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Capital and punishment: The privatization of prisons in America

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Capital and punishment: The privatization of prisons in America

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Content INFORMATION TO USERS This manuscript has been reproduced from the microfilm master. UMI films the text directly from the original or copy submitted. Thus, some thesis and dissertation copies are in typewriter face, while others may be from any type of computer printer. The quality of this reproduction is dependent upon the quality of th e copy submitted. Broken or indistinct print, colored or poor quality illustrations and photographs, print bleedthrough, substandard margins, and improper alignment can adversely affect reproduction. In the unlikely event that the author did not send UM I a complete manuscript and there are missing pages, these w ill be noted. Also, if unauthorized copyright material had to be removed, a note will indicate the deletion. Oversize materials (e.g., maps, drawings, charts) are reproduced by sectioning the original, beginning at the upper left-hand comer and continuing from left to right in equal sections with small overlaps. ProQuest Information and Learning 300 North Zeeb Road, Ann Arbor, M l 48106-1346 USA 800-521-0600 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. CAPITAL AND PUNISHMENT: THE PRIVATIZATION OF PRISONS IN AMERICA by Ruth Cecire A Dissertation Presented to the FACULTY OF THE GRADUATE SCHOOL UNIVERSITY OF SOUTHERN CALIFORNIA In Partial Fulfillment of the Requirements for the Degree DOCTOR OF PHILOSOPHY (RELIGION AND SOCIAL ETHICS) May 2002 Copyright 2002 Ruth Cecire Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. UMI Number: 3073757 ___ ® UMI UMI Microform 3073757 Copyright 2003 by ProQuest Information and Learning Company. All rights reserved. This microform edition is protected against unauthorized copying under Title 17, United States Code. ProQuest Information and Learning Company 300 North Zeeb Road P.O. Box 1346 Ann Arbor, Ml 48106-1346 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. UNIVERSITY OF SOUTHERN CALIFORNIA The Graduate School University Park LOS ANGELES, CALIFORNIA 90089^1695 This dissertation, w ritten b y Ruth C e c ir e ______________________________ Under th e direction o f h ..& x . D issertation Committee, and approved b y a il its members, has been presen ted to and accepted b y The Graduate School, in p a rtia l fulfillm ent o f requirem ents fo r th e degree o f DOCTOR OF PHILOSOPHY D ate M A Y 10, 2002 DISSER T A T IO N CO M M i Chairperson t Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Ruth Cecire Donald Miller, Ph.D. ABSTRACT CAPITAL AND PUNISHMENT: THE PRIVATIZATION OF PRISONS IN AMERICA Delineating the sacred from the profane, punishment practices provide a critical hermeneutic. Using correctional privatization as key social marker, this dissertation focuses on the implications and impact of profit on penal arrangements. Linking punitiveness to privatization, it argues that the capitalist drive to expand and extend markets fuels an increasingly severe sentencing structure and emboldens coercive institutional proclivities. This dissertation offers an ethically framed deconstruction of the political, economic, social and cultural forces that have informed privatization’s recent re- emergence. Chapter 1 presents an historic synopsis of the money/punishment amalgam, traces the experience of key stakeholders, CCA and Wackenhut, and presents a precis of present policy and research issues. Chapter 2 examines the policy in light of the new global economy. It traces the relationship between the diminution of state-based legitimative clout and the privatization of correctional facilities. By repositioning seemingly intractable governance issues within the more fashionable discourse of efficient management, privatization offers the illusion of downsizing while functioning to increase the state’s punitive reach. The prison industrial complex has proffered prisons as an 1 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. economic solution to a range of socio-political problems, including the need for rural development and the question of what to do with economically unproductive populations. Chapter 3 discusses the symbolic and concrete ramifications of public/private divide. It asks whether a greater reliance on the “private” privileges the emotive and the vengeful at the expense o f the considered and the just. At the same time, it examines whether the singular, uncompetitive features of the corrections industry are amenable to market place discipline. Chapter 4 traces the relationship between an exaggerated piety, a veneration for business acumen and the privatization movement. It suggests the importance of our Puritan, Social Darwinian legacy. Proffering penal expansion as counterpoint to a fragmented, postmodern polity. Chapter 5 examines the structural etiology and ramifications of an ever more punitive sentencing structure. Chapter 6 concludes that privatization fails to meet a spectrum of ethical tenets. Essentially neutral to normative mandates, beneficent, non-maleficent obligations are extrinsic to privatization’s profit-focused objectives. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. DEDICATION To Haywood for his commitment to enacting justice in this world, for the inspiration of his life To Nicole for her very being and the abundance of her love Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. ACKNOWLEDGEMENTS I would like to thank Professors Don Miller, William May and Jack Crossley for their wisdom, guidance, patience and compassion. The challenges of my post mid-life academic return were facilitated by their concern; my doctoral studies proved intensely rewarding because of the intellectual stimulation they provided. In particular, I want to express my gratitude to Professor Miller for his excellent stewardship of my dissertation and for his personal and professional support. My appreciation also extends to Professor Juliet Musso for her thoughtful input and friendship. And, finally, I am indebted to Judith Greene for her generous assistance on this project. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. TABLE OF CONTENTS DEDICATION .................................................................................................. ii ACKNOWLEDGEMENTS................................................................................. iii Chapter I. CAPITAL AND PUNISHMENT: FROM THE ENGLISH GAOL TO THE PRISON INDUSTRIAL COMPLEX.................................... 1 II. THE ASCENDANT LENS: ECONOMIC AND POLITICAL REPERCUSSIONS............................................................................... 63 III. GOVERNANCE AND/OR MANAGEMENT: A SINGULARLY AMERICAN PERSPECTIVE............................................................... 129 IV. A QUESTION OF CULTURE: PIETY AND PAIN............................ 178 V. SOLIDARITY: SOCIAL ARRANGEMENTS AND INSTITUTIONAL IMPLICATIONS .................................................. 231 VI. A PHILOSOPHICAL VIEW: PRINCIPLES AND UTILITY ........... 280 VII. CONCLUDING SUMMARY AND RECOMMENDATIONS ......... 321 SELECTED BIBLIOGRAPHY........................................................................... 334 iv Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. CHAPTER I CAPITAL AND PUNISHMENT: FROM THE ENGLISH GAOL TO THE PRISON INDUSTRIAL COMPLEX “The question at issue was not whether the user should be punished— a point to which there was only one opinion—but who should have the lucrative business of punishing him.”1 Capital + Punishment Anglo-American criminal justice history has been shaped, in large measure, by the interface o f capital and punishment. In an attempt to concretize harms and assess the indefinable, money has been employed both as a medium of calculation, a form of punishment, and as compensation for harms done. It has also been employed as a means to elude and/or moderate a contemplated punishment, i.e., to deter harms to be done. For-profit penal management has, in fact, been characteristic of the Anglo-American correctional tradition; profits have been additionally extracted from out-sourced penal labor, from penal industries and from prisoners, themselves, in the form of user-fees. Money has further served as recompense and/or as additional 'R. H. Tawney, Religion and the Rise of Capitalism (New York: Harcourt Brace & World, Inc., 1926)51. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. harm; it has been rationalized, when necessary, as “punitive damages,” for social “pain and suffering.” And, perhaps, most tellingly, an offender’s lack of money has been inversely related to the punitiveness of his/her ultimate penalty. Ergo money has served to both inform and obscure considerations of justice. This dissertation is an investigation regarding the meanings of this interface. Approaching punishment from a Durkheimian perspective, both as an interpretive key to a larger cultural text and as a “tangible example of the collective conscience at work,”2 this dissertation will explore the current correctional privatization movement from an historical, social, cultural, psychological, economic, and political perspective. Assuming an unmistakable pathway from the fueling of punitive predilections to a burgeoning prison population, from ever more stringent sentencing mandates to the proffered privatization alternative, criminal justice policy will be deconstructed and examined through an array of disparate lens. Inasmuch as punishment suggests a delineation of society’s moral boundaries, it is crucial to review its normative charge in light o f privatization’s reconfigured tele. History Sociobiologists Martin Daly and Margo Wilson trace this capital/punishment nexus to the 7th Century; the earliest known English legal recordings were “almost entirely concerned with the specification of monetary compensations for various 2David Garland, Punishment and Modem Society (Chicago: U of Chicago P, 1990) 23. 2 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. wrongs.”3 For example, “wergild” translated as “blood money” was to be paid to a homicide victim’s family. Offered as symbolic recompense, the practice appeared to satisfy retributive needs. Absent payment, revenge killing was, in certain circumstances, sanctioned. It was only in the 11th Century, after the Norman conquest, that private revenge was outlawed; considerations of justice were moved from the private to the public domain as an ancillary outcome of an increasingly centralized, royal, power base. Personal violence, notwithstanding historic internecine volatility, was recast as “offenses against the crown.”4 Nevertheless, money continued to be a key hermeneutic through which punishment was understood and effected. Punishment methods, even those that appeared class-neutral, were, in their implementation, class dependent; as Peter Spierenburg notes, “just as banishment (in early modem Europe) had no great effect on vagrants, so fines could not be collected from the poor.”5 Thus a schedule of fines linked to specific offenses emerged, in reality, as a wealthy-only related option. Presaging extant privatization activities, many 14-16th Century English jails were, in effect, royal franchises. Profits were dependent on maximizing the differential between prisoner upkeep costs and the “fees” collected from imprisoned residents. Evidencing public financing’s relatively recent vintage, jailers, even up 3 Martin Daly and Margo Wilson. Homicide (New York: Aldine de Gruyter, 1988) 241. 