Correctional goals and prison privatization

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Article Critique: Correctional Goals and Prison Privatization Assignment

Locate two (2) peer-reviewed articles no older than 5-10 years that discuss American prison privatization. One article must present arguments advocating for American prison privatization and the second article must present arguments against American prison privatization. Provide a critique of each author’s position on the privatization of prisons. Review the video titled: “Correctional Goals and Prison Privatization” found in the the module’s Learn section. From a Christian and Biblical worldview, critique the current state of private prisons in America and present a clear argument on how to fix the system.


Article Critique Assignment Instructions


In the Article Critique Assignments, you will systematically and objectively critique criminal justice-related research articles to understand published research. You will critique the strengths and weaknesses of peer-reviewed journal articles and carefully analyze arguments and points in the article. You will develop the technical writing skill of critiquing while furthering critical thinking application and knowledge of the topics investigated. You will incorporate and apply a Christian worldview perspective to each topic and Article Critique Assignment.


· 4-7 pages excluding the title page, abstract, and reference pages.

· Current APA format.

· Minimum of two (2) peer-reviewed journal articles from Liberty University library. 

· Acceptable sources (peer-reviewed articles published within the last 5-10 years only).

· Include a critique of least two (2) strengths and two (2) weaknesses from each article.

· Include a Christian and Biblical Worldview perspective. 

This Article Critique Assignment requires that you follow a template. Please review and follow the template carefully. Include a running header, title page, abstract (between 120-250 words), proper APA headings/subheadings, and a reference page. Please note that you are asked not to change or omit any of the bold headings that are already in the template. You are only asked to insert your written content into the appropriate sections of the template. 

Privatization and the Law and Economics of Political Advocacy

Author(s): Alexander Volokh

Source: Stanford Law Review , Feb., 2008, Vol. 60, No. 4 (Feb., 2008), pp. 1197-1253

Published by: Stanford Law Review

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Privatization and the Law and

Economics of Political Advocacy

Alexander Volokh*

A common argument against privatization is that private providers will self-
interestedly lobby to increase the size of their market. In this Article, I evaluate
this argument, using, as a case study, the argument against prison privatization
based on the possibility that the private prison industry will distort the criminal
law by advocating for incarceration.

I conclude that there is at present no particular reason to credit this
argument. Even without privatization, actors in the public sector already lobby
for changes in substantive law – in the prison context, for example, public
corrections officer unions are active advocates of pro-incarceration policy.
Against this background, adding the “extra voice” of the private sector will not
necessarily increase either the amount of industry-increasing advocacy or its
effectiveness. In fact, privatization may well reduce the industry’s political
power: Because advocacy is a “public good” for the industry, as the number of
independent actors increases, the dominant actor’s advocacy can decrease (since
it no longer captures the full benefit of its advocacy) and the other actors may
free ride off the dominant actor’s contribution. Under some plausible
assumptions, therefore, privatization may actually decrease advocacy. Under
different plausible assumptions, the net effect of privatization on advocacy is

* Visiting Associate Professor, Georgetown University Law Center, av266@law. I am grateful to Tabatha Abu El-Haj, Marvin Ammori, Joseph Bankman,
William P. Baude, Michael Benson, William W. Bratton, Bryan Caplan, Lloyd Cohen, Tyler
Cowen, Giuseppe Dari-Mattiacci, Sharon Dolovich, Heather Elliott, Chai R. Feldblum,
James Forman, Jr., Brian Galle, Allison Hayward, Kristin Henning, Bert Huang, Harry G.
Hutchison, IV, Gregory Klass, Bruce H. Kobayashi, Amanda Leiter, Jacob T. Levy, John
Mikhail, Garrett B. Moritz, Edward R. Morrison, Guinevere Nell, J.J. Prescott, Nicholas
Quinn Rosenkranz, Clifford J. Rosky, Paul Rubin, Steven C. Salop, Margo Schlanger,
Geoffrey Segal, Louis Michael Seidman, Ilya Somin, Girardeau A. Spann, Alexander
Tabarrok, Daniel K. Tarullo, Thomas S. Ulen, Eugene Volokh, Hanah Metchis Volokh,
Vladimir Volokh, Joshua D. Wright, David Zaring, and participants in Georgetown
University Law Center’s Faculty Workshop, George Mason University School of Law’s
Robert A. Levy Fellows Workshop, George Washington University Law School’s Law and
Economics Seminar, and the Conglomerate Junior Scholars Workshop for their helpful
comments. I am also grateful to Matthew McDonald, Daniel B. Moar, and Joanna E. Saul for
their able research assistance, to Suzan Benet, and to the law librarians at Georgetown
University Law Center. Research for this Article was partly funded by a Summer Writing
Grant from Georgetown University Law Center. “Where I am not understood, it shall be
concluded that something very useful and profound is couched underneath.”


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1198 STANFORD LAW REVIEW [Vol. 60:1197

ambiguous, but in any event, privatization does not unambiguously increase

The argument that privatization distorts policy by encouraging lobbying is
thus unconvincing without a fuller explanation of the mechanics of advocacy.


I. Advocacy as a Public Good

A. The Basic Model

B. Industry Shares Versus “Real” Shares

C. Does Privatization Always Reduce Advocacy in This Model?


K. Different Kinds of Lobbying in the Real World.

B. What Does the Model Predict About Prisons?

C. Is This Realistic?

D. Public Corrections Officers Unions

E. Private Prison Firms

F. Sometimes, No Smoke Means No Fire


A. Why Focus on Public-Sector Unions and Private Firms?

B. Who Cooperates with Whom?


A. Allowing Money to Change Candidates ‘ Positions

B. Anti-Incarceration Advocacy

C. Relaxing the Assumption of Fungible Money

D. Strong and Weak Unions



Over ninety years ago, opponents of World War I alleged that “munitions
manufacturers frighten the popular mind with the fear of imaginary external
enemies and inflame it with murderous patriotism.”1 According to a view
attributed to Stefan Zweig, the war began only when “newspapers in the pay of
the arms manufacturers began to whip up sentiment against Serbia.”2 After the
war, that accusation morphed into the charge that arms makers were self-
interestedly obstructing peace efforts.3 Today, an opponent of U.S. military

1. In re Billings, 298 P. 1071, 1094 (Cal. 1930) (quoting a 1916 article by an “odious
anarchist”); see also, e.g., Niall Ferguson, The Pity of War 32-33 (1999); Geoffrey R.
Stone, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 то the
War on Terrorism 141, 180 n.180 (2004).

2. Andrew Cockburn, The Great War, Wash. Monthly, Jan./Feb. 2000, at 51
(reviewing Ferguson, supra note 1). But see Ferguson, supra note 1, at 215-16.

3. See, Special Comm. on Investigation of the Munitions Indus., The Nye
Report, S. Rep. No. 74-944, pt. 3 at 4-10 (1936); cf. Dwight D. Eisenhower, Farewell Radio
and Television Address to the American People, Pub. Papers 1035, 1038 (Jan. 17, 1961)
(warning of the “military-industrial complex”).

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policy characterizes defense contractor CACI International, Inc., whose
chairman speaks publicly of the “heinous[ness],” “fanatical horror,” and
“barbarism” of terrorism, as “one of the most unabashed corporate backers of
Bush’s foreign policy and a key supporter of the military campaigns in Iraq and
Afghanistan.”6 Critics also charge that private military interests affect what
weapons systems we rely on7 and what alliances we enter into,8 and that, in
some countries, those interests may even take over the government.9

This theme – that private contractors use their influence to advocate not
just more privatization but also, insidiously, changes in substantive policy –
sweeps more broadly than just defense contractors. The following list gives a
sense of the generality of the accusation; the last few items illustrate that the
critique comes from “the right” as well as from “the left.”

• Private prison firms are often accused of lobbying for incarceration
because, like a hotel, they have “a strong economic incentive to book
every available room and encourage every guest to stay as long as

• Business improvement districts – coalitions of business and property
owners, many of which have their own private security forces – have
lobbied municipalities for, among other things, aggressive panhandling

• A toll road developer in Colorado has lobbied for statutory changes to

4. See CACI Int’l, Inc., Welcome to CACI,
5. Dr. J.P. (Jack) London, Chairman, President, and Chief Executive Officer, CACI

Int’l Inc., Association of the United States Army John W. Dixon Medal Acceptance Speech
(Oct. 8, 2003),

6. Tim Shorrock, CACI and Its Friends, Nation, June 21, 2004, at 6; see also Robert
Mandel, Armies Without States: The Privatization of Security 86-88 (2002);
Norman Solomon, War Made Easy: How Presidents and Pundits Keep Spinning Us to
Death 113-15 (2005); Jon D. Michaels, Beyond Accountability: The Constitutional,
Democratic, and Strategic Problems with Privatizing War, 82 Wash. U. L.Q. 1001, 1015-16
(2004); Clifford J. Rosky, Force, Inc.: The Privatization of Punishment, Policing, and
Military Force in Liberal States, 36 Conn. L. Rev. 879, 952 (2004); James Surowiecki,
Army, Inc., New Yorker, Jan. 12, 2004, at 27. For a view from the very far left, see
Anthony Amove, Pro-War Propaganda Machine, Socialist Worker, Mar. 21, 2003, at 6.

7. See Leslie Wayne, After High-Pressure Years, Contractors Tone Down Missile
Defense Lobbying, N.Y. Times, June 13, 2000, at A6.

8. See Russell Mokhiber & Robert Weissman, Op-Ed, Arms Sellers Calling Shots,
Balt. Sun, May 16, 1999, at 1С.

9. See P.W. Singer, Corporate Warriors: The Rise of the Privatized Military Industry
and Its Ramifications for International Security, Int’l Security, Winter 2001/02, at 186,
206; Juan Carlos Zarate, The Emergence of a New Dog of War: Private International
Security Companies, International Law, and the New World Disorder, 34 Stan. J. Int’l L.

10. Eric Schlosser, The Prison-Industrial Complex, Atlantic MONTHLY, Dec. 1998, at
5 1 , 64; see also infra text accompanying notes 24-32; sources cited infra note 3 1 .

1 1 . See Franck Vindevogel, Private Security and Urban Crime Mitigation: A Bid for
BIDs, 5 Crim. Just. 233, 244-45 (2005).

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1200 STANFORD LAW REVIEW [Vol. 60:1197

preempt county authority to set toll rates,12 and a private road
construction firm has been accused of contributing to Texas Supreme
Court justices’ campaign chests to influence a potential eminent
domain suit related to a toll road in the state.13

• Private landfill companies have been accused of lobbying for weak
environmental regulation of landfills14 and opposing recycling

• Private water-supply owners have been accused of “lobbying to
weaken water quality standards . . . and pushing for [trade agreements]
that hand over the U.S. water resources to foreign corporations,”16 and
private water utilities have been accused of fighting conservation

• Private redevelopment corporations, which have the power to condemn
private property for purposes of “urban renewal,” have opposed reform
of eminent domain laws in the wake of the Supreme Court’s decision
in Kelo v. City of New London.

• And “private attorneys general,” for instance environmental groups19
that benefit from fines available under environmental citizen suit

provisions,20 or members of the securities plaintiffs’ bar21 who benefit

12. See Colleen Slevin, Senate Panel Kills Bill for “Super Slab” Toll Road,
Associated Press, Mar. 23, 2005.

13. See Dan Genz, Texas Court Nominee Challenges Possible TTC Builder’s
Campaign Contributions, Waco Trib.-Herald, Oct. 3, 2006.

14. See Texas Campaign for the Environment, Statewide Landfill Rules, http://

15. See Neil Seldman, Inst. for Local Self-Reliance, The New Recycling
Movement (2003),; Winnebago County,
Wisconsin, Solid Waste Management Board,

16. Public Citizen, Water Privatization Overview,
cmep/Water/general; cf. David B. Schorr, The First Water-Privatization Debate: Colorado
Water Corporations in the Gilded Age, 33 Ecology L.Q. 313, 325 (2006); William E.
Smythe, The Struggle for Water in the West, 86 Atlantic Monthly 646, 649 (1900).

17. Nat’l Association of Water Companies, About Private Water Service Providers,

18. 545 U.S. 469 (2005); New London Dev. Corp., A Review and Analysis of Eminent
Domain, (July 28,

19. See, e.g., As You Sow, Corporate Accountability, Shareholder Action and Toxics

20. See Office of the Attorney Gen., U.S. Dep’t of Justice, Proposition 65
Settlement Report 2005 (2007), Alpert_Report2005b.
pdf (reporting settlement awards to As You Sow). See generally Michael S. Greve, The
Private Enforcement of Environmental Law, 65 TUL. L. Rev. 339, 351-56 (1990).

21. See, e.g., Milberg Weiss, About Milberg Weiss,

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from the availability of securities fraud class actions,22 fight for the
continued vitality or even strengthening of the statutes under which
they litigate.23

In this Article, I examine this “political influence” challenge to
privatization using the case study of private prisons. I conclude that, in the
prison context, there is at present no reason to credit the argument. At worst,
the political influence argument is exactly backwards, by which I mean that
privatization will in fact decrease prison providers’ pro-incarceration influence;
at best, the argument is dubious, by which I mean that its accuracy depends on
facts that proponents of the argument have not developed.

Private prisons are a useful case study. First, they are a growth industry,
having progressed from humble beginnings in the late seventies and early
eighties to now house about one in sixteen prison inmates nationwide.24
Second, the opponents of private prisons commonly make the political
influence argument.

For example, in a recent Duke Law Journal article, Sharon Dolovich writes
that “the legitimacy of punishment” is threatened “whenever parties with a
financial interest in increased incarceration are in a position to exert influence
over the nature and extent of criminal sentencing. If this concern is real”25 –
and she suggests that it may well be – prisons should not be privatized
because “the state ought not to foster yet another potentially influential industry
that could seek to compromise further the possibility of legitimate punishment
to promote that industry’s own financial interests.”27

David Shichor, a prominent contributor to the prison privatization
literature, opposes prison privatization28 in part because:

Through political lobbying, PACs, campaign contributions, and the provision
of perks to politicians (as industrial and business corporations do),

22. See Hearing Before the Subcomm. on Capital Market, Insurance and Government
Sponsored Enterprises of the H. Financial Services Comm., 109th Cong. (2006) (statement
of Vaughn R. Walker, C.J. of the U.S. District Court, Northern District of California),
available at 2006 WL 1789367 (F.D.C.H.) (“[Securities] class actions are in important
respects privatized public law enforcement.”).

23. See Proposition 65 and State Rights Under Attack, SEEDS OF CHANGE – E-News
(As You Sow, San Francisco, Cal.), Summer 2006, A YS_
enewsO6Q3.html; Melvyn I. Weiss & Elizabeth A. Bemey, Restoring Investor Trust in
Auditing Standards and Accounting Principles, 41 Harv. J. ON LEGIS. 29, 56-57 (2004);
Walter Olson, The Lawsuit Lobby, Am. Spectator, Mar.-Apr. 2003, at 44.

24. See Paige M. Harrison & Allen J. Beck, U.S. Dep’t of Justice, Bulletin:
Prisoners in 2004, at 6 tbl.7 (2005); Douglas McDonald et al., Abt Assocs. Inc.,
Private Prisons in the United States: An Assessment of Current Practice 4-5 (1998).

25. Sharon Dolovich, State Punishment and Private Prisons, 55 Duke L.J. 437, 542

26. Id at 523-29.

27. Id. at 542-43.

28. David Shichor, Punishment for Profit: Private Prisons/Public Concerns

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1202 STANFORD LAW REVIEW [Vol. 60:1197

corporations are likely to continue to support and even accelerate
incapacitation-oriented legislation and policies by which more people will
spend longer periods of time in correctional institutions. Conversely, this trend
may diminish the emphasis on alternative programs and will result in the
pursuance of the “Hilton Inn mentality,” that is, trying to maintain high
occupancy rates for profit purposes.29

And Brigette Sarabi and Edwin Bender’s thesis is clear from the title of
their report, The Prison Payoff: The Role of Politics and Private Prisons in the
Incarceration Boom, in which they argue that prison privatization should be
resisted in part because private prison firms have a “vested financial interest[]
in increasing rates of imprisonment.”30 This is only a small sample of the
literature.31 For a sample of the art, see Figure I.32

29. Mat 236.

30. Brigette Sarabi & Edwin Bender, W. States Ctr., The Prison Payoff: The
Role of Politics and Private Prisons in the Incarceration Boom vii, 2 1 (2000).

31. In addition to the sources cited in supra notes 10, 25, 28, and 30, see Legislative
Research Council, Report Relative to Prisons for Profit, H. No. 6225, at 9, 56-58
(Mass. 1986); Katherine Beckett, Making Crime Pay: Law and Order in
Contemporary American Politics 101 (1997) (referring to influence on policy abroad);
David Garland, The Culture of Control: Crime and Social Order in Contemporary
Society 203-04 (2001); Michael A. Hallett, Private Prisons in America: A Critical
Race Perspective 141 (2006); Charles H. Logan, Private Prisons: Cons and Pros 159
(1990); Presbyterian Church (USA), Resolution Calling for the Abolition of For-
Profit Private Prisons 7-8 (2003), available at
publications/private-prisons.pdf; Byron Eugene Price, Merchandizing Prisoners: Who
Really Pays for Prison Privatization? 74-75, 131-36 (2006); Charles R. Ring,
Contracting for the Operation of Private Prisons: Pros and Cons 12 (1987); Martin
P. Sellers, The History and Politics of Private Prisons: A Comparative Analysis 51
(1993); The Real War on Crime: The Report of the National Criminal Justice
Commission 87-88, 92-93 (Steven R. Donziger ed., 1996); Patrick Anderson et al., Private
Corrections: Feast or Fiasco?, Prison J., Autumn- Winter 1985, at 32, 35; Rachel E.
Barkow, Administering Crime, 52 UCLA L. Rev. 715, 729 (2005) [hereinafter Barkow,
Administering Crime]’, Rachel E. Barkow, Our Federal System of Sentencing, 58 Stan. L.
Rev. 119, 125 (2005) [hereinafter Barkow, Our Federal System]’, Jody Freeman, Extending
Public Law Norms Through Privatization, 116 Harv. L. Rev. 1285, 1319, 1349 n.249
(2003); Gilbert Geis, The Privatization of Prisons: Panacea or Placebo?, in Private
Means, Public Ends: Private Business in Social Service Delivery 76, 94 (Barry J.
Carroll et al. eds., 1987), cited in Sellers, supra, at 51,116 n.5; Amanda George, The State
Tries an Escape, Legal Service Bull., Apr. 1989, at 53, 54, 57; Michael Janus, Bars on the
Iron Triangle: Public Policy Issues in the Privatization of Corrections, in PRIVATIZING
Correctional Institutions 75, 83 (Gary W. Bowman, Simon Hakim & Paul Seidenstat
eds., 1993); Daniel L. Low, Nonprofit Private Prisons: The Next Generation of Prison
Management, 29 New Eng. J. on Crim. & Crv. Confinement 1, 45 (2003); Ira P. Robbins,
Privatization of Corrections: Defining the Issues, 69 JUDICATURE 325, 331 (1986); E.S.
Savas, Privatization and Prisons, 40 Vand. L. Rev. 889, 898 (1987); Geiza Vargas- Vargas,
White Investment in Black Bondage, 27 W. New Eng. L. Rev. 41, 75 n.209 (2005); Edward
Sagarin & Jess Maghan, Op-Ed, Should States Opt for Private Prisons?: No, Hartford
Courant, Jan. 12, 1986, at E2; Kenneth F. Schoen, Private Prison Operators, N.Y. TIMES,
Mar. 28, 1985, at A31; Harmon L. Wray, Jr., Cells for Sale, S. Changes, Sept. 8, 1986, at 3,

32. Matt Wuerker, mw!12, in Group One Artists, Prisons and Sentencing, http://www.

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I assume, for purposes of this Article, that the concern underlying this
critique is reasonable – that is, that economically self-interested pro-
incarceration advocacy is undesirable.33 This concern, however, fails to support
the argument against privatization for several reasons.

Figure 1.

First, self-interested pro-incarceration advocacy is already common in the
public sector – chiefly from public-sector corrections officers unions. For
instance, the most active corrections officers union, the California Correctional

Peace Officers Association, has contributed massively in support of tough-on-
crime positions on voter initiatives and has given money to crime victims’
groups, and public corrections officers unions in other states have endorsed
candidates for their tough-on-crime positions.34 Private firms would thus enter, I am grateful to Sharon Dolovich for uncovering this cartoon, see
Dolovich, supra note 25, at 529 n.363.

33. But see infra text accompanying notes 224-33.
34. See infra notes 93-98 for examples in other states.

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1204 STANFORD LAW REVIEW [Vol. 60: 1 197

and partly displace some of the actors in, a heavily populated field.

Second, there is little reason to believe that increasing privatization would
increase the amount of self-interested pro-incarceration advocacy. In fact, it is
even possible that increasing privatization would reduce such advocacy. The
intuition for this perhaps surprising result36 comes from the economic theory of
public goods and collective action.

The political benefits that flow from prison providers’ pro-incarceration
advocacy are what economists call a “public good,” because any prison
provider’s advocacy, to the extent it is effective, helps every other prison
provider. (We call it a public good even if it is bad for the public: the relevant
“public” here is the universe of prison providers.)37 When individual actors
capture less of the benefit of their expenditures on a public good, they spend
less on that good; and the “smaller” actors, who benefit less from the public
good, free ride off the expenditures of the “largest” actor.

In today’s world, the largest actor – that is, the actor that profits the most
from the system – tends to be the public-sector union, since the public sector
still provides the lion’s share of prison services, and public-sector corrections
officers benefit from wages significantly higher than their private-sector
counterparts’. The smaller actor is the private prison industry, which not only
has a smaller proportion of the industry but also does not make particularly
high profits.

By breaking up the government’s monopoly of prison provision and
awarding part of the industry to private firms, therefore, privatization can
reduce the industry’s advocacy by introducing a collective action problem. The
public-sector unions will spend less because under privatization they
experience less of the benefit of their advocacy, while the private firms will
tend to free ride off the public sector’s advocacy.38 This collective action

35. Other actors that could also be in favor of incarceration for self-interested reasons

include prosecutors, rural communities that could be sites for prisons, see Barkow,
Administering Crime, supra note 31, at 729; Dolovich, supra note 25, at 536-42; Drake
Bennett & Robert Kuttner, Crime and Redemption, Am. Prospect, Dec. 2003, at 36, 38, and
providers of goods and services to prisons, see J. Robert Lilly & Paul Knepper, An
International Perspective on the Privatisation of Corrections, 31 How. J. CRIM. JUST. 174,
174, 177 (1992). I focus on prison system actors because they are the ones affected by

36. To my knowledge, this argument has not been made before in the privatization
literature, except for a few brief mentions. Charles Logan made an offhand comment to this
effect in 1990. See Logan, supra note 31, at 158. Many years later, in 2002, I flagged the
issue in my own student note, but set the issue aside for fiiture research. See Developments in
the Law- The Law of Prisons, 115 Harv. L. Rev. 1838, 1873 (2002). And Alex Tabarrok
briefly noted the argument in 2003. See Alexander Tabarrok, Introduction to Changing the
Guard: Private Prisons and the Control of Crime 1, 6 (Alexander Tabarrok ed., 2003).

37. See Mancur Olson, The Logic of Collective Action: Public Goods and the
Theory of Groups 15 & n.22 (1965).

38. The story I tell here is also consistent with the view that political expenditures –
instead of directly buying advocacy for particular policies – buy generalized “access” to a

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problem is fortunate for the critics of pro-incarceration advocacy – a happy,
usually unintended side effect of privatization. One might even say that prison
providers under privatization are led by an invisible hand to promote an end
which was no part of their intention.

This is the simplest form of the story, but one can also tell more
complicated versions in which privatization does not necessarily decrease total
industry-expanding political advocacy. After presenting my main model, I
introduce a few realistic complications. I explain why I am focusing only on
public-sector unions and private firms, and whether the individual private firms
and the public sector compete or cooperate with each other on advocacy. I alter
the assumption that money merely buys the passage of a pro-incarceration
measure, and allow money to change the substance of the measure itself. I also
relax the assumption that anti-incarceration advocacy is fixed. These
complications do not change the basic result of the model. Other complications
are more fundamental, and make the effect of privatization ambiguous –
increasing private-sector advocacy but also decreasing public-sector advocacy.
These complications include relaxing the assumption that the effectiveness of
advocacy only depends on the total amount of money spent, and relaxing the
assumption that the introduction of privatization into a state is exogenous. If
those extensions of the model are closer to the truth, then total advocacy may
rise – but it may also fall, depending on which effect dominates. We cannot
determine the net effect a priori.

