanisms of control are added to those of the political process.

Contracting increases accountability because it is easier for the government to monitor and control a contractor than to monitor and control itself.

Contracting promotes the development and use of objective performance measures.

Contracting can help enforce adherence to procedures and limit or control discretion in the discipline of inmates.

Contracted prisons will be highly visible and accountable, in contrast to state prisons which, at least historically, have been ignored by the public and given (until recently) "hands-off' treatment by the courts.

Contractors are forced to be more responsive to the attitudes and needs of local communities when siting a prison.

Contracting can require prisons to be certified as meeting the standards of the American Correctional Association.

Contracting motivates vendors to serve as watchdogs over their competitors.

Contracting will encourage much broader interest, involvement, and participation in corrections by people outside of government.

Contracting provides a surgical solution when bad management has become entrenched and resistant to reform.

9. Corruption

Contracting gives managers more of a vested interest in the reputation of their institution.

Contracting pits the profit motive against other, less benign motives that can operate among those whose job it is to punish.

10. Dependence

Contracting can increase the number of suppliers, thus reducing dependence and vulnerability to strikes, slowdowns, or bad management.