Prisons in the United States are remarkable in several ways. Famously, they hold vastly more inmates per capita than any OECD country, and the prison population is shockingly disparate relative to the general population. African Americans are overrepresented (3 to 1), those with mental illnesses are also overrepresented (11 to 1), and virtually everyone behind bars comes from a poor socioeconomic background. Harsh sentencing laws from the 1990s mean that many prisoners will never outlive their sentences, and consequently, as the population of geriatric inmates explodes, prisons in the United States increasingly resemble nursing homes with bars. Meanwhile, concerns about costs and tough-on-crime mentalities have deprioritized rehabilitation efforts. Thus, both deliberately and as an inadvertent consequence of short-term thinking, state governments operate a vast system of incapacitation and punishment aimed directly at racial minorities, the mentally ill, the elderly, and the poor. These groups make up America’s prisoners.
Among these noteworthy elements, few raise eyebrows and elicit classroom comments as reliably as the subject of prison privatization. After all, what could be more stereotypically American than to take an unpopular, disreputable system and pay someone else to worry about it? Anna Gunderson’s marvelous new book, Captive Market: Accountability and State Prison Privatization, addresses this question head-on, asking why state policy makers contract with private companies for the operation of correctional facilities.
Explanations for the spread of private prisons often have to do with partisanship, economics, unionization, and campaign contributions, but none is especially convincing. Gunderson points out that Republicans and Democrats alike have embraced privatization, that it is unclear that using private prisons saves states money, that even states with strong unions have failed to prevent privatization, and that any link between campaign contributions by private prison companies and policy decisions is extremely tenuous.
Instead, Gunderson—drawing on interviews with stakeholders and a newly compiled dataset of private prison companies’ financial reports to make her case—argues that prison privatization is appealing because it allows policy makers to off-board legal vulnerabilities and bad public relations to a third-party entity. A strength of Gunderson’s position is that it offers a refreshingly unstylized model of policy making. Tough-on-crime policies may do well on the campaign trail, but it is the rare politician who goes to a ribbon cutting at a new prison. In fact, as soon as the election is won, the externalities of tough-on-crime become inconvenient for politicians who suddenly must worry about overstretched budgets, accusations of human rights abuses, and, as Gunderson makes clear, legal blowback from inmates and their advocates. This then is a book that eschews flashy topics like partisanship and campaign contributions, appealing instead to the messy realities of governing in developing its argument. These realities are often underappreciated, in part, because they are path-dependent and hard to theorize about, so it is refreshing to read a book that allows them to take center stage. Prisons are privatized simply because the day-to-day realities of incarcerating thousands of people are ugly, so both liberal and conservative politicians strive to put as much distance as possible between themselves and that ugliness.
These arguments take shape in the book’s second and third chapters, where Gunderson provides a succinct and informative overview of the prison rights movement. As bad as prison conditions are today, historically they were much worse. For much of US history, prisoners were almost completely ignored by the legal system. Human rights abuses were especially egregious in the South, where convict-leasing programs perpetuated a form of slavery for African Americans after the Civil War. Things began to improve for prisoners in the 1960s and 1970s when, as part of the “rights revolution,” state and federal courts issued a series of rulings clarifying that the incarcerated do not forfeit their basic human or constitutional rights. These rulings required systematic prison reforms across the states. They also set a precedent that the courts were an appropriate, and possibly sympathetic, venue for prisoners to bring their grievances. Gunderson writes, “Prisoners, a group previously largely absent from the judiciary, now filed tens of thousands of lawsuits each year” (p. 61).
Prisoners’ newfound legal footing was inconvenient for state lawmakers who suddenly had to worry about unfavorable court rulings. Gunderson therefore hypothesizes that states in which prisoners file a lot of lawsuits will be more likely to turn to prison privatization as a legal passing-the-buck tactic. Conversely, those states already operating under court orders pertaining to correctional facilities will be less likely to privatize, because there, Gunderson reasons, the cat is already out of the bag, diminishing both state-level incentives for privatization and the appeal of these states for private prison companies.
Hypothesis testing takes place in chapter 4. Using regression models, Gunderson finds that each additional lawsuit filed by a prisoner is correlated with more inmates in private prisons, an increase in the state-level proportion of total inmates in private facilities, and more private facilities overall. Effect sizes are relatively modest but highly robust to different model specifications.
Gunderson then turns to her second hypothesis for which the results are less straightforward. Statistical tests are in the expected direction, showing that states with court orders in effect are less likely to embrace privatization, but consistently fall short of statistical significance. Of course, one way of addressing the “desk-drawer” problem is to publish results that are merely suggestive rather than unequivocal because in reality, empirical analyses often are. These results are informative even if the underlying hypothesis is unresolved. At the very least, court orders appear to matter for investors, as Gunderson finds in chapter 5. Successful prisoner lawsuits in states that have a lot of private prisons correlate with lower stock prices for the corresponding firms.
One question that readers of Captive Markets might have is whether politicians can reasonably hope to be successful in distancing themselves from the unsavory realities of prisons. Gunderson is surely correct that this is what politicians are attempting, but is a legal obfuscation strategy likely to work? There are reasons to think the answer might be “no.” For starters, inmates can bring lawsuits against a private company and the state at the same time. Moreover, any scandals that emerge from private prisons would rapidly reflect on state lawmakers who authorized the contracts. Perhaps this is why prison privatization is not more popular. Only around 7% of America’s incarcerated people are in private facilities. Given these low numbers and sporadic state-level engagement with the idea, prison privatization may be the policy equivalent of a platypus: a stochastic byproduct of a chaotic process. Still, tracing the contours of unique policies is a worthwhile scholarly enterprise, because these areas of lawmaking can be especially revealing of the political motivations driving the policy process. In this sense, prison privatization is similar to the death penalty, which is another relatively uncommon but disturbing element of criminal justice in the United States.
Gunderson has written the preeminent text on prison privatization and, more generally, an excellent review of the US prison system in the age of mass incarceration. It is an appropriate read for anyone interested in these topics and sits comfortably on the shelf alongside classics like Peter Enn’s Incarceration Nation (2016) and Heather Schoenfeld’s Building the Prison State (2018).
