Prisons, Privatization, and the Elusive Employee-Contractor Distinction — Part 3

On Friday, I posted the introduction to my latest paper, Prisons, Privatization, and the Elusive Employee-Contractor Distinction. On Monday, I posted the next section. You can find the whole paper here on SSRN.

A number of issues have come up in the comments, which I think I should bring up into the text here. By the way, thanks to the commenters for showing me where I need to be more explicit about what I’m doing.

In the first place, is this a straw man? No: The arguments I’m presenting are actually advanced by real people in high-profile places, like the Cornell Law Review or the Israeli Supreme Court.

In the second place, what’s the point of such an argument? Surely the main arguments against prison privatization relate to how prisoners are treated. Surely the problem with prison privatization is that private prison companies have an incentive to cut costs in harmful ways. Indeed, these are the main arguments, which are of course empirical. I’m not questioning these arguments in any way here. But these aren’t inherent problems with privatization. They’re problems with the current implementation of privatization. Perhaps contracts can be written in a better way — for instance, how about paying companies inversely with recidivism or post-release employment rather than per diem? What if we invested in massively more and better monitoring? Etc., etc. We can argue about this — maybe these suggestions are kind of pie-in-the-sky — but what these empirical arguments show is that the argument is necessary. We can’t just dismiss them.

Basically, arguments against the current state of prison privatization are merely arguments for reform, not for abolition, unless you also argue that the problems you raise are unlikely to be solvable. And even if the ultimate conclusion is that prison privatization should be abolished, it will be because of a sophisticated analysis using arguments about how different types of contracts produce different actions. It’s far removed from the sort of metaphysical arguments I’m dealing with. I’ll repeat: if you oppose prison privatization for any of the “real-world” reasons I’ve mentioned above, I have no quarrel with you. In fact, I explicitly concede the validity of all these arguments for the purposes of the article (though, outside of this article, we can surely debate them).

But now, let’s go on, with the “moral burdens” argument against privatization.

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But can we develop a theory that would ascribe significance to the private nature of the actor as such, even if legality and accountability are taken care of? One possibility would be a novel theory against privatizing the infliction of criminal sanctions, pioneered by Alon Harel, both alone and co-authoring with Ariel Porat: an “argument from moral burdens.”

This theory applies both to the delegation of punishment to independent private actors, as is the case with “shaming punishments,” and to the delegation of punishment (and other applications of force) to corporations by contract, as is the case with private probation service providers and private prisons. However—at least as applied to contracting out—the moral burdens argument turns out to be unable to adequately distinguish between public employees and private contractors.

Suppose the state (by whatever means) convicts a criminal defendant and determines his proper sentence. Now suppose the state asks me—some random person off the street—to inflict the sanction. May I do so?

Harel and Porat argue that I can’t morally inflict the sanction without making an independent judgment as to whether this convicted defendant deserves the punishment I’m about to mete out. (This is the “moral burden” that gives the argument its name.) I shouldn’t just trust the state’s judgment—“such trust could never be justified.” But once I’ve made my own decision and inflicted the punishment, the punishment has now been privately inflicted because of a private exercise of judgment; I’m morally responsible for it; it is “at least partially a private act.”It no longer counts as criminal punishment; in particular, because of social-contract considerations, “[i]t is demeaning to subject a person to the normative judgment of another citizen rather than to the normative judgment of the state.”

“To the extent that criminal sanctions for violating state-issued prohibitions are justified, they therefore have to be inflicted by the same agent who issues the prohibitions.”Or, in another formulation: “In order to count as an execution of a sanction whose nature and severity is determined by the state (rather than merely a sanction whose severity happens to converge with the state’s decision), it ought to be inflicted by public officials rather than private contractors or, more generally, by individuals who satisfy some formal requirements that affiliate them with the state.”

Harel and Porat thus draw a strong distinction between the duties of the citizen, who has to exercise his independent judgment, and those of the “official”—“[a] judge, a prison guard or even an executioner”—who, within boundaries, is “entitled to rely on the state’s judgments concerning the appropriateness of the sanctions,” and, indeed, must “perform [his] task irrespective of his private convictions” and “obey blindly . . . the orders of the state.”

All this raises the following questions. First, if the person who inflicts the punishment must be the same agent who issued the prohibition, virtually all punishment is immoral: prohibitions are issued by legislators, who aren’t the same people as prison guards and executioners. Even if we characterized the issuer of the prohibition as Congress, usually it’s not Congress that locks people up. (Indeed, American federal constitutional doctrine takes it as given that the executive branch exercises delegated power.)

So, when we say sanctions must be inflicted by the same agent that issues the prohibition, we mean it’s the government as a whole that must lock people up. But, as we’ve seen, the government can only act through agents. Harel and Porat recognize as much when they insist on “individuals who satisfy some formal requirements that affiliate them with the state.”

But then why can’t the “formal requirements that affiliate [someone] with the state” include a prison-management contract? Since public prison guards are also private individuals until they sign an employment contract, why is one contract better than another?

The next question follows directly: if public prison guards undergo a magic transformation that entitles them to suspend their personal moral judgment as to whether particular inmates deserve what they’re getting, why can’t the state work the same magic on a private prison firm and its employees? Or, conversely, perhaps all this has now established a duty of independent moral judgment for everyone, including public employees, thus making public punishment equally a “private act”?

Harel and Porat recognize this concern, and explain why public employees have no such duty of independent moral judgment. They distinguish between “justifying a practice and justifying a particular action falling under it.”One may become a public executioner if, in one’s judgment, the position “is desirable from a moral point view, i.e., it promotes the public good, and consequently, it is morally permissible to perform it.”But once one has accepted the position, one should obey any orders that are “within the scope of [the] office.” There are constraints on the public executioner’s obedience, but these are “much less restrictive than the constraints on the obedience of a private individual.”

Harel and Porat’s view that certain functions require putting one’s full independent moral judgment on hold—deferring to someone else’s judgment as long as the position itself is justifiable—is surely sound. Still unexplained, however, is why one can’t sign up for such a position as a contractor as opposed to an employee. If a public warden can legitimately accept prisoners whose crimes he hasn’t examined, and if he can legitimately hire public prison guards who can legitimately discipline prisoners whose crimes they haven’t examined, why can’t Corrections Corporation of America and its employees do the same?