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Public Contract Law Journal

Public Contract Law Journal Vol. 49, No. 3

Private Prison Management Needs Reform: Shift Private Prisons to a True Public-Private Partnership

Arielle M Stephenson


  • Provides background information concerning the private prison industry in the United States.
  • Discusses why reform of the use and operation of the private prison industry has failed.
  • Proposes use of the Alternative Hybrid Management Model based on experiencesin France and Brazil as a targeted, concrete approach more likely to result in successful reform of the private prison industry in the United States.
Private Prison Management Needs Reform: Shift Private Prisons to a True Public-Private Partnership

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I. Introduction

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.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.”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. 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. However, the Trump administration revitalized the private prison industry by increasing contracts(some resulting in the need for detention facilities for migrant children) — maintaining the status quo of riots, violence, and dehumanizing conditions for prisoners in our society. 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.

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.Even though the United States classifies its private prison arrangements as a public-private partnership (PPP),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, 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.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. In contrast, the United States does not divide responsibilities: all responsibilities fall to the private prison company.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.

II. Background to the Private Prison Industry in the United States

The history of the private prison industry is vast; however, key elements are worth discussing. This Part will cover how the United States began the practice of privatizing its prison obligations and why the practice continues today. Then, it will discuss the controversy surrounding private prisons, including their advantages and disadvantages. This Part will also provide the necessary background on private prison contracting. Finally, this Part investigates the classification of private prison contracting as a PPP and why reform in this industry has been largely unsuccessful.

A. U.S. Dependence on the Private Prison Industry

Imprisonment is as “American as apple pie.”The practice dates back to the first English colonists arriving in Virginia in 1607. During the colonial era, felons arrived in America with the precondition that they would be sold for their labor. As the United States developed, it mostly used its own prison facilities to house criminals, as private prisons were not fully mainstream.The private prison industry officially began in the 1980s when a correctional company offered to contract with Tennessee for its state prison responsibilities.Even though the offer was not accepted by the state of Tennessee, the private prison seed was planted and shortly thereafter became more common.

The “War on Drugs” “and “Tough on Crime” campaigns of the 1980s and beyond encouraged criminalizing more behavior, which caused major over- crowding and created the conditions for the state and federal governments to bolster its contracting of prison obligations. Privatizing the industry was attractive for two reasons: (1) a need arose to keep up with the vastly growing incarcerated population; and (2) proponents believed it would save the government money. Now, overcrowding is still a concern, and proponents still find cost saving arguments persuasive. Interestingly, state contracts with private prisons have been decreasing in recent years, but the federal government has become “a source of salvation for the industry.” There has been a 120% increase in the use of private prisons by the federal government since 2000, and combined state and federal private prison populations have increased by 47%, compared to an overall rise in the prison population of 9%. Further- more, the number of immigrants detained in private prisons has grown 442% since 2002.

The history of private prison contracts shows the motivations of the private prison industry that arise from private involvement in corrections. Early on, the government “leased” prisoners to private entities, and, in states such as Virginia, Nebraska, and Tennessee, the government realized that contract terms had not been met. In investigating why, the recurring theme was profit motivation. Today, citizens trust that the government is more accountable than its early days and that it has better regulatory abilities so it can therefore be the check on private prison companies. Unfortunately, it has failed at doing so — government oversight is virtually nonexistent despite the PPP label of their relationship. As a result, the private prison population has increased, even though crime has decreased, and has been found to be more unsafe than their governmental-run counterparts.

The use of private prisons has only risen since its origination, and, in the last decade, the numbers are even more prevalent. Since 2000, the number of prisoners contained in private correctional facilities in the United States increased by thirty-nine percent, while the number of prisoners has risen by only about eight percent. So although crime nationwide has decreased since the 1990s, our prison policy remains unchanged.

This backdrop becomes more concerning in the context of the new Trump administration policies. On February 21, 2017, the Department of Homeland Security released new instructions requiring “all agents — including Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) — to identify, capture, and quickly deport every undocumented immigrant they encounter.” The policy calls for an increased allocation of resources to the southern border for detention of aliens in order to “expand detention capabilities and capacities . . . to the greatest extent practicable.” This pro-prison agenda was further solidified two days later on February 23, 2017, when Attorney General Jeff Sessions revoked the Obama administration’s decision to not renew the DoJ’s private prison contracts. Between February and April 2017, the Trump administration did not have to search beyond their campaign contributors in deciding to whom to award its new contracts; on April 13, 2017, the GEO Group announced it had won the Trump administration’s first federal contract for a new immigration detention center. On the day of the announcement, GEO Group’s CEO said that he is “very appreciative of the continued confidence placed in our company by U.S. Immigration and Customs Enforcement.”