4 DaIy and Wilson, 241-42. 5 Peter Spierenburg, “The Body and the State,” The Oxford History of the Prison, eds. Norval Morris and David J. Rothman (New York: Oxford UP, 1995) 57. 3 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. through the 18th Century, were perceived as only one more local functionary who— much like sheriffs, tax collectors, and/or coroners—were dependent on user- fees for compensation. Fees were manifold; they ranged from admission and discharge fees, to fees for services such as ironing, to fees related to the provision of daily necessities such as water, food and lodging.6 The idea that wrong doers should further deplete communal resources via costly upkeep expenditures was a clearly unacceptable social notion. Replicating this fee-for-service paradigm, accommodations were variously priced and allocated based on an inmate’s ability to pay. Reports differ as to the extent of the disparity, but suffice it to say that the affluent inmate was assigned marginally better, to relatively comfortable, accommodations. Describing the possibilities, McConville writes that dwellings could “range from a vermin-infested cellar (for the impoverished) to a room in the keeper’s house.”7 Since prisoners were largely responsible for covering costs of their upkeep, their release was contingent upon payment of all outstanding bills. The very poorest prisoners relied on begging through jail gates, prostitution, and /or private charity donations to assist them in covering maintenance costs. Absent support, or comely attributes, many inmates died of either starvation or disease.8 It was not until 6 Sean McConville, “The Victorian Prison: England, 1865-1965," The Oxford History of the Prison, eds. Norval Mom's and David J. Rothman (New York: Oxford UP, 1995) 269. 7 McConviIIe, “The Victorian Prison” 269. 'McConville, “The Victorian Prison” 270; Edward M. Peters, “Prison Before the Prison: The Ancient and Medieval Worlds,” The Oxford History of the Prison, eds. Norval Morris and David J. Rothman (New York: Oxford UP, 1995) 31-32. 4 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. the implementation of Elizabeth Ps Poor Law, at the end of the 16th Century, that minimal public aid provided some relief. Even though jail management was considered an exceedingly profitable enterprise, some jailers were moved to add to their coffers by providing such additional luxury items as prostitutes. Often crossing the fine line between fee- taking and extortion, between legal and illegal activities, many big-city jailers became entrenched in the “economy of crime.” Motivated by the drive to enhance profitability, jailers went to considerable lengths, even filing false charges, to “replenish” the enterprise’s supply of so-called, inmate “raw goods.”9 Some of these same issues have resurfaced as concerns and/or allegations within the current privatization debate. During the 17-1 ^-Century expanse, a decrease in the reliance on physical sanctions paralleled the growth o f the workhouse as a punitive option. Short-term pre-trial detention facilities had not, up to that point, been associated with expectations of hard labor and/or penal discipline. For example, some inmates who had been cobblers or tailors prior to their detention were able to support themselves by plying their trades while incarcerated. (Up until the 1850's the average length of stay in English prisons was 6 months or less; as three years was the maximum sentence imposed, 10 years was considered “worse than death.”1 0 ) Thereafter, ’McConville,“The Victorian Prison” 270. l0 Michael IgnatiefT, A Just Measure of Pain: The Penitentiary in the Industrial Revolution: 1750-1850 (New York: Columbia UP, ss, 1978) 200-01. 5 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. however, the loss of liberty was increasingly accompanied by some form of coerced labor (e.g., galleys, public works, forced labor and/or transportation). Fueled by changing perceptions regarding the “worthy” and “unworthy” poor, the use of imprisonment, in particular, was informed by a desire to instill morality— specifically the hard work morality of the Protestant Ethic. As Spirenburg suggests, the fact that imprisonment spans “more than a single moment in time” implied a commitment to “improving” the populace and a hope that a longer-term effort would yield a rectified offender." Prior to 1500 society had evidenced a more accepting, even venerating attitude toward the poor. Afterwards, poverty and/or idleness were perceived as destabilizing forces; only the “deserving” disabled or aged were deemed exempt from work mandates. Thus, Spirenburg concludes, imprisonment was, from its inception, conceived as a “disciplinary institution” shaped, not by crime and its remediation, but by social efforts to cope with the “problems of poverty and marginality.”1 2 It was above all, according to Ignatieff, “a system of authority and a machine for the remaking of men.”1 3 Philosophically, coerced labor could thus be reframed, its economic benefits subsumed, within a socially righteous, disciplinary stance. Workhouses or houses of correction, which first emerged in the 16th Century, gradually gained acceptance throughout northwestern Europe as centers of production. In Holland, for example, "Spierenburg, “The Body and the State” 58. "Spierenburg, “The Body and the State” 59. "Ignatieff, A Just Measure of Pain 79. 6 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. privately contracted convict labor was used to manufacture needed dyes for a thriving textile industry.1 4 Profits from inmate work were used to offset the costs of confinement. In individual instances, if earnings exceeded costs, an inmate might realize some personal income.ls In other parts of Europe, jail contractors made deals with local businessmen to support a range of burgeoning industries. While high turnover and relatively low productivity undermined ultimate profitability, these initiatives, nevertheless, imparted invaluable manufacturing lessons; according to Michael Ignatieff, they, in effect, served as early factory prototypes.1 6 Similarly, transportation—reflecting the new economic, mercantile priorities—served as exemplar of administrative “reliance on private enterprise to effect public policy. . . allow(ing) the state to sanction thousands o f felons at little or no public cost [while] providing] handsome returns to entrepreneurs.”1 7 The American colonial experience paralleled the trajectory of its European forbearers. Starting from a localized system of victim financed and generated prosecutions, America mirrored Europe in responding to 19th Century Enlightenment-informed social responsibility/compact views; shifting from a private to a publicly framed criminal justice hermeneutic, the commonweal replaced the 1 4 David Shichor, Punishment for Profit (Thousand Oaks: Sage Publications, 1995) 23-24. ,5A. M. Durham III, “Origins of Interest in the Privatization of Punishment: The Nineteenth and Twentieth Century American Experience,” Criminology 27 (1989): 110. 1 6 Ignatieff, A Just Measure of Pain 32. ,7Malcolm M. Feeley, “The Privatization o f Prisons in Historical Perspective,” The Philosophy and Practice of Corrections, eds. Marilyn McShane and Frank P. Williams (New York: Garland Publishing Company, 1997) 135. 7 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. victim as the injured juridical party. Colonial America also became the repository for approximately 50,000 transported felons whose release from old-world confinement was contingent on being “sold into servitude.”1 8 As a result of this bequest, America grew to appreciate the commercial possibilities of a criminalized and/or enslaved underclass. In addition to shaming, banishment, and the extensively employed gallows, the predominant punitive colonial options were whippings, primarily sanctioned for servants and slaves, and fines, the penalty of choice for more affluent citizens; jails were utilized, with few exceptions, as pre-trial detention facilities. Upon occasion, if the offender could not pay an imposed fine an additional confinement might be imposed. While predominantly government financed, many jails were nonetheless contracted-out and privately managed. Local jailers, who often doubled as sheriffs, submitted bills for specific items related to inmate confinement and care. Typically overcrowded, jailers thought nothing of mixing women and children with “hardened criminals”; rampant financial abuses were the presumed norm. The more affluent prisoners were, however, able to purchase food, whisky and other privileges,1 9 as it l8James Austin and Garry Coventry, “Are we Better Off? Comparing Private and Public Prisons in the United States.” Current Issues in Criminal Justice 11.2 (November 1999): 180. ,9Lawrence Friedman, Crime and Punishment in American History (New York: Harper Collins, 1993) 37; Shichor. Punishment for Profit 25-26. 8 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. was “widely accepted that jailers could charge additional money for virtually any type of special benefit.”2 0 Proffered as an alternative to the increasingly disparaged, mother-country imported, over-reliance on capital punishment, prisons qua punishment— penitentiaries built not for short-term and/or pre-trial detention but for the purpose of long-term confinement—emerged as a post-independence, criminal justice initiative. While prior to independence recidivists could, for even minor offenses, be sentenced to death, by 1820 almost all the states had drastically reduced the number of capital crimes to only the most serious offenses, e.g., first-degree murder.2 1 Absent any discemable deterrent impact on crime, late 18th Century jails were perceived as failing to effect fundamental social order and stability; riots and escapes were commonplace. Hence, Jacksonian reformers sought to impose a new disciplinary paradigm on a system in disarray. An apprehensive era, the early 19th Century was awash with foreboding. Anxieties centered on a perceived diminution of familial and institutional authority, an assumed connection between greater societal openness and increased social depravity, and on the effects of industrialization. Responding to this social unease, reformers reconfigured prisons into rehabilitative institutions that “would teach inmates the lessons of order and discipline . . . transform[ing] the deviant into a law- 2 0 C. A. Cripe, Legal Aspects of Correctional Management (Gaithersburg: Aspen Publications, 1997)378. 