Private prisons are a major public policy mistake. This is true regardless of whether they are privately operated or, as is being proposed by the Minnesota Legislature, they are leased and run by the state.
Contrary to what their supporters say, private prisons are not less expensive and better than public facilities. Instead, their track record on cost, rehabilitation and safety is generally inferior to that of public facilities. And — especially pertinent to the current proposal — their use as a way to expand prison capacity has been to facilitate a war on drugs and petty crimes that has been racially discriminatory.
The debate to reopen the private prison in Appleton, Minnesota, is reminiscent of one that took place 18 years ago. In 1998 Minnesota was building a new correctional facility in Rush City. State Sen. Randy Kelly pushed hard for it to be privatized. I was part of a team of impartial national experts at the Institute of Criminal Justice at the University of Minnesota Law School hired by the state to research what we then knew about the performance of private prisons across the country. We looked at cost, recidivism, rehabilitation, safety and legal issues. We examined all of the studies that then had been done on private prisons, we did extensive interviews across the country, and we toured public and private prisons. The final 1999 report, “Privatization of Correctional Services: Evaluating the Role of Private Prison Management in Minnesota,” was sharply critical of the claims made by its advocates.
Initially there is a significant ethical and moral question regarding whether the punishment of crimes should be done on a for-profit basis. This is human exploitation at its worst. One can also argue that the use of punishment and force by private individuals against another is inherently a governmental function and not something that should be privatized. Our report raised these questions, but it went beyond the normative considerations to the empirical: What was the actual track record of private prisons?
Examining private prison claims
First, we found that many of the claims of cost savings were suspect. The standard measure of cost for prisons – per diem costs per inmate – did not always stand up. Yes in some cases private prisons were less expensive per diem, but not always. For example, in Oklahoma, where publicly operated prisons had to compete with private operators for contracts to run individual facilities, the public institutions came out less expensive about half the time. Cost was a wash. But even here the numbers failed to reveal hidden costs. In most of the contracts awarded to private prisons, the state was still on the hook for many medical expenses and it would be required to take back control of the prisons as a result of default or to deploy security in the event of riots. Public dollars subsidized private prisons to make them profitable and look as though they were cheaper than the public facilities. Additionally, by the time one added in the public dollars to oversee and regulate the private prisons the savings to the taxpayer disappeared.
We also found that there were costs associated with the savings. The areas where private prisons saved money was, first, in salary and skill level for corrections officers. Public facilities were generally well-paid union jobs that demanded a minimum skill level. Prison privatization across the country often was a union-busting activity that hired less skilled officers at much lower wages. Second, private prisons scrimped on educational and rehabilitation services. Third, they scrimped on everything else, leading, in the case of Oklahoma, to contracts than ran a hundred pages or more so as to require private operators to provide a range of services of sufficient quality that they tried to avoid in order to maximize profits.
More safety issues, higher recidivism
What did all this mean? In general, private prisons have more safety problems than public facilities. There was more prisoner or innate-to-inmate violence and more civil-rights violations in private as opposed to public facilities. There was less emphasis on rehabilitation and higher recidivism rates in private prisons. Part of all this is a consequence of trying to save money by not providing services. But something else was also going on. No warden in a public prison wants repeat business. On the other hand, private prisons have a financial interest in recidivism. The interests of the state and private prison operators is contradictory.
Finally, there is also one other major problem we found then with private prisons: The employees are not public and therefore they can go on strike. Public prisons operated by the government employing public employees can prevent strikes by preventing the employees by state law from striking. Private prisons and their labor relations are governed by federal law, pre-empting any state laws that would bar strikes. The potential of a strike or other labor problems raises many questions about safety.
In the 17 years since the Minnesota report was issued I have continued to research and teach about private prisons. For six of those years I also taught criminal justice courses. Subsequent reports and studies largely reconfirmed the conclusions found in the 1999 report.
How lessons of 17 years apply to the current proposal
One might argue that the objections raised against private prisons do not apply to the current proposal in Minnesota, which is for the state to reopen the Appleton facility and staff it with state employees. Fair enough, but the last 17 years have revealed some lessons we could not have seen back in 1999 and which do clearly apply here. The rise of private prisons occurred alongside the war on drugs, the broken windows theory of crime (arrest for the petty stuff before it escalates), mandatory minimum sentences, and three-strikes-and-you’re-out laws.
Nationally the expansion of private prison space exacted a racially discriminatory war against people of color. In Minnesota, prison expansion led to an explosion in a prison population that has the worst racial disparities in the nation. Private prisons have become what Nina Moore argues in “The Political Roots of Racial Tracking in American Criminal Justice” — a linchpin in creating a separate criminal justice system for people of color that is separate and unequal. The private prison industrial complex is central to all the problems that Black Lives Matters rightly protests.
We have spent enormous sums of money since the 1980s incarcerating people instead of investing in them. Imagine had we invested in addressing racial disparities in schools, economic development in concentrated poverty neighborhoods, or civil rights enforcement to bar racial discrimination in employment and housing. We would not have needed to build more prisons.
If Minnesota truly wishes to address the concerns of Black Lives Matters it would not add more prison space that simply enables the currently discriminatory practices that extend beyond criminal justice to many other institutions in our society.
In sum, the lessons of prison privatization or expansion of any kind is that they are bad options for Minnesota. Gov. Mark Dayton is correct in vetoing any bill that would allow this to happen.
David Schultz is a Hamline University professor of political science and the author of “Election Law and Democratic Theory” (Ashgate, 2014) and “American Politics in the Age of Ignorance” (Macmillan, 2013). He blogs at Schultz’s Take.
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