B. Long-standing Pro-Con Debate

The debate surrounding the use and reform of private prisons centers around three major points: cost, accountability, and quality. Generally, cost seems to be the most important factor to governmental entities, while accountability and quality are prioritized by the public. That is not to say that governments do not value accountability or quality, but, rather, that cost factors heavily in decision making.

Economic efficiency is used to justify private prisons from a cost perspective. The arguments note: “Private companies are more efficient than governments. Private companies provide higher quality services at lower prices. They meet demands faster, more flexibly, more accurately, more completely, at lower prices. Everybody wins: Streets, prisons, and nations are safer; taxes are lower, and shareholders are richer.” This point has been hotly contested with studies and statistics on both sides analyzing long-term versus short- term costs. The problem with the cost studies, however, is that no uniform method of calculating costs exists, and, therefore, studies can produce inconsistent results. The conclusion among those who have analyzed cost savings in private prisons is that “these studies do not offer substantial evidence that savings have occurred.” This debate also presents a moral question: What kind of society values cost factors over the lives and conditions of other humans? While this Note does not focus on morality, it is helpful to consider all arguments presented in the private prison debate.

In theory, private prisons are also thought to possess higher accountability standards because they must comply with what the government requires in its contracts. The government has the power to select a new contractor should something go wrong, whereas, when the government builds and operates its own prisons, it cannot fire itself. Because companies have to compete for contracts with the federal or state governments, they, in theory, have to avoid scandals, poor conditions, and other problems that would decrease their chances of renewing or receiving contract awards. Many critics, however, point to statistics, scandals, and research to rebut this seemingly plausible notion. In theory, these arguments are logical; however, in practice, empirics prove that private prisons have poor accountability standards.

Quality is generally hard to measure as there is no standard method, no agreed-upon factors, and no set definition. Because of these gaps, it is simpler to compare private and government prisons on the same specified terms: that is, rate of violence, specifications of the prison, and recidivism. Despite this, attempts have been made to quantify the difference in quality between private and public prisons. In this arena, private prisons are deemed worse or better in terms of “quality” with cherry-picked supported research, data, and analysis. Considering the inconsistency in evaluating quality, it is only important to understand that, at least in comparisons and public policy debates, society attempts to prioritize quality against cost as its primary comparison. However, this method can be problematic because cost also intersects with quality. Regardless of whether the overall costs are higher, private prisons aim to provide higher quality per dollar spent compared to government-run institutions.

C. Private Prison Contracts and the Trend of Immunity for Private Prisons

The method that the government uses to transfer its responsibilities of housing prisoners to private prisons exists through the current PPP model and the contracts
entered into by the states and federal government. Current government contracts with private prison companies require the corporations to “raise capital, design and construct facilities, manage day-to-day operations, and sign long-term lease-purchase agreements.” This model is more of a “hands off” approach, which may be contrary to the notion of an ideal PPP in the United States. Moreover, the U.S. model has far less government involvement than other PPP prison models, such as those in Brazil and France. The continued use and approval of private prisons by administrations have encouraged private companies to build prisons prospectively, sometimes without prior state approval. “Management contracts are usually awarded to the lowest bidder, and pay schedules are based on per inmate, per day fees.”

Private prison statutes typically (1) authorize public officials to enter prison management contracts with corporations; (2) describe bidding procedures, which often include mandatory savings objectives; (3) demand that the contractor carry insurance and obey all applicable laws and regulations; (4) provide for state monitoring; and (5) reserve the state’s authority to decide when prisoners are released.

These statutes, through omission, reserve many powers to the prison corporation, including, but not limited to, decisions regarding the use of force and conditions. While it is not apparent whether the statutes are unclear intentionally or because of the difficulties with drafting hyper-specific contract terms, the effect is to grant large discretion to private prison corporations.

Given the private prison companies’ contracting power, various clauses that favor private prison companies have become the norm. For example, either in contract initiation or more often in the contract renegotiation process, sixty-five percent of private prison contracts had a clause that provided funding at a specified percentage of occupancy, no matter what the occupancy rate was actually determined to be. These “minimum occupancy clauses” sometimes required payment of up to ninety percent occupancy with no regard to crime rates. Another example is the terms that cover prison interactions with the media and disclosure requirements: private prisons are not subject to Freedom of Information Act (FOIA) requests, while federal prisons are. Since 2005, a “Private Prison Information Act” has been introduced on and off in both the House and Senate, but never passed. The bill would require private prisons to be subject to the same disclosures by which federal prisons are required to abide, including FOIA requests. One of the major private prison companies, CoreCivic, spent millions of dollars lobbying against the passage of various Private Prison Information Acts dating back to 2005.