2 1 David J. Rothman, “Perfecting the Prison: United States, 1789-1865,” The Oxford History of the Prison, eds. Norval Morris and David J. Rothman (New York: Oxford UP, 1995) 102-03. 9 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. abiding citizen.2 2 An ancillary interpretation maintains that prisons served industrial aims by securing working-class compliance via the segregation of potentially “disruptive elements.” Reflecting a reformist/entrepreneurial nexus (i.e., David Rothman’s renowned “marriage o f conscience and convenience”), Feeley suggests that privately contracted penal operations gained favor as a more compassionate and cost-effective way of expanding the state’s punitive reach.2 3 Subsequently, 19th Century penal policy, at least north of the Mason-Dixon line, manifest two predominant models—the Quaker-engendered Pennsylvania model and New York’s Auburn system. The Walnut Street Jail, the Pennsylvania prototype, was distinguished by pervasive isolation and an imposed silence; all inmates convicted of felonies were housed in its solitary unit. Alone in their cells with nothing but a bible, shielded from possible inter-inmate “contamination,” inmates were encouraged to reflect on their misdeeds. Informed by an often brutally- secured discipline and regimentation, prisons exacted what reformers believed to be a remedial, socially desirable, obedience. Work was perceived as redemptive. It offered a more humane, morally acceptable, alternative to physical punishment and/or execution theater. Eventually, however, even prisoners held in isolation were ultimately given spinning work, since, absent any activities, many isolated prisoners “ Rothman, “Perfecting the Prison” 104-05. “ Feeley, The Philosophy and Practice of Corrections 136. 10 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. suffered severe mental deterioration. All work was paid at, or close to, market value; individual inmate upkeep was deducted from wages.2 4 A similar economic system prevailed in New York, both in the Newgate prison established in 1797 and the prototypic Auburn prison founded in 1819. The proceeds from Newgate inmates’ work was used to cover all aspects of their care, and, absent a record of trouble making, inmates received a “share of the profits they helped to earn” upon release. A more difficult code of silence was established at Auburn. Known as the “congregate system” inmates were only secluded in their sleeping arrangements; during the day they were mandated never to speak, despite the fact that they worked and ate together.2 5 Understandably, this proved difficult to sustain. As a result, in efforts to secure its implementation, correctional corporal brutality qua rehabilitative management, became pervasive.2 6 Yet the so-called Auburn model, venerated for the ease of its acclimation to concepts of factory discipline and mass production, was replicated in the majority of American prisons as well as being admired and copied in Europe. Financially successful, Auburn did not drain state resources. On the contrary as manufacturing profits from such items as footwear, clothing, carpets, barrels, and furniture exceeded institutional expenses, government revenue was generated. The 2 4 Shichor, Punishment for Profit 27; O. F. Lewis, The Development of American Prisons and Prison Customs. 1776-1845 (Montclair: Patterson Smith, 1967)47. 2 5 W. D. Lewis, From Newgate to Dannemora (Ithaca: Cornell UP, 1965) 57. “ Rothman, “Perfecting the Prison” 109. 11 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. system was, however, rife for abuse. The awarding of contracts most often necessitated official payoffs; efforts to extract ever-greater profits resulted in inmates being housed in ever-smaller spaces and fed an exceedingly minimum diet.2 7 In 1825, Kentucky became the first state to “privatize” and/or contract out their prison system. The legislature, overwhelmed by penal costs and inefficiencies, contracted with a private entrepreneur to “clothe, house and feed the prisoners, maintain the building and pay the state $100, plus one-half of his net profits.”2 8 Earnings were dependent on the amount of labor extracted from the prisoners. Despite being adjudged a success, legislation terminating the arrangement was enacted in 1880, spurred by community protests over “unfair competition.” In the 1850’ s, California’s San Quentin facility was both built and managed by a private contractor. However, a series of scandals precipitated its extraction from private hands; unfortunately its fortunes did not improve as the abuse continued under public auspices. As Lamott reports, “the change was more a matter of style than substance. The prison remained a rich piece of political spoils, but the looting was now carried on more in line with the ancient traditions of American state politics.”2 9 Convict labor was also used to mine coal in Tennessee, to build railroads, and in cottage manufacturing. 2 7 Shichor, Punishment for Profit 28-32. 2 8 Feeley, “The Privatization of Prisons in Historical Perspective” 137. 2 9 K. Lamott, Chronicles of San Quentin: The Biography of a Prison (New York: David McKay Company, 1961) 74-78. 12 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. The post-Civil War southern convict leasing system provided a particularly southern twist on penal economic productivity. Citing the 13th Amendment’s stipulation that “neither slavery nor involuntary servitude, except as a punishment for a crime, whereof the party shall have been duly convicted, shall exist within the Unites States, or anyplace subject to their jurisdiction,” Angela Davis argues that this singular disciplinary caveat served to bolster a constitutionally sanctioned enslavement in perpetuity via the formulation of the criminal code. Replacing the privately administered Slave codes with the publicly legislated, nevertheless racialized, so-called Black Codes “... meant that, according to state law, there were crimes . . . (i.e., vagrancy), for which only black people could be ‘duly convicted.’”3 0 Used to “re-establish control over southern black labor,”3 1 the post-Civil War convict leasing system resulted in a 9-1 black/white inmate population ratio. Between 1874- 77, for example, an almost totally black infused incarceration boom resulted in a tripling of Alabama’s prison population. The southern penal system was ultimately an extension of its labor intensive, previously slave dominated, economy. Part of a post-Civil War economy that included tenant farming, sharecropping and peonage, convict leasing provided a steady stream of cheap labor. Southern convicts, leased to private entrepreneurs, worked on brutally monitored chain-gangs in deplorable conditions. As replacement 3 0 Angela Y. Davis, “From the Prison of Slavery to the Slavery of Prison: Frederick Douglass and the Convict Lease System” in The Angela Y. Davis Reader ed. Joy James (Malden: Blackwell Publishers, Ltd., 1998) 76. 3lDavis, “From the Prison o f Slavery to the Slaver of Prison” 79. 13 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. workers were easily obtained, soaring mortality rates did little to change prevailing practices. Thus, the statistics that emerged from the building of the Greenwood and August Railroad between 1877-1880 were rather commonplace; approximately 45% of the 285 convicts appropriated for the railroad’s construction died.3 2 Given these conditions, some states responded by maintaining white convicts in penitentiaries and sending only black convicts to labor camps. David Oshinsky writes: From its beginnings in Mississippi in the late 1860's until its abolition in Alabama in the late 1920's, convict leasing would serve to undermine legal equality, harden racial stereotypes, spur industrial development, intimidate free workers, and breed open contempt for the law. It would turn a few men into millionaires and crush thousands of ordinary lives.3 3 The state did not direct the leasing activity, it merely “mediated” the contract. Once signed, the state’s interest was seemingly exhausted by the benefits of the financial transaction. Foreshadowing future events, the first Alabama prison, having incurred extensive debt in the five years of its operation, was leased to a private individual for six years. Laying claim to all profits engendered by the convicts’ labor, the entrepreneur CEO assumed the duties of warden in 1840.3 4 As the post- Civil War leasing system expanded, states’ appetite for profits informed a series of laws authorizing public officials to maximize inmate labor profits. This legitimated 3 2 L. Friedman, Crime and Punishment in American History 95. 3 3 David Oshinsky, Worse than Slavery: Parchman Farm and the Ordeal of Jim Crow Justice (New York: The Free Press, 1996) 56. 3 4 Matthew J. Mancini, One Dies. Get Another Convict Leasing in the American South, i 866- 1928 (Columbia: U of South Carolina P, 1966) 99-100. 14 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. push for profits endangered inmates’ lives. Statistics that emerged from Texas’ privatized penitentiary were typical of the time; within 7 years of incarceration most convicts died. Living and work conditions were “so horrid” that many of the surviving inmates were “driven to suicide.” Arkansas and Louisiana operated similar for-profit systems; bleak, graft driven and abusive, privateers profited off the backs o f unskilled and semi-skilled convict labor.3 5 Matthew Mancini posits that the leasing system actually “improved” on slavery’s profitability. Slave masters, for example, were held fiscally responsible for a community that included non-laboring children and elders. In contrast, lessees purchased entire crews; as replacements were assured for any individuals lost to death, injury or release, profits were unaffected by personnel changes.3 6 The exceedingly low prices attached to convict labor, as little as $3 a month, served to further impair post-Civil War black possibilities by significantly depressing market wages in black-dominated economic sectors such as brick-making, mining, and road building.3 7 Thus, according to Feeley, southern states’ prisons systems emerged as more “efficient” that its northern counterparts due to the fact that they “they were 3 5 John Dilulio, “The Duty to Govern: A Critical Perspective on the Private Management of Prisons and Jails” in Private Prisons and the Public Interest ed. Douglas C. McDonald (New Brunswick: Rutgers UP, 1990) 159. 3 6 Mancini, One Dies. Get Another 23. 3 7 W. E. B. DuBois, “The Spawn of Slavery: The Convict-Lease System in the South,” The Missionary Review of the World New Series XIV.10 (October 1901): 744-45. 