There is thus no reason to believe an argument against prison privatization
based on the possibility of self-interested pro-incarceration advocacy – unless
the argument takes a position on how lobbying, political contributions, and
advocacy work, and why (for instance) any increase in private-sector advocacy
would outweigh the decrease in public-sector advocacy. Either this argument
against prison privatization is clearly false, or it is only true under certain
conditions that the critics of privatization have not shown exist.

The analysis here not only sheds light on the prison privatization debate but
also provides a roadmap for analyzing military contracting and other
privatization contexts. Because privatization can affect the incentives of both
the private and public sectors to wield political influence, one should not
conclude that privatization distorts substantive policy in an undesirable
direction unless one can tell a story, based on a plausible view of government
agents’ behavior, in which private-sector advocacy rises more than public-
sector advocacy falls. In the end, each industry has its own idiosyncrasies, so I
do not make a strong claim about the use of the argument outside of the prison
context. But, at the very least, the use of the political influence argument is
often theoretically unsound to the extent it ignores this comparative analysis.

Part I sets forth the main model of the paper. In this model, the sector with

candidate, which is leveraged for specific favors once the candidate is elected. See infra text
accompanying notes 154-55.

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1206 STANFORD LAW REVIEW [Vol. 60:1197

the greatest benefit from the expansion of the industry does all the advocacy,
and the sector with the smaller benefit entirely free rides off the larger one.
Accordingly, privatization reduces industry-expanding advocacy if, after
privatization, the public sector remains the sector with the greatest benefit. Part
II applies this theoretical model to prisons and suggests, based on an informal
calculation, that the actors that would benefit the most from increased
incarceration are indeed the public-sector corrections officers unions. Thus, we
should expect the public sector to do all the pro-incarceration lobbying (though
less than it would have done without privatization). That Part argues that the
simple model, despite its stark result, may be quite close to the truth, as there is
a wealth of evidence that public corrections officers unions advocate
incarceration, and no such hard evidence on the private side. Part III elaborates
on the model, explaining why it is appropriate to focus on public corrections
officers unions and private prison firms as the relevant actors, and how
cooperation within the prison industry affects the results. Part IV complicates
the model in various ways. Some of these complications do not change the
basic result of the simple model. Other complications make the result muddier,
so that instead of unambiguously reducing advocacy, privatization has a
theoretically ambiguous effect on the amount of industry-expanding advocacy.

I. Advocacy as a Public Good

In this Part, I present the main model I use to predict how industry actors
will react to privatization.39 The central feature of the model is that industry-
increasing advocacy is a public good. Privatizing part of the industry therefore
introduces a collective action problem: unless everyone in the industry
cooperates with each other, they will in aggregate spend less on industry-
increasing advocacy than a single firm would if it covered the whole industry,
because a portion of their expenditures will benefit their competitors.

This intuition should not be surprising, as it is standard in the literature on
public goods. When a good is private, everyone pays for, and enjoys, only his
own consumption. By contrast, when a good is public, in the classic model,
everyone benefits from the total amount, and this amount is determined by the
total amount of contribution.40

For example, if we benefit from our national defense, we benefit from the
full amount, not just from the chunk we paid for; we cannot be excluded from

39. For a technical presentation and proofs, see Alexander Volokh, Privatization, Free
Riding, and Industry-Expanding Lobbying 3-8, 10-17 (Georgetown Law & Econ. Research
Paper No. 969789, 2007), available at

40. See Andreu Mas-Colell et al., Microeconomic Theory 361 (1995); Hal R.
Varian, Microeconomic Analysis 418 (3d ed. 1992); William H. Oakland, Theory of
Public Goods, in 2 Handbook of Public Economics 485, 486-88 (Alan J. Auerbach &
Martin Feldstein eds., 1987); Paul A. Samuelson, The Pure Theory of Public Expenditure, 36
Rev. Econ. & Stat. 387, 387 (1954).

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the full benefit, no matter how little we paid; and the total amount of national
defense is just determined by how much money Congress allocated to national
defense from the Treasury. A tax-funded program that improves air quality
benefits everyone who breathes the relevant air, whether or not they contributed
to the program, and the total improvement is just determined by the amount of
resources directed toward that goal.

Similarly, contributing to a candidate’s campaign benefits all of his
supporters, and it is not too implausible to say, as an approximation, that to the
extent the money he raises and spends affects his probability of winning, it is
only the total amount of money that matters.41

In all these cases, the temptation to free ride off one’s peers’ contributions
is strong.42 This Part illustrates the phenomenon of free riding in the context of
political contributions.

A. The Basic Model

A monopolist is willing to invest some amount of money in lobbying to
increase the size of his industry. To determine that amount, he weighs the
benefit that his money can “buy” – the expansion of the industry is worth
something to him, and money can help his policy pass – against the cost of the

If that firm is broken up into two smaller firms – say a 90% incumbent firm
and a 10% splinter firm – the larger incumbent is not willing to spend as much
as it used to, because the costs of lobbying are the same while the benefits are
10% less than they used to be. And the smaller splinter firm will not be willing
to spend anything, because it will be satisfied free-riding off the larger
incumbent’s lobbying. Thus, splitting up an industry can decrease total
industry-expanding lobbying.

The rest of this Part illustrates this intuition graphically.

Suppose you are, as economists say, a rational, risk-neutral expected-utility
maximizer.43 One may dispute how much of life this assumption can explain,
but on balance it seems to be at least a good starting point for predicting the
behavior of business organizations. You are faced with the choice of whether or
not to spend a dollar on political advocacy – donating to the campaign of a
politician or voter initiative, contributing to your trade association’s lobbying

41 . I relax this assumption in Part IV.C infra.
42. Indeed, economists commonly list “public goods” as a case of “market failure.”

See, e.g., Mas-Colell et al., supra note 40, at 350; cf. Varian, supra note 40, at 415.
43. See Mas-Colell et al., supra note 40, at 168-94; Varian, supra note 40, at 172-

81. For critiques of expected utility theory, see Mas-Colell et al., supra note 40, at 179-
81; Varian, supra note 40, at 192-94; Mark J. Machina, Choice Under Uncertainty:
Problems Solved and Unsolved, J. Econ. Persp., Summer 1987, at 121. For critiques of the
assumption of (materialistic) rational utility maximization, as it relates to free-riding
predictions, see infra sources cited note 229.

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1208 STANFORD LAW REVIEW [Vol. 60:1197

expenses, or running an ad – in favor of some reform that could increase the
size of your market. We may assume that this dollar has some influence in the
world, whether appropriate or inappropriate – it could corrupt a legislator, raise
the chance of his election, contribute to the passage of the initiative, or change
popular opinion.44

The benefit of this dollar is the value of the increased probability of getting
your desired policy change.45 It is reasonable to think that spending money on
advocacy is subject to decreasing marginal returns, so each additional dollar
gets you less and less benefit.46 The cost of a dollar’s worth of advocacy, on
the other hand, is $1 – and remains $1, no matter how many dollars you spend.
As long as the benefit of an advocacy dollar is greater than $1, you continue
spending. As soon as that benefit falls to $1, you stop spending. This is your
optimal total amount of advocacy spending – say $1 million.48

44. The public-choice assumption that political choices are totally self-interested has
been criticized, see Daniel A. Farber, Democracy and Disgust: Reflections on Public Choice,
65 Chi.-Kent L. Rev. 161, 162 (1989); Abner J. Mikva, Foreword, 74 Va. L. Rev. 167, 167
(1988), but this model does not require such a strong assumption.

45. I assume here that the incarceration-policy game is the only game these actors are
playing. This is not entirely realistic; one can lobby (or not) on incarceration policy for
reasons that have little to do with that particular policy issue. For instance, the California
corrections officers union gave massively to Proposition 184, the Three Strikes initiative in
1994, even though the proponents outspent the opponents by a factor of 48 and won with
72% of the vote. See Mike Davis, Hell Factories in the Field, Nation, Feb. 20, 1995, at 229,
232; Dan Morain & Virginia Ellis, Tobacco Industry Power May Go Up in Smoke, Foes Say,
L.A. Times, Nov. 10, 1994, at A3. The union may have been trying not merely to secure the
passage of the initiative but also to flex its political muscle for other political battles, like
fighting against privatization or in favor of wage increases. Similarly, private prison firms
may shy away from advocacy in favor of incarceration for fear of a public backlash that
could endanger prison privatization itself. Cf. Wayne, supra note 7. (Public sector unions
may not fear such a backlash because public provision is still considered the default mode of
provision.) However, I assume these complicating factors away for simplicity.

46. On this assumption, see, e.g., David Austen-Smith, Interest Groups, Campaign
Contributions, and Probabilistic Voting, 54 Pub. CHOICE 123, 128, 130, 135 (1987); David
P. Baron, Service-Induced Campaign Contributions and the Electoral Equilibrium, 104 Q.J.
ECON 45, 54 (1989); Paul Pecorino, Is There a Free-Rider Problem in Lobbying?
Endogenous Tariffs, Trigger Strategies, and the Number of Firms, 88 Am. ECON. Rev. 652,
654 (1998). It is possible that decreasing marginal returns only kick in after some threshold
amount has been reached. See, e.g., Dennis C. Mueller, Public Choice III, at 483 fig.20.1
(2003); Olson, supra note 37, at 22. This would not change the results significantly. See
Volokh, supra note 39, at 5-9.

47. That is, your personally optimal amount of advocacy. I have already assumed for
the purpose of this Article that expenditure on advocacy is not socially optimal. See supra
text accompanying note 33. But see infra text accompanying notes 224-33.

48. This number and the other thresholds presented in this example are purely
illustrative, but they are approximately what you get if the effectiveness of advocacy
expenditures is determined by a function p(e) – the probability that expenditures of e dollars
gets you the desired policy change – equal to the square root of e/(e+ 10,000), and the value
of the policy change is V = $200 million. Mathematically, this means finding expenditure e
to maximize aVp(e) – e, where a is the actor’s market share. The numbers in the text are
rounded to the nearest $100,000. The more exact numbers are $992,509.41 for a monopolist,

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Figure 2 below illustrates the situation. The expected benefit – that is, the
probability of success times the benefit – is represented by the curved line
below: the more you spend, the greater the probability of success, but the less
you get for each extra dollar. Because a probability cannot get any higher than
100%, the curve is bounded above by the dashed line representing the total
benefit of the policy. The cost of advocacy is represented by the straight line
below: $1 of spending on advocacy costs exactly $1. Your problem is to
maximize the vertical distance between the expected benefit curve and the cost
line. In Figure 2, the maximum distance occurs at a spending level of $1

Figure 2.

Figure 3 is an equivalent way of seeing the same problem.

$941,193.21 for a 90% duopolist, and $308,757.73 for a 10% duopolist. Thanks to Scientific
Workplace for crunching the numbers.

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1210 STANFORD LAW REVIEW [Vol. 60:1197

Figure 3.

The curve below represents the marginal expected benefit – that is, the
benefit of an extra dollar of spending, which is equal to the total benefit times
the extra probability of success that a dollar buys you. As noted above, the
marginal benefit is decreasing. The straight line is the marginal cost of
advocacy: an extra dollar of advocacy spending always costs $1. If the
marginal expected benefit is above $1, you’re not spending enough; if it is
below $1, you should cut back. At a spending level of $1 million, an additional
dollar of spending gives you exactly $1 of expected benefit.

Now suppose the Department of Justice’s Antitrust Division comes in and
splits you up, so that you now have 90% of the market and are faced with a
competitor with the other 10%. Your previous optimal amount of spending, $1
million, is no longer optimal for you: the cost of that last dollar was $1, and
while the benefit of the dollar is $1 for the whole industry, you, who now
represent only 90% of the industry, only see 900 of that benefit. All your
benefits are now lower by 10% because you have to share them with your
competitor.49 For our purposes, the split-up thus has the same effect as a 10%
tax on your benefit. Because your spending on advocacy – an investment in the
growth of your industry – is only 90% as productive, you do less of it. You start
cutting back on your spending, because a dollar saved puts $1 back in your
pocket and only reduces your benefits by 900. As you cut back more, the
benefit of the last dollar rises; you stop cutting back as soon as the benefit of
your last dollar to the industry reaches about $1.11 (which is a $1 benefit to

49. This sort of public good, whose benefits are enjoyed in fixed proportions by
different industry actors, is also called a “common good” (as opposed to a “pure public
good,” which is enjoyed in its entirety by everyone). See Jean-Marie Baland & Jean-Philippe
Platteau, Economics of Common Property Management Regimes, in 1 HANDBOOK OF
Environmental Economics 127, 144-46, 150-61 (Karl-Goran Maler & Jeffrey R. Vincent
eds., 2003).

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you). Your new amount is, say, $900,000.

Figure 4.

This new situation is illustrated in Figures 4 and 5. In Figure 4, the top
curve is the expected benefit to the whole industry (as before), and the second
curve is your expected benefit, newly reduced now that you have only 90% of
the industry.50 The bottom curve is your 10% competitor’s expected benefit. As
discussed above, the maximum vertical distance between your curve and the
cost line now occurs at $900,000; and say the maximum distance between your
competitor’s curve and the cost line occurs at $300,000.

Figure 5.

50. The figures are not drawn to scale.

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1212 STANFORD LAW REVIEW [Vol. 60:1197

On Figure 5, the equivalent graph that shows marginal quantities instead of
total quantities, you want to find the point where the marginal expected benefit
to the industry is $1.11. This is equivalent to finding the point where 90% of
the marginal expected benefit (i.e., the benefit to you) is $1. That point again
occurs at $900,000. Your competitor wants to find the point where the marginal
expected benefit to the whole industry is $10, which gives him $1. This point is
at $300,000.

This story is incomplete. You do not want the amount spent to be exactly
$900,000; obviously, you would be thrilled if other people happened to
contribute more.51 It’s just that you are not personally willing to put a dollar
more into the pot if the pot already contains $900,000. You want the total
amount spent to be at least $900,000, and you are willing to contribute money
until that point is reached, but you are no longer willing to personally
contribute once you are holding the 900,001st dollar. This is because, if the
benefit of a dollar only depends on the total amount of money spent, and if the
900,000th dollar had a benefit to the industry worth $1.11 (and thus a benefit to
you worth $1), then the 900,001st dollar has a benefit worth slightly less than

Your new competitor, who represents the remaining 10% of the industry,
and who is equally interested in this reform that will increase the size of the pie,
by a similar reasoning, wants the total amount spent to be at least $300,000 and
will not put a 300,001st dollar into the pot.

This leads to two conclusions. First, the total amount spent will be exactly
equal to the larger actor’s threshold – in this case, $900,000. If it were less,
you, the larger actor, would want to spend more money. And if it were more,
you would want to take some money out of the pot, since the dollars beyond the
900,000th are giving the industry a benefit below $1.11 and giving you a
benefit below $1. Second, there is no reason for your competitor to spend
anything. He is unwilling to spend any dollar beyond the 300,000th, since its
marginal benefit to the industry is under $10 and its marginal benefit to him is
under $1. Thus, suppose you were going to spend $600,000, and he was going
to spend $300,000. These would not be equilibrium actions,52 since he would
prefer to keep his $300,000. Why should he spend any extra dollar beyond the
$600,000 you are already spending, if the 300,001st dollar already is not
worthwhile to him? Thus, the only equilibrium is where you give $900,000 and
he gives $0. Because he is the smaller actor, he entirely free rides off you.53

51. A payment of $900,000 by someone else has the same effect as $900,000 from
you, with the subtle yet crucial distinction that you keep your money.

52. They would not form a Nash equilibrium, to be exact. See Mas-Colell et al.,
supra note 40, at 246-53; Varian, supra note 40, at 265-68.

53. See Mas-Colell et al., supra note 40, at 361-63; Varian, supra note 40, at 420-
23; Baland & Platteau, supra note 49, at 152-53; Sandeep Baliga & Eric Maskin, Mechanism
Design for the Environment, in 1 Handbook OF Environmental Economics, supra note
49, at 305, 310; Gene M. Grossman & Elhanan Helpman, Electoral Competition and Special

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The result is what Mancur Olson calls the “systematic tendency for
‘exploitation’ of the great by the small.”54

B. Industry Shares Versus “Real” Shares

If one accepts the fundamental assumption of this Part – that the
probability of success only depends on the total amount of money in the pot –
this simple model is flexible enough to accommodate many institutional details
of privatization. The total free-riding result happens whenever one actor has a
lower threshold than the other, for whatever reason. In this story, you and your
competitor are identical except that you have 90% of the industry and he has
10%. But one’s threshold could be lower for other reasons as well.

For instance, suppose that, to add insult to injury, the government not only
breaks up your monopoly but also subjects your revenues to a high (50%) tax
rate. The breakup already altered your spending threshold by shifting your
curves down to 90% of their previous level (compare Figures 2 and 3 with
Figures 4 and 5). Now, with the 50% tax, your revenue and marginal revenue
curves shift further down – to 45% of their original levels. (If your competitor
with a 10% share is subject to the same tax, his curves are 5% of the original
industry curves.)

So the combination of the breakup and the tax makes you act like a firm
with a 45% market share. These new percentages – call them “real” shares – no
longer need to add up to 100% (in fact, with the 50% tax, they add up to 50%),
but they convey the economic intuition that your spending threshold is lower
when, for whatever reason, your benefits decrease.

After we determine everyone’s “real” shares, the same analysis applies as
before: the “biggest” firm does all of the advocacy, and the “smaller” firm is a
free rider. The only difference is that we learn who is “biggest” not just by
looking at proportions of the market but at shares of total industry revenue.
Instead of calling this firm the “biggest” firm, we will call it the “dominant”
firm. Thus, if the tax rate on your revenues is 90%, you will act as though your
share is not 90% but 9%. If your competitor with a 10% share is exempt from

Interest Politics, 63 Rev. Econ. Stud. 265, 282, 284 (1996); see also Oakland, supra note
40, at 486-91, 514-15. This stark free-riding result occurs when utility is quasi-linear in
income – that is, when the public good doesn’t affect the marginal utility of income. See
Mueller, supra note 46, at 23 (explaining the “kangaroo problem,” a mathematically
equivalent problem where there is not complete free riding because utilities are not assumed
quasi-linear). Quasi-linearity is a reasonable assumption with business firms, though not
necessarily with individuals, whose marginal utility of consumption may be enhanced by
higher levels of, say, environmental protection or national defense. Quasi-linearity seems
defensible here, since prison providers are unlikely to get more enjoyment out of $1 if there
is a more beneficial incarceration policy.

54. Olson, supra note 37, at 29 (italics and footnote omitted); see Terry M. Мое, The
Organization of Interests 24-26 (1980) (explaining Olson’s approach and containing
similar diagrammatic exposition as herein).

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1214 STANFORD LAW REVIEW [Vol. 60:1197

the tax, then he is actually the dominant actor. Nowjww will free ride off him.

In short, anything that affects your revenues affects your “real” share.
Suppose, for instance, that your competitor is less profitable than you are: your
90% share is a monopoly share in 90% of the geographic area, while the
remaining 10% is divided among 100 competitors who act according to the
textbook perfect competition model, where everyone makes zero economic
profits.55 Then those competitors – and thus that entire 10% of the market – act
as though they had a 0% share of the industry.

Or, as a final example, suppose that your competitor is better at advocacy.
Perhaps, for whatever reason (maybe he is a slicker lobbyist), each dollar he
spends on advocacy is twice as effective as each dollar you spend. Then, he
acts as though his share is 20%, and his threshold goes up accordingly. All
these considerations affect your “real” shares for purposes of choosing how
much to spend on advocacy. (In this example, he still won’t do anything
because 20% is still less than your 90% share.)56

C. Does Privatization Always Reduce Advocacy in This Model?

This model applies straightforwardly to privatization: partial privatization
of an industry splits the industry up into a public sector and a private sector,
much as one can split up a monopolistic firm into several competing firms. To
be sure, the public sector is not a “profit maximizer” like a private firm. But the
concept of profit maximization need not be interpreted in a narrow financial
sense. Government agencies – or, more precisely, people who work at the
agencies and who have some control over what the agencies do – pursue goals
of some sort. Whether it is the Pentagon or a state department of corrections, a
government agency (or, more precisely, its high-level officials) does obtain
some benefit from its service provision.

Moreover, agencies are not the only actors. The employees of the agencies,
through their unions, also enjoy some benefit from public provision of the
service, and they also participate in political advocacy. The challenge is to
determine who the relevant actors are and what benefits they might plausibly
seek to maximize. This is what I try to do, informally, in Parts II and III for
corrections agencies and corrections officers unions.

The model implies, at a minimum, that some amount of privatization will
decrease advocacy, for two reasons. The first reason is that, as long as the level
of privatization does not exceed a certain critical threshold, the public sector
will dominate the entire private sector (in terms of “real” share). Therefore, the

55. Recall that “zero economic profits” does not mean “zero profits.” “Zero economic
profits” means that no one is making higher profits than they could expect to make
elsewhere; that is, they are indifferent between running the business they have and putting
their money in the stock market. See infra text accompanying note 69.

56. See Section IV.D infra.

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model predicts that the whole private sector’s advocacy would be zero. The
second reason is that as privatization increases, the size of the public sector
falls, and thus the aggregate benefits of service provision to the public sector
likewise fall. Because the public sector is smaller than it would be without
privatization, its advocacy will fall accordingly.

How far can we continue to privatize before advocacy stops falling? As
privatization increases, the second step always holds – by definition,
privatization shrinks the size of the public sector. The first step, however, does
not always hold for large enough levels of privatization. Obviously, at a certain
point, the private sector can come to dominate the public sector. Then the
private sector will do all of the advocacy, with the public sector acting as a free
rider. From then on privatization would increase advocacy. The level of
privatization at which advocacy stops falling is a threshold that we may call an
“advocacy-minimizing privatization level.”

For instance – going back to the graphical model above – suppose our two
firms benefit identically from having a given proportion of the industry. Then
the advocacy-minimizing breakup is an equal split of the industry. This is
because the amount of advocacy spending depends on the dominant firm’s real
share, and the lowest possible real share of a dominant firm occurs when the
dominant firm’s real share equals that of the smallest firm.

If a split in the industry creates a splinter firm that is twice as profitable as
the incumbent firm, or perhaps twice as slick, then the advocacy-minimizing
split is 67%-33%, again allocating each firm an equal real stake in the system.
The splinter firm is half as large but twice as profitable, so again the dominant
firm (in terms of “real” share) is as small as it can possibly get. Conversely, if
the splinter firm is only half as profitable as the incumbent firm, the advocacy-
minimizing split is 33%-67%.

This concept becomes useful in the next Part. In Part II, I argue that the
public sector share of total benefit is currently much larger than the private
sector share – first, because the public sector still has a larger industry share,
and second, because private firms are subject to a more competitive regime, so
their profits are fairly low. Thus, the advocacy-minimizing level of
privatization is probably quite high. Within this model, privatization would
have to reach very high levels before pro-incarceration advocacy starts rising.

II. Applying This Model to the Real World

The model in Part I provides the intuition behind the story of industry-
expanding lobbying after privatization. As privatization is introduced into an
industry, the dominant sector – the public sector – advocates less than it used
to, because it captures a smaller proportion of the benefits of its advocacy. The
private sector is happy to free ride off the dominant sector’s contributions.

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1216 STANFORD LAW REVIEW [Vol. 60:1197

A. Different Kinds of Lobbying in the Real World

This basic result – that, by fragmenting an industry, one can reduce that
industry’s political advocacy to increase its market – is also consistent with
empirical studies on the relationship between industry concentration and

In general, industry concentration can have two opposing effects on
lobbying. On the one hand, a concentrated industry may be able to more easily
overcome its collective action problems, so we might expect lobbying to
increase as concentration increases.57 This factor is definitely relevant for
industry-expanding lobbying. But consider another type of lobbying –
anticompetitive lobbying, which seeks to regulate the market (for instance,
through entry restrictions) to allow existing firms to charge above-market
prices. Firms in a more concentrated industry can more easily suppress
competition in the product market (either by just charging supracompetitive
prices or by cooperating to change monopoly prices), so they have less need to
do so through lobbying. They can raise prices above market levels all by
themselves by directly using anticompetitive methods, so we might expect that
a highly concentrated industry would have less to gain from anticompetitive
lobbying than would a more competitive one.58

Studies that do not disentangle these two effects can come up with results
in either direction.59 One study found a positive effect of concentration on
industry contributions,60 while another found that the percentage of firms with
political action committees first rises and then falls as concentration

This Article, though, focuses only on advocacy for reforms that increase
the size of the industry, and not on advocacy for reforms that would squelch
competition in the industry – since it is primarily the first sort of advocacy that
privatization critics urge is illegitimate.62 So only the first of these forces
comes into play here.

