Some unanswered questions about private prison quotas

Over the last few days, a potentially alarming report about private prison occupancy guarantees has been going around the internet. An organization calling itself “In the Public Interest” (an anti-privatization group) reviewed 77 private prison contracts, and found that 65% had minimum occupancy guarantees ranging from 80% to 100%. As in, the state guarantees the prison operator that it’ll fill at least N% of beds. The report doesn’t give a ton of detail, so I can’t say whether this sample is representative, and it’s not clear what penalties states must pay for not meeting minimum occupancy. At least some simply require the state to pay for beds whether they’re used or not, but there could be more costly provisions in some contracts.

So this report definitely raises more questions than it answers. In addition to the factual questions, here are some more:

Policy implications: are there any?

Doubtless there’s something nasty about states entering into contracts that punish them for lowering crime, or for replacing incarceration with other options and, e.g., ameliorating the insanity of the war on drugs. But does the nastiness have any actual policy consequences? In theory, this gives legislators an incentive to enact harsher laws, prosecutors an incentive to overcharge, etc. But it’s not obvious whether the penalties are large enough or immediately salient enough that we should expect those officials to respond to them. I would be most worried if those who make decisions about things like parole are also those whose budgets are affected if the state has to pay a penalty: it’s easy to imagine some bureaucrat systematically denying parole to inmates in order to keep the beds full.

Perhaps the most clear policy consequence is that it limits states’ flexibility to choose to house inmates in private or public facilities. This not only potentially puts correctional goals at risk (e.g., what if the state wants to house a particular category of offender in specialized prisons?), but also insulates private prison operators from one of the sanctions states might otherwise wield against them. This is worrying.

Ethical consequences: how nasty?

What are the ethical consequences for judges and lawyers? May prosecutors use their charging discretion in order to fill the prisons, and, thereby, save the state some cash? May judges use their sentencing discretion the same way? This is reminiscent of that horrible scandal a few years back where the juvenile court judges were caught taking bribes in order to sentence children to private prisons. Only, here it’s not judges, but the state itself that is being given a financial incentive, with the potential that judges will respond to it. Does this make a difference for our ethical evaluation of their actions? Is this an example of what Larry Lessig calls “institutional corruption?

Constitutional implications: can the state get out of it?

These kinds of policy-relevant contracts potentially represent something like an unintended constitutional consequence of the contracts clause. To what extent can a state tie its future policy hands by contract with private entities? If remedies other than money damages are available for these kinds of contracts, it raises the dangerous possibility that today’s legislature gets to entrench its policy choices by contract against subsequent democratic change. (I imagine “void as against public policy” doesn’t get too far with the state’s contracts.) Also, who is negotiating these contracts? Embarrassingly, for a constitutional theorist, I’ve realized that I know very little of the doctrine surrounding the extent to which even executive officials get to bind their states, and their legislators, with these long-term contracts. Can this be, essentially, legislation by contract? And does the state, in the end, hold the ultimate trump card in the form of the eminent domain power? (Although, how useful is that trump card, if the valuation of the prisons to be condemned depends on this kind of long-term contract guarantee?)

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2 Responses

  1. Frank says:

    I think one has to review, ala Bernard Harcourt, the overall political economy of the carceral state to make a normative judgment here. Ideally, neither public prison guards nor private prison owners would be able to influence incarceration policies for private purposes. But we know both groups do. An additional question then might be: are we effectively trading some guaranteed rate of return (at today’s freakishly high incarceration rates) in exchange for reducing the chance that the private prison corps will lobby for even harsher measures (to get themselves more business)?

    Cliff Rosky’s Force, Inc. offers a normative analysis, too.

  2. Steph says:

    “But does the nastiness have any actual policy consequences? In theory, this gives legislators an incentive to enact harsher laws, prosecutors an incentive to overcharge, etc. But it’s not obvious whether the penalties are large enough or immediately salient enough that we should expect those officials to respond to them.”

    I’d find it interesting to see studies on this as well. But I think one thing to keep in mind is the way that these occupancy clauses work in conjunction with other arguments put forth by private prison companies. See, for example here: http://www.thenation.com/blog/174628/disclosure-shows-private-prison-company-misled-immigration-lobbying#axzz2fpEjKvDs

    I could see a situation where maybe it’s not occupancy clauses *alone* that shape policy, but where it’s in the mix, along with whatever other arguments are put forth by lobbyists. And with your parole example, I would also throw in anti-recidivism efforts as well.

    (p.s. I sort of recall that some of the questions you have about constitutional doctrine and government contracts are addressed here: http://www.amazon.com/Government-Contract-Outsourcing-American-Democracy/dp/067403208X. Either that, or in some of Jody Freeman’s other works.)

    -the steph who also comments on your friend erica’s wall