15 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. able to incarcerate a higher proportion of offenders and impose longer average sentences at lower costs than states in other regions of the country.”3 8 Other states, including Nebraska, Kansas, Oklahoma, Oregon and California followed suit as the demand for prisons, particularly in gold-rush inundated California, exceeded states’ financial capacity to manage them. At its height, in the second half of the 19th Century, the private ownership and/or operation of prison and jail facilities was largely concentrated in Texas, California, Michigan, Louisiana, and Oklahoma. Competitive contractors were primarily judged by their capacity to produce inmate labor-generated profits.3 9 Interestingly, towards the end of the 19th Century, two aspects of southern privatized punishment crossed paths. At the same time that the privatized convict leasing system was losing ground, the private vengeance that characterized southern, racially driven, lynching proclivities was thriving. While remnants of the latter persisted until the 1960's, Progressive Era prison reformers advocated for, and effected an end to most profit-based penal institutions and activities. In 1905 President Theodore Roosevelt signed an executive order that prohibited the use of inmate labor on federal projects. Absent effective monitoring, the long-standing traditions of extracting inmate labor profits and/or mining fees-for-even basic service (such as food and clothing) revenues proved historically untenable. Unable to 3 8 Feeley, The Philosophy and Practice of Corrections 137. 3 9 Rosalind Petchesky, “At Hard Labor: Penal Confinement and Production in Nineteenth- Century America,” Crime and Capitalism, ed. David F. Greenberg (Philadelphia: Temple UP, 1993) 345. 16 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. sustain itself within the vortex of conflicting public/private financial mandates, for- profit systems “eventually succumbed to bribery and corruption.”4 0 The termination of the last convict lease contract in 1928 was touted as a great Progressive victory despite the fact that its public replacement failed to significantly ameliorate inmate conditions. Declaring the transportation of inmate products across state lines illegal, the Hawes-Cooper Act of 1929 solidified its demise. Informed by the conflation of a Progressive, socially infused, therapeutic lens and a new worker reality (i.e., the Great Depression’s job scarcity, a decline in the demand for un/semi skilled labor and the growth of the union movement), the reliance on privatized prison labor diminished and “all but disappeared by 1940.”4 1 This demise o f convict labor was crucial to the cessation of privatized corrections. Characterized by John Dilulio as “unvaryingly bleak,” private penal operations dwindled during the 20th Century; only a few outposts remained when the practice ended—variously dated around the mid-20th Century. The call for a publicly administered and accountable prison system emerged in response to muckraking exposes of for-profit prison horrors and union, anti-convict labor, political activity. Additionally, emerging human rights and communal justice concepts characterized punishment as a core, governmental function.4 2 4 0 Austin and Coventry, “Are We Better Off?” 182. 4lShichor, Punishment for Profit 42. 4 2 John Dilulio, “The Duty to Govern: A Critical Perspective on the Private Management of Prisons and Jails” 160; Ira P. Robbins, “The Legal Dimensions o f Private Incarceration,” The American Bar Association Report (Washington: American Bar Association, 1988): 44. 17 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. The sector that remained and prospered under not-for-profit (NPO), private, auspices has been dubbed “specialized services.” This sector includes the operation of juvenile facilities, adult half-way houses, and drug treatment centers, as well as the provision of ancillary correctional services such as food, medical care, education, and vocational training. A 1989 Bureau of the Census Report delineated 2,167 privately operated juvenile correctional facilities, compared to 1,100 public ones.4 3 The Modern Experience Privatized corrections re-emergence in the early 1980's reprised earlier historic determinants: a palpable sense of public impotence in curtailing violent crime, an attendant spiraling of correctional costs and a pervasive uncertainty in the midst of a new economic and socio-cultural order. During the period between 1971- 85, for example, correctional costs escalated 122%; not surprisingly, correctional spending had emerged as the fastest growing state and local government budget sector.4 4 The reappearance of the privatization alternative, part of a more pervasive movement towards institutional devolution, appropriated the discourse of a new economic order. Analogous themes are articulated in Malcolm Feeley’s description of the 17- 18th Century transportation rationale: 4 3 U.S. Bureau o f Census, Biannual Census of Public and Private Juvenile Detention. Correctional and Shelter Facilities (1989, www.census.gov). ^Douglas C. McDonald, Private Prisons and the Public Interest ed. Douglas C. McDonald (New Brunswick: Rutgers UP, 1990) 6. 18 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. In an era when strong government. . . was anathema to a large segment of the English population, the strategy of a decentralized, privately administered, low-cost penal system was a brilliant way to expand the state’s capacity to sanction without having to expand its administrative structure.4 5 The disparate link may be discerned in the era’s antipathy towards large scale, powerful criminal justice institutions. In contrast to its historic antecedents, the 20th Century privatization movement is fueled by widespread public yearning for criminal justice magnitude. In today’s context privatization denotes a choice, a calculated shift from the public to the private sphere. In the 18th and 19th Centuries, absent an administrative mega-state and its attendant tax capacity, “the private” was the prevailing hermeneutic. Contracting out and voluntary public service were customaiy practices, less a choice than an accepted necessity.4 6 Conversely, current efforts are always mindful of, shaped in reaction to, or judged in comparison with public models; their existence presumes a comparative advantage. Hence, extant criminal justice policy generally, as well as its specific contemporary privatization component, has been shaped by competing, contradictory forces. As positive attitudes regarding the governmental/commonweal nexus were eclipsed by anti-welfare state fervor, the desire for a pumped-up correctional muscle was increasingly impeded by citizens’ unwillingness to bear the ensuing tax burden. The trajectory of the struggle was affected by the fact that key, theoretical, welfare- 4 5 Feeley, The Philosophy and Practice of Corrections 135. “ ‘Malcolm Feeley, personal interview, 5 May 2000. 19 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. state equity underpinnings were conspicuously nullified by Reagan’s paean to capitalist primacy—his take-no-prisoners (recast as make-all-prisoners) anti- government “revolution.” Dramatically demonstrated by his post-inauguration quashing of the air-traffic controllers’ strike, the “revolution” was distinguished by its obliviousness to any aspects of the equity, social compact agenda. Union labor’s power, previously instrumental in precipitating the privatized corrections/prison labor decline, was forced into a precipitous retreat. From an ethical perspective, beneficence was recast as nonmaleficence; do no harm suggest the outmost limits of our generosity. While prison privatization’s re-emergence has been philosophically linked to the Reagan administration’s focus on government devolution, it has been practically merchandised as emanating from “war on crime” imperatives. Viewed alternately as a precipitating factor and/or an entrepreneurial opportunity, the magnitude and veracity of “war on crime” imperatives is, nevertheless, in considerable dispute. As the much bemoaned rise in the violent crime rate occurred, in the main, during the years between 1960-74, its ongoing currency as imprisonment rationale is questionable, suggesting that other factors may be at play. (See Chapters 2 and 4.) Using murder rates as a reliable template for tracking violent crime, Marc Mauer reports an increase in numbers of murders from 9,110 in 1960 to 20,710 by 1974, a Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. rate increase of 5.0 to 9.8 per 100,000. Thereafter, for the next 20 years, murder rates fluctuated between 8.5 to 10 per 100,000 before declining in the mid 90's.4 7 While many sociologists attributed the cycle of spiking and subsiding rates to a greater reporting efficacy as well as the vagaries of changing social arrangements and demographics (e.g., a larger pool of young males, urbanization’s loosening of institutional and familial ties, and a widening income gap), the rates were, nevertheless, used and recycled to create and sustain a requisite public hysteria. Thus, while one cannot argue that a more than doubling of the murder rate is cause for justifiable societal concern, the correctional response, as evidenced by numbers of imprisoned inmates in state and federal facilities, has been disproportionate. Between 1972 and 1997, the numbers of incarcerated inmates rose 500% from 196,000 in 1972 to 1,159,000 in 1997, most of the new inmates incarcerated for non violent, often drug-related offenses.4 8 While conservative criminal justice theorists and “law and order” politicians suggest a clear causative relationship between increasing incarceration rates and declining crimes, others perceive a more complex tableau. Elliot Currie, for example, points out that while Louisiana has the second highest incarceration rate in the country, New Orleanians were four times more likely to die a violent death in the 4 7 Marc Mauer, The Race to Incarcerate (New York: The New Press, 1999) 31-32. 4 8 Mauer, The Race to Incarcerate 19. 21 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. mid-1990's than in the early 1970's.4 9 On average, researchers estimate that a doubling of the incarceration rate will produce, at most, a 10% reduction in serious crime.5 0 Impacting “progressively less serious criminals” in proportion to the expansiveness of its reach, incarceration appears most effective in deterring typically multiple offenses, such as robberies; typically a more singular event, violent crimes are less responsive to extant criminal justice policy. Sidestepping these more intricate, multi-faceted analyses, late 20th Century criminal justice policy has been distinguished by its ability to fashion and market a rather simplistic incarcerative nostrum to an understandably fearful and angry populace. The resulting inmate upsurge has affected all levels of a multi-tiered correctional system. States found it increasingly difficult to meet the incarcerative demand, especially given voter resistance to new bond initiatives. Local jurisdictions, particularly those in poor and/or rural areas, lacked the requisite tax base to significantly expand; as a result, the economies of scale that privatization offered appeared particularly enticing. A spike in the numbers of privatized beds was first noted in the adolescent system in 1976 when RCA Services assumed management of the high-security, Weaversville Intensive Treatment Unit in Pennsylvania. Yet it was the federal system, in particular the Immigration and Naturalization Service (INS), that provided 4 9 Elliott Currie, Crime and Punishment in America (New York: Henry Holt and Company, 1998)21. 