Arielle Stephenson is a third-year law student at The George Washington University Law School and served as Editor-in-Chief of the Public Contract Law Journal for the 2019 – 2020 term. This Note received the third-place award in the 2019 Section of Public Contract Law Writing Competition. She would like to thank her professor Sonia Tabriz, Notes Editor Meghan McConnell, and the amazing executive team who helped publish this Note.
Shane Bauer spent four months as an undercover prison guard in order to better understand the inner workings of the private prison system in the United States.1 As a journalist, he was not sure what to expect from his new job, but his findings are telling: “The inmates are violent, with stabbings a regular occurrence. The guards are demoralized — too outnumbered, understaffed, and underpaid to create a genuinely safe environment. The facility regularly experiences all kinds of other issues, from failing to provide adequate medical care to inappropriate sexual relationships between guards and inmates.”2 Shane’s story highlights the state of private prisons in the United States; a story that was finally acknowledged when the government announced its decision to rollback private prisons in August 2016.3 This Department of Justice (DoJ) announcement seemed to signal the end of private prisons as the Obama administration sought to reduce and potentially eliminate the government’s use of private prisons.4 However, the Trump administration revitalized the private prison industry by increasing contracts5 (some resulting in the need for detention facilities for migrant children)6 — maintaining the status quo of riots, violence, and dehumanizing conditions for prisoners in our society.7 Criminal justice reform advocates emphasize the importance of taking immediate action, highlighting that the realities of private prisons reveal a duty that we owe to prisoners to have a basic level of health and safety where they are held, which ultimately impacts the integrity of our prison system.8
This Note isolates the vast deficiencies in our oversight and management of private prisons in the United States. The problem stems from the drafting of the clauses in the contracts that federal and state governments have with private prison corporations. These contracts are significant because they are often the only controlling documents governing expectations and therefore have the potential to be thoughtfully drafted in the future as our national standards surrounding private prisons evolve.
In contrast to other countries, the United States has less governmental involvement in its private prison contracting.9 Even though the United States classifies its private prison arrangements as a public-private partnership (PPP),10 they do not resemble other countries’ PPP models for private prisons. While PPPs are well known and established in areas such as transportation and infrastructure in the United States,11 they hold a different meaning in the prison arena. As opposed to robust involvement, the United States’ PPPs for prisons generally relinquish control from the government and allow the contractor to make essentially all of the decisions including building and managing the prisons.12 The alternative PPP model, like those in Brazil and France, has private companies pay for the new facility, and then certain functions and responsibilities are subsequently divided between the company and the government.13 In contrast, the United States does not divide responsibilities: all responsibilities fall to the private prison company.14 This Note argues that state and federal governments should increase their involvement in their current PPP contracts with private prison companies through monitoring and oversight in order to increase accountability and ultimately reform private prison conditions.
Part II of this Note analyzes how the United States developed its dependence on private prisons and the long-standing debate surrounding their existence. This section will detail the current components of private prison contracts and the trend of immunity regarding prison contractors. Part III investigates why meaningful reform has failed and discusses current proposed solutions to the issues private prisons present in the United States. Part IV examines PPPs in the United States and presents the international hybrid management model that Brazil and France use in their private prison systems. Finally, Part V recommends that the United States adopt a form of the hybrid management model. This solution increases governmental involvement in current PPP contracts with private prison companies and can provide a solution that will survive the current administration and any future pro-private prison administrations.
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