The private prison controversy and the privatization continuum

Law and Ethics of Human Rights

Volumn 5, Issue 1, 2011, Pages

  Barak Erez, Daphne ^a  

^a TEL AVIV UNIVERSITY   (Israel)

Author keywords

boundaries of privatization; Israeli Supreme Court decision; private prisons; privatization policies; privatization process; regulation of privatized functions

Indexed keywords

EID: 79959939054     PISSN: None     EISSN: 19382545     Source Type: Journal    
DOI: 10.2202/1938-2545.1055     Document Type: Article

References (83)

1. HCJ 2605/05 The Human Rights Division, The Academic Center for Law and Business v.
2. The Minister of Finance [Nov. 19, 2009] (unpublished), an English translation is available at http://elyon1.court.gov.il/files-eng/05/050/026/n39/ 05026050.n39.pdf [hereinafter Private Prison case or the Decision].
3. See PRIVATE SECURITY, PUBLIC ORDER: THE OUTSOURCING OF PUBLIC SERVICES AND ITS LIMITS (Simon Chesterman & Angelina Fisher eds., 2009).
4. See also Paul Starr, The Meaning of Privatization, 6 YALE L. & POL'Y REV. 6 (1988).
5. In Israel, for example, a government company has to be guided by economic considerations (unless it is specifically directed otherwise by the government).
6. See Government Companies Law 1975, SH No. 5735, p. 132, s. 4 (Isr.).
7. See, e.g., Dawn Raines, Privatization of Telecommunications in Latin America, 48 ADMIN. L. REV. 479 (1996). (Pubitemid 126408809)
8. In Israel 93% of the land are owned by either the state or other public bodies and leased to private parties.
9. In practice, lands are leased for very long periods in a manner that gives the public lessees "de-facto" ownership.
10. Accordingly, even when land is not owned by private parties, it is used also for commercial purposes in manners similar to the use of private land.
11. See, e.g., Laura A Malinsky, Rebuilding with Broken Tools: Build-Operate-Transfer Law in Vietnam, 14 BERKELEY J. INT'L L. 438 (1996).
12. For a discussion of the opting-out problem, see Clayton P Gillette, Opting out of Public Provision, 73 DENVER U. L. REV. 1185 (1996).
13. Michael J Trebilcock, Ronald J Daniels, & Malcolm Thorburn, Government by Voucher, .80. BOSTON U. L. REV. 205 (2000);
14. Klint Alexander & Kern Alexander, Vouchers and the Privatization of American Education: Justifying Racial Resegregation from Brown to Zelman, U. ILL. L. REV. (2004).
15. See Martha Minow, Partners, Not Rivals?: Redrawing the Lines between Public and Private, Non-Profit and Profit, and Secular and Religious, 80 BOSTON U. L. REV. 1061 (2000).
16. See ROBERT NOZICK, ANARCHY, STATE AND UTOPIA (1992).
17. Milton Friedman, who espoused the application of free-market principles in education as well, proposed an action outline for running private education as follows: Governments could require a minimum level of schooling financed by giving parents vouchers redeemable for a specified maximum sum per child per year if spent on 'approved' educational services.
18. Parents would then be free to spend this sum and any additional sum they themselves provided on purchasing educational services from an 'approved' institution of their own choice.
19. The educational services could be rendered by private enterprises operated for profit, or by non-profit institutions.
20. The role of the government would be limited to insuring that the schools met certain minimum standards, such as the inclusion of a minimum common content in their programs, much as it now inspects restaurants to insure that they maintain minimum sanitary standards.
21. MILTON FRIEDMAN, CAPITALISM AND FREEDOM 89 (1962).
22. Realization of the civic-democratic objectives of education is contingent on the way in which schools are run.
23. This includes the way in which integration is achieved in schools, not only in its formal aspect of accepting students into the school, but also at the ongoing administrative level, for example, the distribution of students into different classes and learning groups.
24. See AMY GUTMANN, DEMOCRATIC EDUCATION 66 (19).
25. Under this approach, education is in itself a social objective, and therefore state intervention cannot be limited to the prevention of harm or fraud with regard to the quality of the service provided, in contrast to Friedman's example of state regulation of restaurants.
26. As Gutmann explains: [t]he analogy implies that our common educational standards consist only of preventing schools from physically harming children or fraudulently claiming to educate them.
27. Were our public interest in regulating schools as analogous to our interest in regulating restaurants as Friedman suggests, it would be hard to explain why we should subsidize schooling for every child.
28. A necessary condition for justifying public subsidy of schools-but not of restaurants-is the fact that citizens have an important and common interest in educating future citizens.
29. GRUNDGESETZ FÜR DIE BUNDESREPUBLIK DEUTSCHLAND [GRUNDGESETZ] [GG] [BASIC LAW], May 23, 1949, BGB (Ger.).
30. In a similar manner, under Israeli law, "[n]o armed force other than the Defence Army of Israel shall be established or maintained except under Law." Israeli Basic Law: The Army, SH No. p. 154, s.6 (Isr.).
31. It is interesting to note that despite Milton Friedman's capitalistic approach, which espouses minimal state intervention in social and economic life, under his view one of the prominent functions of the state is to define and interpret property rights.
32. He claims that coordinating economic activity through a free exchange is based on the premise that we have ensured, through the government, "maintenance of law and order to prevent coercion of one individual by another, the enforcement of contracts voluntarily entered into, the definition of the meaning of property rights, the interpretation and enforcement of such rights, and the provision of a monetary framework." FRIEDMAN, supra note 12, at 27.
33. This view implies that there should be limitations on the possibility of privatizing judicial functions.
34. It is possible that the non-delegation doctrine would apply here.
35. For an overview of the history of the privatization of prisons in the United States, see Martin E. Gold, The Privatization of Prisons, 28 URBAN LAWYER 359 (1996).