5 0 Currie, Crime and Punishment in America 29. 22 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. the impetus for privatization’s mainframe revival. Aric Press dates privatized corrections’ re-emergence to 1979 when the INS found itself without sufficient alien detainee beds. Locating resources within the not-for-profit, halfway house community, INS executed a contract consigning low-risk, overflow detainees to halfway house beds. Persuaded by the success of these transfers, the halfway house decided to restructure as a for-profit corporation (e.g., Behavioral Systems Southwest). Six years later, according to Press, one quarter of the INS detention facilities had been privatized. Following suit in the early eighties, the Federal Bureau of Prisons began to contract almost exclusively with private providers for pre-release, community-based beds.5 1 Although some might interpret these developments as simply a burgeoning of previously noted “specialized service” beds, they, nevertheless, signaled—given the numbers of transfers—a small, but significant paradigm shift. This shift served to underscore the entrepreneurial possibilities that large numbers of uneasily domiciled inmates represented. The corporate sector—most prominently Bechtel defense subsidiary, Wackenhut, a leader in private security, and the newly formed Correctional Corporation of America (CCA)—responded with a series of new initiatives. These ventures ranged, most “innovatively,” from the construction of so-called “spec” prisons (speculation prisons built, absent a public mandate, in anticipation o f continued inmate overflow) to CCA’s failed mid-80's 5 1 Aric Press, "The Good, the Bad and the Ugly: Private Prisons in the 1980's,” Private Prisons and the Public Interest, ed. Douglas C. McDonald (New Brunswick: Rutgers UP, 1990) 25-26. 23 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. $250,000,000 bid to lease the entire Tennessee correctional system. This latter event is, nonetheless, considered a watershed vis-a-vis privatization’s resurgence—due both to the scope of its ambition and to the ensuing, surprisingly enthusiastic, marketplace rejoinder. Spurred by Wall Street “buzz,” interested companies interpreted the CCA rebuke, much like the later Clinton health care debacle, as less a rejection of the planned-for-services need, in this instance privatized cells, but more a comment on the late 20th Century American predilection for the incremental. As a result, some of the earliest private CCA contracts included such small-scale facilities as the Bay County Florida jail (1985) and the Santa Fe New Mexico county facility (1986). Approximately a decade later, in 1997, CCA tried a systemic takeover, once again, with similarly adverse results. The mid-80's also witnessed changes in the tax code which provided further incentives to privatize. Proffered as a much needed solution to the problem of a paradoxical public will—the call for ever increasing prison beds in the midst of a broad-based tax retreat—the new code encouraged creative financing strategies. The funneling of public money through “quasi-public bodies” effectively masked capital expenditures as lease payments in the annual operating budget; the operating budget is, as Press reminds us, a document “over which voters have no control.”5 2 Scarcely 2 Press, “The Good, the Bad and the Ugly” 22. 24 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. more than a decade later, a 1997 study estimated private prison industry revenues to have reached $1 billion.5 3 As of May 2000, twenty-two states had minimum to medium privatized facilities. These states are Arizona, Arkansas, California, Colorado, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Montana, Nevada, New Mexico, North Carolina, Oklahoma, Tennessee, Texas, Utah and Virginia. Approximately half a dozen other states, while not hosting privatized facilities, ship overflow inmates to private facilities in other jurisdictions. These facilities house approximately 123,000 correctional beds, up at least eightfold since 1990. While privatization has spread beyond the United States—to the UK, Australia, Scotland and South Africa, among others—domestic facilities still account for approximately 90% of the privatized correctional market.5 4 Whereas the notion of correctional privatization may, in some quarters, still connote the narrower process of contracting out for specialized services such as medical care, food services, and education, the focus of this paper’s discussion is the more recent trend of contracting- out primary ownership and management while retaining varying degrees of public sector oversight. The related question regarding the connection between private sector and prison labor, while important, is not the central focus of this dissertation. 5 3 Judith Greene, “Comparing Private and Public Prison Services and Programs in Minnesota: Findings from Prisoner Interviews,” Current Issues in Criminal Justice 11.2 (November 1999): 202. 5 4 Austin and Coventry, “Are We Better Off?” 178. 25 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Currently controlling approximately 7% of the correctional market, privatized corrections appeared to be on the fast tract as recently as early 2000; commentators, at the time, contemplated a rosy future, anticipating a soon to be realized 15% share.5 5 However, a recent series of much publicized mis-management scandals have effected a spate of litigation and some closings; as a result current state level demand has diminished. While long-term viability is unknown, it is clear, in the short term, that the litany of negative stories precipitated a significant downturn in the earnings and share value of the two major industry players, the Corrections Corporation of America, traded as Prison Realty (PZN), and the Wackenhut Corrections Corporation. While some industry observers have remained confident of their ability to institute necessary remedial practices and reforms, the more immediate impact has been less sanguine. For example, a May 2000 60 Minutes //expose of Wackenhut facility scandals in Texas and Louisiana seemed to aggravate an already steep decline in corporate fortunes; Wackenhut’s market price plunged to $7.50 a share, its lowest per share posting since it went public in 1994. Similarly, CCA’s declining financial outlook occasioned a series of financial restructuring plans. Despite these changes, on June 22,2000, Moody’s lowered the ratings of $100 million of outstanding preferred stock amid speculation that CCA would be unable to pay its July preferred dividends. Still, together, CCA and Wackenhut continue to control about 75% of the privatization market; anticipated new beds foreshadow an even greater dominance. ” James McNair, “Wackenhut Prisons Mired in Abuse Scandals,” The Miami Herald 16 April 2000, http://www.herald.com/content/sun/business/docs/036195:2. 26 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Obviously the other seven market competitors have notably smaller shares of the market. While state-based expansion has seemingly slowed, the federal government, according to privatization expert Judith Greene, “has begun to fill this breach with an unprecedented level o f new contract solicitations for private prison beds.”5 6 Starting in 1999, the Federal Bureau of Prisons issued RFP’s for a two year establishment of more than 9,000 private prison beds for “criminal alien” prisoners. CEO Steve Logan of Cornell Corrections anticipates an additional industry-wide windfall of 20,000 federal beds, providing a $4.6 billion infusion for corporate corrections.5 7 The Federal Bureau o f Prisons (FBOP) has, in fact, become the epicenter of prison growth; harsh mandatory federal drug sentencing guidelines coupled with the more stringent Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) stipulations have caused the Federal system to be transformed into a privatized inmate repository. Outpacing state systems’ increases, the 1999 FBOP inmate count increased by 10.2% in contrast to an overall state prison rise of 2.5%; in the four years preceding the spurt, between 1995-99, the Federal system rate’s increased by 31% as opposed to an aggregate U.S. rate of 16%.5 8 In addition to the planned FBOP privatization expansion, the INS is similarly developing approximately 2,000 new 5 6 Judith A. Greene, “Will the Federal Government Rescue the Private Prison Industry?” paper presented at a meeting of the Congressional Progressive Caucus, Washington, DC 5 January, 2001. 5 7 Judith A. Greene, “Bailing Out Private Jails,” The Prospect 12. 16 (10 September, 2001), http://www.prospect.org: 3. 5 8 Greene, “Bailing Out Private Jails” 4. 27 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. beds to meet unprecedented INS detainee demands. A typically privatization friendly low-security population, INS detainees are, at last count, the fastest growing population segment in U.S. correctional facilities.5 9 Contemporary Issues Before providing an account of the two industry leaders’ recent history and current fortunes, it is important to contextualize any assessment. With ardent supporters and detractors consistently spinning the benefits/drawbacks divide, it is important to ascertain whether the experience of the last two decades has validated or disproved either sides’ cherished precepts? Marketed and assessed as counterpoint to the prevailing public system, what philosophical and/or operational distinctions have emerged? Fundamentally, there has been general agreement about what privatization might optimally provide. A proposed remedy for the cumbersome, unwieldy and often sluggish aspects of the public sector, privatization promised the efficacy of systemic responsiveness; it proffered a streamlined procurement process, lower operational costs, an ability to refocus and shift resources as needed, a quicker start up and construction time frame, a technologically current and efficient operation, a market driven impetus for superior and creative performance, and, most significantly, a de-unionized workforce. Given government’s ostensible ability to discipline performance through the competitive renewal process, contracting was touted as a 5 9 Greene, “Will the Federal Government Rescue the Private Prison Industry?” 9. 