Not only are the terms of private prison contracts frequently negotiated to favor prison companies, the auditing process is currently unable to correct many internal problems. The American Correctional Association (ACA) is the agency responsible for administering accreditation and ensuring private prisons are up to contract standards. ACA accreditation is essentially a rubber stamp of approval because ACA standards primarily prescribe what type of procedures a facility must have, not the content of the procedures. Their “standards” do not explain what goals must be achieved, the indicators of those goals, or how to measure progress. As a result, private prisons are allowed to set the content of the standards so long as they can prove the existence of “written policies and procedures.” The effectiveness of such standards is not reviewed, and the discretion to lower standards is retained with the private corporation and not a universal, independent body.

Moreover, the ACA has a history of overlooking mistreatment. For example, in 2009, the ACA gave accreditation to the Otter Creek Correctional Center in Kentucky, despite multiple charges of sexual abuse, a reason that was sufficient for Hawaii to remove its inmates who were being housed at the Otter Creek private prison facility. Further, the president of ACA, Christopher Epps, faced federal charges for receiving dozens of bribes in exchange for directing lucrative state prison contracts to specific firms. This is the same ACA president who awarded the Walnut Grove Correctional Facility, a private prison that a federal judge declared in 2012 “a cesspool of unconstitutional and inhuman acts and conditions,” a perfect score just one year later. This rating was also given one year after a report from the DoJ revealed the prevalence of rape among inmates, guards denying prisoners medical care, weapons and drug smuggling from guards, and guards engaging in sexual relationships with inmates.

III. Why Meaningful Reform Has Failed

Various systemic features of the private prison industry make reform difficult. The concentrated prison market along with the forceful lobbying efforts of prison corporations halt reforms from ever getting to the forefront of discussion.

The debate described above not only reflects our historical motivations for privatizing the prison industry but also is often the justification on which politicians and pro-prison advocates rely to support their continued existence. However, these justifications do not account for the changes that have occurred due to privatizations. The duopolyof the major private prison corporations makes altering contracts nearly impossible, and the lobbying abilities of the corporations prevent any change. In effect, private prison corporations figured out how to hold the United States hostage in the debate regarding the use of private prisons and have been using this method ever since.

The backdrop of systemic features that makes reform difficult will always be a hurdle to new solutions. This backdrop, while potentially frustrating and disappointing, is important to remember when evaluating reforms and problematic to ignore when proposing new ones. This section will focus on answering two common solutions discussed in the private prison debate: abolition and piecemeal reforms. While these approaches are different, both aim to resolve many concerns addressed in the previous sections of this Note.

A. The Concentrated Private Prison Market

The private prison market is concentrated in two companies, which form a duopoly. Those companies are CoreCivic (formerly known as Corrections Corporation of America, or CCA) and GEO Group, which together control almost eighty percent of the market. The New York Times summarizes their control: “The field is dominated by a handful of companies who have swallowed the competition and entrenched their positions through aggressive lawyering, intricate financial arrangements and in some cases . . . bribery and kickbacks.”

B. Private Prison Companies’ Lobbying Efforts

Since 1989, GEO Group and CCA have financially contributed more than ten million dollars to individual candidates as well as twenty-five million dollars to lobbying efforts that target state and national policies. The kinds of lobbying efforts to which private prisons contribute include funding for Immigrations and Customs Enforcement, California’s three-strikes rule, and an anti-illegal immigration law in Arizona. The Florida-based GEO Group donated over one million dollars to state candidates and parties leading up to a local vote to privatize Florida’s prison system. Nationally, private prison companies have contributed significant sums to President Trump, including GEO Group who donated $250,000 to support Trump’s “inaugural festivities” on top of the $225,000 that a GEO Group subsidiary donated to a super PAC. Recently filed congressional reports show CoreCivic also gave $250,000 to support President Trump’s inauguration. The GEO Group subsidiary, GEO Corrections Holdings Inc., donated $100,000 to the pro-Trump super PAC, Rebuilding America Now, the day after the release of the Treasury Department memo calling for the phase-out of private-prison contracts.

