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Privatisation of Prisons

Privatisation of Prisons

Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No. 03/2004 by Lenny Roth
Prison Privatisation in Australia and Overseas (p 4-24)
The modern prison privatisation phenomenon emerged in the United States in the mid 1980s and quickly spread to Australia and the United Kingdom. In the United States, there are now over 100 private prisons in 31 states and the federal system, in the UK there are 11 private prisons, and in Australia there are seven. Queensland and Victoria each have two private prisons and NSW, South Australia and Western Australia each have one. Australia has the highest proportion of inmates in private prisons of any nation, at around 17 percent. The UK has almost 10 percent of its prisoners in private prisons. The United States has by far the highest number of prisoners in privately run facilities but this represents only about 7 percent of its total inmate population. New Zealand has one privately run prison but the current government has recently legislated against this policy. Private prisons have recently opened in South Africa and Canada.

New South Wales (p 25-34)
New South Wales was the second state in Australia, after Queensland, to introduce private prisons. The Greiner government engaged the private sector to design, build and operate the Junee Correctional Centre, which opened in 1993. The government believed that the private sector could offer more efficient and innovative prison management as well as providing a benchmark for the public sector. Junee remains the only privately run prison in NSW. The Carr Government awarded the private operator a new contract in 2001. There was speculation that two new correctional centres in NSW, which opened in July 2004, might be privatised. However, following negotiations with unions, the government approved the public operation of those prisons. The government said that a decision on the operation of third new centre at Wellington, which is due to open in 2006, would depend on successful implementation of a new workplace agreement.

The Debate (p 35-60)
There are three main arguments for private operation of prisons. Firstly, that the private sector will deliver cheaper and better prisons. This is because it is subject to the rigours of competition, it is free from bureaucracy, and it is more innovative. Secondly, private prisons will set new benchmarks for the public sector and act as a catalyst for reform of the entire prison system. Thirdly, privatisation will strengthen accountability through competition, establishment of objective performance standards and also because the state should be able to monitor a private operator better than it can monitor itself.
Critics question whether there will be real competition, whether private operators can save money without reducing standards, whether there are opportunities for innovations, and whether private companies will be able to deal with the highly complex task of prison administration. More fundamentally, critics argue that imprisonment is an essential state function that should not be delegated and, separately, that it is morally wrong to allow profits to be made from the infliction of punishment. They also contend that privatisation will weaken accountability. Furthermore, they argue that the profit motive will conflict with prisoner welfare as private operators have an incentive to cut costs at the expense of standards and an incentive to make decisions that increase the length of an inmate’s stay. Critics also fear that private corporations will form a powerful lobby for high-imprisonment policies.

Accountability (p 61-66)
According to Harding there are a number of key elements of accountability which the state must require of private contractors and which citizens must require of the state. Some of these are: maintaining a distinction between the allocation and administration of punishment, ensuring that the activities of the private sector and their relations with government are open and accessible, clearly specifying what is expected of the private sector, ensuring that the agreed services are supplied and that this is done to the contracted quality, retaining an appropriate degree of control over the appointment of staff, and retaining a right to reclaim private prisons if necessary. Harding also discusses the need to avoid “regulatory capture”, whereby regulators become more concerned or aligned with the interests of the regulatees than the public interest.

Evaluations (p 67-93)
Research on the performance of private prisons in Australia is very limited. One study of prisons in Australia found that in the period 1990-99, public and private prisons had similar rates of death from all causes and from suicide specifically. In NSW, there has been no comprehensive study comparing the performance of Junee prison with public prisons in this state or assessing whether privatisation has impacted on the prison system. However, a four-year review of Junee by the NSW Department of Corrective Services and a number of reports from various statutory monitors give some insight into the private operator’s performance.

An empirical study of one private prison in Queensland concluded that the private sector failed to deliver on the promises of both internal and external reform. This was explained on the basis that properly regulatory structures had not been put in place. In Victoria, an independent investigation into private prisons found that the introduction of the private sector had mixed results and made recommendations to promote greater cohesiveness across the system. The Metropolitan Women’s prison in Victoria is the only private prison in Australia to have been reclaimed by the state due to deficiencies.
More empirical studies have been carried out in the UK and the US. A 2003 report by the UK National Audit Office concluded that private prisons in the UK had both encouraging and disappointing results. In the US, a 1998 report commissioned by the National Institute of Corrections, and a 2001 report by the Bureau of Justice Assistance (BJS), reviewed a number of studies and suggested that there was no definitive research evidence to support the conclusion that privately operated facilities were significantly cheaper or better in quality. The BJS report also published the results of survey of state prison privatisation, which came to a similar view. Private prison supporters have cited other recent studies suggesting otherwise.