28 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. more, not less, responsive and accountable system. Equipped with these assertions, correctional entrepreneurs marketed their “wares” to impoverished rural areas; many prisons were also built on “spec,” manifesting a “if you build them they will come” outlook. Opponents typically manifest more normative, as opposed to strictly instrumental, concerns. Some strong privatization opponents will assert that it is basically irrelevant whether privatization proves to be less costly and, by some measures, more efficient; the work of punishment, they believe, belongs in the public sector. Whether because of a belief that punishment and its attendant potential use of deadly force is a “ core” state, not private, function, or because there seems to be no way around the principle that it is wrong to profit from someone else’s misery, philosophical opponents adhere to the precept that punishment practices, at least in a democracy, should be guided by commonweal, rather than bottom-line, considerations. Privatization critics intuit that for-profit corrections’ financial telos suggests incentives to short-change its powerless charges. Lobbying to ensure an expanded market, proponents offer what they believe to be an indisputable incarcerative logic. Increasingly punitive sentencing policies necessitate legislative dollars allocated for prison construction. While some corrections officers’ unions have also lobbied in favor of the increased penalties/increased prison construction continuum, absent consideration of profits, their arguments’ emphasis is inexorably different. As Louisiana prison rights attorney, Keith Nordyke, has remarked in a different context, “if inmate advocates 29 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. proposed limiting the number of inmates per cell, for example (absent a private contractor at the table), they will no longer face possible arguments over profit margins . . . the state could break even and be perfectly content.”6 0 Further, many are concerned that the leading two corporations’ predominance will result in corporate entrenchment; the creation of a potentially recalcitrant, politically significant and powerful quasi-monopoly could, it is feared, subvert state intent. Given that labor costs constitute, by far, the largest correctional budget item, it follows that privatization cost saving pressures will target staffing size and compensation in the form of salaries and/or benefits. Although CCA claims to be at least open to union organizing (the Teamsters have made some initial overtures in Ohio and Colorado), privatization is perceived as generally anti-union, with staff typically less experienced, unorganized, and well-paid than its public counterparts. While some companies have experimented with employee ownership in lieu of pensions—stock offerings, in this model, provide an added incentive for improved performance—the crucial question for critics is what constitutes an “improved performance.” When employees benefit from an improved profit margin, does “improved performance” simply translate into a further comer cutting incentives? Paul Moyle is one of a cohort of theorists highlighting private corrections’ allocation/ administration tensions. Focusing on what he perceives as the severing and/or blurring of commonweal justice concerns in a privatized context, Moyle “ e-Watch, ken@flpba.org 1 May 2000. 30 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. contends that the delegation of punishment to a private contractor is an improper transfer of authority. Diluting the governing social compact, delegation essentially provides opportunities for an extra-judicial private determination; correctional administration confers the means to alter a sentence’s essential contours through disciplinary and/or parole-related actions.6 1 Helping to circumvent the dilemma of a public unwilling to bear the financial burdens of its punitive proclivities, privatization provides a budgetary slight of hand. Deflecting attention from serious social compact concerns, any perceived for-profit success also serves to diminish the need for debate about less expensive, and arguably more socially advantageous, alternative to incarceration (ATI) options. Even dissenters must acknowledge, however, that privatization exposes public policy fault lines around such issues as the immunity interests of officers. For example, in the 1997 landmark case of Richardson v. McKnight the Supreme Court, citing historical precedent and tradition, held that private prison employees are not entitled to the same qualified immunity protections as public prison guards. Not surprisingly, perhaps, public employee unions—a vocal anti-privatization interest group and a strong supporter of officer indemnification—point to this ruling with alarm, as exemplar of privatization’s inherent problems. The American Federation of State, County and Municipal Employees has been particularly critical of the implicit expansion of officer legal liability; most pointedly, they are concerned about 6 1 Paul Moyle, “Separating the Allocation of Punishment from Its Administration: Theoretical and Empirical Observations,” Current Issues in Criminal Justice 11.2 (November 1999): 159. 31 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. a potentially increased financial and criminal exposure. Much of their argument, however, appears to rest on a presumption that public indemnification is a requisite good serving to shield officers from frivolous lawsuits. Implicitly, inmate litigation is disparaged as an attempt to frustrate the carrying out of essential duties. Challenging this presumption, Douglas Me Donald suggests, in his article “When Government Fails: Going Private as a Last Resort,” that indemnification may not be a consummate public good; if liability compels accountability, it may result in better treatment of inmates.6 2 The final word may not yet have been written on this issue, however. Legal commentary has opined that a narrow reading of the decision, restricting its context to “a private firm . . . with limited direct supervision of the government,” leaves open the possibility of private officer immunity if the facility is “closely controlled by the State.”6 3 For a concise compendium of opposing views, please see the reproduction of the following table presented by Dennis Cunningham at the Private Prison Workshop held at the University of Minnesota’s Law School in January of 1999.6 4 “ Douglas C. McDonald, “When Government Fails: Going Private as a Last Resort,” Private Prisons and the Public Interest ed. Douglas C. McDonald (New Brunswick: Rutgers UP, 1990) 191. “ Comments: “The Private Prison Experiment: A Private Sector Solution to Prison Overcrowding.” North Carolina Law Review 76 (1998): 2252-253. “ Dennis Cunningham, “Public Strategies for Private Prisons,” paper presented at the Private Prison Workshop, Institute on Criminal Justice, University of Minnesota Law School 29-30 January 1999. 32 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. “Table 6: Public Strategies for Private Prisons R easons To Privatize Reasons N ot T o Privatize 1. Private operators can provide construction financing options that allow the government client to pay only for capacity as needed in lieu of encumbering long-term debt. 1. There are certain responsibilities that only the government should meet, such as public safety and environmental protection. To provide incarceration, the government has legal, political, and moral obligations. Major constitutional competition among both public and private issues revolves around the deprivation of liberty, discipline, and preserving the constitutional rights of inmates. Related issues include use of force, loss of time credit, and segregation. 2. Private companies offer modem state-of- the-art correctional facility designs that are efficient to operate and built based upon value engineering specifications. 2. Few private companies are available from which to choose. 3. Private operators typically design and construct a new correctional facility in half the time of a comparable government construction project. 3. Private operators may be inexperienced with key corrections issues. 4. Private vendors provide government clients with the convenience and accountability of one entity for all compliance issues. 4. Operator may become a monopoly through political ingratiation, favoritism, etc. 5. Private corrections management companies are able to mobilize rapidly and to specialize in unique facility missions. 5. Government may lose the capability to perform the function over time. 6. Private corrections management companies provide economic development opportunities by hiring locally and, to the extent possible, purchasing locally. 6. The profit motive will inhibit the proper performance of duties. Private prisons have financial incentives to cut comers. 7. Government can reduce or share its liability exposure by contracting with private corrections companies. 7. Procurement process is slow, inefficient, and open to risks. 8. The government can retain flexibility by limiting the contract duration and by specifying facility mission. 8. Creating a good, clear contract is a daunting task. 9. Adding other service providers injects competition among both public and private organizations. 9. Lack of enforcement remedies in contracts leaves only termination or lawsuits as recourse.” 33 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Recent Research Two recent studies comparing the public and private sector as to costs, programming, staffing, and security—James Austin and Garry Coventry’s first national review as well as Judith Greene’s smaller, intensive Minnesota study—cast doubt upon many of the proponents touted expectations. Based, in part, on the 1996 General Accounting Office’s prior findings, Douglas McDonald et al.’s highly regarded, comprehensive 1998 Abt report, “Private Prisons in the United States: An Assessment of Current Practice,” was one of the first studies to demonstrate that private sector facilities evidenced, at best, a modest cost savings; the more recent Austin/Coventry and Greene research findings have confirmed these earlier results. For example, in Tennessee, the G.A.O. reported only a 1% savings in private facilities as compared with the public sector costs.6 5 Whether this savings is sustained over time—or is reflective of “loss leader” model program sites that discount profit imperatives—has yet to be determined. What is clear is that initial estimations of up to a 20% private correctional savings have, thus far, proved erroneous. The one projection that has matched, or even exceeded, proponents expectations is the anticipated cost savings associated with prison construction. CCA, for example, built a 350 bed INS detention center in Houston in 5 % months at a cost of $14,000 per bed; this is in contrast to the projected public time frame/costs 6 5 Eric Bates, “Private Prisons,” The Nation 5 January 1998: 12. 