Private Prisons: Yes or No?

            Within the past forty years, private prisons have reemerged in the United States. But what does privatization exactly mean in this context? Private for-profit contractors own and run prisons with public funds the government gives them to cover the costs of incarceration. The United States, Britain, and Australia are among the few countries in the world that delegate operation of prison facilities to the private sector. Many states have switched to the privatization of prisons in the hopes of being more “cost-effective.” However, some studies have suggested that private prisons are not more cost-effective; instead, factors that are indifferent to whether the prison is publicly or privately owned dictate cost, such as economies of scale, how old prison facilities are, and security level.

            Private prisons used to be widespread in the United States until the twentieth century when the government took over most prison operations. Privatization started in 1979 when the US Immigration and Nationalization Service (INS) contracted private firms to detain illegal immigrants awaiting trial or deportation. Private firms such as the Corrections Corporation of America (CCA) began incorporating and got their foot in the door early. These firms could create detention facilities much more quickly. In 1985, firms began contracting in areas in Florida, New Mexico, and Kentucky to operate their jails.

            Why the shift from public to private? The prison population exploded at the onset of the War on Drugs. Up until 1980, there were under 500,000 inmates in prison. After 1980, the prison population steeply grew, reaching over 2,000,000 Americans incarcerated in 2000. As overcrowding wracked prisons, by 1991, forty states were found to be operating prisons that violated the Constitution’s prohibition of “cruel and unusual punishment.” Also, reimbursements to private firms could be made using operations funds instead of money from capital accounts, which made it easier to fund private prisons instead of public.

            The strongest argument for switching from public to private is that it is more “cost-effective,” although this is still widely debated and some research suggests it does not alleviate costs. In a meta-analysis on private prison management (private prisons fully owned and operated), it was found that other factors, such as economies of scale, the age of facilities, and security level are more likely to affect the cost of operation, not who the owner is. Some critics of prison privatization claim that in the long-run it will end up being more expensive because there will be a need to keep a constant or increasing prison population to drive profits.

            So are privatized prisons worth it? Private firms are allowed to lobby Congress, and wouldn’t it be worth it to them to lobby for harsher laws to ensure larger prison populations, which means larger profits? Can profit and justice exist simultaneously?

By Cayman Kai Macdonald

Sources:

            Maahs, Jeff and Travis C. Pratt. “Are Private Prisons More Cost-Effective Than Public Prisons? A Meta-Analysis of Evaluation Research Studies.” Crime & Delinquency, 1999. Vol. 45, No. 3, pp 358-371. http://cad.sagepub.com/content/45/3/358.

            McDonald, Douglas. “Public Imprisonment by Private Means: The Re-emergence of Private Prisons and Jails in the United States, the United Kingdom, and Australia.” British Journal of Criminology, 1994. Vol. 34, pp 29-48.

Bargain With the Devil?

In our current criminal justice system, plea-bargaining can be a controversial issue that can make a huge impact on innocent defendants. On April 4, 2013, the 49th annual Robert D. Klein Lecture took place featuring Daniel Medwed, Professor of Law, who is new to Northeastern this year. Professor Medwed gave a talk titled “Bargain with the Devil?” He discussed prosecutorial overreaching and why it can sometimes be tempting for an innocent defendant to plead guilty.

Professor Medwed began his talk by discussing the role of the prosecutor as a “Minister of Justice.” Prosecutors must be zealous in their quest against defendants, but they must also be fair.

What upset the balance of these scales, however, are the heavy incentives to prosecute defendants. Professor Medwed pointed out the psychological, professional, and political reasons that explain “why a good prosecutor might go bad.” Expectancy bias leads the prosecutor to assume the guilt of the defendant which escalates the prosecutor’s commitment to proving it. Professionally, how does one measure the success of a prosecutor? A popular method is by using conviction rates. In some places, there is even a cash incentive for higher conviction rates, which brings into question whether justice can still be the guiding light in such cases. Political barriers, such as the fact that prosecutors are publicly elected in most states, also encourage prosecutors to adopt a “tough on crime” attitude.

In a criminal case, prosecutors hold all the cards. They choose who and what to charge and whether to disclose evidence before trial. The defendant may not know what evidence they have against him. Coupled with the potential stark contrast between sentencing in a plea bargain versus in court, one can start to imagine why an innocent defendant may feel pressured to plead guilty.

Prosecutors often offer generous plea bargains in weak cases. Again, psychological, professional, and political considerations fuel the prosecutor’s decision to extend such a bargain. Prosecutors may view case weakness equating to bad luck, not the potential innocence of the criminal defendant. Professionally, they are still motivated by the incentive to increase their conviction rate. They also are interested in moving on to the next case as quickly as possible; a plea bargain can sometimes speed things up. Political considerations include the fact that sometimes prosecutors would rather settle the case beforehand instead of it blowing up in court.

Professor Medwed gave two example cases. The first was the case of Chris Ochoa who was accused of the rape and murder of a woman in Austin, Texas in 1988. He was threatened with the possibility of the death penalty if he was found guilty in court, but he was offered a life sentence as a plea bargain. He took it. Twelve years later, DNA testing revealed he was innocent. He had spent twelve years in prison for awful crimes he did not commit. The prosecutors held all the cards and he did not initially know they had no evidence against him. One can see why he decided against gambling with his life in court.

The second case was that of Stephen Schulz. He was accused of armed robbery and he also happened to have a history of hiccups with the law. Because he insisted he was innocent, he refused the plea bargain of three years in prison and went to prison. He was found guilty and sentenced to eleven years. After serving eight years, he was finally released after Professor Medwed and his colleagues presented evidence that suggested he was not connected to the crime. When there is the possibility that innocent people may be found guilty and be forced to endure harsh sentences, one can imagine why they might avoid the gamble and take the seemingly easier plea bargain.

In closing, Professor Medwed offered some thoughts on reform. Plea bargains can have some real advantages, so he did not advocate abolition. The second option would be to narrow the disparity between the sentences offered in a plea bargain and after being found guilty. A third choice would be to disclose evidence before plea bargaining; the final option would be to increase judicial monitoring of pleas. Although plea bargaining can be useful and appropriate sometimes, clearly there is room for reform.

by Cayman Kai Macdonald