57. But see Pecorino, supra note 46, at 657-58 (arguing that the assumption that a
more concentrated industry can more easily overcome its collective action problems may not
always be true); Kai-Uwe Ktihn, How Market Fragmentation Can Facilitate Collusion (Ctr.
for Econ. Policy Research Discussion Paper No. 5948, 2006).

58. See Kevin B. Grier et al., The Industrial Organization of Corporate Political
Participation, 57 S. ECON. J. 727, 729-30 (1991).

59. See, e.g., Sam Peltzman, Toward a More General Theory of Regulation, 19 J.L. &
Econ. 211, 223-24 (1976) (stating that regulation is more likely in competitive or
monopolistic industries than in an oligopolistic industry).

60. Kevin B. Grier et al., The Determinants of Industry Political Activity, 1978-1986,
88 Am. Pol. Sci. Rev. 91 1, 918 & tbl.3, 919 (1994).

61. Grier et al., supra note 58, at 735 & tbl.HI, 736.
62. See Dolovich, supra note 25, at 523-24; infra text accompanying note 123.

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B. What Does the Model Predict About Prisons?

Now let us apply the theory to a real- world industry subject to the
“political influence” critique of privatization: prisons. When I speak of “pro-
incarceration advocacy,” I use the term “advocacy” broadly to include any use
of political influence, licit or illicit, including endorsements, political
contributions, lobbying, and bribes. And I use the term “incarceration” as
shorthand to include the criminalization of a greater range of behavior, more
active enforcement, greater reliance on imprisonment, longer sentences, and
less parole – anything that ultimately increases person-years in prison. Thus,
endorsing a politician for being “tough on crime,” donating money to a “Three
Strikes” initiative,63 or testifying in favor of a “truth in sentencing” law64 all
presumptively count as advocating incarceration.

Consider the main political actors in the prison industry: the private prison
firms and the public corrections officers union.65 Without privatization, the
public sector is the monopoly provider of prison services, and the corrections
officers union enjoys the benefits that flow from serving the whole system.
Now suppose that part of the system is privatized. At first, the public sector is
clearly the dominant sector, that is, the sector with the largest proportion of
total benefits from provision of the service. While the public sector’s
proportion has gone down slightly from 100% of the industry, the private sector
is still quite small. Because the public sector has shrunk, it is less willing than it
used to be to spend money on reforms that would increase the size of the prison
pie. Because the private sector is tiny, it acts as a free rider.

Privatization will always have this effect in the model presented above,
provided the public sector stays the dominant sector. Any reform that shrinks
the dominant sector will reduce industry-expanding advocacy. As it happens,
this proviso is true in the case of prisons. At current levels of privatization, the
public sector both has a larger industry share and extracts more benefit from the
system than does the private sector.

We can easily perform some rough estimates to verify this:66

• Industry share. The private sector has a smaller share of the industry.
Of the 1.5 million prisoners under the jurisdiction of federal or state
adult correctional authorities in 2004, 7% were held in private

63. Three Strikes laws are types of sentence-enhancing laws. California’s Three
Strikes law, for instance, mandates life imprisonment for convicted felons who were twice
previously convicted of two or more “serious” or “violent” felonies. California’s scheme is
described in Ewing v. California, 538 U.S. 11, 14-17 (2003).

64. Truth in sentencing laws require that persons convicted of violent crimes serve at
least 85% of their sentence. See Violent Crime Control and Law Enforcement Act of 1994,
42U.S.C. § 13704(2000).

65. On why these are the two relevant actors, see infra Part III. A.
66. I provide more detailed, though informal, derivations of these numbers elsewhere.

See Volokh, supra note 39, at 13-18.

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1218 STANFORD LAW REVIEW [Vol. 60:1197

facilities. This includes 14% of federal prisoners and 6% of state
prisoners. Among the thirty-four states with at least some privatization,
the median percentage of private prisons was 8-9%. If we are
interested in the private share of marginal prisoners – that is, how
likely a prisoner is to go to a private prison if he is convicted today67 –
the private share becomes larger, mainly because private firms have
absorbed much of the recent growth in federal incarceration. A
reasonable estimate of the private share of marginal prisoners over the
period 2000-2005 yields 6% for state systems, 54% for the federal
system, and 22% overall.

• Private sector profitability. The profits of the private sector are low.
If the industry were perfectly competitive – like in textbook models of
perfect competition – every firm would make zero economic profit.69
“Economic profits” measures how profitable a company is relative to
other ways of investing one’s money. Thus, “zero economic profits”
does not mean that firms are not making money, but rather that all
firms are doing as well as the rest of the market. In such a
(hypothetical!) world, firms would not care whether their market were
growing or shrinking, because they would be indifferent between
running prisons and putting their money into the stock market. This is,
of course, somewhat unrealistic: the prison industry is oligopolistic,
not perfectly competitive, so prison firms do make some profit. But
their profits are not high: 10% would be a generous estimate of prison
firms’ profitability.

• Public sector rents. Public sector correctional officers, on the other
hand, benefit substantially from public provision of prisons, because
their wages are quite a bit above – about 30-65% higher than – what
corrections officers make in the private sector. This is a lot of money,
because wages are about 60-80% of most prisons’ operating expenses.

These numbers are meant to be merely suggestive, not rigorous. I make the
assumptions – oversimplified but common in the economic literature on firms
and unions – that firms maximize profits70 and that unions maximize total
“union rents” (that is, here, the difference between public sector and private

67. See, e.g., Meredith Kolodner, Private Prisons Smiling over Illegal Immigration,
Int’l Herald Trib., July 20, 2006, at 12.

68. Joseph T. Hallinan, Going up the River: Travels in a Prison Nation 177-78
(2001); Dolovich, supra note 25, at 493; Sam Howe Verhovek, Operators Are Not Worried
by Ruling, N.Y. Times, June 24, 1997, at B10.

69. See, e.g., Mas-Colell et al., supra note 40, at 335; Varian, supra note 40, at

70. For simplicity, and because privatization critics treat pro-incarceration lobbying as
profit-maximizing activity, I abstract here from agency problems within the firm. I apologize
to corporations scholars. See Michael C. Jensen & William H. Meckling, Theory of the Firm:
Managerial Behavior, Agency Costs and Ownership Structure, 3 J. FlN. ECON. 305 (1976).

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sector wages, times the size of the public sector).71 Trying to put these numbers

71. I abstract away from any agency problems within the union and tentatively assume
that a union is a faithful representative of workers’ interests. However, the idea that unions
faithfully represent their members has been forcefully critiqued. See Harry G. Hutchinson, A
Clearing in the Forest: Infusing the Labor Union Dues Dispute with First Amendment
Values, 14 Wm. & Mary Bill Rts. J. 1309 (2006); Joe Knollenberg, The Changing of the
Guard: Republicans Take on Labor and the Use of Mandatory Dues or Fees for Political
Purposes, 35 Harv. J. on Legis. 347 (1998); Stewart J. Schwab, Union Raids, Union
Democracy, and the Market for Union Control, 1992 U. III. L. Rev. 367.

The union rents maximization hypothesis is admittedly an oversimplification of how
unions work. See, e.g., Henry S. Farber, The Analysis of Union Behavior, in 2 Handbook of
Labor Economics 1039, 1041 (Orley Ashenfelter & Richard Layard eds., 1986) (arguing
that, “[w]hile the union members and their leaders may be maximizers, it does not
necessarily follow that the union, as an organization, has a well-defined objective function,”
but nonetheless concluding that “it is fruitful” to analyze unions as though they had such a
well defined objective).

But the hypothesis is common in the labor economics literature and will have to do for a
preliminary survey. See, e.g., George de Menil, Bargaining: Monopoly Power Versus
UNION Power 22 (1971); John T. Addison & Barry T. Hirsch, Union Effects on Productivity,
Profits, and Growth: Has the Long Run Arrived?, 1 J. Labor Econ. 72, 84 (1989);
Guillermo Calvo, Urban Unemployment and Wage Determination in LDC’s: Trade Unions
in the Harris-Todaro Model, 19 Int’l Econ. Rev. 65, 68 (1978); Steve Dowrick & Barbara
J. Spencer, Union Attitudes to Labor-Saving Innovation: When Are Unions Luddites?, 12 J.
LABOR ECON. 316, 329 (1994); Giovanni de Fraja, Unions and Wages in Public and Private
Firms: A Game-Theoretic Analysis, 45 Oxford Econ. Papers 457, 459-60 (1993); K.C.
Fung, Rent Shifting and Rent Sharing: A Re-Examination of the Strategic Industrial Policy
Problem, 28 Can. J. Econ. 450, 452 (1995); Barry T. Hirsch & Kislaya Prasad, Wage-
Employment Determination and a Union Tax on Capital: Can Theory and Evidence Be
Reconciled?, 48 Econ. LETTERS 61, 64 & n.5; Andrew J. Oswald, The Economic Theory of
Trade Unions: An Introductory Survey, 87 Scand. J. Econ. 160, 162 (1985) [hereinafter
Oswald, Economic Theory]’, John Pencavel, Wages and Employment Under Trade Unionism:
Microeconomic Models and Macroeconomic Applications, 87 Scand. J. Econ. 197, 201-02
(1985); Sherwin Rosen, Unionism and the Occupational Wage Structure in the United
States, 11 Int’l Econ. Rev. 269, 269-70 (1970). But see John T. Dunlop, Wage
Determination Under Trade Unions 41 (1950) (calling the rent maximization objective
“analytically] interest[ing]” but questioning its empirical relevance). Pencavel, supra,
argues that the rent maximization approach is appropriate if the union redistributes income
from employed to unemployed workers so as to equalize incomes.

Rent maximization is a special case of certain other “utilitarian” or “democratic”
objective functions, see, e.g., Alison Booth, A Public Choice Model of Trade Union
Behaviour and Membership, 94 ECON. J. 883, 888 (1984); Alan A. Carruth & Andrew J.
Oswald, On Union Preferences and Labour Market Models: Insiders and Outsiders, 97
ECON. J. 431, 433 (1987); Oswald, Economic Theory, supra, at 163-64; Andrew J. Oswald,
The Microeconomic Theory of the Trade Union, 92 Econ. J. 576, 584 (1982); Pencavel,
supra, at 200, when the utility of money is linear, see Farber, supra, at 1060-61; Oswald,
Economic Theory, supra, at 165. It is also a special case of objectives in Dowrick & Spencer,
supra, at 335; see also James N. Dertouzos & John H. Pencavel, Wage and Employment
Determination Under Trade Unionism: The International Typographical Union, 89 J. POL.
ECON. 1162, 1169 (1981); Denise J. Doiron, Bargaining Power and Wage-Employment
Contracts in a Unionized Industry, 33 Int’l Econ. Rev. 583, 590 (1992); Farber, supra, at
1061; Alan Manning, How Robust Is the Microeconomic Theory of the Trade Union?, 12 J.
Labor ECON. 430, 436 (1994); John H. Pencavel, The Trade-Off Between Wages and
Employment in Trade Union Objectives 13 (Nat’l Bureau of Econ. Research, Working Paper

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1220 STANFORD LAW REVIEW [Vol. 60: 1 197

together more or less rigorously requires a fair amount of algebra, which I
provide elsewhere.72 But it should be intuitively plausible that our public-sector
actors extract substantially more benefit from any given prison than do private
firms. It is likewise clear that the public-sector unions have a greater share of
the industry than do private firms.

Thus, overall, the public-sector actors enjoy a greater benefit from prison
provision than the private-sector actors do, perhaps by an order of magnitude.
This model predicts that the public-sector unions should be doing all of the pro-
incarceration advocacy, and the private firms should be entirely free-riding.

С Is This Realistic?

The theoretical model predicts that if an industry is divided, the actor that
enjoys the greatest total benefit will foot the bill for all of the industry-
expanding political advocacy, and the smaller sector will free ride. The rough
estimates above suggest that, in the prison context, the sector with the greater
benefit is the public sector, which not only still has a greater share of the
industry but also benefits more from any given project. Therefore, we should
expect to see pro-incarceration advocacy coming from the public, not the
private, sector. Moreover, privatization reduces the public sector’s share of
total benefits. So, at current levels, privatization should cause total pro-
incarceration advocacy to decrease.73

One may wonder about the realism of simple, highly stylized models. Will
the private sector really do zero advocacy? Whatever the general merits of such
skepticism, in this particular case the simple model may be close to true.

The next Subparts document what we know about prison industry
advocacy. In brief, there is a lot of hard evidence of pro-incarceration advocacy
by public corrections officers unions (though a small part of union advocacy
also cuts the other way). On this issue, they are opposed to most departments of

No. 870, 1982).
One cannot know the benefit of being in a public corrections officers union without

having a baseline of comparison. In principle, this should be the benefit that union members
would be enjoying if not for the union. In this but-for hypothetical, the corrections officers
might be private corrections officers making a market wage, or they might take jobs
elsewhere. I use private sector corrections officers’ wages as the baseline of comparison
because it is the best available estimate of public sector corrections officers’ next best

72. See Volokh, supra note 39, at 13-18.
73. Indeed, recall the discussion of “advocacy-minimizing breakups.” See supra text

accompanying note 56. Splitting up the industry reduces the total amount of advocacy. If the
private splinter firm enjoys much less benefit from a prison project than the public
incumbent – for instance, because, being subject to a more competitive regime, its profits are
lower – the advocacy-minimizing breakup of the industry may be very heavily skewed
toward privatization, much more than current privatization levels. This would mean not only
that current levels of privatization have decreased industry advocacy, but that there is a long
way yet to go before the absolute minimum is reached.

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corrections, which advocate in favor of alternatives to incarceration. But there

is virtually no evidence of private sector pro-incarceration advocacy. This may
simply mean that the private sector advocates incarceration secretly. But, in
light of the theory, it may be more plausible that the private sector simply is a
free rider, saving its political advocacy for policy areas where the public good
aspect is less severe – pro-privatization advocacy.

Even if one disagrees with the preceding sentence, this model need not be
realistic in a literal sense. Advocacy need not be an entirely public good, and
the smaller actors in the industry need not be complete free riders. The point is
merely that these assumptions are plausible, perhaps even likely. Advocacy has
some public-good aspects, and free riding happens to some extent in the world.
If people act enough like this model, privatization will still, on balance, reduce
total pro-incarceration advocacy.

This plausible scenario rebuts the simple anti-privatization claim that
privatization does increase pro-incarceration advocacy. (The extended models
presented later on,74 in which the effect of privatization on advocacy is
ambiguous, further rebut the simple unidirectional claim.) This scenario also
points out a potential irony in the position of some incarceration opponents
who, so as to avoid “reinforcfing] the incarceration boom by introducing the
profit motive into incarceration,”75 would make common cause with public
corrections officers unions, who concededly are active lobbyists for

D. Public Corrections Officers Unions

In 1987, E.S. Savas, a supporter of privatization, dismissed the claim that
private firms advocate incarceration by noting that “[i]f this argument was
sound . . . prison officials, guards, and their unions presumably would act in the
same manner for the same reasons. This, however, is not the case.”77

Whether this was true even back then is questionable. At one time,
corrections officials were politically aligned with liberal groups,78 but by the
1970s correctional unions were already advocating incarceration.79

This activism continues today – for instance, through the California
Correctional Peace Officers Association (CCPOA).80 The CCPOA gives twice

74. See Volokh, supra note 39, at 9-12; infra Part IV.B-D.
75. See Sarabi & Bender, supra note 30, at 2 1 .
76. Id.

11. Savas, supra note 3 1 , at 898.
78. See Richard A. Berk et al., A Measure of Justice: An Empirical Study of

Changes in the California Penal Code, 1955-1971, at 158 (1977).
79. John M. Wynne, Jr., Nat’l Inst. of Law Enforcement & Criminal Justice,

U.S. Dep’t of Justice, Prison Employee Unionism: The Impact on Correctional
Administration and Programs 214-17 (1978).

80. See Center on Juvenile & Criminal Justice, Political Power of the California

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1222 STANFORD LAW REVIEW [Vol. 60:1197

as much in political contributions as the California Teachers Association,
though it is only one-tenth the size – only the California Medical Association
gives more in the state.81 CCPOA spends over $7.5 million per year on
political activities.82 It contributes to political parties, political events, and
debates; it gives money directly to candidates; it hires lobbyists, public
relations firms, and polling groups.83

Many of its contributions are impossible to trace back to any particular
agenda item: since the union also opposes privatization, favors higher wages,
and has positions on other issues, it is just as plausible that the contributions are
for those other purposes.

But many of its contributions are directly pro-incarceration. It gave over
$100,000 to California’s Three Strikes initiative, Proposition 184 in 1994,
making it the second-largest contributor.84 It gave at least $75,000 to the
opponents of Proposition 36, the 2000 initiative that replaced incarceration with
substance abuse treatment for certain nonviolent offenders.85 From 1998 to

2000 it gave over $120,000 to crime victims’ groups, who present a more
sympathetic face to the public in their pro-incarceration advocacy.86 It spent
over $1 million to help defeat Proposition 66, the 2004 initiative that would
have limited the crimes that triggered a life sentence under the Three Strikes
law.87 And in 2005, it killed Governor Schwarzenegger’s plan to “reduce the
prison population by as much as 20,000, mainly through a program that
diverted parole violators into rehabilitation efforts: drug programs, halfway
houses and home detention.”88 CCPOA does not always favor increasing
incarceration, but the bulk of its advocacy has been in this direction.

Correctional Peace Officers Association, http://www.cjcj. org/cpp/political_power.php; see
also Adrian T. Moore, Reason Foundation, Private Prisons: Quality Corrections at
a Lower Cost 33-34 (1998).

8 1 . See Dan Pens, The California Prison Guards ‘ Union: A Potent Political Interest
Group, in The Celling of America: An Inside Look at the U.S. Prison Industry 134,
135 (Daniel Burton-Rose et al. eds., 1998).

82. See Center on Juvenile & Criminal Justice, supra note 78.
83. Id

84. See Pens, supra note 81, at 137; Center on Juvenile & Criminal Justice, supra note

85. Center on Juvenile & Criminal Justice, supra note 82; Drug Policy Alliance,
California Proposition 36: The Substance Abuse and Crime Prevention Act of 2000,

86. See Center on Juvenile & Criminal Justice, supra note 82; Crime Victims United
of California, About CVUC,; Doris Tate Crime Victims
Bureau, About Doris Tate,

87. See Jenifer Warren, Guards Union Is Giving Prisons Chief Hard Time, L.A. Times,
Nov. 15, 2004, at Al; Institute of Governmental Studies, University of California, Berkeley,
Proposition 66: Limitation on “Three-Strikes” Law (Dec. 2004), http://www.igs.berkeley.

88. Ed Mendel, Governor May Act on Crisis in Prisons, San DlEGO UNION-TRIB.,
Sept. 2, 2006, at Al.

89. In 2006, to “‘give the system a breather,'” the California Correctional Peace

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That corrections officer unions benefit from increasing incarceration is
plausible. Dan Pens has quoted CCPOA member Lt. Kevin Peters as saying:

You can get a job anywhere. This is a career. And with the upward mobility
and rapid expansion of the department, there are opportunities for the people
who are [already] correction staff, and opportunities for the general public to
become correctional officers. We’ve gone from 12 institutions to 28 in 12
years, and with “Three Strikes” and the overcrowding we’re going to
experience with that, we’re going to need to build at least three prisons a year
for the next five years. Each one of those institutions will take approximately
1,000 employees. °

This is not just a story about California. Though corrections officers unions
outside of California are nowhere near as active as the CCPOA,91 many of
them do advocate incarceration.92 (As I note below, everything is bigger in
California: while private prison firms make political contributions nationwide,
they, too, spend more in California.)93 The correctional wing of Florida’s
police and corrections officers union94 has endorsed candidates for being tough
on crime.95 The Michigan corrections officers union has opposed boot camp
proposals.96 The New York City corrections officers union endorsed Governor
Pataki because he ended parole for violent felons.97 The New York State
corrections officers union is said to have stymied efforts to overhaul mandatory
minimum sentences.98 And the Rhode Island corrections officers union
endorsed a candidate for his prosecutorial record and position in favor of

Officers Association (CCPOA) endorsed releasing “a select group of inmates convicted of
nonviolent crimes who had behaved while behind bars” 30 days early. Mark Martin, Call for
New Prisons, Shorter Sentences to Ease Crowding, S.F. Chron., May 24, 2006, at Al .

90. Pens, supra note 8 1 , at 1 37.
91. Cf. Schlosser, supra note 10, at 55 (“[I]n California … the correctional trends of

the past two decades have converged and reached extremes.”).
92. See Logan, supra note 31, at 157; Wynne, supra note 79, at 186, 195, 227;

Bennett & Kuttner, supra note 35, at 38.
93. Cf. infra text accompanying note 121 (stating that private contributions also much

higher in California).
94. See Florida Police Benevolent Association, Florida РВА Chapters: State

Correctional Officers,
95. See Aaron Deslatte, Crist Courts Voters with Positive Focus, Fla. Today, Aug.

16, 2006, at Al; David Wasson, Bush Lands Police Union Support, Tampa Trib., July 12,
2002, at 9; Letter from Charlie Crist to Jim Baiardi, President, State Correctional Officers
Chapter (Mar. 15, 2006), reprinted in Letters, Fla. РВА Corrections Rev., Apr. 2006, at 7,
available at

96. See Rob Gurwitt, The Growing Clout of Prison Guards, Governing, Dec. 1991, at

97. Kathleen Murphy, Labor Helps Patakis [sic] Re-election Battle,,
May 20, 2002,

98. See Julie Falk, Fiscal Lockdown Part II: Will State Budget Cuts Weaken the
Prison-Industrial Complex- Or Strengthen It?, DOLLARS & SENSE, Nov./Dec. 2003, at 32.

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1224 STANFORD LAW REVIEW [Vol. 60:1 197

tougher criminal penalties.” (I am not considering the more usual demands for
tougher penalties for criminals who commit crimes while in prison – a
particularly salient issue for corrections officers, who are often victims of such

Some corrections officers unions are combined with police unions, for
instance in Florida101 and New Jersey.102 So except where (as in Florida)103 the
corrections officers’ wing has been independently politically involved, these
combined unions’ advocacy cannot be traced directly to corrections officers.

In some states, corrections officers are also affiliated with American
Federation of State, County, and Municipal Employees (AFSCME), the general
public employees union.104 AFSCME Corrections United represents 60,000
corrections officers and 23,000 corrections employees nationwide.105 It is
plausible that corrections officers’ concerns would be swamped by the
potentially contrary concerns of public employees as a whole (who tend to be
fairly liberal). And, indeed, the evidence that AFSCME has advocated
incarceration is weak. AFSCME has advocated alternatives to

99. Press Release, Sen. Sheldon Whitehouse, Rhode Island Brotherhood of
Correctional Officers Endorses Whitehouse (Aug. 25, 2006) (on file with author).

100. See, e.g., Gregg M. Miliote, Correction Officers Back Sutler, HERALD News (Fall
River, Mass.), Aug. 23, 2006,

101. See Florida Police Benevolent Association, About Us,

102. See Michael Pollak, New Jersey Daily Briefing: Police Back Whitman, N.Y.
Times, Oct. 1, 1997, at Bl; New Jersey State Policemen’s Benevolent Association, We Walk
NJ’s Toughest Beat!: New Jersey State P.B.A. Corrections Officers’ Committee, http://

103. See sources cited supra note 95 and accompanying text.
104. These states include Connecticut, Illinois, Kansas, Minnesota, New York,

Oregon, Pennsylvania, Texas, and Wisconsin. AFSCME also represents Corrections Health
Services medical personnel in Florida. See American Federation of State, County, and
Municipal Employees (AFSCME), Jobs We Do: ACU Local Web Sites, http://www.