34 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. of 2 V i years at $26,000 per bed.6 6 This “efficiency” is, of course, accomplished as a result of a series of bypasses, including an avoidance of the circuitous public bidding process and elimination of the need for complex environmental impact statements; by diminishing the project’s visibility, contracting-out also reduces the likelihood of an organized political opposition movement. Austin and Coventry’s study asserts a public/private operational parity except for three significant areas. As noted in the report: The number of staff assigned to private facilities per inmate population is approximately 15% lower than is the case for public facilities,. . . MIS capabilities appear to be generally lacking in private facilities,. . . and there is a substantially higher rate of assaults on inmates at private facilities.”6 7 Initial comparison research may, in fact, have minimized public/private violence disparities; newly drawn samples, absent the inclusion of maximum level public facilities that lack privatized counterparts, evidence a much higher private rate of inmate-on-staff and staff-on-staff assaults. Acknowledging that the cause of this disparity may be linked to dissimilar reporting requirements as well as initial start up, staffing difficulties, it is, nevertheless, hard not to perceive these results as validating critics’ concerns regarding inadequate for-profit staffing. Profit maximizing incentives elicit savings in training and supervision; inferior compensation packages attract a less competent, inexperienced, pool. While the “ Austin and Coventry, “Are We Better Off?” 185. 6 7 Austin and Coventry, “Are We Better Off?” 197. 35 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. authors conclude that “the notion that privately operated prisons are safer or better managed than publicly operated facilities is not supported by these results,”6 8 they nevertheless hold out the hope that public/private cross-fertilization and/or partnerships can become a research and development arm for correctional policy.6 9 Judith Greene believes this is a misplaced trust. Cross-fertilization, in her view, has, and will continue to translate into a race to the lowest common denominator; it will foster less innovation, lower staffing ratios, and fewer benefits. In Tennessee, talk of further privatizing resulted in a preemptive public-counter bid budget; as a result so-called frills, e.g., educational programs and library services, were significantly curtailed. In contrast, Hawaii, has attempted to deal with cross systems problems through the development of what they refer to as a “managed competition” process. Contract specifications, including worker wages, are put out to bid in an “operational plan.” If a private company fails to improve upon the publicly conceived plan, the public sector wins the bid by default.7 0 While many academics including, most prominently, Richard Harding, question the likelihood of public sector improvement absent a private sector catalyst,7 1 Greene counters that there is simply no evidence of this much hoped for “ Austin and Coventry, “Are We Better Off?” 197. “ Austin and Coventry, “Are We Better Off?” 199. 7 0 E-Watch, ken@flpba.org 30 April 2000. 7 1 Richard Harding, “Prison Privatisation: The Debate Starts to Mature,” Current Issues in Criminal Justice 11.2 (November 1999): 117. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. spur. The private sector has failed, in her view, to stimulate any innovative programs; privatized program successes are simply replicas of their operative public counterparts.7 2 Equally skeptical about so-called savings, she points out that a significant share of alleged savings is fashioned by cost-shifting high-cost items such as extraordinary medical care to state budget items and cutting key security staffing. CCA contracts typically stipulate acceptance of “able bodied inmates,” thus avoiding such big-ticket items as extensive medical or mental health care. At the same time, exemplifying some of the worst aspects of corporate value hierarchy, private executive compensation is typically higher than their public counterparts while general staff compensation packages are generally lower. And, if the private workforce does at some point unionize, Greene maintains that even the current minimal savings will dissipate given that “the state’s public prison system already embodies principles of cost-effective prison management.”7 3 Privatization cost- savings are essentially a mirage according to Eric Bates: At its heart privatizing prisons is really about privatizing tax dollars, about transforming public money into private profits. That means companies are actually looking for ways to keep public spending as high as possible, including charging taxpayers for questionable expenses.7 4 7 2 Judith Greene, personal interview, 17 May 2000. 7 3 Greene, “Comparing Private and Public Prison Services and Programs in Minnesota: Findings from Prisoner Interviews” 205. 7 4 Bates, “Private Prisons” 15. 37 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. While taking note of other studies more pro-privatization results—notably Charles Logan’s study of women’s prisons in New Mexico, William Archambeault and Donald Deis study of Louisiana prisons and the Tennessee Legislative Select Oversight Committee—Greene is, nonetheless, critical of the methodology and/or objectivity of these reports. In fact, the entire, much quoted, work of Charles Logan has been recently called into question by a variety of sources. An erstwhile and respected academic who made no secret of his pro-privatization propensities, Logan’s fall from grace occurred as a result of his failure to reveal that CCA and Wackenhut financially supported both his research and the University of Florida- based, Private Corrections Project.7 5 Ultimately, many academics have concluded that questions of comparable cost assessments may elude an accurate rendering, given the disparate budgeting systems of the public and private sector. As John Donahue notes: Ideologically fervent commentators of every political stripe too often neglect. . . [the fact] that no set o f studies can prove any universal assertion about either public or private institutions. The best that any empirical survey can hope for is to find some suggestive tendency in the way the evidence falls.7 6 While, for example, some researchers simply look at a privatized facility’s operating budget to determine costs, Greene et al. insist that a more accurate measure must take into account a public Department of Corrections’ post-privatization budget (i.e., the "Gilbert Geis, Alan Mobley, and David Shichor, “Private Prisons, Criminological Research and Conflict of Interest: A Case Study,” Crime and Delinquency 45.3 (July 1999): 374. "John Donahue, The Privatization Decision: Public Ends. Private Means (New York: Basic Books, 1989) 57. 38 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. contract plus costs associated with monitoring, inmate hospitalization, transportation, disciplinary administration, escapes, litigations, disturbances, and infrastructure improvements).7 7 Similarly, stipulated per diems, which at first blush appear considerably lower in privatized facilities, mask structural economic disparities. Compensation for detainees, for example, is billed at full-man-day per diems, despite the fact that inmates, particularly in INS facilities, may be cycled through in only a few hours. Further, cash accruals that result from hiring lags, personnel attrition, and/or bed consolidations (that encourage workforce redeployment and other economies), can, in a public context, be shifted to meet other correctional and/or public priorities. In a privatized facility all such “savings” are typically subsumed in a company’s over-all profits.7 8 In the Minnesota study, facilities in both the private and public sectors garnered generally favorable overall responses from inmate respondents. While private facilities received higher marks in program choice, public management was valued for its organization and structure; according to the inmates public jails evidenced “better classification compliance, less (staff) turnover and more experience.”7 9 For example, the turnover rate at the public facilities during the time ’’Judith Greene, Steven R. Belenko, Chuck Davis, Michael Jacobson, and David Schultz, A Study of Private Prisons (St. Paul: Institute of Criminal Justice, 1999) 8. ’'Greene et al., A Study of Private Prisons 9-10. ’’Greene, “Comparing Private and Public Prison Services and Programs in Minnesota: Findings from Prisoner Interviews” 226. 39 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. period studied was 13.3% while the private facilities rate was 42.4%. While some proponents tout these industry-wide statistics as evidence of privatization’s ability to discharge inappropriate staff, Greene perceives these rates as further evidence of inadequate, inexperienced staffing. Prisoner surveys were additionally critical of privatized facilities for the tighter and/or confused stipulations that ensued from mixed and/or inappropriately classified inmates from multiple-state jurisdictions. In a recent Bureau of Justice Assistance Monograph, “Emerging Issues on Privatized Prisons,” authors, James Austin and Garry Coventry, presented an overview of fourteen recent for-profit studies. In their summary they state that: It is generally accepted that the best research conducted to date . . . showed no or very minimal differences with respect to costs. The remaining studies had serious methodological flaws that limit their ability to reach firm conclusions.. . . For example, facilities chosen for comparisons often had inmates that differed on key attributes such as inmate and age and classification level—factors known to be associated with inmate conduct.. . . [No] coherent theory of why privately operated prisons would outperform public facilities has yet to emerge. One could argue that the private sector is simply drawn upon methods used by the public sector. . . and only attempted to reduce costs associated with that model.8 0 While acknowledging that private providers can, when motivated, match public performance with respect to minimum security inmates, they note that “ no definitive research evidence would lead to the conclusion that inmate services and “James Austin, Ph.D. and Gariy Coventry, Ph.D., “Emerging Issues on Privatized Prisons,” Bureau of Justice Assistance Monograph (Washington: U.S. Department of Justice, February, 2001): 37-38. 