4 - Privatizing Criminal Punishment: What Is at Stake?

Summary

What, if anything, is lost when we privatize criminal punishment? The literature responding to this question is already vast and growing. But it would be a mistake to understand it as forming a single, coherent line of inquiry. Writers on this topic have raised concerns of at least three different sorts. Concerns of the first sort are specific to a particular legal order, suggesting that some legal doctrine in that jurisdiction prohibits the privatization of one sort of criminal punishment or another. In the United States, for instance, much of the literature in this vein has focused on specific constitutional and administrative law doctrines, as well as specific legislative obstacles to the privatization of criminal punishment. There have been similar scholarly movements in many other countries, as well.

There is a second literature on privatization that has more universal ambitions. These writings argue that if we privatize criminal punishment, we will necessarily run afoul of many of our broader normative commitments.