105. See AFSCME, Jobs We Do: Corrections,
106. Wynne argues that AFSCME has explicitly opposed deinstitutionalization and

community-based programs in the past, see Wynne, supra note 79, at 228, but the evidence
for this is an argument against deinstitutionalization of patients from mental hospitals, not
regular criminals from prisons. See Henry Santiestevan, Am. Fed. of State, County, &
Mun. Employees, Deinstitutionalization: Out of Their Beds and into the Streets 5-
12 (AFSCME, Feb. 1975). More recently, AFSCME lobbied in favor of the Violent Crime
Control and Law Enforcement Act of 1994, 42 U.S.C. § 13701 -13726c (2000). See
AFSCME, Jobs We Do: AFSCME Corrections United: 10 Years of Federal Legislative
Advocacy, The Act includes several new criminal
provisions, e.g., id §§ 110102-110103, 110201, 110401, 250002; enhanced penalties, e.g.,
id §§ 40111, 90102, 110501, 130001, 150001, 160001, 320101-320106; a federal Three
Strikes provision, id. § 70001; victims’ rights provisions, id. § 230101; and grants for states
that adopt “truth-in-sentencing” laws, id. § 20102. Though civil libertarians at the time
opposed it because of its emphasis on incarceration, see, e.g., Laura Murphy Lee, The
Senate’s Misconceived Crime Bill, Wash. Times, Apr. 14, 1994, at A 19 (explaining the

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incarceration,107 and the national organization has advocated legalizing medical
marijuana108 (though of course this would only account for a tiny proportion of
crime). The Oklahoma public employees union – also a general union – has
also advocated alternatives to incarceration.109

E. Private Prison Firms

Private prison firms depend, for their livelihood, on two policies:
privatization and incarceration. Indeed, they admit as much to the world, in
their annual reports filed with the SEC. As to privatization, The GEO Group,
the second largest private prison firm, explains that “[pjublic resistance to
privatization of correctional and detention facilities could result in our inability
to obtain new contracts or the loss of existing contracts, which could have a
material adverse effect on our business . . . .”110 As to incarceration, GEO
candidly remarks:

[A]ny changes with respect to the decriminalization of drugs and controlled
substances or a loosening of immigration laws could affect the number of
persons arrested, convicted, sentenced and incarcerated, thereby potentially
reducing demand for correctional facilities to house them. Similarly,
reductions in crime rates could lead to reductions in arrests, convictions and
sentences requiring incarceration at correctional facilities.

Similar statements are easily available in prison firms’ public filings.1 It

ACLLPs position), the Act is so wide-ranging that AFSCME’s support is not a clean case of
union pro-incarceration lobbying. AFSCME attributes its support in part to the Act’s grants
for correctional facilities, Violent Crime Control and Law Enforcement Act of 1994 §
20101, corrections officer training provisions, id. § 20418, and enhanced penalties for
offenses against corrections officers, e.g., id. § 60015. See supra AFSCME, Jobs We Do:
AFSCME Corrections United: 10 Years of Federal Legislative Advocacy.

107. See Dwight F. Blint, Union Faults Sending More Inmates out of State, Hartford
COURANT, May 31, 2003, at B5; Connecticut Hires Firm to Teach Nonviolent Offenders,
Correctional Educ. Bull., Jan. 19, 2004.

108. See AFSCME, Supporting the Legalization of Medical Marijuana, Res. No. 93,
37th Annual Int’l Convention, Aug. 7-11, 2006,
11367.cfm. AFSCME is also involved with the National Council of State Legislatures
(NCSL); see NCSL, NCSL Foundation for State Legislatures: Board of Directors 2007-
2008,, which does not take a notably pro-
incarceration line, see, e.g., NCSL, 2007-2008 Policies for the Jurisdiction of the: Law and
Criminal Justice Committee, (critiquing the
“competition to escalate punishments and build more prisons” resulting from “federal
jurisdiction over crimes also covered under state law”).

109. Ray Carter, Union Leader Says State Prisons Understaffed, J. Rec. Legis. Rep.,
Aug. 7, 2003.

1 10. GEO Group, Form 10-K at 23 (Mar. 10, 2004).
111. Id at 22.

1 12. See, e.g., GEO Group, Form S-4 at 28 (Nov. 10, 2003); see also Vargas- Vargas,
supra note 31, at 76 n.212 (citing various other sources). A CCA executive also said the
1994 federal crime bill was “very favorable to us,” see Paulette Thomas, Making Crime Pay:
Triangle of Interests Creates Infrastructure to Fight Lawlessness, Wall St. J., May 12,

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1226 STANFORD LAW REVIEW [Vol. 60:1197

is thus natural to suspect that prison firms may advocate both privatization and
incarceration in the public square. Their political advocacy – which is
extensive113 – mainly takes the forms of contributions to politicians and
participation in the American Legislative Exchange Council (a conservative
organization that drafts model legislation),114 though they also testify before
Congress and present arguments in the popular press. But, while it is clear that
these firms advocate privatization,115 it is unclear that they advocate
incarceration to any significant extent.

Most of the evidence of advocacy specifically in favor of incarceration has
been speculative.116 Some writers state that it does not happen117 or that “the
impact of any private prisons lobby is, for the foreseeable future, likely to be
peripheral at best,”118 while others who are concerned about the prospect
describe the concern but stop short of claiming that it does or will happen.1

1994, at Al, but this is ambiguous evidence that private prison firms support incarceration –
AFSCME, which represents corrections officers in many states, actually lobbied in favor of
that crime bill, but it attributed its support to the bill’s grants for correctional facilities,
corrections officer training provisions, and enhanced penalties for offenses against
corrections officers. See supra note 106.

1 13. See, e.g., Sarabi & Bender, supra note 30, at 7-18.
1 14. See American Legislative Exchange Council,; see also infra

text accompanying notes 130-41.
1 15. See, e.g., Sarabi & Bender, supra note 30, at 7, 13-14.
116. Dolovich, supra note 25, at 524, 529; Ahmed A. White, Rule of Law and the

Limits of Sovereignty: The Private Prison in Jurisprudential Perspective, 38 Am. Crim. L.
Rev. 111,142(2001).

1 17. See Alfred C. Aman, Jr., Privatization, Prisons, Democracy, and Human Rights:
The Need to Extend the Province of Administrative Law, 12 Ind. J. GLOBAL LEGAL Stud.
511, 544 (2005); Douglas C. McDonald, Public Imprisonment by Private Means, 34 Brit. J.
Criminology 29, 43 (1994).

118. Richard W. Harding, Private Prisons and Public Accountability 96
(1997). In the related context of alternative-to-incarceration programs, Harding also
mentions an instance, from Australia, of lobbying by nonprofit providers of a “residential
Wilderness program, modeled on the America Vision Quest scheme,” for juveniles. See id.
at 96-97 (citing Richard W. Harding, Austl. Inst. of Criminology, Private Prisons in
Australia 3 (1992)). However, though Harding refers to “advocacy” by the proponents of
the program, he does not cite any instances of such advocacy.

119. See, e.g., Hallett, supra note 31, at 141; Shichor, supra note 28, at 235-36;
Dolovich, supra note 25, at 525; Low, supra note 31, at 45; Savas, supra note 31, at 898;
Schoen, supra note 31, at A31; White, supra note 116, at 142. But not all commentators
hedge their statements. See Barkow, Administering Crime, supra note 3 1 , at 729; Barkow,
Our Federal System, supra note 31, at 125 (noting that prison firms “often lobby for longer
terms”); George, supra note 31, at 54, 57 (arguing that firms’ financial interest “will make
them a lobby group for increased sentences”); Vargas-Vargas, supra note 31, at 75 n.209
(private firms are “powerful … in influencing draconian social policies”). Freeman, supra
note 31, at 1349 n.249, cites Developments, supra note 36, at 1872, for the proposition that
“the private prison industry . . . lobb[ies] for stiffer criminal penalties,” but in fact
Developments only states that private prisons “may” do so and that the claim that they do is

Several authors draw a connection between private prisons’ supposed advocacy today
and the nineteenth-century experience of convict leasing. See Sarabi & Bender, supra note

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I noted above that the general contributions of corrections officers unions
cannot be traced back to any specific goal, like pro-incarceration advocacy.120
Some commentators note private prison firms’ advocacy without distinguishing
between pro-privatization and pro-incarceration advocacy,121 but this blanket
approach is a mistake, unless one is attacking all political involvement by
prison firms. Generalized contributions to candidates, unlike targeted activities
like contributions to single-issue voter initiative campaigns, are mute. The
industry’s contributions to politicians may not be pro-incarceration at all; or
they may be multipurpose, for privatization as well as for incarceration. This is
an important distinction, as merely advocating increased privatization arguably
raises quite different concerns than advocating changes in the criminal law
itself,1 and may not implicate the same sorts of “legitimacy” values.123

Since the industry’s public statements virtually all relate to favoring
privatization, there is little hard evidence on the basis of which to attribute part
of their political contributions to a pro-incarceration motive. Indeed, the
Association of Private Correctional and Treatment Organizations (APCTO),124
the industry’s trade group, speaking for its member firms, denies that the
industry lobbies for increased penalties:

Individually and as an Association, we do not lobby in favor of longer
sentences, so-called “three-strikes” laws, or other legislation which could

30, at 1 1; Presbyterian Church (USA), supra note 31, at 20; Beverly A. Smith & Frank T.
Morn, The History of Privatization in Criminal Justice, in PRIVATIZATION IN CRIMINAL
Justice: Past, Present, and Future 3, 17 (David Shichor & Michael J. Gilbert eds., 2001);
White, supra note 116, at 128-29; Wray, supra note 31, at 5. For the nineteenth-century
history, see Matthew J. Mancini, One Dies, Get Another 24, 41 (1996); David M.
Oshinsky, “Worse than Slavery”: Parchman Farm and the Ordeal of Jim Crow
Justice 40 (1996); Alrutheus Ambush Taylor, The Negro in Tennessee, 1865-1880, at
43 (1941); 2 George Washington Williams, History of the Negro Race in America
415-16 (photo, reprint 1968) (1883); William Cohen, Negro Involuntary Servitude in the
South, 1865-1940: A Preliminary Analysis, 42 J. S. HIST. 31, 50-51 (1976). But how much
this history tells us about present-day privatization is disputed. See Logan, supra note 31, at
215-18; Dolovich, supra note 25, at 454; Alexis M. Durham III, The Future of Correctional
Privatization: Lessons from the Past, in PRIVATIZING CORRECTIONAL INSTITUTIONS, supra
note 31, at 33, 45-48; Rosky, supra note 6, at 912-13.

120. See supra notes 81-83.
121. See, e.g., Sarabi & Bender, supra note 30, at 10 (merely listing total

contributions to candidates as evidence that prison firms fuel the “incarceration boom”).
122. Even mere pro-privatization advocacy may raise some concerns. See Jack M.

Beermann, Privatization and Political Accountability, 28 Fordham Urb. L.J. 1507, 1522
(2001); Oliver Hart et al., The Proper Scope of Government: Theory and an Application to
Prisons, 112 Q.J. Econ. 1127, 1144-47 (1997) (arguing that corruption and patronage may
skew the decision whether to privatize in a pro- or anti-privatization direction).

123. See Dolovich, supra note 25, at 523-24; Rosky, supra note 6, at 955. Some
commentators’ failure to draw the distinction that Dolovich draws between pro-privatization
and pro-incarceration advocacy (and to draw the similar distinction between pro-funding and
pro-incarceration lobbying) leads to some interesting blindnesses. See infra note 151.

124. See Association of Private Correctional & Treatment Organizations,

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1228 STANFORD LAW REVIEW [Vol. 60:1 197

result in an increase in the jail or prison population. To the contrary, the
Association and its member companies encourage the use of appropriate
alternatives to incarceration; provide inmates with treatment, education and
rehabilitative services designed to positively impact and reduce recidivism
rates; and encourage effective transitional programs for offenders upon

APCTO frequently endorses alternatives to incarceration, treatment
programs, and other measures to reduce recidivism. Its executive director
recently suggested in the Denver Post that to alleviate prison overcrowding,
Colorado should “[l]ook to alternatives to incarceration that can provide
treatment and rehabilitative programs to first-time, nonviolent drug and alcohol
offenders,” “[rjeduce recidivism by investing in the treatment, education and
rehabilitation that offenders need to be successful when they leave prison,” and
“[i]ncrease the likelihood that released inmates will not re-offend by providing
substantive transitional programs to help released inmates adjust to the
community outside the walls of prison.”126 (He made similar recommendations
regarding Ohio in the Cincinnati Post.)121 He also suggested in the Fort Pierce
Tribune and the Palm Beach Post that Florida should invest more in juvenile
justice services in order to reduce the adult prison population in the long run.
(He noted that APCTO ‘s member companies mostly provide adult
incarceration services, though some would like to expand their juvenile

Even if one ignores the industry association’s official statement as self-
serving and dismisses their anti-incarceration positions as public relations, at
most generalized political contributions are “soft evidence” of pro-incarceration
advocacy. The most we can say empirically based on such evidence is that
maybe pro-incarceration lobbying happens and maybe it does not. Perhaps the
hard evidence is missing because the industry covers its tracks; or perhaps the
hard evidence is missing because there is nothing to cover up.

Prison firms also participate in the American Legislative Exchange
Council, an influential conservative organization that drafts model

125. E-mail from Paul Doucette, Executive Director, Ass’n of Private Correctional &
Treatment Orgs. (Oct. 13, 2006) (on file with author). Doucette continues: “Our members’
financial success is driven not by the number of detainees or inmates they confine, but rather
by the superior service and savings they provide to their contracted clients.” See also Paul
Doucette, Letter to the Editor, Wichita Eagle, Apr. 1, 2006, at A2.

126. Paul Doucette, Letter to the Editor, Denv. Post, Oct. 2, 2006, at B7.
127. See Paul Doucette, Ohio Prisons Are Full, Cincinnati Post, Aug. 8, 2006, at A9.
128. See Paul Doucette, Letter to the Editor, Ft. Pierce Trib., May 10, 2006, at A6

[hereinafter Doucette, Ft. Pierce Trib. letter]; see also Paul Doucette, Letter to the Editor, In
Juvenile Justice, Florida Gets Just What It Pays for, Palm Beach Post, Oct. 1, 2006, at 4E
[hereinafter Doucette, In Juvenile Justice]; Paul Doucette, Letter to the Editor, Private
Providers Agree: Bolster Juvenile Spending, Palm Beach Post, Apr. 25, 2006, at 15A.

129. See Doucette, In Juvenile Justice, supra note 128, at 4E; Doucett, Ft. PIERCE
Trib. letter, supra note 128, at A6.

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legislation.130 Both Corrections Corp. of America (CCA) and the former
Wackenhut Corp. (now called the GEO Group)131 have been members of
ALEC (and they and Sodexho Marriott, a major CCA stockholder, are
prominent corporate flinders of ALEC)132, and, over the years, at least CCA
has participated in (and two of its executives have chaired) ALEC’s Criminal
Justice Task Force,133 which drafted, among other things, a “Truth in
Sentencing Act” and a “Habitual Violent Offender Incarceration Act”.134

The inner workings of ALEC are hazy, and indeed, some commentators
argue that the private prison industry expressly seeks out channels that are
“conveniently out of public view” and “behind closed doors” to promote its
pro-incarceration agenda.136 The trouble with this view is that we can also
presume that prison firms work within ALEC on privatization issues: Prison
privatization is one of the “major issues” of the very same Criminal Justice
Task Force;137 the Task Force has a Subcommittee on Private Prisons138 and
has a model “Housing Out-of-State Prisoners in a Private Prison Act”;139 and
CCA is known to have talked to the Task Force on the subject.140 Therefore,
this, too, is “soft” evidence; we do not know that they also work on sentencing

130. See Price, supra note 31, at 74-75, 131-36; Dolovich, supra note 25, at 526-29;
Silja J.A. Talvi, Follow the Prison Money Trail, In THESE Times, Sept. 4, 2006.

131. Wackenhut Corrections Corp. changed its name to The GEO Group in November
2003 under the terms of a share purchase agreement with another company. See GEO Group,

132. See Sarabi & Bender, supra note 30, at 4 (citing Inside ALEC newsletter, Sept.

133. See ALEC, Criminal Justice and Homeland Security Task Force, http://www.alec.
org/2/criminal-justice.html (Brad Wiggins of CCA presented at the Dec. 14, 2002 Task
Force meeting.); see also Sarabi & Bender, supra note 30, at 4; Karen Olsson,
Ghostwriting the Law, Mother Jones, Sept./Oct. 2002, at 17. Dolovich cites Olsson as
stating that CCA participated in “that session which produced ALEC’s model truth-in-
sentencing bill,” see Dolovich, supra note 25, at 528 & n.360. But Olsson states only that
CCA was “[o]ne of the members of the task force that drafted the bill.” Olsson, supra at 17.
(The task force that drafted the bill is the Criminal Justice Task Force. See ALEC, Criminal
Justice and Homeland Security Model Legislation,
justice.html; ALEC, supra.) This can be read as merely stating that CCA was a participant in
that Task Force, not that it had any role in that particular bill.

134. See ALEC, Criminal Justice and Homeland Security Model Legislation, supra
note 133.

135. For instance, ALEC doesn’t disclose the current membership of its Task Forces.
See Scott Blake, CCA Dominates Prison Privatization, Fla. Today, June 13, 2004, at 8.

136. Dolovich, supra note 25, at 529; see also Olsson, supra note 133.
137. See Sarabi & Bender, supra note 30, at 4.
138. See ALEC, Criminal Justice and Homeland Security Task Force, supra note 133

(Dec. 11,2003).
139. See ALEC, Criminal Justice and Homeland Security Model Legislation, supra

note 133.

140. See ALEC, Criminal Justice and Homeland Security Task Force, supra note 133.
(Brad Wiggins of CCA presented Developments, supra note 36, at the Dec. 14, 2002 Task
Force meeting.).

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1230 STANFORD LAW REVIEW [Vol. 60:1197

or incarceration issues. Indeed, CCA asserts that it has not participated in,
voted on, or endorsed any stand on model legislation for sentencing or crime
policies within ALEC.141

Apparently,142 the only CCA official to have ever publicly taken a stand on
sentencing is J. Michael Quinlan, formerly Director of the Federal Bureau of
Prisons and now a CCA Senior Vice President,143 who, after he joined CCA in
1993,144 told a House subcommittee that mandatory minimum sentences “are
unnecessary for non-violent, non-serious offenses” and “pose[] a severe threat
to prison discipline and management.”145

So far, I have found146 a single piece of evidence of arguably pro-
incarceration advocacy by a private firm. In 1995, Wackenhut chairman
Timothy P. Cole testified in favor of certain amendments to the Violent Crime
Control and Law Enforcement Act of 1994.147 The main point of his testimony
was to propose additional provisions (1) making clear that prison grants under
the 1994 Act would “help pay for the entire range of correctional services states
can provide in-house or under contract” (not merely for “alternative
correctional facilities”), (2) requiring states to “show that they have all the
necessary legislative authority to embark upon a comprehensive, integrated
program and that they will employ the best technology at the lowest cost”
(presumably to boost privatization), (3) directing the Attorney General to “give
top priority to the construction of larger, ‘harder’ [i.e., higher-level security]
facilities,” and (4) directing the Attorney General to give priority to states with
“an executive body dedicated to the review and consideration of
privatization.”148 During this testimony, he said the following:

• “Our proposed amendment . . . would help to assure that these grants

141. Interview with Louise Gilchrist, Vice President of Marketing and
Communications, Corrections Corp. of America (Sept. 15, 2006); see also Corrections Corp.
of America, The Corrections Industry: Myths vs. Reality in Private Corrections: The Truth
Behind the Criticism, http://www.correctionscoф.com/myths.html.

1 42 . Gilchrist interview, supra note 141.
143. See Corrections Corp. of America, Why Do Business with CCA, http://www.
144. Id

145. Crime Prevention and Criminal Justice Reform Act: Hearing Before the
Subcomm. on Crime and Criminal Justice, 103d Cong. (1994) (statement of Michael
Quinlan), available at 1994 WL 214215.

146. My search was not systematic, since I do not know how one would systematically
search for evidence of industry pro-incarceration advocacy. But I have investigated claims
that such advocacy does occur, when I have found them, by following the footnotes and
checking whether the source was really pointing to some hard evidence of such advocacy
(rather than merely evidence of generalized advocacy, pro-privatization advocacy, or an
analyst’s fear of such advocacy).

147. Overhauling the Nation’s Prisons: Hearing on the Violent Crime Control and
Law Enforcement Act of 1994 Before the S. Comm. on the Judiciary, 104th Cong. (1995)
(statement of Timothy P. Cole), 1995 WL 449225.

148. Id

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will help the states incarcerate more violent criminals and not make the
state governments more dependent on federal tax dollars in the long

• “By passing ‘truth-in-sentencing’ laws, states have begun to restore a
fundamental sense of justice and fairness to our system of crime and

• “The new grant program [under the 1994 Act, without the proposed
amendments] is available for ‘alternative correctional facilities’ and
does not recognize the urgent need for more cells in secure

• “Current law encourages billions to be spent on new or retrofitted
facilities that are not large enough, secure enough or efficient enough
to keep the maximum number of violent criminals in prison for the
least cost.”150

This is not great evidence – Cole was primarily advocating funding
priorities and privatization-friendly decisionmaking. Cole’s request to divert
money from alternative facilities, his kind words for truth-in-sentencing laws,
and his positive attitude toward locking up violent criminals are hardly a pro-
incarceration smoking gun. But this is the best I have found. Private prison
firms may have made other statements and taken other public positions that are
arguably pro-incarceration, but I have not found any, and to my knowledge,
privatization critics have not brought them to light.151

F. Sometimes, No Smoke Means No Fire

As noted above, there is little hard evidence that private firms advocate
stricter criminal law at all. Perhaps they do so secretly, in which case this
simple model may be entirely unrealistic.152 Or perhaps this simple model is

149. Id.

150. Id. at Attachment 1.

151. Interestingly, the anti-privatization source from which I learned about the Cole
testimony characterized it fairly innocuously, as testimony in favor of amendments “that
authorized the expenditure of $10 billion to construct and repair state prisons” – with the
author only focusing on the generalized desire for funding. Ken Silverstein, America’s
Private Gulag, in The Celling of America, supra note 81, at 156, 159.

152. See supra note 45, where I suggest that private contractors may be more subject
to a public relations backlash if they lobby to change substantive policy in an area
traditionally heavily associated with state functions, like prisons or the military. The fear of
such a backlash may make private contractors do their industry-expanding lobbying more
secretly, or it may make them not engage in industry-expanding lobbying at all. I also
suggest in that note that public unions may be playing a broader game, where there is more
to be gained than achieving results in the political market. Part of the union leadership’s goal
is to mobilize the union members, and this arguably requires more communication with the
members than the board of a corporation would necessarily disclose to the public or its
stockholders. Finally, there are statutory and constitutional reasons – related to unions’
democratic structure and the First Amendment rights of union members – for why unions

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1232 STANFORD LAW REVIEW [Vol. 60: 1 197

basically right, and the private firms are actually spending their money on a
form of advocacy where the public good aspect is not important – pro-
privatization advocacy.

Pro-privatization advocacy is an area where, obviously, the private sector
cannot free ride off the public sector, since the public sector is their enemy on
that issue. If the private firms cooperate with each other, they reap all the
benefits of their pro-privatization advocacy. Even if they do not cooperate with
each other, an individual firm’s pro-privatization contribution may benefit it
directly to the extent that the contribution (perhaps improperly) increases the
likelihood that the firm will obtain a particular contract.153

In real life, of course, money may be multi-purpose. So far, I have treated
“mute” campaign expenditures as though they were for some purpose – either
privatization or incarceration – that was known to the donor but unknown to us.
In fact, they could be for “access” to the candidate, which can be used at any
time after the candidate prevails. The model is general enough to accommodate
this framework. At some point, donors will try to call in a favor. Favors cost
something in terms of “political capital,” and political capital is scarce: calling
in one favor makes it harder to call in another favor.154 At the point where
donors have to determine what to ask for, we are back in the previous model.155

The “access” framework has thus only postponed the applicability of the
model until after the election. One would still predict, under this model, that the
smaller donors would prefer to spend their capital supporting something with
more of a private-good component, like privatization, and leave the pro-
incarceration advocacy to the dominant actor. And this may in fact be what

III. Of Firms, Unions, and Cooperation

This Part elaborates on two curlicues of the theory. Subpart A explains
why I have focused only on public-sector unions and private firms. In short, I
have done so because the other potential prison-based actors do not participate
in pro-incarceration advocacy. Private-sector workers are not unionized, which

must be more open about their advocacy than corporations.
153. See infra text accompanying notes 1 90-92 .
154. Cf. Wayne, supra note 7 (“The contractors are saving their gunpowder for other

155. The same goes for participation in ALEC. One pays to be on the Task Force, but

when the time comes to influence the content of model legislation, one of two things might
happen. The legislation might have the desired form anyway without any effect from the
additional participation. (This is fairly likely in a conservative group like ALEC.) Or it
would not have had the desired form. In which case, even if one were participating in the
process, which CCA denies, see supra text accompanying note 141, one would need to
spend some political capital to try to help bring the change about. It is reasonable to think
that a firm would rather spend its political capital on advocating privatization, which has less
of a public-good component.