The private prison industry is not only resilient, but incredibly strategic. Given the nationwide decrease in crimeand bipartisan calls to reform the criminal justice system, the private prison industry has begun to rebrand itself as a rehabilitation service. GEO Group spent $360 million to buy Community Education Centers, which provides rehabilitation services both in and out of prison. George Zoley, CEO of GEO Group, explained the decision by stating, “This important transaction represents a compelling strategic fit for our company as it further positions GEO to meet the demand for increasingly diversified correctional, detention, and community reentry facilities and services across the United States.”

C. Proposed Solutions to the Private Prison Problem

The largest hurdle to not only private prison reform, but also criminal justice reform as a whole, is lack of political support. It is why federal legislation calling for reform generally stalls in Congress, and, in response, states have taken on the burden of criminal justice reform. We need Congress to pass laws; otherwise reform is doomed. Specifically, bills that have called for or require abolition like the Justice Is Not for Sale Act have been stonewalled in Congress. Even more moderate bills, such as the recent First Step Act, was signed into law, but only after concessions were made on both sides. Given this framing, this section analyzes the problems with two common solutions: abolition and piecemeal reforms.

To begin, many feel that abolition is the only remedy to the problems of private prisons, and that the United States must get rid of the system entirely. Yet three problems exist with the abolitionist approach: (1) abolition is highly unlikely due to lack of political support, (2) reform of private prisons is preferable to abolition as future administrations could bring back their use, an (3) private prisons provide an important source of competition for the prison industry. The abolitionist approach fails to account for the heated political nature of our government and makes reform an all-or-nothing debate, instead of making small incremental reforms that, in culmination, have the effect of changing the industry. Notwithstanding the politically unpopular nature of abolition, abolitionists take an inherently cynical approach to private prisons that is not necessary for reform. The unique part of private companies performing work that was previously left to the government is that the private sector can be incentivized to improve because of competition (or something along this line). An end to private prisons would reduce competition in this already concentrated market and potentially give the government a blank check to lower standards below those currently accepted.

The alternative to private prison abolition is a variety of piecemeal reforms attempted to isolate and resolve individual issues within private prisons. While many believe that piecemeal reforms are necessary and important and that arguably incrementalism has been the most effective method for prison reform writ large, comprehensive reform of private prison contracts is the most direct way to address the root cause of the many problems private prisons present.

Many piecemeal reforms have been contemplated; however, many fail to prioritize accountability and instead keep the focus on economic goals and recidivism. While these aims should neither be dismissed nor treated as col- lateral, the important reform yet to be analyzed is one that is realistic. Private prison reform has been stalled for decades because reform is often comprehensive, and, even when it is piecemeal, it is not framed in a way that gains bipartisan support. Historically, Republicans launched their criminal justice platform with Goldwater and Nixon’s “law and order” campaign that progressed to President Reagan’s “Tough on Crime” policy/ initiative, both resulting in more incarceration. Republicans, and specifically President Trump, have continued to use that catchphrase. However, even in our current political climate, the Trump administration has signaled its support for reform. The First Step Act became law on December 21, 2018, and required many revisions to gain enough bipartisan support to pass. Reformers should take note of what seemed important to each side in the debate. To Republicans, “tough on crime” still remains an essential factor to their stance on reform. Conversely, for Democrats, their focus is criminal justice reform.

Moving forward, prison reform must be framed in terms that appeal to the concerns of Republicans. Although proposals such as a cost-bonus system, making contract terms less specific, and shortening the length of the contractsall tout the benefits described above, they are not comprehensive and mistakenly leave the government out of the process.

IV. Public-Private Partnerships in the U.S. Prison Industry & the Alternative Hybrid Management Model

Since the U.S. private prison system is already a PPP, a targeted and concrete reform has a more probable chance of success than vast comprehensive private prison reform. The most important aspect of this reform is ensuring that the delineation of services and responsibilities accurately, fairly, and strategically matches the capabilities of the government and contracting company. While this approach may continue to evolve, the proposal in this Note is based on the current knowledge, data, and information that we have about each contracting party’s strengths and weaknesses. This section analyzes the approaches of France and Brazil, which require more governmental involvement in their private prisons, to inspire the reform later proposed in this Note.

