A favorite enemy of the criminal-justice reform movement reentered the headlines after a report in Florida showed widespread problems in that state’s privately run prisons. While the report’s contents certainly justify lawmakers’ scrutiny, much of the discourse around private prisons is misguided. The reality is that private corrections companies deserve no more vilification than their government-operated counterparts. The abolition of private prisons—two years ago, President Biden forbade the Department of Justice to renew contracts with private corrections providers—would have a minimal positive impact on the criminal-justice system. And abolishing private corrections may actually forfeit an opportunity for genuine reform: aligning the financial incentives of prisons with better outcomes.

Private prisons represent a tiny portion of the nation’s carceral system. Just over 1 million people are incarcerated in state prisons, and another 145,000 people in federal prisons. Of those combined populations, merely 8 percent are held in private facilities. For state prison populations alone, that figure drops to 6.9 percent. Among the 26 states that use private corrections, just 11 incarcerate more than 15 percent of their prison populations in private facilities. The remaining 24 states—including California and New York, which have some of the largest prison populations—don’t use private corrections at all.

Despite these facts, such organizations as the Sentencing Project and the ACLU accuse the for-profit corrections industry of fueling the growth of America’s prison population. While the number of people incarcerated in private facilities did increase over the last 20 years, the share of the national prison population in the custody of private companies was the same in 2020 as in 2000. Moreover, the absolute number of people incarcerated in private prisons has dropped by more than a quarter since the peak in 2012. Most claims about the impact of private prisons on the criminal-justice system are vastly inflated.

Another criticism levied at private prisons is that they are of worse quality than their public counterparts. Emory University law professor Sasha Volokh, who has investigated this issue extensively, found that most studies showing disparate quality between public and for-profit prisons were deeply flawed, and that the strongest studies showed essentially no difference in quality. Volokh also considered recidivism rates in his analysis; most studies on the subject also showed little difference between public and for-profit facilities on this measure.

Moreover, eliminating private prisons may remove a potentially useful tool for improving conditions in the correctional system. Private facilities are beholden to contracts, creating the flexibility for innovation. And while government correctional officers receive immunities for violating the civil rights of incarcerated people, privately employed correctional officers can be held personally liable. With the right policies, private prisons can be easier to hold accountable than can state and federal bureaucracies.

One such policy: performance-based contracts that reward ultimate outcomes like reduced recidivism, higher employment rates, and successful post-release housing placements. In Pennsylvania, private community corrections providers reduced recidivism rates by 11.3 percent in two years after their contracts were rebid with clear performance-based funding formulas. Internationally, the United Kingdom, Australia, and New Zealand have all used performance-based contracts to improve private correctional facilities. One facility in New Zealand reduced re-offense rates by 36 percent compared with peer facilities and received a bonus of $1.1 million.

Even those who find profit-driven corrections inherently unconscionable might embrace other private-sector options. Governments could contract with mission-driven, nonprofit corrections providers, which divert money to preparing inmates for reentry into their communities.

States and the federal government could use performance-based policies to foster genuine competition and financially reward innovation among public, for-profit, and non-profit corrections. Abolishing private prisons won’t shrink or fix the criminal-justice system, but it could take away a tool to improve it.

Photo: Alexey Krukovsky/iStock


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