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makes it hard for them to act collectively; and public departments of
corrections actually want fewer prisoners. Subpart В explains why I have
assumed that the private firms act as a bloc instead of competing with each
other, or, at the opposite extreme, cooperating with the public sector in a grand
prison coalition. In short, I have made this assumption because cooperation
within a fairly concentrated oligopoly is not that difficult: firms interact with
each other a lot and have ample opportunity to punish each other for non-
cooperative behavior. Moreover, private-sector firms interact with each other
more than they do with the public sector, so enforcing cooperation across the
whole prison industry would be more difficult than merely doing so among
private firms. However, it turns out that how the industry cooperates, or
whether it cooperates at all, does not make much of a difference for the main

A. Why Focus on Public-Sector Unions and Private Firms?

One might ask, at this point, why I have focused primarily on two
apparently asymmetrical groups: the private sector firms and the public sector
employees. What about the other two obvious candidates – the employees of
those firms, or the employers of those public guards?

In principle, it is unclear a priori who would want to lobby, and so a case-
by-case analysis of the incentives of the various parties’ incentives is necessary.
In this case, my choice of actors was inspired by the state of the evidence and
the debate: public corrections officers unions, especially in California, are
known to engage in pro-incarceration advocacy; and private prison firms are
alleged to do so. But let us also think about this theoretically.

First, let us consider the workers. No single employee has enough of a
stake in the system to benefit from spending resources on advocacy to help his
industry. We should only expect workers to be a significant political force if
they can enforce some sort of collective action by punishing their own free
riders.156 The easiest way to accomplish this is to require membership in or
contribution to a union, which then lobbies out of members’ dues.157 Private

156. See, e.g., Olson, supra note 37, at 72-73 (stating that unions offer selective
incentives like insurance, seniority privileges, or preferential treatment in handling
grievances); E.P. Thompson, Customs in Common 467, 519-21 (1991) (providing examples
of “rough music,” which is directed hostility against workers who offended community
norms); Eric A. Posner, The Regulation of Groups: The Influence of Legal and Nonlegal
Sanctions on Collective Action, 63 U. Chi. L. Rev. 133, 177 (1996); cf Emile Zola,
Germinal, pt.5, chs. 3-4, at 317-36 (Garnier-Flammarion 1968) (1885); Matewan
(Cinecom Entertainment Group et al. 1987) (showing unions using a combination of shame
and violence); Newsies (Walt Disney Pictures et al. 1992) (same).

157. See Cal. Gov’t Code § 3502.5 (authorizing agency shop agreements); Lehnert v.
Ferris Faculty Ass’n, 500 U.S. 507, 511 (1991) (“Michigan’s Public Employment Relations
Act . . . which applies to faculty members of a public educational institution in Michigan,
permits a union and a government employer to enter into an ‘agency-shop’ arrangement

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1234 STANFORD LAW REVIEW [Vol. 60:1197

corrections officers are not unionized in most states,158 which explains why
they have not been observed lobbying.159

As I explain above,160 I assume that unions represent their members and
seek to maximize total union rents – the difference between union and non-

union wages, times the size of the public sector. The prediction that such
unions would seek to increase the size of their sector is straightforward (though
not automatic).161 A larger sector may mean a more powerful union and
therefore potentially higher wages, benefits, or job security down the road (and
perhaps – to introduce agency costs for a moment – perks for union
officials).162 It is possible that unions may sometimes oppose expansion of
their industry – for instance, if increases in prisoners made corrections officers
worse off because they were not accompanied by compensating wage or staff
increases. Anti-expansionary lobbying may occur in some industries, but it
apparently does not occur in the prison industry. The public corrections officers
unions seem, so far, strong enough that they believe that an increased flow of

under which employees within the bargaining unit who decline to become members of the
union are compelled to pay a ‘service fee’ to the union.”); Abood v. Detroit Bd. of Educ,
431 U.S. 209, 211 (1977) (similar); Olson, supra note 37, at 71; Memorandum of
Understanding, Bargaining Unit 6: Agreement Between State of California and California
Correctional Peace Officers Association (CCPOA), § 3.02 (1999),
gov/collbarg/contract/Unit06contract99.htm (establishing agency shop); see also Robert G.
Gregory & Jeff Borland, Recent Developments in Public Sector Labor Markets, in 3C
Handbook of Labor Economics 3573, 3586-87 (Orley Ashenfelter & David Card eds.,
1999) (discussing why unionization may be more widespread in the public than in the private

158. See Shichor, supra note 28, at 198; Dolovich, supra note 25, at 501; see also
Ronald G. Ehrenberg & Joshua L. Schwarz, Public-Sector Labor Markets, in 2 Handbook
of Labor Economics, supra note 71, at 1219, 1219-22, on how unionization is greater in
the public than in the private sector.

159. There are two related effects at work here. Non-unionized workers probably (1)
find it hard to organize for lobbying purposes and (2) find it hard to organize for wage
purposes (which means they are probably making market wages). If they could organize,
they would be able to lobby effectively, but that by itself would not make them want to
lobby. If a worker, once unemployed, can quickly find another job paying the same, he will
not care as much about lobbying for job security. What gives unions a good incentive to
lobby is that, in addition to increasing job security, they can increase their wages above
market levels through organizing. Their job gives them special benefits and, as a result, they
care more deeply about their job security. Indeed, we do observe strong private-sector unions
lobbying for the welfare of their industries. For instance, the United Mine Workers joined
the coalition challenging EPA’s air-quality standards in Whitman v. American Trucking
Associations, 531 U.S. 457 (2001). See Petition for a Writ of Certiorari at ii, Browner v. Am.
Trucking Ass’ns, 529 U.S. 1129 (No. 99-1257) (Jan. 17, 2000), 2000 WL 33979605; see
also Brief of the Int’l Bhd. of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and
Helpers et al., AFL-CIO, & the Elec. Reliability Coordinating Council as Amici Curiae
Supporting Respondents at 13-14, Envt’l Defense v. Duke Energy Corp., 127 S. Ct. 1423
(2007) (No. 05-848), 2006 WL 2689786.

1 60. See supra text accompanying note 7 1 .
161. See Ehrenberg & Schwartz, supra note 158, at 1258 & n.51.
162. See, e.g., Schwab, supra note 71, at 380-81.

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prisoners will not make them worse off (even if budgets are tight elsewhere in
the system).

Now, let us consider the employers. Some private prison firms also run
alternatives to incarceration,163 so it is not obvious that they would advocate an
increased emphasis on imprisonment.164 Still, they may benefit from the other
elements I have included in the term “incarceration”: increased illegalization,
increased law enforcement, and longer sentences (once the imprisonment
decision has already been made). Though increased incarceration may also
increase costs for private firms, they have a built-in protection against too much
deterioration in their position: they do not have to bid on a contract unless they
anticipate making enough profit. So it is not implausible that private firms
would benefit from incarceration; though of course (as explained in the
previous Parts) their willingness to spend money to increase incarceration
depends in part on how profitable they are.

What about the public employers, the departments of corrections? They are
not players in the pro-incarceration advocacy game for a simple reason:
generally, they favor alternatives to incarceration.165

The Alabama Department of Corrections (DOC) commissioner has
advocated sentencing reform, community correction programs, and other
measures to “reverse the prison population growth trend.” The head of the
Illinois DOC advocates reentry programs that would lower the prison
population by countering the “awful, vicious cycle” by which recidivist
parolees are re-incarcerated “before the ink is dry on their parole papers.”167
The Michigan DOC director concerns herself with measures to reduce the

163. See, e.g., Camille Graham Camp & George M. Camp, The Corrections
Yearbook 2000: Adult Corrections 91-92 (2000) (listing privately run community
correctional facilities in Arizona, D.C., Florida, Maine, and North Carolina); Colo.
Legislative Council, Research Pub. No. 487, An Overview of the Colorado Adult
Criminal Justice System 137 (2001), available at
lcsstaff/2001 /research/0 lCriminalCorrections.htm (noting that twenty-six of thirty-two
community correctional facilities are privately operated); Little Hoover Comm’n, Report
No. 144, Beyond Bars: Correctional Reforms to Lower Prison Costs and Reduce
Crime (1998), available at (listing privately
run community correctional facilities in California); Cornell Companies Adult Services:
Community-Based Corrections Services, page.cfm?ctid=
l#community; GEO Group, Fort Worth Community Corrections Facility, http://www. 1 00.

1 64. See also Logan, supra note 3 1 , at 1 60-6 1 .
165. See, e.g., Wynne, supra note 79, at 194-95; Bennett & Kuttner, supra note 35, at

36; see also Jeanne S. Woodford, Hard Time: Why I Quit the Prison System, L.A. TIMES,
Aug. 6, 2006, at Ml. But see Press Release, Florida Department of Corrections, Governor’s
Budget Recommendations Help Department of Corrections Fight Crime (Jan. 16, 2001),
available at (an exception to the
trend of DOCs favoring alternatives to incarceration).

166. Richard F. Allen, Inflow of Inmates Must Be Slowed, MONTGOMERY ADVERTISER,
July 17, 2006, at A5.

167. Rex W. Huppke, Rehabilitation or Recycling?, CHI. TRIB., Mar. 12, 2006, at 1 .

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1236 STANFORD LAW REVIEW [Vol. 60:1197

prison population and thus delay the day the state runs out of funded capacity
for prison beds.168 The Montana DOC director candidly tells crowds that
“[pjrison isn’t working,” and his department considers measures to reduce the
prison population and increase community corrections.169 The New Mexico
Corrections Department is focusing on using early parole to control its prison
population.170 The North Carolina Division of Community Corrections
advocates redirecting non-trafficking drug users from prison to “intermediate
programs.”171 Ohio lawmakers complain about the high costs of mandatory
minimum sentences.172 The Pennsylvania DOC is implementing programs
“aimed at diverting less serious offenders from prison” to “free-up prison space
needed for more serious offenders.”173 The Washington DOC secretary “is a
big believer in work-release programs.”174 And the Wisconsin DOC secretary
advocates focusing on “prevention and treatment in addition to effective law

This makes some sense: while it is commonly thought that agencies want
to aggrandize themselves,176 that intuition is only a special case of a more
general belief that agency officials act in their own self-interest177 and that their
self-interest tends to be aligned with the size and power of their agencies.
Increasing prisoners without a corresponding budget increase to match the
increasing cost of incarceration (a cost that includes corrections officers’
salaries, as well as health care and other factors) can easily make prison

168. See Memorandum from Patricia L. Caruso, Director of the Mich. Dep’t of Com,
to Sen. Alan L. Cropsey & Rep. Jack Brandenberg (Feb. 1, 2006), available at http://

169. Ted Sullivan, Bozeman’s Re-Entry Center Dedicated, BOZEMAN Chron.,
reprinted in The Correctional Signpost, Spring 2006, at 3,
News/Newsletters/Spring2006.pdf; see Bob Anez, Advisory Council Studies Array of
Offender Services, The Correctional Signpost, supra, at 9; Kelly Speer, Community
Corrections Grows to Meet Demand, The Correctional Signpost, Winter 2006, at 7, Signpost.pdf.

170. N.M. Legislative Council Serv., Information Bulletin No. 6, http:// (Aug. 25, 2003).

171. Robert Lee Guy, N.C. Div. of Cmty. Corr., The Evolution of Community
Corrections (2d ed. 2003),

172. See Debra Jasper, Prison Expenses Straining Budget, Cincinnati Enquirer, May
28, 2001, at 1 A.

1 73. Jeffrey A. Beard, Pa. Dep’t of Corr., Admissions, Population, & Releases 5
(2006), available at

174. Prison Officials Want to Expand Work-Release, SEATTLE TIMES, Aug. 8, 2006, at

175. Press Release, Gov. Jim Doyle, Governor Doyle Announces $616,000 for
Alcohol and Drug Treatment and Diversion (Sept. 18, 2006) (on file with author); see also
Falk, supra note 98, at 34.

176. See, e.g., William A. Niskanen, Jr., Bureaucracy and Representative
Government 36-42 (1971).

177. See Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118
Harv. L. Rev. 915, 932-34 (2005).

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officials worse off.178 Thus, the interests of departments of corrections may not
be aligned with those of corrections officers and their unions.179 Moreover,
DOCs run both prisons and many alternative programs, so even if more inmates
mean more power for the DOCs, it makes sense that the DOCs would want to
handle those inmates in cheaper ways than incarceration. Thus, it is not
surprising to find prison systems arguing for alternatives to incarceration in a
time of tight budgets.

B. Who Cooperates with Whom?

The discussion in the previous Parts of how the 10% firm acts and the
profits of “the industry” assumes that the private sector, in deciding how much
to spend, acts as a bloc: the private firms all cooperate180 with each other, but
do not cooperate with the public sector. This is possible, but it is not the only
imaginable story. I could have made either of two other, more extreme
assumptions. First, there could be no cooperation at all – all the firms could be
acting independently and competing with each other. Second, there could be
total cooperation – all the firms could be cooperating not only with each other
but also with the public sector. This section explores the implications of these
alternative assumptions and tentatively defends my decision to adopt the
intermediate assumption of cooperation within the private sector but not with
the public sector. In the end, however, making different assumptions would not
significantly alter the conclusions.

If all firms act independently, the relevant shares are even less than
indicated above. In 1999, CCA had a bit over half the market, Wackenhut (now
the GEO Group)181 had about a quarter, Management & Training Corp. had
about 5-8%, Cornell Corrections, Inc. and Correctional Services Corp. each had
about 5-6%, CiviGenics, Inc. had about 2-3%, and a handful of other firms had
under 1%.182

178. We are past the days when county sheriffs were paid according to their jail
counts. Wray, supra note 31, at 6; see also Logan, supra note 31, at 217; Schlosser, supra
note 10, at 64. More prisoners without more funding can also lead to political grief when
combined with early-release requirements imposed by court orders as a result of
overcrowding. Cf. Sue Doyle, Proposal: Inmates to Serve 25% of Sentence, Daily Breeze
(Torrance, Cal.), Aug. 21, 2006, at Al.

179. See, e.g., Richard Ferruccio, Presidents [sic] Message (2006), http://www.ri- (Rhode Island union president calls
the DOC and the State “our enemies” in the context of labor-related disputes); Richard
Ferruccio, Presidents [sic] Message (2006), http://www.ri-

180. “Cooperation” is what economists mean when they say “collusion.”
181. See supra note 131.
182. These numbers are taken from two sources from 1999 (which is why the shares

are expressed as ranges). See James R. Macdonald & Jaimi Goodfriend, First Analysis
Securities Corp., FASC Industry Outlook: Offender Management: 1999, at 10 (1999),
available at 1999.pdf; Stephen McFarland et al.,

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1238 STANFORD LAW REVIEW [Vol. 60:1197

So, while the private-sector share in some state may be 10%, that number
is irrelevant if all firms act independently. The relevant shares may be, for
instance, 6% for CCA, 2% for The GEO Group, 1% for Management &
Training Corp., and 1% for Cornell Corrections, leaving 90% for the public
sector. The assumption of independent firms makes public sector domination
even more probable.

Now consider the opposite assumption – that everyone cooperates. A
single prison industry bloc would choose an optimal total amount to maximize
total industry benefit. Because the actors are still formally separate, they would
also choose some way to allocate the contributions among themselves.

If private firms had the same benefit per prison as the public-sector union,
then total cooperation would be indistinguishable from monopoly: total
industry benefit would be the same before and after privatization, thus the
strategy that chooses contribution amounts to maximize that benefit would
likewise be the same.

However, as I argue above, private firms are not terribly profitable,
while public-sector unions have significant public-sector wage premiums to
protect. By replacing part of the public sector with a relatively unprofitable
private sector, privatization actually decreases the industry’s total benefit.
Therefore, even under total cooperation, there is less to maximize.
Expenditures on pro-incarceration advocacy are thus less productive (just as if
there were a tax rate on industry revenues), and expenditures on advocacy still
go down under privatization.184

Prisons, Privatization, and Public Values 6 (Dec. 2002) (unpublished paper prepared for
Prof. Mildred Warner, Cornell University), available at
doc/pdf/PrisonsPrivatization.pdf (reprinting a table of market shares from Charles Thomas
that is otherwise unavailable). Cornell has apparently grown since then. See Michael Brush,
Company Focus: 3 Prison Stocb Poised to Break Out, MSN MONEY, Jan. 5, 2005, (reporting a 12% market share for
Cornell). GEO has grown slightly. See GEO Group, Fast Facts About GEO, http://www. (28% share of U.S. market).

1 83. See supra text accompanying notes 68-69.
1 84. Note that there is an important difference between the total cooperation case and

the other two cases (no cooperation or private-sector cooperation). In the other cases, the
“largest” actor does all of the advocacy, and “largest” is determined by both per-prison
benefits and industry shares. For example, even if per-prison profits were identical between
the public and private sectors, a 10% actor would free ride off a 90% actor because the
absolute amount of the benefits differ. But in the total cooperation case, it is only per-prison
benefits that matter. For example, suppose per-prison benefits are the same – say $100- and
there are 100 prisons. Then, under monopoly public provision, total benefit is 100 x $100 =
$10,000. Under a 10%-90% split, total benefit is (10 x $100) + (90 x $100), which is exactly
the same. Likewise, under a 20%-80% split, total benefit is (20 x $100) + (80 x $100)-
again exactly the same. On the other hand, if private sector benefits are, say, $50, then a
10%-90% split reduces total benefit to (10 x $50) + (90 x $100) = $9500; a 20%-80% split
reduces it still further to (20 x $50) + (80 x $100) = $9000; and so forth. (This has a quite
different implication for the advocacy-minimizing split, see supra Part II. C. Under total
cooperation, the advocacy-minimizing level of privatization is either 0% or 100% – all the
weight should go on the sector with the lowest per-prison benefits. Or, if the sectors have

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How can we tell which form of cooperation is most likely? Not being able
to find explicit cooperation does not mean anything: the cooperation may just
be tacit.185 Observing the private industry’s trade association, APCTO,186 also
fails to answer the question, because although trade groups may provide a
forum for discussing common lobbying strategies,187 talk is cheap and many
trade groups are ineffective.188 In particular, APCTO does not seem to fulfill
much of a coordinating function, as firms do their own lobbying and most of
their own advocacy.189

Even observing some actual lobbying by the major firms does not
answer the question. As I noted above, they may all be lobbying for
privatization, which has a strong private-good component, since a firm’s
contributions may increase the probability that it gets a project in the future192

On theoretical grounds, it seems at least plausible that the private firms
would cooperate among themselves. They are repeat players in a long-term
process, which includes both political advocacy and bidding on actual prison
projects. Therefore, there is ample opportunity for private firms to enforce a
regime of cooperative behavior.193 If firms free ride off each other in their
advocacy expenditures, their fellows could punish them in the future in any
number of ways – for instance, by never cooperating on campaign spending
anymore, by bidding aggressively in prison auctions, or by bidding

equal per-prison benefits, any split is equivalent. See Volokh, supra note 39, at 59.)
185. See Ian Ay res, How Cartels Punish: A Structural Theory of Self-Enforcing

Collusion, 87 Colum. L. Rev. 295, 296-327 (1987).
1 86. See supra text accompanying notes 1 24-29.
187. Coordinating industry lobbying strategies doesn’t violate antitrust law. See, e.g.,

E. R.R. Presidents Conf. v. Noerr Motor Freight, 365 U.S. 127 (1961).
1 88. Cf Olson, supra note 37, at 36 & n.54.
1 89. See supra text accompanying notes 121,1 30-34.
1 90. See Price, supra note 3 1 , at 74; Sarabi & Bender, supra note 30, at 9.
191. See supra text accompanying notes 73, 1 52-54.
192. This would not happen if auctions were nondiscretionary – for instance if the state

were required to accept the lowest bid. But because governments have the flexibility to reject
a low bid where a higher bid proposes more and better services, or where they have their
doubts as to the trustworthiness of the bidder, see Harding, supra note 1 1 8, at 75-79, there
are enough “soft factors” that a firm’s contributions may make a difference in whether it
wins a bid.

193. See, e.g., James W. Friedman, A Non-Cooperative Equilibrium for Supergames,
38 Rev. Econ. Stud. 1, 4-8 (1971). On cooperation in auctions, see Paul Klemperer,
Auctions: Theory and Practice 28-29 & nn.75-77 (2004); Jean-Jacques Laffont, Game
Theory and Empirical Economics: The Case of Auction Data, 41 EUR. ECON. REV. 1, 25-26
(1997); Martin Pesendorfer, A Study of Collusion in First-Price Auctions, 67 Rev. Econ.
Stud. 381, 384-88 (2000); Paul Klemperer, Bidding Markets 16-22, 18 n.61 (UK
Competition Comm’n Working Paper, 2005); Andreas Blume & Paul Heidhues, Modeling
Tacit Collusion in Auctions (Sept. 2002) (unpublished manuscript, on file with the
University of Pittsburgh). On specific collusive mechanisms in auctions, see Daniel A.
Graham & Robert C. Marshall, Collusive Bidder Behavior at Single-Object Second-Price
and English Auctions, 95 J. Pol. Econ. 1217, 1220-21 (1987); R. Preston McAfee & John
McMillan, Bidding Rings, 82 Am. Econ. Rev. 579 (1992).

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1 240 STANFORD LA W REVIEW [Vol. 60: 1 1 97

aggressively only in certain markets.

By contrast, public corrections officers unions may have fewer ways of
punishing private firms. They do not bid against each other in the underlying
auctions, so they cannot threaten to end cooperative behavior. Public unions are
bitter political adversaries in the privatization advocacy world, so again there
seems to be no preexisting cooperation that can be terminated. They can
threaten to not cooperate anymore in pro-incarceration advocacy or to step up
their anti-privatization advocacy, but this may not be as effective a threat.

For these reasons, I believe that cooperation among private prison firms is
more likely than either, on the one hand, totally non-cooperative behavior or,
on the other hand, totally cooperative behavior between the public and private
sectors. However, because the ultimate results under any of the assumptions do
not differ that much, which assumption we choose is not terribly important.

IV. Complicating the Model

The theoretical model in Part I was highly simplified. It is, therefore, not
surprising that its central prediction – that smaller actors would do no advocacy
at all, and that privatization (up to the “advocacy-minimizing” level)194 would
unambiguously decrease the level of industry-expanding advocacy – was also
simple. This Part complicates the model in various ways.

In Subpart A, I drop the assumption that money only buys victory for a
given reform or candidate and introduce the possibility that money can also
change the substance of the reform or the candidate’s position. This does not
significantly alter the conclusion. In Subpart B, I drop the assumption that anti-
incarceration political advocacy is fixed. I find that pro-incarceration advocacy
still falls with privatization, though the effect of privatization on anti-
incarceration advocacy is ambiguous.

The following two Subparts show how privatization may have an
ambiguous effect on pro-incarceration advocacy. In Subpart C, I relax the
assumption that all money is fungible and that only the total amount of money
in the pot matters. Once we allow public-sector money and private-sector
money to have different effects, privatization has an ambiguous effect on total
pro-incarceration advocacy: private advocacy rises, but public advocacy falls.
In Subpart D, I introduce the possibility that the pattern of privatization, as we
observe it today, is already the result of a political process where strong unions
have successfully opposed privatization while weak unions have not. I find that
exogenously increasing privatization in such an environment would likewise
have an ambiguous effect on pro-incarceration advocacy; the effect depends on
the correlation between actors’ influence in privatization politics and their
influence in incarceration politics.

The bottom line is that, if one wants to argue that privatization will

194. See supra Part II.C.

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increase pro-incarceration advocacy, one must argue either, from outside the
model, that the model is wrong, or, from inside the model, why privatization
would increase private-sector advocacy more than it would decrease public-
sector advocacy.

A. Allowing Money to Change Candidates ‘ Positions

So far, I have taken the political agenda as given: I did not explain the
source of the proposed reform. Thus, I have assumed that money is important
because it buys victory – for instance, by persuading voters of the benefits of
the policy or the merit of the candidate.195 But money can also affect the
agenda by changing candidates’ positions, inducing the sponsors of voter
initiatives to propose a different initiative, and so on.

When money affects candidates’ agendas (but the other assumptions are
unchanged), the analysis is similar. Suppose you are considering whether to
contribute to place an initiative on the ballot. The initiative is supported by
some group or other, but for specificity, assume a politician sponsors it.196 This
politician may be fairly pro-incarceration himself, but he is limited in how strict
an initiative he can propose: his effort will fail unless the median voter, whose
views control the outcome of the election,197 prefers the proposal over the
status quo. However, before the substance of the initiative is set in stone, you
can move him in a more pro-incarceration direction if – by offering him money
to pay for persuasive advertising – you offer him the possibility to also move
the median voter.198

A monetary contribution has the following effects:

1. Electoral influence.
a. As before, you benefit because your contribution pays for

persuasion, directly increasing the probability that the initiative

b. But the contribution also moves the initiative in a more pro-
incarceration direction, which cuts against the effect above.

