Thinking about private prisons

Criminal Justice Ethics

Volumn 16, Issue 1, 1997, Pages 26-38

  Lippke, Richard L ^a  

^a JAMES MADISON UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 79959700670     PISSN: 0731129X     EISSN: 19375948     Source Type: Journal    
DOI: 10.1080/0731129X.1997.9992025     Document Type: Article

References (60)

1. These statistics about private prisons come from S. DONZIGER, THE REAL WAR ON CRIME: THE REPORT OF THE NATIONAL CRIMINAL JUSTICE COMMISSION 88 (1996).
2. The defense industry, in particular, has thrived because of its symbiotic (and some would argue, too cozy) relationship with the federal government. Still, it is one thing for the United States government to purchase military equipment to be used in the war designed to expel Iraqi soldiers from Kuwait. It would be quite another were that same government to contract with a private military company to perform the same task.
3. C. LOGAN, PRIVATE PRISONS: CONS AND PROS (1990).
4. For a less positive assessment of private prisons along many of these same dimensions,
5. D. SHICHOR, PUNISHMENT FOR PROFIT: PRIVATE PRISONS/PUBLIC CONCERNS (1995).
6. Shichor briefly touches on these matters in id. at 64-69.
7. Not all theories of punishment have close ties to any particular political theory. Nevertheless, certain theories of punishment seem to lend themselves more readily to grounding in one type of political theory, and in places I make reference to such larger theoretic considerations.
8. Obviously, the analyses I offer would have to be adjusted and modified to accommodate the different social conditions, legal, and penal practices of other countries.
9. In particular, I draw on S. DONZIGER, supra note 1;
10. E. CURRIE, CONFRONTING CRIME: AN AMERICAN CHALLENGE (1985);
11. J. REIMAN, THE RICH GET RICHER AND THE POOR GET PRISON: IDEOLOGY, CLASS AND CRIMINAL JUSTICE (1995).
12. U.S. DEPARTMENT OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS, 562 (1995). Also, as Donziger notes, prison populations do not even roughly reflect arrest rates (themselves a problematic indicator of crime rates) since three times as many African-Americans than whites are arrested for crimes but there are seven times as many African-Americans to whites in prison. This suggests that African-Americans encounter harsher treatment than whites as they work their way through the criminal justice system.
13. S. DONZIGER, supra note 1, at 108.
14. U.S. DEPARTMENT OF JUSTICE, CRIMINAL VICTIMIZATION IN THE UNITED STATES: 1973-92 TRENDS 9 (1994).
15. It should be noted that the use of criminal victimization studies as a measure of crime is controversial.
16. S. Donziger, supra note 1, at 3-4.
17. U.S. DEPARTMENT OF JUSTICE, supra note 9, at 230.
18. S. DONZIGER, supra, note 1, at 115-21.
19. Id. at 10.
20. J. FEINBERG, HARM TO SELF (1986)
21. HARMLESS WRONGDOING (1990)
22. D. RICHARDS, SEX, DRUGS, DEATH, AND THE LAW (1982);
23. D. HUSAK, DRUGS AND RIGHTS (1992).
24. S. DONZIGER, supra note 1, at 19-22.
25. E. CURRIE, supra note 8, at 144-79.
26. S. DONZIGER, supra note 1, at 99-129;
27. J. REIMAN, supra note 8, at 100-47.
28. For instance, in every major category of offense, African- Americans receive significantly lengthier felony sentences from state courts.
29. U.S. DEPARTMENT OF JUSTICE, supra note 9 at 504.
30. This is not meant to deny, of course, that our jails and prisons contain many dangerous individuals.
31. For a discussion of how the media exaggerate and distort the crime rate,
32. V. KAPPELER, M. BLUMBERG, & G. POTTER, THE MYTHOLOGY OF CRIME AND CRIMINAL JUSTICE (1993).
33. N. CHRISTIE, CRIME CONTROL AS INDUSTRY (1993).
34. For an excellent critical discussion of contemporary theories of punishment,
35. Duff, Penal Communications: Recent Work in the Philosophy of Punishment, in M. TONRY, 20 CRIME AND JUSTICE: A REVIEW OF RESEARCH 1-97 (1996) [hereinafter cited as CRIME AND JUSTICE].
36. S. DONZIGER, supra note 1, at 49-54.
37. E. CURRIE, supra note 8, at 52-81.
38. Currie argues at length against conservatives who dispute the connection between poverty or unemployment and crime.
39. id. especially at 104-41.
40. Tonry and Lynch, Intermediate Sanctions, in CRIME AND JUSTICE, supra note 22, at 99.
41. S. DONZIGER, supra note 1, at 89-91.
42. The pressures to incarcerate might be reduced if we privatized some of the alternatives to incarceration, something that is already occurring in some states. Then, whether private companies would favor incarceration or its alternatives might depend on which promised the higher rate of return. In either case, a rather narrow punitive response to larger social problems would be maintained.
43. C. LOGAN, supra note 3, at 71-75.
44. Duff, supra note 22, at 7.
45. Murphy, Marxism and Retribution, 2 Phil. & Pub. Aff. 217-43 (1973).
46. Of course, we should not assume that the economic interests of private prisons would always work to the disadvan-tage of prisoners. There could be circumstances where releasing inmates before they have been punished as much as they deserve would maximize profits. In such cases, justice will have been perverted in another way.
47. Jeffrie Murphy was the first theorist to discuss the conflict between contemporary social conditions and the retributive defense of punishment.
48. Marxism and Retribution, supra note 31.
49. D. CLAWSON, A. NEUSTADL, & D. SCOTT, MONEY TALKS: CORPORATE PACS AND POLITICAL INFLUENCE (1992).
50. Some will argue that individuals are not really forced to serve private prisons as sources of revenue because offenders can choose to remain law-abiding and have not done so. Again, I think this ignores the myriad ways in which inequalities negatively impact on the ability and willingness of individuals to remain law-abiding.
51. J. MURPHY & J. HAMPTON, FORGIVENESS AND MERCY (1988), especially 111-61.
52. Id. at 130.
53. In some of her subsequent writings on retribution, Hampton posits more ambitious aims for punishment.
54. Correcting Harms Versus Righting Wrongs: The Goal of Retribution, 39 UCLA L.R. 1659-1702 (1992).
55. R.A. DUFF, TRIALS AND PUNISHMENTS (1986).
56. Hampton, supra note 38, at 1689-90.
57. R. A. Duff, supra note 22, at 291-99.
58. As David Garland notes, Emile Durkheim argued that punishment inflicted on those who are not really members of the moral community represented by the law is unlikely to produce in such individuals guilt, remorse, and reform. Instead, punishment is apt to harden and sharpen the sense of alienation from the community such individuals feel.
59. Garland's PUNISHMENT AND MODERN SOCIETY: A STUDY IN SOCIAL THEORY 75 (1990).
60. Hampton, supra note 38, at 1698-1702.