Are Private Prisons Intrinsically Wrong? An Analysis

Are Private Prisons Intrinsically Wrong? An Analysis

Abstract

Several critics have argued that private prisons are not only problematic because of their worse effects but also intrinsically wrong. This article analyzes two prominent arguments for this claim: the representation argument and the condemnation argument. The conclusion is that these arguments fail to show that there is something intrinsically wrong about private prisons. This is especially true if the arguments are extended to non-profit private prisons under social injustice contexts that states are responsible for. In such cases, non-profit private prisons might not only be on a par with public prisons but be preferable to them. However, the arguments are also insufficient to oppose every conceivable for-profit private prison.

One Introduction

The debate about privatization has become increasingly lively in recent years. One topic which has attracted significant attention is private prisons, understood as correctional facilities that are owned and/or run by non-public organizations, always at the behest of the government and typically for profit. The emphasis critics set on private prisons is sensible given how common such prisons have become. For example, in the USA, for-profit private prisons house eight percent of the total prison population. Outsourcing the administration of criminal punishment to private actors also appears to be an extreme instantiation of the trend towards increasing privatization that many countries display.

Critics tend to highlight two types of concerns about private prisons. Some critics worry that private prisons are problematic because of their effects on the quality of imprisonment services or on society more broadly. The view here is that while there is nothing in principle wrong about private prisons, in practice these prisons are likely to produce worse outcomes, such as increased risks of corruption, misuse or waste of public money, rights violation of inmates, and deleterious impacts on local communities. Call this the instrumental wrong view.

By contrast, other critics more strongly worry that private prisons are (also) wrong because of features that are inherent to private organizations themselves. More specifically, they argue that even if private prisons did not have any problematic effects on the quality of imprisonment services or society more broadly, they would still be wrong in virtue of failing to meet some of the desiderata which an imprisonment practice is supposed to meet. Call this the intrinsic wrong view. This second view has been most prominently formulated in terms of two substantively overlapping but analytically distinct arguments. According to the first argument, private prisons are wrong because, qua private organizations, they are bound to act on reasons other than those endorsed by the public in whose name imprisonment is carried out. Call this argument, which has been most systematically articulated by Chiara Cordelli, the representation argument. According to the second argument, private prisons are wrong because, qua private organizations, they cannot condemn offenders in the name of the state. Call this the condemnation argument. This argument has been most systematically articulated by Avihay Dorfman and Alon Harel. Worth noting is that while these arguments could conceivably be used to undermine public prisons, too, they are deployed by these authors to speak against private prisons specifically. This means that there is an implicit assumption here that the arguments identify a flaw which is not present, if present at all, when it comes it to public prisons.

This article focuses on and analyzes these two arguments for the intrinsic wrong view. This is because, if successful, the intrinsic wrong view would constitute a robust and possibly conclusive case for resisting or ending private prison practices altogether, such that more careful probing is required before we accept or reject it. Furthermore, compared to the instrumental wrong critique, the intrinsic wrong critique is less hostage to empirical evidence about the performance of private prisons, and, as such, a more suitable target for a normative and conceptual analysis of the sort we offer here.

Our analysis advances two claims which, taken together, undermine the intrinsic wrong view. The first claim is that the arguments for the intrinsic wrong view are not fully persuasive even when applied to for-profit private prisons. This is noteworthy since the authors with whom we engage take for-profit private prisons as paradigmatic for private imprisonment practices. Our second claim is that these arguments are positively implausible when applied to alternative private prison arrangements recently defended in the literature-in particular, when applied to private nonprofit prison organizations. More specifically, we argue that if the arguments are intended to work for private prisons as a general class-and this seems to be the way these arguments should be understood-they fail to establish their conclusion, since there are situations in which private prisons are less problematic than public prisons.

The article is structured as follows. In Section two, we reconstruct and assess the representation argument against private prisons. In Section three, we build on some of the results yielded by this analysis to critically assess a suitably reconstructed version of the condemnation argument. Section four offers some observations about what our criticism seems to imply for the wider question of the justifiability of private prison arrangements. We argue that there is some reason to accept a mixed system containing both public and private prisons, especially if the private prisons are non-profit oriented.