A. The French Model

For over twenty years, French prisons have been built, operated, and maintained through their form of a PPP called “delegated management agreements.” France originally wished to adopt a model of privatizing prisons based on the United States’ approach, but upon investigation, felt a hybrid model of management would be more effective than leaving all correctional responsibilities to a private company. The French hybrid model requires the government, through the use of government employees, to manage the prison. For example, the warden and correctional officers need to be from the government and not the prison company. Non-government employees make up only twenty percent of the overall prison staff. The services delegated to private companies include food, hygiene, cleaning, medical care, reentry services, and prison labor decisions. Prison security has also been left to the government. The hybrid model has produced more specific contract terms, such as performance indicators (and how to measure them), benchmarks, a compliance range and time limit to achieve the outcomes, and a penalty calculation.

After adopting this model, the results were analyzed, albeit in a limited way. Government reports found that the privatized hybrid model performed better in the areas of asset maintenance, food quality, cleanliness, and health care. Reports also reveal that this model provided superior reentry services and inmate labor. When compared to similarly situated public prisons, the hybrid prisons were more costly. However, the cost difference is likely due to a variety of factors specific to France that would not necessarily make this model more expensive if it were implemented in other countries, or specifically in the United States.

B. The Brazilian Model

The Brazilian government, intrigued by the French privatization attempt, implemented a hybrid management model where the government has control over inmate custody, facility management, and external security. The private companies are in charge of the remainder of prison services, such as “internal security, food, medical aid, legal assistance, dental care, leisure, education, [and] facilities management.” Brazil’s model falls between the French and U.S. privatization attempts. In contrast to France, services not assigned to private actors can be outsourced. Moreover, unlike the United States, Brazilian government employees are responsible for being the “contract supervisors” and for ensuring prisons are meeting their specifications and quality assurances.

In the Brazilian case study between publicly and privately managed prisons, the private prison was less costly. Furthermore, the quality of the prison, measured based on services provided to inmates, was also better in the privately managed prison. The hybrid private prison provided ten times more medical care and twenty times more legal services. There were zero escapes in the private prison compared to several in the public prison, and overall safety was better in the private prison. These factors indicate a stark difference in quality that favors the private hybrid management model compared to solely public-run facilities and fully privately operated facilities.

V. The Best of Both Worlds

The U.S. model of privatization in its prison industry can greatly benefit from the case studies of Brazil and France (which modified the U.S. approach) to avoid the quality issues that these two countries observed in our private prisons. The improved government oversight of the French and Brazilian models has not drastically increased costs and, in Brazil, even decreased costs, while resulting in higher quality measures than their publicly run counterparts. It is important to note that the recommendations set out in this Note are a starting point and should be adjusted based on reviews and studies of the effectiveness of new policies and measures. Based on the U.S. private prison industry’s strengths and shortcomings, as well as the private sector’s strengths in the prison industry in other countries, the following are the recommendations for delineating responsibilities between the government and private actors.

First, there needs to be an increase in the presence of government employees who oversee private facilities. In doing so, the government would fill a gap that the private sector has been unable to provide: accountability measures and a check on the urge to conserve costs through cutting corners. Specifically, a governmental warden as opposed to one hired by a private corporation has the potential to vastly change the priorities of the facility. State-appointed wardens have an increased focus on quality and safety as their reputation is impacted and success and failure fall on their shoulders. This is an important position to overhaul as it reflects government involvement at the highest level of oversight and a commitment on behalf of the government to work with the private companies to change the quality standards.

Second, employee training must be handed over to the government. The content, quality, and amount of training are vastly different between private and public prison guards. Correctional guards in private prisons received fifty-eight fewer hours of training, and they experience almost three times the turnover rate compared to their public counterparts. The difference in training reflects an inability for private correctional officers to properly handle safety situations and creates a more violent environment than in public prisons. By returning correctional officer training back to the government but not changing the actual staff, private prisons will be able to reap the benefits of lower-cost salaries while increasing safety due to proper training.

On the one hand, the aforementioned recommendations reflect areas in which the private prison industry can be enhanced through increased cooperation with the government and areas that the private sector has been unable to address throughout its history of involvement in corrections. On the other hand, several delegations should remain in the hands of private actors as they have proven an ability to provide additional services at better quality or lower cost than the government.

First, the government should continue to contract with private actors for the design and construction of physical facilities. Private prison companies excel at design and construction of facilities, as they can complete the process faster and have fewer purchasing restrictions compared to the government, thereby reducing cost. Private companies face harsher penalties if they fall behind schedule and therefore generally complete projects faster and up to twenty percent cheaper than the traditional government procurement model. Similarly, private entities are generally responsible for the upkeep of the facilities that they build, and thus they have a larger incentive to build quality facilities.