2. Substantive influence. Finally, you benefit if the initiative prevails,
because the policy is better for you than it would have been if you had
not contributed.

It turns out that this complication to the model does not much change the

195. See MUELLER, supra note 46, at 478-79.
196. See, e.g., Michael Finnegan, Props. 57, 58 Big Items in Homestretch, L.A. Times,

Mar. 2, 2004, at Bl; Michael Finnegan & Robert Salladay, Voters Reject Schwarzenegger’s
Bid to Remake State Government, L.A. TIMES, Nov. 9, 2005, at Al.

197. See, e.g., Mueller, supra note 46, at 85-86. In assuming a stable identity of the
median voter, I abstract away from voter participation issues. See id. at 232-34.

198. See id. at 479; Richard Ball, Opposition Backlash and Platform Convergence in a
Spatial Voting Model with Campaign Contributions, 98 Pub. Choice 269, 273-74, 279
(1999); Grossman & Helpman, supra note 53, at 273-74, 279.

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1242 STANFORD LAW REVIEW [Vol. 60:1197

underlying result. As a prison provider thinking about how much to contribute,
you follow the same framework as before: you contribute until the benefit of an
extra dollar is worth $1 to you. The benefit of an extra dollar is more
complicated than it was in the earlier model because, in addition to
encompassing the positive electoral influence effect, it now also includes the
negative electoral influence effect, as well as the benefit of substantive
influence. The basic idea, however, remains the same.

Now suppose, again, that the industry is split up into a 90% sector (you)
and a 10% sector (them). As before, your benefits shrink to 90% of their
previous level, so you now want to contribute until the benefit of an extra dollar
to the industry is worth $1.11. As before, you contribute less than before the
split, because having only 90% of the industry is like facing a 10% tax on
benefits. Also as before, your competitor free rides off you, because when he
takes your contribution level into account, an extra dollar in the pot is no longer
worthwhile to him.199

B. Anti-Incarceration Advocacy

This model focused only on pro-incarceration advocacy, taking the anti-
incarceration advocacy as given. But clearly anti-incarceration advocacy
exists,200 and it is plausible that the pro- and anti-incarceration forces respond
strategically to each other’s expenditures. This suggests two questions.

First, one might wonder whether the existence of anti-incarceration
advocacy changes my conclusions about the effect of privatization on pro-
incarceration advocacy. It turns out that it does not: just as in the simple case,
privatization makes pro-incarceration advocacy decrease, even when we
consider interactions with anti-incarceration advocacy.201

Second, one might wonder how privatization changes anti-incarceration
advocacy. After all, some anti-incarceration advocacy is as plausibly self-
interested as the prison providers’ pro-incarceration advocacy. For instance,
Proposition 66, which would have limited California’s Three Strikes Law,202
was partly funded by “Sacramento businessman Jerry Keenan whose son
Richard is serving time for manslaughter after crashing his car while driving
drunk and killing two passengers.”203 Proposition 36, the drug treatment
diversion initiative,204 was supported by dozens of drug treatment providers

199. This is not as obvious as it was in the previous models: the marginal benefit of
advocacy expenditures is no longer guaranteed to be downward sloping over its whole range,
so Figure 3 is not accurate for this case. Nonetheless, the largest actor’s contributions still
fall. See Volokh, supra note 39, at 7-8, 22-24.

200. See Berk et al., supra note 78, at 200.
20 1 . See Volokh, supra note 39, at 9- 1 0.
202. See supra text accompanying note 87.
203. See Institute of Governmental Studies, supra note 87.
204. See supra text accompanying note 85.

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and seventeen medical and public health organizations, including the California
Association of Alcoholism and Drug Abuse Counselors and the County
Alcohol and Drug Program Administrators Association of California.205 And,
as shown above, state DOCs generally advocate against incarceration.206
Perhaps those who are concerned about self-interest coloring people’s positions
on criminal justice should be concerned about this self-interested anti-
incarceration advocacy as well.

It turns out that the privatization-induced decrease in pro-incarceration
advocacy has an indirect effect on anti-incarceration advocacy. Unfortunately,
we cannot say anything a priori about the direction of this effect.207 On the one
hand, pro-incarceration advocacy decreases the effectiveness of anti-
incarceration advocacy by counteracting it. A decrease in pro-incarceration
advocacy, therefore, makes anti-incarceration advocacy more effective, which
would tend to increase it. On the other hand, a decrease in pro-incarceration
advocacy also makes anti-incarceration advocacy less necessary, which would
tend to decrease it. There is no theoretical way to know how these conflicting
effects would balance out; but in principle, future research could answer the
question empirically.

What this means normatively depends on one’s attitude toward anti-
incarceration advocacy. If one opposes pro-incarceration advocacy because
there is already too much incarceration,2 then there is nothing wrong, and
perhaps everything right, with advocacy the other way.

On the other hand, if one opposes pro-incarceration advocacy because it is
assumed209 to be self-interested, then perhaps anti-incarceration advocacy is
just as bad if it comes from boot camps, halfway houses, drug treatment
providers, and other presumptively self-interested parties.210 This model, which

205. See National Families in Action, A Guide to Drug-Related State Ballot Initiatives:
California Proposition 36 Proponents,
endorsements . html .

206. See supra notes 165-79.
207. See Volokh, supra note 39, at 9-10. But cf. Andrew F. Daughety & Jennifer F.

Reinganum, Appealing Judgments, 31 RAND J. Econ. 502, 523 (2000) (discussing concept
of “complementarity”); Andrew F. Daughety & Jennifer F. Reinganum, Stampede to
Judgment: Persuasive Influence and Herding Behavior by Courts, 1 Am. L. & ECON. REV.
158, 170-71 (1999) (axiom (ii), suggesting that €xy > 0, where I is an analogous variable to
the probability that the reform passes in this model); George B. Shepherd, An Empirical
Study of the Economics of Pretrial Discovery, 19 Int’l Rev. L. & Econ. 245, 262 (1999)
(discussing whether plaintiffs or defendants “counterpunch” in response to additional
discovery by their adversary).

208. See, e.g., Sarabi & Bender, supra note 30, at v.
209. But see infra text accompanying notes 224-33.
210. In Dolovich’s framework, punishment, which burdens one’s “urgent interests,”

can only be justified when “interests of equal or greater urgency” (such as, presumably,
potential victims’ interests in safety) are served, and this balance must be struck “under fair
deliberative conditions.” Dolovich, supra note 25, at 515. Pro-incarceration advocacy
violates this condition because it burdens people’s urgent interests (their interest in liberty)

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1244 STANFORD LAW REVIEW [Vol. 60:1 197

says nothing specific about total advocacy (either its amount or its effect), is
thus normatively ambiguous.

C. Relaxing the Assumption of Fungible Money

Recall the main model presented in Part I, in particular Figures 4 and 5. A
monopoly provider would have spent $1 million on advocacy, but under a 90-
10 split, the 90% provider is unwilling to spend beyond the 900,000th dollar
and the 10% provider is unwilling to spend beyond the 300,000th dollar; and so
total advocacy falls to $900,000, with the dominant provider spending
everything and the other one spending nothing.

The result that the smaller-share-of-total-benefit sector totally free rides off
the efforts of the dominant sector was driven by the assumption that the
probability of getting the change in policy only depended on the total amount
of money in the pot. All advocacy was fungible. A dollar from a public actor
had the same effect as a dollar from a private firm. This is not an implausible
assumption. For instance, dollars are fungible in buying advertising, which
increases the probability of a change. A politician may adopt the view of
whatever “policy position” contributed the most to his war chest.

On the other hand, some alternate assumptions may also be plausible.211
For example, one group might be attractive only to Democrats, while another
might be attractive only to Republicans.212 More generally, perhaps politicians
are just sensitive to the variety of voices in a coalition, feeling (rightly or
wrongly) that having a wide variety of groups shows that a policy has wide
support. Then neither group’s contributions totally “crowd out” the other’s.
Your 500,001st dollar still has less benefit than your 500,000th dollar- there
are still decreasing marginal returns – but (unlike in the previous model) it does
not have the same benefit as your first dollar added on to your competitor’s
500,000th. Therefore, the total free-riding effect from the simple model above

merely “in order that others might benefit financially.” Id. at 515-16. Dolovich doesn’t make
this point, but it seems that under her framework, self-interested anti-incarceration advocacy
is equally problematic: The interests of potential victims are sacrificed so that some (drug
treatment providers) may benefit financially. Those victims’ interests would have been
protected (through incarceration) under fair deliberative conditions, so by hypothesis, they
are of equal or greater urgency than the liberty interests of the people who are no longer
being incarcerated. The level of incarceration is thus unjustly low.

One might argue that incarceration is currently too high, so self-interested anti-
incarceration advocacy at least pushes the system in the right direction; but Dolovich ‘s
theory does not seem to allow for using self-interested advocacy instrumentally in that way,
nor does her discussion of the parsimony principle take a position on whether incarceration
is too high or too low.

211. See Baland & Platteau, supra note 49, at 1 58-59.
212. This is a made-up example; it doesn’t apply to prison advocacy, where both the

California corrections officers union and private prison firms give to both Republicans and
Democrats. See Sarabi & Bender, supra note 30, at 13; Pollak, supra note 102; Talvi,
supra note 130; Center on Juvenile & Criminal Justice, supra note 82.

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no longer occurs. There are many ways that private and public spending could
interact. For instance, the effect of a public dollar could be the same regardless
of the level of private spending, and vice versa. Or, alternatively, public and
private spending could be complementary if politicians are eager to endorse a
policy supported by actors from both the public and private sectors. This is an
empirical question to be answered by future research.213

In this context, privatization may have two opposing effects. First, it
increases the private-sector share, so private-sector advocacy goes up. Second,
it decreases the share of the public sector, so public-sector advocacy goes
down. We cannot say anything a priori about whether the first effect outweighs
the second. If we know some facts about public or private sector advocacy – for
instance, if one sector is completely unpersuasive, while the other sector is slick
and sympathetic214 – then we can hazard some predictions, but we cannot say
anything without such empirical facts. Because the empirical effect of
privatization is ambiguous, the normative effect of privatization is also
ambiguous if one opposes pro-incarceration advocacy. Unless we can be
specific about how different groups’ advocacy has different effects and how
effective the groups are, it is impossible to say whether prison privatization
increases or decreases self-interested pro-incarceration advocacy.

D. Strong and Weak Unions

Let us return to the point I made above that an industry’s effectiveness at
advocacy is relevant to its “real” share for purposes of this analysis.215 For
instance, if your competitor, with a 10% share, is twice as slick a lobbyist as
you, meaning that his marginal dollars produce twice the benefit of yours, he
will act as though his share is 20%.

Which way this cuts is not clear, as we do not know which sector is more
effective at lobbying in favor of incarceration. The CCPOA, as we have
seen,216 is highly effective, but corrections officers unions are much less active
outside of California, and perhaps this is because they are less effective. It is
hard to say how effective private prison firms are at lobbying in favor of
incarceration, since, as we have seen, there is little evidence that they do this at
all,217 and if they do it secretly, it is likewise hard to gauge how effective they

But let us suppose that one’s effectiveness at lobbying for incarceration is
correlated with one’s effectiveness at lobbying for (or against) privatization.
For simplicity’s sake, let us suppose that they are perfectly correlated. Consider

213. I am grateful to Joseph Bankman for this point.
214. See infra Section I V.D.
215. See supra text accompanying notes 56, 2 14.
2 1 6. See supra text accompanying notes 80-88.
217. See supra Part II.E.

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1246 STANFORD LAW REVIEW [Vol. 60:1197

the states with high levels of privatization. We may conclude that those states
have high privatization because their corrections officers unions were not
effective at opposing privatization; the private industry was just too strong for
them. When that relatively “weak” public sector was partly displaced by a
relatively “strong” private sector, a weak pro-incarceration voice was similarly
displaced by a strong pro-incarceration voice. Pro-incarceration advocacy, then,
may plausibly have increased.

Similarly, consider the states with low levels of prison privatization, like
California (1.8% private in 2004), or no privatization at all, like New York or
Rhode Island.218 The unions in those states, on this view, must have been
stronger than the industry, or else we would see privatization there now. If
privatization were introduced, total pro-incarceration advocacy would go down;
but privatization is unlikely to be introduced there, so we will not see that

This is a story where – contrary to my implicit assumption so far –
privatization is endogenous: the states where privatization has gained a
foothold are not randomly chosen; rather, privatization emerges where
corrections officers unions are weak and fails to emerge where the unions are
strong.219 Thus, past privatization may have, on balance, increased pro-
incarceration advocacy. If one could somehow eliminate prison privatization
(despite the confluence of powerful political forces that established it to begin
with), one would reestablish the rule of the ineffective corrections officers
unions in those states where they were ineffective – to the benefit of those who
oppose pro-incarceration advocacy. By a similar logic, one should introduce
privatization where it is currently absent: if it is currently absent, it is because it
was not a powerful enough political force to win on its own, which means it
will also be an ineffective political force in fighting for incarceration.

In fact, the assumption here – that the effectiveness of pro-incarceration
advocacy is perfectly correlated with the effectiveness of pro- or anti-
privatization advocacy – implies that pro-incarceration advocacy is already as
high as it can get, because the slick advocates, who were already slick enough
to establish themselves in the industry, are now plying their slickness in the
incarceration policy field. Adding a thumb to the privatization scales in either
direction would tend to support the victory of the less persuasive party and
would therefore reduce the total amount of pro-incarceration advocacy.

This story may be plausible, but it requires more fleshing out. For one
thing, the assumption may not be right. Low-privatization states need not be
high-union-strength states. While antipathy to privatization and the strength of
public-sector unions are probably correlated, a very Democratic state may

2 1 8. See Bureau of Justice Statistics, supra note 24, at 6 tbl.7.
219. For a case of selection bias in another context, see Alexander Volokh, Choosing

Interpretive Methods: Л Positive Theory of Judges and Everyone Else, 83 N.Y.U. L. Rev.
(forthcoming 2008).

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plausibly oppose privatization even if, for whatever reason, its corrections
officers union is weak.

Moreover, actors in the prison industry may not be similarly effective in
the privatization debate as in the incarceration debate. While one’s
effectiveness at advocacy probably depends on one’s general characteristics,
like goodwill, persuasiveness, and slickness, the specific subject matter of the
advocacy also plays a big role. The incarceration debate is peopled by different
interest groups than the privatization debate. For instance, prosecutors, police
officers, victims’ rights groups, and rural communities are interested in
incarceration policy2 but not so much in privatization policy. Conversely,
prison privatization is a matter of interest even to interest groups without a
direct interest in prisons, like, on one side, generalized public employee unions,
and, on the other side, small-government advocates, who assume (probably
sensibly enough) that a victory for privatization in any field is a victory for the
general privatization movement.221 Moreover, the appeal of incarceration
arguments, which connect to fears of drugs and crime and concerns over civil
liberties, seems to have a very different source than the appeal of privatization
arguments, which relate to taxes, spending, and the effectiveness of
government services.

We are back, then, to a general state-by-state analysis. In the first set of
models – where the effectiveness of advocacy only depended on the total
amount of money in the pot – everything was driven by the dominant actor,
where the term “dominant” also takes effectiveness into account. I have given
arguments above as to why the private sector is currently probably the smaller
actor.222 The “slickness adjustment” described here might change that in some
places, but it is an empirical question. As is by now familiar, privatization still
increases the private-sector share but decreases the public-sector share. This
“slickness adjustment” may change the de facto shares of the different sectors,
but it does not change the qualitative result. The effect of privatization is
theoretically ambiguous.


I have explored how privatization affects the amount, or effectiveness, of
economically self-interested pro-incarceration advocacy. For purposes of this
Article, I have so far assumed, with the critics of prison privatization,223 that
such advocacy is undesirable. But this assumption is highly questionable.

220. See supra note 35.
221. This can be an example of a “political momentum” slippery slope. See Steven

Callander, Bandwagons and Momentum in Sequential Voting, 74 REV. ECON. STUD. 653
(2007); Eugene Volokh, The Mechanisms of the Slippery Slope, 116 HARV. L. Rev. 1026,

222. See supra Part III.
223 . At least the ones cited above, see supra note 3 1 .

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1248 STANFORD LAW REVIEW [Vol. 60:1 197

For one thing, members of an industry, whether public or private, who
advocate a policy that benefits them are not necessarily motivated by self-
interest, even unconsciously. When Don Novey, the president of CCPOA, says
he just wants to lock up scumbags,224 perhaps we should take him at his word.
The same goes when a DOJ official speaks of the need to fight “the scourge of
child pornography,”225 when CACI says terrorism is “heinous,”226 when a
leading environmental citizen-suit litigator argues against weakening the
environmental laws whose monetary penalties fund its operations,227 or when
doctors who perform abortions oppose abortion restrictions.228

People who advocate a policy that benefits them or their industry may be
acting out of naked self-interest; they may be deluded into believing their
particular interest is the general interest; their participation in an industry may
lead them to rightly appreciate their industry’s contribution to the public
interest; they may have joined the industry because they were sympathetic to its
interests; or maybe they just coincidentally believe that the policy is right.229

224. See Dan Morain, California’s Profusion of Prisons, LA. TIMES, Oct. 16, 1994, at
Al ; Jenifer Warren, When He Speaks, They Listen, LA. Times, Aug. 21, 2000, at Al .

225. Child Pornography and Abduction Prevention: Hearing on H.R. 1161 and H.R.
1104 Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm.
on the Judiciary, 108th Cong. (2003) (statement of Daniel P. Collins, Associate Deputy
Att’y Gen.), 2003 WL 107951 1.

226. See supra text accompanying notes 4-6.
227. See supra text accompanying notes 19-23.
228. See National Abortion Federation, About NAF,

about_naf7index.html. For an accusation of self-interestedness, see Paul M. Weyrich, Memos
Might Reveal Profit Motive in Senate, Insight ON the News, Mar. 29, 2004, at 52.

229. On affiliation bias, see Paul Slovic, The Perception of Risk 311-13 (2000).
The question of how to interpret behavior that serves the interests of a class is featured in
historians’ debates over the social influences of the early nineteenth-century British
antislavery movement. Each of the above rationales for why British elites opposed slavery
(except for the self-selection hypothesis) has its defenders. For an argument that abolitionism
served the naked self-interest of British capitalists, see Eric Williams, Capitalism &
Slavery 169 (1961). For an argument that British capitalists were deluded into thinking that
their abolitionism was moral, when in fact it served to legitimize “wage slavery,” see John
Ashworth, The Relationship Between Capitalism and Humanitarianism, 92 Am. Hist. Rev.
813, 815 (1987); David Brion Davis, Reflections on Abolitionism and Ideological
Hegemony, 92 Am. Hist. Rev. 797, 802 (1987). For an argument that the market discipline
imposed by capitalism nurtured humanitarianism and abolitionism, see Thomas L. Haskell,
Convention and Hegemonic Interest in the Debate over Antislavery: A Reply to Davis and
Ashworth, 92 Am. Hist. Rev. 829, 852-53 (1987). And for an argument that British
capitalists’ self-interest and their interest in abolitionism were coincidental – that is, that the
middle classes were really just motivated by humanitarianism – see G.M. Trevelyan,
English Social History: A Survey of Six Centuries, Chaucer to Queen Victoria 495-
97 (1942); Ashworth, supra, at 813; Howard Temperley, Capitalism, Slavery and Ideology,
75 Past & Present 94, 98 (1977) (citing Reginald Coupland, The British Anti-Slavery
Movement 111,250-51 (1933)).

Or take a somewhat different context: There is a class of strategic games (similar to that
in the model presented in Part II supra) where, according to standard economic theory, the
“best” strategy is to free ride off other players. Though several laboratory experiments

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Nor is even nakedly self-interested advocacy an obvious evil, even when
prison policy is at stake. Some argue that optimal criminal law should reflect all
interests, including the benefit to the criminal of committing the crime;230 and
if this is right, prison providers’ self-interest is also relevant. Some see
lobbying as a means by which groups provide their views to decisionmakers
and the public and thus enrich democratic debate.231 Others may find it
illegitimate, on democratic grounds, to even consider the substance of people’s
future political advocacy in deciding whether to privatize.232

And if, as still others believe, criminal policy should be judged by a
substantive external standard – for instance, whether sentences are too long in
an objective sense – one cannot specifically object to the effect of pro-
incarceration advocacy on criminal law without first establishing that the effect
would be substantively undesirable.233

Nonetheless, if one believes that the effect of privatization on pro-
incarceration advocacy is relevant, this Article has pointed out the inadequacies
in the current formulation of the political influence challenge to privatization.
My opinion, based on the above theory and evidence, is that privatization may
not worsen any political influence problem, and might even alleviate it. The

suggest that people consistently act more cooperatively than predicted by economic theory.
See James Andreoni, Why Free Ride? Strategies and Learning in Public Goods Experiments,
37 J. Pub. Econ. 291 (1988); Robert Sugden, On the Economics of Philanthropy, 92 Econ. J.
341 (1982). However, one set of researchers finds that economists are an exception to this
pattern. Perhaps economists are the only group to act according to naked self-interest. Or, the
researchers suggest, self-selection or false consciousness may play a role: “Economists may
be selected for their work by virtue of their preoccupation with the ‘rational’ allocation of
money and goods. Or they may start behaving according to the general tenets of the theories
they study.” Gerald Marwell & Ruth E. Ames, Economists Free-Ride, Does Anyone Else?:
Experiments on the Provision of Public Goods, 15 J. PUB. ECON. 295, 309 (1981).

230. See David D. Friedman, Law’s Order: What Economics Has to Do with Law
and Why It Matters 229-31 (2000); Louis Kaplow & Steven Shavell, Economic Analysis
of Law, in 3 Handbook of Public Economics 1661, 1748 (Alan J. Auerbach & Martin
Feldstein eds., 2002); A. Mitchell Polinsky & Steven Shavell, The Economic Theory of
Public Enforcement of Law, 38 J. Econ. Literature 45, 48 & n.12 (2000). But see
Dolovich, supra note 25, at 515-16 (suggesting that profit-making should not count in
determining optimal criminal law); George J. Stigler, The Optimum Enforcement of Laws, 78
J. Pol. Econ. 526, 527 (1970) (arguing that illicit utility should not count).

231. See, e.g., Nixon v. Shrink Mo. Gov’t Political Action Comm., 528 U.S. 377, 41 1
(2000) (Thomas, J., dissenting); Buckley v. Valeo, 424 U.S. 1, 19-23 (1976) (noting the
importance of political expenditures for free expression); E. R.R. Presidents Conf. v. Noerr
Motor Freight, 365 U.S. 127, 137 (1961); Legislative Research Council, supra note 31,
at 57; Logan, supra note 31, at 159.

232. I have defined “advocacy” broadly, so that it includes, at one extreme, bribery.
See supra text accompanying notes 63-64. The arguments in the paragraph above, of course,
may apply more naturally to the more licit, non-bribery, forms of advocacy. Even bribery
has its defenders, though it is unclear how much relevance the arguments for bribery have
for incarceration policy. See, e.g., Samuel P. Huntington, Political Order in Changing
Societies 69 (1968); Francis T. Lui, An Equilibrium Queuing Model of Bribery, 93 J. Pol.
Econ. 760, 761 (1985).

233. See, e.g., Logan, supra note 3 1, at 154; Tabarrok, supra note 36, at 7 n.6.

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1250 STANFORD LAW REVIEW [Vol. 60:1197

public goods model seems to describe many situations of political advocacy
fairly well. The assumption of the principal model – that the probability of
getting a policy change only depends on the total amount spent – likewise
seems to be a good approximation for many situations, like initiative or election

There is always room for more realistic theories. For instance, my analysis
of what motivated public-sector unions, while based on assumptions common
in the labor economics literature, was highly simplified. In assuming that
private prison firms were profit-maximizing, I suppressed any analysis of
agency costs within the firm. And my back-of-the-envelope estimate of the
benefit of incarceration to the different sectors was just that – an estimate. Nor
have I entertained the possibility that, when privatization is on the agenda,
prison system actors spend more resources fighting over that, which might
crowd out pro-incarceration advocacy.234 So my specific conclusions here are
tentative.23 This Article is meant to stimulate and discipline further debate, not
end it.

But what is not tentative is that this sort of analysis is necessary if one is to
make the political influence argument properly, whether in the prison context
or more generally. General assumptions will not do. As Mancur Olson
(somewhat hyperbolically) observed, “the customary view that groups of
individuals with common interests tend to further those common interests

appears to have little if any merit.”236 Critics of privatization who have charged
that privatization has increased (or will increase, or runs a substantial risk of
increasing) industry-expanding advocacy have not explained what it is about
the lobbying world that would make this happen. Either they are
unambiguously wrong, or they are only right under a particular set of empirical
assumptions that they must spell out.

