Historically, prisons and jails in the United States have operated outside the public’s eye. The result has been atrocious conditions and rampant abuse in government-run institutions. It was not until the 1960s, as members of the Civil Rights Movement were imprisoned, for this to change. Initially organized by the Nation of Islam (NOI) and the Black Panthers, the prison rights revolution of the 1960s and 1970s, which was a part of the broader rights revolution, shifted the court’s orientation from ignoring prisoners to protecting their basic rights. Prison conditions improved and expenditures on prisons increased, as did the number of cases filed by prisoners against the state, as they exercised their newly won rights. In short, the courts held the states accountable, and prison conditions improved.
However, following the Civil Rights Movement, the United States witnessed “frontlash,” with the redefinition of the “racial problem” as a crime problem. In turn, this produced the policies that induced mass incarceration—and an increase in racial disparities in incarceration. Further, profit for private companies continued being a key facet of prisons and jails. However, it evolved, from convict leasing into the private operation of jails and prisons today. In Captive Market, Anna Gunderson asks: Given this historical backdrop, why did this shift toward prison privatization across the states occur?
While prior studies point to state partisanship, economic considerations, unionization, and campaign contributions as key explanations, Gunderson offers a novel explanation: prisoner lawsuits are central to a state’s choice to privatize prisons. As the courts held states accountable for prisoner abuse, forcing the outlay of resources and causing political trouble, states were anxious to avoid being held accountable in that way again. She argues that the private sector’s orientation toward incarceration as a vehicle for profit presented as a policy solution to the states. The accountability threat was amplified by an exponentially growing prison population due to federal and state shifts on drug and crime policy, which lead to a huge increase in the number of prisoner lawsuits filed. Prison privatization allows states to pass on legal liability to private firms and obscures connections between state policy and the operation of prisons, allowing states to sidestep or confuse accountability efforts. From this, Gunderson hypothesizes that as the number of lawsuits filed increases, the likelihood and rate of privatization also increases. However, if a state has already been held accountable through the courts, then they may be less likely to privatize as the incentives to do so are lacking.
To test her hypotheses, Gunderson turns to a novel data source: 10-K reports from the Securities and Exchange Commission (SEC) for four publicly traded private prison companies, which account for the majority of the private prison market. Using these reports, she calculated the number of private prison inmates, the proportion of state inmates in private prisons, and the number of private facilities by state and year. The result is a state-level dataset spanning 1986 through 2016. Next, she collected information on the number of “Prisoner Petition” cases by year and state of origin by gathering the filings from the Federal Judicial Center’s Integrated Database and Bloomberg Law. As she also proposes that states that have already been held accountable may lack the incentives to privatize, she gathered information on significant and successful lawsuits from the Civil Rights Clearinghouse database. The result is an impressive and unique data source, now available to others as well.
Using this dataset, she tests for a statistical connection between litigation and privatization, in Chapter 4, controlling for additional explanations. She finds strong, consistent support for her hypothesis that an increase in lawsuits increases the likelihood and rate of privatization. However, she finds inconsistent support—estimates consistently point in the same direction but rarely reach statistical significance—for her hypothesis that previously being held accountable decreases the likelihood and rate of privatization. The finding that litigation increases the rate of privatization implies that states do try to avoid accountability by shifting political and legal liability to private firms. This means that the power of the people to enact change in prisons and jails is limited, without first pressuring states to take back control and oversight of their prisons.
Following this, in Chapter 5, she poses one final question: how does successful litigation affect the private prison industry? As profit is core to why private firms choose to take over prisons, she examines whether successful, publicized litigation relates to changes in a firm’s stock price. She finds that successful cases in states where a firm operates temporarily decreases that firm’s stock price. One point that could be made is that even when held legally accountable private firms appear to not be held accountable politically—either by those who have contracted with them or by their shareholders.
Overall, Gunderson persuasively argues and shows strong evidence that greater rates of prisoner litigation are linked to higher levels of prison privatization across the states, likely driven by states attempting to pass on accountability. While this clearly has implications for our understanding of the privatization of the criminal legal system and traditional government functions more broadly, it also has implications for our understanding of how race, policy, and institutions interact. In particular, in the future, this study could be used to further develop the theory of racialized policy feedback by outlining how responses to racial policies can produce unintended institutional and policy changes, by highlighting the unintended consequences that the prison rights revolution had on prison privatization across the states. Ultimately, she concludes by urging us to confront and reverse the loss of the public’s ability to hold the state accountable for prison conditions, saying “consider prisoners as people, to recognize their humanity, and to place the responsibility for their care and safety firmly at the feet of government” (138).