Second, healthcare and food services should also remain controlled by private actors. Healthcare and food are areas in which the private companies hold greater latitude given the room for innovation and new technology in these areas. By giving private entities the freedom to execute this portion of the prison operation, they will succeed in innovating and creating project-specific technologies. When studied, private entities innovate more often than the public sectorand therefore are better suited to manage the food and health- care of a prison. While there have been many critiques of private actors’ ability to provide basic medical and food services, relying on the logic that the private prison model requires companies to cut corners and reduce costs to turn a profit, there have been no studies in their ability to provide these services with the governmental oversight of a PPP proposed in this Note.

The PPP proposal discussed in this Note provides a politically popular, comprehensive reform of the private prison system in the United States. Specifically, this proposal will increase access to information that, in turn, can be a stark deterrent to violence and subpar conditions due to reputational damage. For example, if a government supervisor found a lack of compliance in maintenance, cleanliness, or prisoner mistreatment, the supervisor could release a report detailing the problems noted. A public report of this nature would have a negative effect on private prisons, as in the past contracts have not been renewed following a sufficient showing of a prison company’s unwillingness to correct abuses. Furthermore, a reform of this nature has the potential to alter the ACA standards, which, while imperfect, are universal standards with which all prisons must comply. Reforming these standards would require change and at least reflect a universal understanding of norms for the private prison industry.

Enforcement of governmental directives is also important to think about when dealing with private actors. A component of the PPP will involve higher monitoring, which we already have procedures in place to handle, and will only be enhanced by having more governmental involvement.

Each private prison contract contains promises by the prison company to provide certain staffing levels, certain activities and resources, and an appropriate level of safety and care. If the company purposefully fails to live up to those promises because it places its bottom line above its obligation to the government, the company may be committing fraud [under the federal False Claims Act (FCA) or state- level equivalents].

There will be additional incentive to comply with the government’s more robust authority under a more involved PPP regime as the FCA provides treble damages for violations of private prison contracts.

One consideration to take into account with prison contract reform is the increased costs potentially associated with stricter monitoring measures. While these costs may initially be higher, an increase in quality will result and should be measured through metrics like recidivism, access and quantity of prisoner programs, and better conditions that ultimately save money. Thus, advocates of reform should not say “so what” when criticized for the high cost of proposed reforms just because, as discussed earlier, cost is usually the most important factor to companies, to the government, and to many reformers. Rather, it is more strategic and effective to appeal to the cost-effectiveness argument itself and engage with the concerns of those who oppose reform. By showing that cost savings can be a reality, along with the societal benefits of increased prison quality, many may begin to give this type of reform a winning chance.

Finally, this solution must also be able to withstand the private prison lobby mentioned earlier in this Note. While the prison lobby is incredibly strong, this solution is able to be framed as a cooperative agreement between the government and private prison companies. If this solution is framed as a partnership there should be less resistance, as private prison companies would not be concerned that the government is abandoning private prison contracts. There will always be opposition to reform of the private prison industry, but this solution is distinct in its potential to unite the government and private prison companies to work towards better conditions.

VI. Conclusion

Private prisons have been part of the U.S. way of life since 1980, yet reform has always seemed impossible. Reform advocates have posed numerous solutions that attempt to gnaw away at the power and discretion of private operators; however, rarely are they politically popular and capable of becoming law. Reform now must be both comprehensive and politically favorable.

The approach argued for in this Note asks the United States to extend the current practice of PPPs present in infrastructure, transportation, and other government contracts and apply them to our private prison contracts. Even though the current regime in the United States is considered a PPP, the PPPs for prisons are essentially full delegations to prison companies to make all managerial decisions with very little governmental involvement. The current system should look more like the equitable PPPs that the United States implements for other projects, which require increased governmental involvement and specific delineations of public and private entity responsibility. This approach would be similar to the hybrid management model of other countries, namely Brazil and France. The hybrid management model attempts to resolve the large accountability critique of private prisons and provides a feasible reform that will make meaningful change. Adopting a more equitable model of PPP to the prison contracts with private actors provides the best chance of reform to the private prison industry.

Should Shane Bauer go undercover as a prison guard in a private correctional facility that this Note envisions, he should hope to find a cooperative partnership between the government and its private prison counterparts — a successful partnership that balances the need for transparency and account- ability with the business model of a private company. His experience in a private prison, while far from enjoyable, would reflect a step closer to acceptable standards for a private prison in the United States and a safe environment for the guards and inmates who walk its halls.