234. There were no resource constraints in the models above – the effectiveness of

advocacy was not assumed to depend on whether there was any other advocacy out there
(the public or politicians did not have limited attention spans), and prison system actors were
assumed to be able to make any positive-net-expected-value investment (capital markets
were liquid).

235. Nor have I explored whether advocacy could be controlled in other ways, for
instance, by direct regulation, see Rosky, supra note 6, at 955-56 – though I have, I suppose,
tacitly assumed that such regulation will not be effective, including regulation specifically
designed to control advocacy by unions (a la Abood v. Detroit Bd. of Educ, 431 U.S. 209,
211 (1977)). See, e.g., First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978) (holding
that corporations have First Amendment rights); Buckley v. Valeo, 424 U.S. 1 (1976)
(holding that First Amendment rights include political advocacy); Logan, supra note 31, at
159; Sheryl Gay Stolberg, House Passes Limit on Cash for Groups in Campaigns, N.Y.
Times, Apr. 6, 2006, at A21 (referring to campaign finance restrictions as “whack-a-mole”).
But see Paul Guppy, Wash. Policy Ctr., Private Prisons and the Public Interest:
Improving Quality and Reducing Cost Through Competition (2003), available at
(arguing that campaign finance laws will prevent such corruption).

236. See Olson, supra note 37, at 2.

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One further note: If one opposes self-interested pro-incarceration
advocacy, one may object at this point that this economic analysis does not
exonerate private prisons. Rather, perhaps I have only shown that the entire
system is corrupt,2 and perhaps I have unwittingly demonstrated that the only
way out of this mess is to reject the “interest group model of politics” entirely
as it applies to criminal justice policy.238

Fair enough. If self-interested pro-incarceration lobbying is indeed
undesirable, then perhaps the system is corrupt.239 But how does this translate
into an argument against prison privatization? It is not enough to show that
private prisons are part of the problem: removing one problem is not
guaranteed to make things better when there are other problems around. As the
models above have suggested, even if all this political advocacy is illegitimate,
the existence of the private sector can reduce public-sector advocacy and may
reduce total advocacy; eliminating the private sector may thus exacerbate the

Nor is it only economists who oppose making the best the enemy of the
good:240 as Rawls (no economist he) teaches, the analyst who makes specific
policy recommendations in our fallen world – not in the idealized world of
“strict compliance” with the principles of justice that characterizes a “well-
ordered society”241 – is acting in the realm of “nonideal theory,” which asks
how the “long-term goal” dictated by ideal theory “might be achieved, or
worked toward, usually in gradual steps. It looks for policies and courses of
action that are morally permissible and politically possible as well as likely to
be effective.”242

Because nonideal theory requires that we ask about the real-world
effectiveness of any reform, merely observing undesirable lobbying by the
private sector will not support an argument against prison privatization unless,
say, privatization actually (not speculatively) increases “the danger of …

237. See Dolovich, supra note 25, at 532.
238. Mat 543.

239. Cf. William Shakespeare, Romeo and Juliet act 3, sc. 1, 11. 89, 97-98, 104, in
William Shakespeare: The Complete Works 855, 876 (Alfred Harbage ed., Viking 1969)
(“A plague a both your houses!”).

240. Economists know this as the theory of the second best. See Jean- Jacques
Laffont, Fundamentals of Public Economics 167 (John P. Bonin & Helene Bonin trans.,
rev. ed. 1988); R.G. Lipsey & Kelvin Lancaster, The General Theory of Second Best, 24
Rev. Econ. Stud. 11, 11 (1956-1957).

241. See John Rawls, A Theory of Justice 8 (1971); see also Sharon Dolovich,
Legitimate Punishment in Liberal Democracy, 7 BUFF. CRIM. L. Rev. 307, 324 (2004)
(discussing “partial compliance”).

242. See John Rawls, The Law of Peoples 89-90 (1999); see also Liam B. Murphy,
Moral Demands in Nonideal Theory (2000); Rawls, supra note 241, at 245-48
(suggesting that even “slavery and serfdom … are tolerable . . . when they relieve even
worse injustices”); Adrian Vermeule, The Judiciary Is a They, Not an It: Interpretive Theory
and the Fallacy of Division, 14 J. CONTEMP. LEGAL ISSUES 549, 552-53, 581-84 (2005).

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1252 STANFORD LAW REVIEW [Vol. 60:1197

corrupting influence”243 or “compromise^] further the possibility of legitimate

If it turns out that privatization actually reduces pro-incarceration
lobbying – if, with privatization, prisoners’ sentences are less influenced by
improper factors than they otherwise would be – it is unclear that there is any
“tension between the state’s use of private prisons and the demands of liberal
legitimacy.245 If “private prisons are by no means unique,”246 and if any prison
provider, public or private, can lobby for incarceration, any “tension” has
nothing to do with private prisons and everything to do with the crooked timber
of humanity.247

The same sort of analysis that I have conducted here on the prison industry
can also be used to evaluate the claim that, say, buying weapons from defense
contractors (rather than having the military make them in-house) will
exacerbate pro-war lobbying. Since governmental providers of defense
services – i.e., the military leadership – have, on some accounts, been notorious
pro-war lobbyists throughout history,248 such a claim is not credible unless one
can tell a plausible story about why any defense contractor lobbying will not
crowd out some lobbying by the military itself; and doing this requires taking a

243. Dolovich, supra note 25, at 532.
244. Mat 542-43.

245. Id at 529.

246. Mat 530.

247. Cf Isaiah Berlin, The Crooked Timber of Humanity: Chapters in the
History of Ideas at xi, 19, 48 (Henry Hardy ed., 1992) [hereinafter Berlin, Crooked
Timber]; Isaiah Berlin, Montesquieu, 41 Proc. Brit. Acad. 267, 284 (1955), reprinted in
Isaiah Berlin, Against the Current: Essays in the History of Ideas 130, 148 (Henry
Hardy ed., 1980); Henry Hardy, Editor’s Preface to Berlin, Crooked Timber, supra, at v,
vii & n.2 (Henry Hardy ed., 1992) (discussing R.G. Collingwood’s use of “cross-grained”
timber in his 1929 lecture); Immanuel Kant, Idee zu einer allgemeinen Geschichte in
weltburgerlicher Absicht, in Was ist Aufklarung?: Ausgewahlte kleine Schriften 3, 10
(Philosophische Bibliothek Bd. 512, 1999) (1784) (“aus so krummem Holze, als woraus der
Mensch gemacht ist, kann nichts ganz Gerades gezimmert werden”), translated in
Immanuel Kant, Idea for a Universal History with a Cosmopolitan Purpose, in Political
Writings 41, 46 (H.S. Reiss ed., 2d ed. 1991) (“Nothing straight can be constructed from
such warped wood as that which man is made of.”).

248. See James Carroll, House of War: The Pentagon and the Disastrous Rise
of American Power 499 (2006); S.E. Finer, The Man on Horseback: The Role of the
Military in Politics 74, 107 (1962); James F. Schnabel, United States Army in the
Korean War: Policy and Direction: The First Year 370-74 (Maurice Matloff ed.,
1972); Jim Hoagland, Musharraf’s Obsolete Way, Wash. Post, Aug. 5, 2007, at B7
(“Pakistan continues to exist as a one-dimensional national security state, with its military
fomenting crises in Kashmir and Afghanistan to justify the army’s size and its control over
the politicians.”). But see Carroll, supra, at 501-02; Samuel P. Huntington, The Soldier
and the State 69 (1957) (portraying the military as a conservative, anti-war force).

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position on what motivates the people at the Pentagon.249 The same goes for
private attorneys general, private redevelopment corporations, private landfill
operators, and the like. The result will not always be the same, and the political
influence argument may turn out to be correct in some of these cases and
incorrect in others.250 But this should be the structure of the argument.

The surprising moral of this story should not be that surprising. Indeed, the
central insight here was also an important argument in favor of the antitrust
laws. Discussing the conditions that preceded the enactment of those laws,
William Howard Taft wrote that “business methods and plans . . . directed to . .
. suppressing competition . . . had resulted in the building of great and powerful
corporations which had, many of them, intervened in politics and through use
of corrupt machines and bosses threatened us with a plutocracy.”251 The
argument is plausible, and it is likewise plausible that privatization, by
fragmenting an industry into at least two chunks (and more if private firms do
not cooperate on advocacy), may similarly reduce that industry’s political

In a roundabout way, then, privatization is a form of antitrust, and antitrust
is a form of campaign finance regulation. It may not be worthwhile to privatize
industries – or break up large corporations – merely to reduce their political
advocacy, but at the very least this may count as an unintended – and possibly
happy – side effect of privatization that, if real, should be taken into account in
future analysis.

249. See, e.g., Seymour Melman, Pentagon Capitalism: The Political Economy
of War 8 (1970) (describing the Vietnam war as beneficial for Department of Defense
officials); see also Aaron L. Friedberg, In the Shadow of the Garrison State 294-95
(2000) (arguing that if arms were made by government instead of by private contractors,
“[p]ublic producers might actually have been better situated than their private counterparts to
delay or prevent deep reductions in military spending … it is difficult to believe that a large,
deeply entrenched public bureaucracy with nowhere to go but out of business would have
been a less effective opponent of peace”); id. at 295 (citing F.M. Scherer, The Weapons
Acquisition Process: Economic Incentives 388 (1964)). Compare also Fer. R. Acq. 34
(“War is good for business.”), with Fer. R. Acq. 35 (“Peace is good for business.”), in
Quark, The Ferengi Rules of Acquisition 19, 21 (Ira Steven Behr ed., 1995).

250. In particular, I suspect that privatization that displaces public provision will likely
displace public lobbying, while privatization that supplements public provision will likely
supplement public lobbying. Private attorneys general seem to fit more easily into the latter
case, while private military contractors or prison firms seem to fit more easily into the
former case (despite the possibility that reduced costs also increase incarceration). See Bruce
L. Benson, Do We Want the Production of Prison Services to Be More “Efficient”?, in
Changing the Guard, supra note 36, at 163, 197-98; White, supra note 1 16, at 137, 145.

251. William Howard Taft, The Anti-Trust Act and the Supreme Court 4
(photo, reprint 1993) (1914); see also Arthur P. Dudden, Men Against Monopoly: The
Prelude to Trust-Busting, 18 J. Hist. Ideas 587, 590 (1957); Lester M. Salamon & John J.
Siegfried, Economic Power and Political Influence: The Impact of Industry Structure on
Public Policy, 71 Am. Pol. Sci. Rev. 1026, 1039 (1977). But cf DeNeen L. Brown, Rejected
as a Planet, Pluto Has a Space in People ‘s Hearts, Wash. Post, Sept. 2, 2006, at С 1 .

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    • p. 1253
  • Issue Table of Contents
    • Stanford Law Review, Vol. 60, No. 4 (Feb., 2008) pp. 895-1254
      • Front Matter
      • A Textual-Historical Theory of the Ninth Amendment [pp. 895-935]
      • Kurt Lash’s Majoritarian Difficulty: A Response to “A Textual-Historical Theory of the Ninth Amendment” [pp. 937-967]
      • On Federalism, Freedom, and the Founders’ View of Retained Rights: A Reply to Randy Barnett [pp. 969-987]
      • Ex Parte “Young” [pp. 989-1022]
      • The Surprisingly Stronger Case for the Legality of the NSA Surveillance Program: The FDR Precedent [pp. 1023-1077]
      • Terrorism and the Convergence of Criminal and Military Detention Models [pp. 1079-1133]
      • The Constitution and the Rights Not to Procreate [pp. 1135-1196]
      • Privatization and the Law and Economics of Political Advocacy [pp. 1197-1253]

2 6 1

Prison privatization:
In search of a business-like atmosphere?

University of Cambridge, UK, University of Cambridge,UK

This article explores one interesting finding emerging from early
findings of studies comparing private and public prisons in the UK:
the relationship between prisoners and staff. These relationships
appear to be better in some private prisons than in the public
sector, at least during the early years of privatization. After presenting
these findings, the authors provide three possible explanations for
the positively evaluated prisoner–staff relationships in many private
prisons during these early years: first, an intentional focus on relaxed
and less formal regimes; second, the distinct balance of power
which is the outcome of more powerless and inexperienced staff
working in private prisons; and third, the legacy of a punitive
atmosphere which still persists in some public sector prisons.
While these findings do not constitute an argument in favour of
privatization, they provide an opportunity to be less romantic about
public sector values and practices, and more circumspect about the
dangers of imprisonment more generally.

Key Words

POA • prison • prison staff • prison staff attitudes • privatization
• public sector • staff–prisoner relationships


Some have called the privatization of prisons in the UK (and elsewhere) ‘the
penal experiment of the century’ (James et al., 1997: 3). As in other fields,
when conducting a major experiment, the results can be surprising and may

Criminology & Criminal Justice
© 2008 SAGE Publications

(Los Angeles, London, New Delhi and Singapore)
and the British Society of Criminology.
ISSN 1748–8958; Vol: 8(3): 261–278

DOI: 10.1177/1748895808092429

differ from our original expectations. In some cases, these unexpected out-
comes can be more meaningful or important than those originally hoped for.
In this article, we discuss one such unexpected outcome of the prison privat-
ization experiment. We try to explain how, although many proponents of
privatization relied primarily on cost and effectiveness arguments (and the
few that anticipated some improvement in the quality of prisoner–staff rela-
tionships, did not expect very dramatic changes), early findings indicate that
staff–prisoner relations may be a significant factor distinguishing prisons
under public and private management in the UK. In the early years of this so-
called experiment, a surprising number of findings indicate that many
(although not all) private prisons significantly outperform traditional public
sector prisons in the areas of staff attitudes, and levels of fairness, respect and
humanity towards prisoners (James et al., 1997; Liebling, 2004; and later).

These findings should be read with caution. It is not clear how wide-
spread this feature is, or whether it is long-term. Few systematic and socio-
logical evaluations of private sector prisons have been conducted.1 There is
a reason to believe that it is not a universal phenomenon. In the USA, there
is evidence showing that prisoner–staff relationships in private prisons can
go very wrong (Friedmann, 2003; Parenti, 2003). It is possible that this is a
characteristic of the early years of privatization and things might look very
different when budgetary considerations become more pressing and state
regulation and monitoring less tight. In the latter case, we might find that
private prisons that perform poorly are worse than the poorest public sec-
tor prisons (see, for example, NAO, 2003). It is also important to note that
overfamiliar or close staff–prisoner relationships take their toll in other
dimensions of prison life (see later).

Finally, even if similar findings emerge in the future, it is arguable that
this apparent distinction says more about the defects of the traditional pub-
lic sector prison system than about the advantages of privatization per se.
Nevertheless, even when taking the above points into consideration, the
positive findings are too significant to be left unnoticed or unexplored. In
this article, we provide the first step in such an exploration.

Although the point about staff–prisoner relationships may be linked to
questions of the legitimacy of privatization (see Sparks, 1994; James et al.,
1997: 138; and later), this article will not focus primarily on questions of
legitimacy, on ‘less visible instrumental practices’ of privatization (Liebling,
2004: 117) or on other dimensions of quality that are relevant to prison life
(Logan, 1992; Liebling, 2004; and see conclusions later). Instead, this article
will focus exclusively on the question of whether, and if so why, staff– prisoner
relationships are ‘better’ in private than in public sector prisons. Here, ‘better’
means rated more positively by prisoners. There are complex issues here,
which we highlight at the end. Such a narrow focus may provide only a small
contribution both to the broad private–public sector debate and to the under-
standing of life in prison. This is so specifically when the correlation between
well-disposed staff and quality of life in prison is not necessarily wholly positive.
There may be a negative correlation between ‘good’ (close) staff–prisoner

Criminology & Criminal Justice 8(3)262

relationships and other aspects of prison life that are crucial for prisoners and
the staff such as: bullying and threats by other prisoners, security (escapes),
and issues of order and control, drug abuse, self-harm and suicide, and staff
satisfaction and/or stress about their job. We will discuss some of these issues
below. However, it cannot be disputed that staff–prisoner relationships are a
central aspect of prison life and exploring their nature and quality in the pri-
vatization context can provide us with significant insights into prison regimes
and prison life at the beginning of the 21st century.

Privatization and staff–prisoner relationships

The previous experience of privatization in the late 19th and early 20th cen-
tury in the USA was not known for its high level of humane or respectful
treatment of prisoners. Under the labour leasing arrangements, prisoners
were exploited, and were subject to conditions of neglect and brutality that
were not far from slavery (Ryan and Ward, 1989; Shichor, 1995; Hallett,
2006). Although many years have passed since, the private sector is still sus-
pected of having ‘selfish profit motives’ that will overcome any quality
improvement considerations (Harding, 2001: 282). Commentators have sug-
gested that ‘[I]t is naïve to imagine that a for-profit enterprise will regulate
itself morally’ (Liebling, 2004: 480), and ‘the private sector is more interested
in doing well than in doing good’ (Robbins, 1988: 4; see also James et al.,
1997: 8). It is therefore not surprising that: ‘[I]mproving prisons and correc-
tions regimes was not overtly prominent in US debates about privatization.
Improvement was seen as a possible and desirable, but not essential, by-product
of better and more cost effective management’ (Harding, 2001: 272). This is
more salient if we refer to improvements in staff–prisoner relations (although
exceptions exist, see later), rather than the (also important) issues of improv-
ing sanitary and medical conditions, overcrowding and other visible features
of prison life. Although there are some differences between the privatization
process in the UK and the USA (see Jones and Newburn, 2005), the above
analysis of the US privatization experiment is relevant to the UK. Neither the
practical problems that led to the decision to privatize some adult prisons nor
the ideological reasons that were raised to support this move were signifi-
cantly concerned with effecting an improvement in staff–prisoner relation-
ships. This was not the main or primary aim. The practical and ideological
problems that drove the system towards privatization in the USA and in the
UK included insufficient resources, funding and management expertise (or
power) to reduce operational costs, overcoming union resistance to changing
working practices, and the need to execute a massive programme of con-
struction of new prisons required to resolve over-crowding caused by the
growth of prisoner populations (Harding, 2001: 269–73). There was also, in
the UK, an explicit loss of faith in the public sector’s ability to do anything
efficiently or well. Although improvements to prison regimes are mentioned
as goals by some scholars (see Liebling, 2004: 97), efforts appeared to be

Shefer & Liebling––Prison privatization 263

directed at the more visible, easily measured features of the regime (e.g. num-
ber of prisoners per cell, sanitary conditions and hours unlocked) rather than
at staff treatment of prisoners. Neither did the ideological motivation for pro-
moting the privatization of prisons have much to do with hopes for better
attitudes towards prisoners. The Thatcher government that privatized the
first adult prison in 1992, gained a reputation for being tough on crime
(Gamble, 1994: 35; James et al., 1997: 37), not for being concerned with lack
of respect to prisoners by staff. A Green Paper that discussed the options for
private sector involvement in prisons stated that the objectives of the privat-
ization would be: ‘Making additional remand accommodation’, ‘reducing
costs’, ‘releasing prison and police manpower for work which make better
use of their skills’, and these had to take place under the condition that the
prisoners were treated ‘no less humanely than in the normal prison’ (Home
Office, 1988: sec. 51–2, emphasis added).

There have been some exceptions to this general picture of concern with
costs and manpower. Peter Young, one of the advocates of privatization,
predicted that private prisons would be more relaxed, less-militaristic and,
consequently, friendlier to prisoners (1987: 32). In Queensland, Australia, one
of the main aims of privatization was to create a change in prison culture,
overcoming the resistance of traditional prison staff (Moyle, 1995: 51;
Liebling, 2004: 111). But this was not generally the case. Even Logan,
another proponent of privatization, agreed that ‘excessive concerns with
costs can jeopardize quality’ if contracting-out is not followed by tight
regulation (1990: 120).

Some recent findings

As we have explained earlier, privatization proponents expected prison pri-
vatization to have a significant effect on aspects of the cost-effectiveness of
prison regimes, but less of an effect on other aspects of the quality of prison
life, including staff–prisoner relationships. However, evaluations to date
indicate that, at least in the UK, in many cases the most significant difference
that distinguishes public from privately managed prisons is the relationship
between staff and prisoners. Fewer differences are found in relation to the
cost-effectiveness aspects of operation.2 In many privately managed prisons,
the staff treat prisoners significantly (Liebling, 2004: 117) and sometimes
dramatically more respectfully compared to public sector prison staff.

In one of the first studies conducted by the Home Affairs Committee,
attention was given to the special emphasis of the private sector on pris-
oner–staff relationships (Home Affairs Committee, 1997; Liebling, 2004:
100). In a more comprehensive comparison performed in 2003 by the
National Audit Office between nine private prisons and twelve public sector
prisons, the most significant difference between private and public sector
facilities was the superior relationship between staff and prisoners in the
private prisons (NAO, 2003). Similar findings were revealed in research by

Criminology & Criminal Justice 8(3)264

James et al. (1997). The authors of this study investigated the Wolds
prison—the first adult prison that was contracted out to a private firm
(Group 4).3 They reported that prisoners ‘spoke highly of the staff working
at Wolds’ (James et al., 1997: 85). Over half (63%) of the prisoners
described their relationships with the staff as mostly good or very good and
many of them felt that staff were very different from staff in other (‘POA’,
or public sector) prisons (James et al., 1997: 85). Over half of the prisoners
noted that the main difference between Wolds and other public prisons
where they had been previously incarcerated was the greater respect shown
to the prisoners by staff in Wolds (James et al., 1997: 85). One prisoner, for
example, described the difference as follows: ‘Here they see me and other
prisoners as a person—in state prisons, you are a number, an animal and
that is it’ (James et al., 1997: 85).4

An inspection of Wolds prison carried out by HM Chief Inspector of
Prisons (HMCIP, 2004b) showed that these aspects of the regime in Wolds
had not changed significantly since the study by James et al. The report
stated that: ‘Relations were relaxed and friendly. Most prisoners felt that
staff treated them with respect … 93% of respondents, against a bench-
mark of 78%, said that staff treated them with respect’ (HMCIP, 2004b:
sec. 2.24–2.26).5 In many of these studies, prisoners are talking about being
respected and treated as people. It is worth mentioning here the assertion
that appears in the Woolf Report (written before the first prison was con-
tracted out) that: ‘There is a fundamental lack of respect at all levels of the
prison system’ (Home Office, 1991: sec. 1.153). Woolf had been inquiring
into the reasons for the Strangeways and other disturbances in local prisons
of 1990. His diagnosis emphasized staff attitudes and prisoners’ legitimate
grievances. It may be historically relevant that the Woolf Report, with its
very clear emphasis on justice and relationships, was published just as the
first private prison opened. The first (ex-public sector) private prison
Director took the Woolf Report as his ‘blueprint’ for running a model local
and remand prison. He certainly emphasized the ethos of respect. Newly-
trained staff with no prior prison experience were, it seems, more amenable
to this kind of argument than were existing staff in the public sector.

A visit by HM Chief Inspector of Prisons to another contracted-out
prison—Altcourse—in 1999 (HMCIP, 1999) produced one of the most
enthusiastic reports ever written about a prison (as the inspection team
described it). Among other things, they said that: ‘Officers should be com-
mended for the efforts they had made and the excellent relationships they
had developed with prisoners’ (HMCIP, 1999: sec. 2.31, emphasis in ori-
ginal). A recent report of the same body inspecting the same institution in
February 2004 reported that: ‘The environment and the quality of
staff–prisoner interaction were extremely good’ (HMCIP, 2005 (on
Altcourse): preface).6 Other such reports have concluded that:

We were impressed by the examples of courteous interaction that we
observed between staff and young people at Ashfield. The quality of rela-
tionships on the residential units, in education, PE and the workshops was

Shefer & Liebling––Prison privatization 265

generally very good. Staff almost always addressed young people by their
first names. The majority of residential staff we spoke to were extremely
knowledgeable about the young people in their care.

(HMCIP, 2003 (on Ashfield): 17, sec. HP19)

The relationships between staff and prisoners were extremely positive and
we found many examples of staff dealing sensitively and appropriately with
difficult prisoners.

(HMCIP, 2002 (on Forest Bank): 3)

Relationships between staff and prisoners were good and generally respect-
ful, supported by a relatively good personal officer system.