36. The privatization of prisons is based on the distinction between the allocation of punishment (in the judicial process), which is not privatized, and its administration, which may be privatized.
37. Basic Law: The Government, SH No. 1396, p. 214, s. 1 (Isr.).
38. Private Prison case, supra note 1, opinion of President Beinisch, para. 63.
39. opinion of Justice Hayut, para. 3.
40. opinion of Justice Levy, para 11.
41. opinion of Justice Levy, para 17.
42. These criteria, that were set by Section 8 of Basic Law: Human Dignity and Liberty, also were applied to other basic laws that do not specifically refer to them.
43. See E.A. 92/03 Mofaz v.
44. The Chair of the Central Elections Committee, 57(3) PD 793 [2003] (Isr.).
45. It is worth adding that in other contexts, privatization may have an effect on the realization of social rights.
46. For example, privatization that entails charging fees for certain social services is likely to have ramifications for social rights in systems that recognize such rights.
47. Thus, it will be necessary to examine whether the privatization of services in the area of health or education is conducted in a way that guarantees universal access to those services and prevents discrimination.
48. At the same time, it is clear that not every privatization of a social service will necessarily result in a constitutional violation (as in circumstances in which the service is supplied by a private entity but through state funding or subsidization).
49. There are also "mixed" examples in which the potential for infringement of rights involves both a civil rights aspect and a social rights aspect.
50. This is the case when the police wish to charge demonstrators for the expenses of policing their demonstration.
51. See HCJ 2557/05 Majority Headquarters v.
52. The Israeli Police [Dec. 12. 2006] (unpublished).
53. Private Prison case, supra note 1, opinion of President Beinisch, para. 22.
54. The opinion by President Beinisch earned the full concurrence of Justices Arbel, Rivlin, Naor, Hayut, and Joubran who all chose to author opinions but fully accepted the main holdings of the President.
55. Justice Grunis concurred, but preferred to base his judgment only on the argument regarding the infringement of the right to liberty.
56. In contrast, Justice Procaccia based her decision on the probability of de facto infringement of the rights of prisoners, when the power of imprisonment is operated by private actors who are motivated by profit, as explained later.
57. Interestingly, Justice Levy, in the minority, was willing to admit that transferring the function of imprisonment to private actors infringes upon the liberty and human dignity of the prisoners, but resisted in deciding at this preliminary stage that this infringement is disproportionate.
58. Private Prison case, supra note 1, opinion of Justice Procaccia, para. 20.
59. According to Justice Levy: "time will tell," see Private Prison case, supra note 1, opinion of Justice Levy, para. 11.
60. For public participation in administrative decision-making
61. See, e.g. Stewart Richard B., The Reformation of American Administrative Law, 88 HARV. L. REV. 1669 (1975);
62. William Funk, Public Participation and Transparency in Administrative Law-Three Examples as an Object Lesson, 61 ADM. L. REV. 171 (2009).
63. See A.P. (Tel Aviv) 2898/04 Association for Civil Rights in Israel v.
64. The Ministry of Finance [Mar. 24, 2005] (unpublished) and A.A. 3637/05 Association for Civil Rights in Israel v.
65. The Ministry of Finance [Dec.19, 2005] (unpublished).
66. The Supreme Court was indeed willing to give the parties additional time in order to facilitate public discourse.
67. See HCJ 2605/05 Academic Center for Law and Business, Human Rights Division v.
68. The Minister of Finance [Aug. 31, 2006] (unpublished).
69. For an argument in favor of focusing on the supervision over privatized bodies in the American context, see Minow, supra note 10.
70. An interesting question in the context of criminal law is whether employees of private corporations who execute public functions should be considered subject to the special offenses that have traditionally applied only to public officials (such as bribery).
71. For an action for infringement of rights in the context of a privatized prison, see Richardson v. McKnight, 521 U.S. 399 (1997).
72. In this case, the U.S. Supreme Court declined to apply to employees of a private prison the qualified immunity that would have been applicable in similar circumstances in the context of a government prison.
73. Daphne Barak-Erez, A State Action Doctrine for an Age of Privatization, 45 SYRACUSE L. REV. 1169 (1995).
74. Daphne Barak-Erez, Civil Rights in the Privatized State: A Comparative View, 28 ANGLOAM. L. REV. 503 (1999).
75. In other contexts, such as the privatization of utilities, the content of the regulation may have other focuses, for example an emphasis on equal access and universal provision.
76. See Toni Prosser, Public Service Law: Privatization's Unexpected Offspring, 63 L. & CONT. PROB. 63 (2000).
77. Indeed, in many instances, the privatization endeavour is intended to release the government from the need to operate in the area of price setting, and to transfer this process to the market. However, there are privatized activities that relate to areas in which there is no market (or at least not a sophisticated market).
78. Furthermore, it is important to guarantee the supply of vital services even for those who cannot afford to pay.
79. In principle, privatization contracts in this area provide for a step-in right for the state. However, the government may be deterred from relying on this provision if the expected scope of compensation to the private concession holder is excessive.
80. On the aspect of supervision as a condition of the constitutionality of a privatization initiative, see Gillian E Metzger, Privatization as Delegation, 103 COLUM. L. REV. 1367 (2003).
81. A noteworthy example in this context is the failure of the American authorities to supervise the administration of the Abu Ghraib prison facility in Iraq, which was operated by a private contractor.
82. See Steven L Schooner, Contractor Atrocities at Abu Ghraib: Compromised Accountability in a Streamlined, Outsourced Government, 16 STAN. L. & POL'Y REV. 549 (2005).
83. Private Prison case, supra note 1, opinion of Justice Procaccia, para 21.