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Currently throughout England and Wales, there is a total of 117 prisons. 104 of those are owned publically, the remaining 13, owned privately. The aim of this case study is to determine whether punishment should remain a government duty. To do this, the study will be based on whether the privatisation of prisons is beneficial to the criminal justice system, by comparing the pros and cons of the privatisation of prison systems.
The privatisation of prisons is when the government aligns in contract with a non-government third party to supervise and manage the prison. Due to the high costs of running and maintaining prisons, governments are turning to the private sector. Privatisation is a fast-coming movement throughout the criminal justice system and mainly in the prison system.
Due to the emergence of the New Public Management (NPM) reforms in the 1980’s, there was a rise in interest for private management and ownership amongst all public services. During this time, privatisation of prisons was used in a bid to contain the rising service costs and to tackle the issue of overcrowding. This may give an insight as to why over the past few decades there has been a dramatic increase in private prisons. Mennicken (2013), stated that since the 1980’s the Prison Service of England and Wales has launched a regime to revamp prisons, for it to reach its pinnacle. In way of doing so was the privatisation on prisons. In 1991 the Criminal Justice Act was passed, allowing the government to contract out prisons to the private sector. The first private prison in England opened in April 1992, named Wolds Remand Prison. The purpose of this prison was to determine whether the private sector could make improvements to the conditions for prisoners, mainly those on remand.
Although, there is an urge to privatise public services, governments must think critically whether this will provide better quality and be more beneficial to the public service. Despite the privatisation of prisons having many favourable reports, there has been some controversy. Some raised concern and argued that because punishment is one of the main functions of government, it should only be executed by government agencies.
Private prisons do not abide by the same regulations as public prisons. In respect, private prisons are exonerated from the conditions put in place by the Freedom of Information Act (2000), which state that the public has a lawful right to obtain documents from public agencies (Vilher, 2017).
Public and private prisons have copious sectors in which they can be compared and contrasted, including; legitimacy and their structure of accountability, standards and conditions, cost evaluation and performance measurement. It is also important and beneficial within this case study to consider ideological and theoretical concerns, in particular, motivation and morality. This study will establish a critical analysis of the advantages and disadvantages of privatisation of prisons within the prison system by raising information in the relevant areas. This critical analysis which will be portraying both the advantages and disadvantages, endeavours to conclude how effective the privatisation of the prison service has been in England and Wales.
Genders (2002) stated that, the privatisation of prisons had been opposed for a vast majority of reasons, including the constitutional argument that the state should have the duty of enforcing punishment and should not be entrusted to private parties. During the first debates of the privatisation of prisons Sir Leon Rodzinawicz made the following statement, ‘It is one thing for private companies to provide services for the prison system but it is an altogether different matter for bodies whose motivation is primarily commercial to have coercive powers over prisoners’. Sparks (1994), Harding (1997) and Moyle (2001), argued that Rodzinawicz’s statement lacked value as it does not identify the difference between the distribution of punishment and its administration. They argued further that, with or without privatisation, responsibility still lies with the independent judiciary and secondly with the executive. Consequently, although the executive might delegate tasks, it must be accepted that the state is still responsible or how these tasks are achieved by the representative and that they are completed to the correct standard. However, the state can never be entirely accountable for the running of privatised prisons, which led to Genders (2002), illustrating concern for the accountability and legitimacy in private prisons.
Garland (2001), explained that new public management was effective and a great value for money, ‘on the use of ‘portable, multi-purpose’ techniques for accountability and evaluation’. Developments in public prisons were introduced in the form of mechanisms to establish and evaluate performance, such mechanisms were; Key Performance Targets, Key Performance Indicators and the Model Regime (Genders, 2002). However, the government also recognised that in regards to the privatised prisons, there must also be mechanisms in place to ensure the accountability of the public sector, such as contracts.
Due to the understanding that the state can never be held fully accountable for the running of privatised prisons, there are multiple regulations in place which are designed to hold private organisations to account. Genders (2002) confirms that there is constant monitoring of the services provided by private organisations, therefore recognising some level of accountability. In order to contain control over private prisons, the state issued a contractual agreement to secure accountability. Genders (2002) further states that these contracts designed by the state regulated standards to be upheld and expectations met, which left limited space for independent objectives from the private organisations which were in control. Privatised prisons are accountable for upholding these contracts and if breached, the consequences are serious. Penalties such as, fines, loss of contract and returning to the public sector, are the usual outcomes for breach of contract. Due to the severity of these penalties, private sectors are compliant with the contracts, ensuring accountability to the state. Genders (2002) contends that, the contractual policy in place is efficient in maintaining a higher level of accountability within the private sector in comparison to the public sector.
In order to monitor privatised prisons in regards to their performance, contractual agreement and their accountability, Liebling and Crewe (2012) highlight that there is a state appointed controller in each privatised prison. However, due to the fact that it is physically impossible to monitor every area in the prison at all times, some circumstances might allow for discretion when public prisons have to make choices without the backing of the state. Therefore, it can be argued that the accountability is discredited.
Private and public prisons are regulated within the same legal framework ‘The Prisons Act 1952’, therefore we have to acknowledge that both are held to the same legal obligations. In addition, it can be appreciated that private sectors which are in operation of prisons are held accountable throughout evaluation and multiple other mechanisms. However, it is to question how effective these mechanisms are.
According to Pollock (1994), ‘what is good is determined by the consequences of the action’. Ergo, (Shichor, 1998, p. 83) states, that the concept behind privatised prisons is that if the prisons will be constructed quicker and penal expenses lessened, ‘then the public will be served good’. However, the privatisation of prisons has encountered multiple objections to its moral legitimacy (Burkhardt, 2014). Many critics dispute that imprisonment is solely the government’s responsibility and that it should not be entrusted to the private sector. Other critics argue that private prisons will face scrutiny and viewed differently to public prisons, resulting in individuals having little respect for the legal system. To argue further, it has been said that the motive to make profit is incongruous with justice.
The fundamental basis for the argument against privatisation is that punishment is, and should remain, a state duty; this is particularly relevant when considering imprisonment as punishment as this involves the deprivation of liberty. Advocates of state control would assert that the private sector is not suitable to carry out this role, and that the very act of contracting these duties away from the state is immoral. This argument of immorality is extended further when considering the fact that profit is made from the operation of private prisons; the general consensus amongst critics of privatisation is that these private companies are ‘morally repugnant’, due to the fact that they are making profit in accordance with the pain delivered in the form of punishment. These critical moral arguments build a strong case against privatisation on the grounds that it is not ethically sound to be profiting from a role which is inherently and fundamentally providing a public service
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