(HMCIP, 2004a (on Lowdham Grange): 13, sec. HP11)

It is perfectly possible, however, that particular Chief Inspectors of Prisons
are well disposed towards private sector prisons. This has been suggested in
the past, for example, when individual reports have been unexpectedly
favourable, or when Chief Inspectors (in other jurisdictions) have stated
that the moral arguments about private sector competition can be settled by
quality and performance alone (Harding, 1997). Even if this were so, there
is evidence (in most, but not all cases) to support these remarks. A com-
prehensive study conducted by Liebling, assisted by Arnold (2004), found
that the atmosphere and culture were different at a private prison compared
to its four public sector comparators. Unlike the previous studies men-
tioned, the main purpose of this research was not to compare private and
public prisons, but to explore ways of measuring prison quality more mean-
ingfully and accurately than existing official performance approaches. One
of the five prisons studied (Doncaster) was privately managed, while the
others belonged to the public sector. Liebling and colleagues wished to
understand and evaluate what they came to call the ‘moral performance’ of
prisons. In order to do so, the authors developed a carefully constructed
and staff/prisoner-informed method to measure and compare various
dimensions of prison life ‘that mattered most’ to staff and prisoners in five
different prisons. The authors divided their prison quality measures into
three main areas: relationships, the prison regime and social structures. In
each area, several dimensions were evaluated. For example, the relation-
ships category included the dimensions respect, humanity, staff–prisoner
relationships, trust and support. The results were surprising: the privately
managed prison (Doncaster) outperformed all other prisons on almost all
dimensions including all aspects of the relationship category. These quanti-
tative survey results carried out with 100 randomly selected prisoners in
each establishment were supported by highly enthusiastic statements of
prisoners in interviews who ‘were keen to communicate … how strongly
they felt about the regime’ (Liebling, 2004: 186).

Similar surveys of prisoner opinion in other private prisons carried out
by the Prison Service Standards Audit Unit using a version of this question-
naire have found that prisoners rate ‘the relationships between staff and

Criminology & Criminal Justice 8(3)266

prisoners’ quite highly, on the whole.7 It should be noted that Liebling and
colleagues are clear that the picture was not straightforward and the posi-
tive relationships were obtained at a price, as we have already mentioned.
Both in this study and in the study by James et al. (1997), staff complained
of a sense of powerlessness and vulnerability relating to understaffing.
Liebling and colleagues emphasize that good relationships that are a result
of laxity, naivety and inadequate enforcement of rules might lead to lack of
order, reduced security and safety, and the risk of disturbances and escapes
(Liebling, 2004: 10–22). These concerns are supported by findings about
high levels of assaults in some privately managed prisons, at least in the first
years of their operation (Home Affairs Committee, 1997). We should take
into account, in any overall evaluation, issues raised by the sensational BBC
TV programme about Kilmarnock private prison in Scotland where, among
other things, suicide watches went ignored, cell searches were not carried
out, officers turned a blind eye to hard drugs and prisoners pushed staff to
their limits (PPRI, 2005a).

However, in both the studies by Liebling and colleagues and by James et al.,
privately managed prisons were also rated highly on dimensions of order
and safety. It is also important to note that, as Liebling suggests, this is not a
zero sum game and ‘there can hardly be too much decency … respect …
humanity … or fairness’ (as well as too much safety or order, 2004: 444).
Neither Liebling (2004) nor James et al. (1997) suggest that the very good
relationships they found were simply a result of officers ‘holding back’ and not
confronting prisoners. So, even if there is a price that has to be paid when the
relationships between officers and prisoners are good, this price, or these
‘side-effects’, are not necessarily independently caused by the relatively high
quality of the relationships. A more comprehensive explanation has to be
given both for the existence of these relationships (the presence of respect) and
for the relatively common ‘things that go wrong’ in private prisons. This will
be our next task.

Explaining good relationships

So what might explain these findings about relatively better staff attitudes
towards prisoners in many private prisons? What provided ‘the edge on
activities, relationships and treatment’ (Liebling, 2004: 103) in some pri-
vately managed compared to public prisons? The possible explanations for
these findings can be divided to three groups: ‘intentional change’ factors,
‘powerless staff’ factors and the ‘we are here to do business (and not to pun-
ish) atmosphere’ factor.

Let us consider the ‘intentional change’ explanation: the first group of
causes concern intentional efforts performed by the State and private sector
senior management to improve the quality of staff–prisoner relationships.
The State has (at least until the recent population and financial crisis)
imposed strict provisions in contracts with the four private companies

Shefer & Liebling––Prison privatization 267

currently operating to allow unprecedented levels of out-of-cell hours and
purposeful activities (although in fact, these provisions were based on the
bid documents drafted by the companies themselves) and have maintained
a tight rein using full-time contract monitors to verify enforcement of these
provisions.8 The companies adopted the view suggested by the ‘direct
supervision’ method (James et al., 1997) and by Peter Young (‘Friendlier
jails are more efficient jails’ 1987: 32), and made a clear effort to develop
a new, much friendlier ethos. For that purpose, they recruited staff with no
prior experience who underwent careful socialization and who were gener-
ally enthusiastic about this kind of regime (James et al., 1997; Liebling,
2004). This point is important. As Crawley (2004) writes, executives and
governors in the Prison Service have tried to alter the organizational culture
and ethos of many prisons during the last decade. She argues that this alter-
ation is possible but the pace of change is slow because public sector prison
officers tend to resist attempts to change working practices and customs of
many years’ standing. The pace of changes can be faster ‘when sufficient
numbers of new staff are transferred en masse from the training college or
from another establishment’ (Crawley, 2004: 11). As James et al. found in
their comparative research of Wolds and Woodhill, when public sector
prison governors, chosen to operate a new prison, are determined to estab-
lish a new kind of ethos and base their staff mostly on less-experienced,
newly recruited officers, they can also achieve high-quality and positive
regimes that outperform more traditional establishments. Ratings by pris-
oners of these ‘new model’ prisons come close to, but do not match, ratings
in better private prisons. As they are not matched, however, we need other
or additional explanations.

There are two more points to make with regard to the first explanation.
The first is that it should not be forgotten that in many private prisons the
intentional change included not only the form of the regime (private and
not public) but also the buildings and facilities. When prisoners move from
overcrowded, Victorian prison buildings into modern, sophisticated, clean
and ‘user-friendly’ buildings hosting one prisoner to a cell and the latest
modern facilities, we should not underestimate the impact this physical
transformation might have on the perceived quality of life. Prisoners’ rat-
ings on a ‘decency’ dimension support this and suggest that, by themselves,
new buildings can contribute to a more relaxed atmosphere and to better
staff–prisoner relationships.

The second point we wish to make is that the nature of such intentional
changes is that they do not lead to inevitable and permanent improvement.
As time goes by, the routine, the lack of public attention and the pressures
from company directors (and increasingly competitive bids) to save money
become more significant. The initial enthusiasm of the contractor, and the
staff, as well as the tight regulation of the controllers can be eroded and
relationships between staff and prisoners can deteriorate following the
‘good early years’ (see James et al., 1997: 121) and a feeling by staff that
they are not respected by prisoners and they are too few in number.

Criminology & Criminal Justice 8(3)268

Evidence of such erosions tend to be expressed in terms of ‘inexperience and
inconsistency’ in some more recent Inspectorate reports (e.g. HMCIP,
2007), but was found more directly in recent survey research on attitudes
towards prisoners (McLean and Liebling, 2008: 105; McLean, in progress).

Now let us consider the ‘powerless staff’ explanation more closely:
understaffing—the dark side of the ‘direct supervision’ approach—may also
explain these results.9 It is harder to develop a ‘them and us’ culture when
there are not many of ‘us’. The powerlessness of the officers vis-a-vis pris-
oners coincides with their powerlessness vis-a-vis senior management.
There are fewer unions to protect officers or opportunities to develop offi-
cer solidarity.10 The flatter management structure and lower level of protec-
tion for sick leave or malpractice allows better control of junior officers.11

Officers who fail to comply with the new ethos are more easily removed or
fired—actions that are more complicated to perform in the public sector.
The salaries of private sector staff are lower. One report showed that the
average basic pay for officers in private prisons was up to 43 per cent less
than in the public sector (Prison Service Pay Review Body, 2004) and this is
in a context where officers in the public sector already earn salaries that are
less than other public sector workers in similar roles (for example, police
officers, see Liebling and Price, 2001: 24 and forthcoming).

The relative lack of staff power and experience in private sector prisons
reduces their willingness to confront prisoners and to enforce the rules re-
garding order, security and safety. Lower numbers of officers and less will-
ingness to confront prisoners can have all kinds of negative side-effects on
various aspects of prison life (see earlier), but these effects may be perceived
in the studies we refer to as positive developments by prisoners. A lack of
the irritants of authority and control may explain prisoners’ support of the
new prison culture, although many prisoners, especially the more vulnerable,
might seek order and security and fear its absence at least as much as officers
do (see James et al., 1997: 123).

The two arguments above may provide much of the explanation for the
findings we have reported but—important as they are—we do not think
they provide the whole picture. Both the quantitative findings and the
highly positive descriptions given by prisoners in many of the above studies
imply that some of these findings may be related to more immanent and
inherent differences between the public and the private sector. In the
remaining part of this article, we suggest one insight we shall call the ‘we
are here to do business (and not punish)’ explanation: we refer here to the
impact of the punitive role of prisons and the historical and other problems
of public sector delivery of punishment (see James et al., 1997: 121, 138).

John DiIulio, one of the opponents of privatization, argues that:

[T]he authority to govern behind bars, to deprive citizens of their liberty, to
coerce (and even kill) them … must remain in the hands of government author-
ities … the message that ought to be conveyed by the offended community of
law-abiding citizens through its public agents to the incarcerated individual.

(1991: 197; see also Christie, 1993)

Shefer & Liebling––Prison privatization 269

DiIulio is not alone in this view. Although for decades, the official dominant
view among senior managers has been that prisoners are sent to prison as
punishment and not for punishment—the expectations that DiIulio and
others have of the prison (and therefore of officers) that it ‘convey[s] the
message from the law-abiding society to the prisoner’ cannot be ignored.
These legitimate expectations may constitute part of the explanation for a
more punitive tradition associated with public sector imprisonment. The
expectation that the prison expresses state denunciation may impact on
officer behaviour (and motivation) as well as prisoners’ perceptions of offi-
cers (see, for example, James et al., 1997: 121).12 Carrabine quotes a pris-
oner talking about the Strangeways disturbances, for example, who said:
‘There were a lot of officers there who didn’t treat prisoners in a humane
way because they were doing a job on behalf of the victim anyway so they
could justify their behaviour’ (prisoner, in Carrabine, 2004: 113). In con-
trast, officers in privately managed prisons are not public agents and feel no
obligation, conscious or otherwise, to convey a message of punishment.

This is a controversial point but it is worth making, especially in an
increasingly punitive climate, and in the face of the existence of some very
difficult-to-change traditional public sector prisons. We should say a bit
more about the punitive tradition historically associated with public sector
prisons. In order to do this, we look briefly below at the role of the Prison
Officers Association in public sector prisons.

The role of the POA and ‘them or us’ conceptions
of prison life

A distinctive feature of the prison staff culture in some public sector prisons,
perhaps disproportionately in older local prisons, is the ‘them or us’
approach to prison life. We use this term to refer to what some officers see
as a zero-sum game in which every improvement in prisoners’ conditions
(usually initiated by senior managers) is considered to be detrimental to—if
not a direct attack on—the officer and his or her status. Prison officers have
frequently argued that senior managers are more concerned with prisoners
than with officers. This argument, raised as long ago as 1883 before the
Roseberry Committee (Thomas, 1972: 88; Crawley, 2004: 2), assumes that
there is an inherent contradiction between the interests of officers and the
interests of prisoners. It casts the prisoner as evil and the officer as good
(Schrag, 1961), and implies that individuals must choose sides in a battle (see
Becker, 1967). It is possible that the above complaint represents the prob-
lematic relationship between officers and senior managers in the public sec-
tor rather than their relationships with prisoners, but this perception has

Crawley found in her study that in the past assaults by officers on pris-
oners stemmed ‘directly from the (widely shared) staff perceptions of the
time that 1) prisoners in general were “the enemy” and 2) prison was for

Criminology & Criminal Justice 8(3)270

punishment’ (2004: 118). Crawley describes an incident in which an officer
dragged a prisoner down five landings at the end of which he suffered from
a broken shoulder and a broken arm. This hostile and anti-prisoner spirit
by no means represents the views or behaviour of most officers and, as
Crawley notes, today the norm of ‘the prisoner as the enemy’ is less pro-
nounced, but from the point of view of many prisoners it still exists as part
of the legacy of the public sector. One of the explanations prisoners assume
for the lack of respect with which they feel treated, or for punitiveness in
public sector prisons, is one of the unofficial ‘trademarks’ of the public sec-
tor: the Prison Officers Association (the POA). This is why prisoners in pri-
vate prisons talking about their experiences often refer to public sector
prisons they have been in as ‘POA prisons’.

Since its establishment in 1939, POA representatives have been loud and
clear in their resistance to various attempts to improve the life of prisoners.
Stern argues that POA resistance is responsible for the fact that ‘the most
obvious reforms have been so long in coming’ (1993: 64) and similar views
were raised by the former Director General, Derek Lewis (1997; see also
Liebling and Price, 2001). Stern provides important examples of the POA’s
effects on prison life. The POA protested harshly against the abolition of
capital punishment in the 1960s and argued for its restoration in 1980
(Stern, 1993: 67). The POA also objected to the idea of allowing mothers
at women’s prisons to be visited by their children with adult female escorts
(1993: 93). The POA were responsible for encouraging its members to cen-
sor prison mail regardless of security requirements as late as 1993.

In their defence, the POA often argue that prison outsiders have difficulty
understanding how changes in prisoners’ conditions can have dramatic
effects on all aspects of prison life, including officers’ tasks and security con-
cerns. They usually provided detailed explanations as to why each of the
suggested innovations would have a deleterious effect on officers’ lives. For
example, the POA arguments in favour of the death penalty in the past were
based on the assumption that its abolition would remove the last deterrent
against fatal assaults on officers (an offence previously punishable by death).
It would add a class of prisoners to the system—lifers—who would have no
incentive for good behaviour—early release (Thomas, 1972: 200).

Despite these explanations, a hostile attitude towards prisoners lay at the
heart of some of the POA’s historic campaigns. For example, as Stern
reports, in the 1980 TUC congress the POA chairman Colin Steel clarified
that the POA campaign for the restoration of capital punishment did not
stem from any interest of the POA (as he said: ‘there is nothing in it for us’),
‘because there is not a more onerous duty, a worse or more horrifying duty
than sitting on the condemned cell duty’ (1993: 67). The Prison Officer
Magazine—for many years now the official magazine of the POA—was one
of the main sources in which this hostility was most frequently expressed.
The most well-known editor of the magazine in the first half of the 20th
century, before the POA was established, was Hurbert Witchard, writing
under the name E.R. Ramsay (Thomas, 1972: 146). Ramsay was violently

Shefer & Liebling––Prison privatization 271

antagonistic to the Commissioners, Governors and to other senior staff but
‘he was at his most venomous when he wrote about the inmates … He
called them the scum of the earth and a pest to society, gutter snipes and
jeered to governors who were frightened by prisoners’ petitions’ (Thomas,
1972: 147). These attitudes did not change altogether in the years to follow.
A letter sent by an officer in Ranby prison and published by the magazine
in 1988 began: ‘The new hotel, sorry prison, is nearly finished and it’s likely
that by the time these jottings are published the first inmates will have been
issued with the keys to their rooms’ (Stern, 1993: 66).

This spirit did not go unnoticed by prisoners. One prisoner, Tom
Shannon, wrote as follows:

I think the trouble with these old POA members is that years ago … [t]heir
power over cons was tremendous. They are reluctant to let go of these powers.
Since the onset of Maggie Thatcher’s fresh start, when their massive overtime
was taken from them, they have fought against every humanistic change in
the system. In the canteen mentality we are all animals, not worthy of decent

(Shannon and Morgan, 1996: 140–1)

Shannon’s explanation of the hostility of the POA as a reflection of their
frustration following the ‘fresh start’ programme is one of several possibil-
ities (this argument finds some support in the Woolf Report (Home Office,
1991: sec. 13)). Thomas (1972: 147) suggested that the hostility of officers
to prisoners stemmed from the unsolvable role conflict when the Prison
Service expected them to pursue the two contradictory roles of control and
reformative work when the latter came at the expense of the former and
made their life harder. Liebling and Price, on the other hand, suggest that
some of the robustness of prison officer union behaviour may be linked to
the special circumstances of prison officer work. Indeed, the work of a
prison officer is highly complex and can be very stressful. It demands vari-
ous skills (Crawley counts among other skills the ability to serve as a par-
ent, a mentor, a teacher, a social worker, a psychologist, a filing clerk,
a probation officer, a fire fighter, a security guard, a police officer and a
stock controller), and the payment is not high. Their public image is low,
there is a perceived lack of support from senior management (see Home
Office, 1991: sec. 13.8), and officers are working with a population many
of whom have personality disorders and other behavioural problems.
Prisoners are held in prison against their will together with other people
whom they often dislike and fear.

However, all those characteristics of prison work also exist in private
prisons (and certain features, such as pay, are worse). The fact that in the
public sector these frustrations and dissatisfactions can be translated into
punitiveness and hostility against prisoners could be related, in part, to the
feeling described above that the officers hold the power given to them by
the public to punish. There are other possible explanations: the historically
prominent para-military background of some public sector officers, the fact

Criminology & Criminal Justice 8(3)272

that they have been more numerous, the presence among senior managers
of ‘through the ranks’ personnel, with old-fashioned cultural habits, may all
have contributed to the persistence of punitive cultures in some public sector
prisons: ‘Prison officers are our representative. We as citizens, have author-
ized their activities. Their uniform symbolises their representative character
… When a prison officer behaves in this way then his coercive police powers
are justified’ (POA, 1987: sec. 20).

The argument above was intended to support the argument that public
sector prison officers are more accountable to the court. It should also be
acknowledged that the POA have also raised complaints about the unfit
physical conditions of some prisons and have demanded some improvements
for the benefit of the prisoners. They have also demanded that officers
should participate in welfare and rehabilitation practices in prison (Thomas,
1972: 202; POA, 1985, 1987). The main activities of the POA have been in
the field of industrial relations and not in anti-prisoner campaigning
(although, of course, prisoners are often the victims of industrial activities
that were targeted against senior managers, see, for example, Stern, 1993:
70; Rock, 1996: 268). Finally, in recent years the activities of the POA have
become less militaristic and less aggressively anti-prisoner rights.

However, our argument is that the many years of a ‘them or us’ approach
has left a legacy in the public sector that it is not easy to change. Prison offi-
cers in private prisons are not the representatives of citizens and they may
be there only ‘to make business’ (or ‘help their bosses make business’). This
clearly has its dangers. But early findings suggest that in the specific context
of the prison, there is one advantage that has been underestimated, and
which should raise questions about how the power to punish operates in the
public sector. We shall say a few more words about the meaning of those
findings and this explanation in the concluding part of this article.


In this article, we have addressed the issue of staff–prisoner relationships in
prisons, in an attempt to analyse and explain what accounts for the appar-
ently better staff–prisoner relationships in some privately managed prisons.
This attempt still leaves us very far from providing a comprehensive or final
account of the private–public sector debate. The specific dimension of
staff–prisoner relationships warrants further study in a wider range of insti-
tutions and over longer periods of time, to examine the stability and the
cost of such achievements. Other dimensions of prison life (such as safety
and security, and staff well-being) should be evaluated as well (see, for
example, emerging work by McLean and Liebling, 2008; and McLean, in
progress). Furthermore, as noted earlier, if we wish to see the whole picture,
we should remember that there are some ‘less visible instrumental practices
that should be taken into consideration’ (Liebling, 2004: 117), beyond
staff–prisoner relationships in individual establishments. Questions about

Shefer & Liebling––Prison privatization 273

the contribution of privatization to the expansion of imprisonment and the
creation of a penal lobby (see Lilly and Knepper, 1992; Sparks, 1994; but
cf. Harding, 2001), or the possible consequences and meanings of phenom-
ena such as ‘export inmates’, ‘bed renting’, ‘spec prisons’ or threats of sys-
tem takeovers by private companies (Harding, 2001: 278), should all be
considered as part of the private competition debate. So is the possibility
that the international companies who win the contracts to operate private
prisons in the UK will use their good reputation in the UK for a large-scale
involvement in prisons in other parts of the world where regulation and
control of the contractor by the Government are less tight. However, even
if focusing on this narrow dimension fails to reveal much about privatiza-
tion, it has the potential to provide insights into public sector management
of prison life and some of its ills.

One of the prisoners interviewed by James et al. said the following:

I don’t see it as a problem on the privatization side—I see it as the inmates
respecting what they’ve got and appreciating it. It doesn’t matter if it’s run
by a private company or POA, as long as it’s run correctly. Run it fairly, talk-
ing to you as an adult and giving respect and they’ll get it back.

(1997: 82)

This is a desirable vision for the Prison Service to adopt, but until public
sector prisons with traditional cultures are able to abandon many of their
bad habits, it seems that while generating profits from punishment is dan-
gerous, privatization, where carefully controlled, and properly evaluated,
could provide us with an opportunity to be less romantic about public sec-
tor habits, and more circumspect about the dangers of imprisonment more


1 In 2007 one of the authors was awarded an ESRC grant, with Dr Ben
Crewe, to conduct such a study under the title: Values, Practices and
Outcomes in Public and Private Sector Corrections. This study is now
under way.

2 In the UK the findings about cost-effectiveness showed the cost advantages
of the private sector started at 9 to 15 per cent and came down every year
at about 2.5 per cent (Home Affairs Committee, 1997). In the USA, a meta-
analysis showed that cost-effectiveness was determined by age and design
of the facility rather than ownership (Pratt and Maahs, 1999; see also
James et al., 1997: 25).

3 Although not all private prisons produced such results, and some were
worse (see James et al., 1997: 121, 135; NAO, 2003).

4 James et al. (1997) also studied a public prison under new management,
which also provided high ratings of staff–prisoner relationships. Woodhill
prison was newly built, and its new generation management and newly
trained staff were committed to a new ethos. The managerial values

Criminology & Criminal Justice 8(3)274

adopted included ‘competition’. Nevertheless, although the relationships in
this prison were also quite good, they were still rated as less so than in
Wolds, where 64 per cent of the prisoners perceived staff–prisoner relations
as mostly or very good, compared to 52 per cent of the prisoners in
Woodhill (James, 1997: 121). Fifty-four per cent of the prisoners in Wolds
said it was better than other institutions compared with 36 per cent at
Woodhill (James, 1997: 135).

5 The report editors criticized some other aspects of the regime. Among those
were failures to document properly cases of bullying by other prisoners and
concerns about the level of security at nights given the low level of staffing.

6 However, to emphasize the complexity of this subject, and to remind our-
selves that even ‘well-performing’ prisons have their shortcomings and dif-
ficulties, it should be noted that in July 2005, six months after the
inspection took place and a few days before the report was published, two
prisoners were found hanged in this prison (PPRI, 2005b).

7 For example, where scores of ‘3 or above’ are positive, and the public sec-
tor mean for local prisons is around 3.02, staff–prisoner relationships at
Altcourse were rated by prisoners at 3.32. Other private prisons scored
lower, however.

8 One of the outcomes of this tight monitoring was the imposing of very heavy
fines (up to £440,000 in one case) that were deducted from the payments
paid to the private companies running the private prisons whenever they
failed to perform their contractual obligations fully (see Coyle, 2003: foot-
note 22 and the referred text). These monitoring arrangements may of course
be weakened when all prisons operate to Service Level Agreements, requir-
ing monitors to work from Area Offices rather than from establishments.

9 Prisoners referred to this model as the ‘no supervision’ approach at Wolds
during its early years. Likewise, the ‘direct response team’ were referred to by
prisoners as the ‘no response team’. Staffing levels were eventually increased.

10 Currently, some prison officers in the private sector are able to join the
Prison Officers Association (POA). Some companies recognize the POA,
and others do not.

11 There was no club or canteen at Wolds, for example, and officers ate meals
with prisoners.

12 Another indication of the resentment of prisoners to images that are iden-
tified with the public sector is their resentment of the use of uniforms in
Woodhill. According to prisoners, the state uniform was not consistent with
a non-authoritarian philosophy and atmosphere (James et al., 1997: 122).


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GUY SHEFER has an M.Phil. in Criminological Research from the Institute of
Criminology at Cambridge University, where he is currently studying for a
PhD in Criminology.

ALISON LIEBLING is a Professor of Criminology and Criminal Justice at the
University of Cambridge and Director of the Institute of Criminology’s
Prisons Research Centre.

Criminology & Criminal Justice 8(3)278





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