Is private sector competition a feasible solution in resolving the challenges of imprisonment?
This essay will argue that private sector competition is not a feasible solution in resolving the numerous challenges of imprisonment. The first and main challenge is that prisons are generally found to cause further reoffending. The 1991-1995 STOP programme found that 49% of offenders sentenced with custody reoffended, compared with 35% of those on community penalties. The second, albeit overlapping challenge, is that 70% of prisons are overcrowded in England and Wales (Bromley Factfile 2019), thus leading to worse prison conditions and subsequently reoffending. The third main challenge is the lack of legitimacy in the prison system, caused by the mistreatment of prisoners (Woolf Report 1991) and Liebling (2014) argues this correlates with higher reconviction rates. It is argued that although there are some benefits gained from private sector competition, the overall effect does not resolve these above challenges.
The outcome of imprisonment
Firstly, in regard to the outcome of imprisonment, this essay argues that the private sector does little to combat the challenge of high reoffending rates. Although proponents, like Tanner (2013), take the view that private prisons are better at reducing reoffending than the public sector, this view is based on a study of 12 private and public prisons, and a finding that 7 of the private prisons had a better reoffending rate than their public counterparts. It is argued this is insufficient data, and even still, the difference is marginal and hard to compare.
There is the possibility that private sector competition can introduce more innovation to the prison service. Companies can take advantages of economies of scale to reduce costs and invest in innovative solutions, for example improving the infrastructure and operation of prisons, as companies are incentivised by profits and remaining competitive. This may improve the standard of prison life, subsequently increasing prisoner satisfaction and reducing reoffending. However, Easton and Piper (2016) argue that free market competition may not be guaranteed, as the company that wins the initial contract would dominate the industry, thus creating a monopoly as other companies will be deterred from entering the market. This means the incumbent company has the power to decide whether they invest profits into innovation, or just absorb them.
Moreover, Sparks, in his article about legitimacy (1994), illustrates the reality; investors in private prisons will not commit capital unless there are prospects of growth and returns. This is supported by Lilly and Knepper (1992) who point out that the construction of new prisons is one of the most profitable sectors of the business. Consequently, a ‘market’ of prisoners is created, where a certain level of prisoners are needed to ensure the industry continues profiting, thus incentivising the creation of an environment to cause reoffending, rather than providing a solution to this challenge. This is illustrated by the government stripping G4S of their contract to run HMP Birmingham in 2018, as it was found to be violent and drug-ridden, with a high number of prison deaths. On the other hand, the public sector’s emphasis is on maintaining social welfare, thus the state is better placed to address the challenges of imprisonment.
Reoffending is also linked to overcrowding, and it is argued that private sector competition has only worsened this challenge. The 1991 Criminal Justice Act set out the provisions for contracting out prisons. Since then, prison numbers have soared, with an increase of average growth from 2.5% in 1992 to 4% post-1993. A link between this growth and private sector competition would be consistent with Sparks’ concern raised earlier, that private prisons aim to grow and profit.
Private sector competition has also led to a lower staff-prisoner ratio in order to keep costs low, creating challenges in regard to safety in prisons. Sparks, Bottoms & Hay’s 1994 study of Albany prison, which has strict discipline measures, compared with the more lenient Long Lartin prison, revealed that there were far more unexplained head injuries at Long Lartin, perhaps linked to this increased freedom. In 2019, it was found that private prisons are 47% more violent in terms of assault than in public prisons (parl.uk). This suggests that where insufficient staff are available to control the prisons, like in the private sector, there may be a lack of discipline, creating unsafe environments. It is thus argued that private sector competition is not well-placed to provide any solutions to the challenges of imprisonment, and private sector motives only exacerbate the challenges further.
On a normative level, it is argued that private sector prisons worsen the challenges prisons face with being seen as legitimate. Liebling et al (2011) consider the opposite view, drawing on research which suggests staff in private prisons treat prisoners with more respect than in public prisons. Moreover, Moyle argues there is a distinction between the ‘allocation’ and ‘administration’ of punishment; the latter can be privatised without a loss in legitimacy as the administering of punishment does not involve judicial decisions. However, it is argued that this view is unconvincing; prisons are in fact responsible for numerous quasi-judicial decisions such as additional imprisonment, solitary confinement and issuing privileges on the IEP scheme (Robbins 1987).
Therefore, private sector competition reduces the legitimacy of prisons, as the market nature of private companies means that offenders are often seen as a means to an end (profit), thus dehumanising these individuals (Hedderman 2013). Because the prison service exists to restrict liberty, it is argued that only the state should carry out these restrictions, as private sector competition increases the scope for potential abuse where the primary focus is on profit margins, rather than welfare.
However, this view is divided in public opinion. The Howard League for Penal Reform found that only 50% of the public are uncomfortable with the notion of private sector competition in prisons. Despite this, it is argued that given the other half of the population do not agree with this concept, the use of private competition in this area lacks legitimacy. This strengthens the view that private sector competition does not provide a solution to the challenges of imprisonment, but rather aggravates these challenges.
In conclusion, private sector competition does not provide a solution to the challenges of imprisonment. The reality is that private prisons will always need prisoners to be in their prisons in order to profit. This further hinders efforts towards desistance, as prisoners will not view prisons as a legitimate initiative to rehabilitate, but rather as a method for corporations to profit. Thus overall, motivation to prevent reoffending is lower and legitimacy of this service will remain doubtful. Therefore, challenges of imprisonment are only worsened in the private sector.
The writer, Simrhan Khetani, is a law graduate from the University of Cambridge and future trainee solicitor at Akin Gump LLP. She has a keen interest in Equity and Trust law and will be pursuing this interest in her work as a solicitor.