40 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. the quality of confinement are significantly improved in privately operated facilities.”8 1 Accountability—Legal and Policy Concerns Prison privatization has effected considerable debate with regard to several significant legal issues. Concern about problems of political accountability has caused stakeholders to question whether the state’s presumed responsibility for the commonweal is honored if core punishment responsibilities are delegated to private contractors. More broadly, Austin and Coventry have conceptualized the main legal issues as centering on “the propriety of private firms taking over state functions, inmate rights and due process, and liability and accountability for state actions.”8 2 Specifically, like the issue of qualified immunity mentioned earlier, considerations turn on whether actors and institutional practices and procedures within the privatized system can be, for the purposes of legal status, perceived as operating “under the color of law,” as state actions. With the 1936 Carter v. Carter Coal Company as precedent, courts have, in fact, consistently endorsed a broad interpretation of Congressional delegation powers. As powers granted bail bondsmen and private security firms evidence, state and local delegation within the criminal justice context has been similarly sanctioned dating back to the 1920's.8 3 8 1 Austin and Coventry, “Emerging Issues on Privatized Prisons” 38. “ Austin and Coventry, “Emerging Issues on Privatized Prisons” 18. “ Douglas C. McDonald, “Public Imprisonment by Private Means,” Prisons in Context (Oxford: Clarendon Press, 1994) 39. 41 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Yet, legal commentators have cautioned that these prior rulings should not be construed as determinative; they do not, as Austin maintains, provide a court- sanctioned abdication of governmental responsibilities regarding inmate constitutional safeguards and/or officer and community safety.8 4 The University of Minnesota’s Law School’s Institute of Criminal Justice’s 1999 “Study of Private Prisons” basically concurs; it concludes that the public sector retains legal exposure even within a privatized context, even with contracted indemnification.8 5 Offering ostensible validation, the June 29,2001, issue of The Corrections Professional reported that the Pennsylvania Commonwealth Court recently refused to grant a local prison board’s appeal for worker’s compensation immunity from private officers’ claims.8 6 Thus, while the precise ramifications of many issues are still unclear, most would agree that extant dilemmas raise the following concerns. If Supreme Court precedent has held that due process interests imply a state theater, who is ultimately accountable and legally liable for due process and/or human rights violations within a privatized correctional system? While the Medina case8 7 among others, has suggested that publicly contracted private imprisonment constitutes “state action”—with ultimate accountability remaining with the public contractor—the M Austin and Coventry, “Are We Better Off?” 188. 8 5 Greene et al., A Study of Private Prisons 11-12. “ e-Watch, 30 June 2001. "Medina v. O’Neill, 589 F. Supp. 1028 (1984). 42 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. specific contours of state exposure within the purview of delegated management has yet to be clearly defined as most suits are settled before the advent of appellate processes. For example, absent a clearly delineated state oversight burden, is disciplinary adjudication and/or (deadly) force a violation o f due process protections? Does a contractually stipulated state oversight burden ensure access to all pertinent private correctional records under the Freedom of Information Act? Finally, since section 9 (b) (3) of the National Labor Relations Act (NLRA) specifically stipulates that privatized work force rules are governed by federal rather than state labor laws, how will privatized correctional facilities cope with potential strike actions? While public employees are typically constrained by state sponsored no-strike legislation, it has not yet been determined whether a comparable law could be enacted for privatized correctional employees without violating the NLRA. Austin and Coventry raise the additional concern as to whether court imposed state-system consent decrees, implemented to monitor prisoners’ due process (5th and 14th Amendment) rights and safeguards against cruel and unusual punishment (8th Amendment), will be curtailed in a privatized environment.8 8 Commenting on these same issues from an internationalist public policy perspective, Richard Harding, an Australian pro-privatization criminal justice commentator, suggests that the United States is singularly remiss in its failure to create institutional accountability safeguards. Such uniquely American “ Austin and Coventry, “Emerging Issues on Privatized Prisons” 18. 43 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. “innovations” as cross-jurisdictional housing and “spec” prisons give, he disparagingly notes, justifiable credence to anti-privatization sentiments. Critiquing “spec” prisons as “the ugly face of the movement,” Harding suggests that they, in fact, provide fodder for opposition claims; most pointedly he condemns the ancillary practice of inmate inter-state transport that, he maintains, “stretches accountability to the breaking point.” Noting that an out-of-state monitor’s ability to provide quality inspection is severely impaired, he contends that long-distance incarceration “... is such a flawed model of imprisonment that one would positively predict that the regime would be worse, and moreover, perceived to be worse by prisoners who are far away from their home state.”8 9 In contrast to the United States, the United Kingdom and Australia rely on ombudsmen to increase accountability. Harding believes that these designated watchdogs—with unlimited access and authority to investigate and issue reports—will eventually improve performance; his faith in their performance may, however, be somewhat misplaced. While such overseers do prod management, the extent of their efficacy is often linked to the clout of their political supporters; absent such support their ability to effect change appears limited. Nevertheless, Harding remains unconvinced; proper oversight linked to clearly drawn contract specifications and sanctions for poor performance will, he believes, ultimately privilege private performance. ^Harding, “Prison Privatisation: The Debate Starts to Mature” 112-13. 44 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Conversely, in an attempt to thwart the privatization movement, United States Senator Russ Feingold and Representatives Ted Strickland, John Sweeny, Tim Holden and Steve Horn have reintroduced the Public Safety Act in April of 2001. The bill, if passed, will prohibit the privatization of federal prisons and, will deny correctional grants to states that operate privatized facilities. Case Studies: CCA and Wackenhut CAA Incorporated in 1983 by 1966 West Point alums, now Nashville-based businessmen/lawyers, Thomas W. Beasley and Doctor R. Crants, The Corrections Corporation of America (CCA) is the largest private correctional company in the United States; it is also a significant player in the emerging worldwide private prison industry. Initial funders included the Massey Burch Investment Group, the parent company of Kentucky Fried Chicken, and the beleaguered Hospital Corporation of America. From the start CEO Beasley appeared undaunted by his criminal justice neophyte status. A former chairman of the Tennessee Republican Party, he used his considerable leverage to aggressively promote his new product, quipping, “You just sell it like you were selling cars, or real estate, or hamburgers.”9 0 Presaging a rather wild west, entrepreneurial, seat-of-your pants zeal, CCA started its business by accepting Texas prisoners notwithstanding the fact that they had yet to build a facility ’“Eric Schlosser, “The Prison Industrial Complex, The Atlantic Monthly (December 1998): 70. 45 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. to house them. This first venture foreshadowed future security lapses; housed in non-secure motel rooms, several prisoners escaped through air-conditioner slots. Just one year later, underscoring its “manifest destiny” sensibility, CCA felt ready to assume responsibility for Tennessee’s entire system. Although unsuccessful in that audacious Tennessee bid, CCA persevered and grew into a half-a billion dollar industry, administering the sixth-largest prison system in the country (after California, Texas, the U.S. Bureau of Prisons, New York and Florida). The company currently operates 82 prisons in 26 states, Puerto Rico, Great Britain and Australia. During its peak 1992-97 years, CCA shares had a compound annual growth rate of 70%, a performance that placed them within the top 20% of stock market between 1987-97.9 1 From the time of its initial public offering in 1986 until the end of 1997, the value of its shares rose from $50 million to more than $3.5 billion. Reflecting the market’s internationalist purview, CCA’s largest stockholder—with 16% of the common stock—is a Paris-based facilities management, food services conglomerate, Sodexho Alliance. Besides being its largest stockholder, Sodexho is in business with CCA in the UK, acting as partner in CCA’s European private correctional venture, the UK Detention Services.9 2 Since 1997, however, its fortunes have declined, the result of a series of small and serious missteps—most notably the highly publicized debacle at the Northeast 9,Bates, “Private Prisons” cover. “ Alan Mobley and Gilbert Geis, “The Corrections Corporation of America, AKA The Prison Realty Trust, Inc.,” U of California, Irvine, Department of Criminology, Law and Society-1999, 6 unpublished transcript. 46 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Ohio Correction Center (NEOCC) in Youngstown, Ohio. Problems at that facility, which involved the misclassification and placement of approximately 1,700 inmates from the District of Columbia, resulted in two inmate deaths, several internal disturbances (including inmate-on-inmate, and inmate-staff assaults), and the escape of six violent offenders (all were ultimately recaptured). The magnitude of the problems led to a request for an independent federal Department of Justice review by several significant stakeholders including, then Governor of Ohio, George V. Voinovich and several members of Congress. After 3 months of intensive research John L. Clark, the Corrections Trustee appointed by Attorney General Janet Reno, issued a wide-ranging report. In sum, it attributed the facility’s extensive problems to CCA’s mis-placed attempt to economize at the expense of adequate staffing, security and medical care. As the report noted: Expediency and the pressure of short-term objectives often prevailed over good judgment and sound correctional procedures. . . . In response to a perceived emergency need for contract prison beds the District of Columbia rushed into an abbreviated procurement process.. . . The result was a flawed contract, at a somewhat inflated price, with weak requirements on the contractor and minimal provisions for enforcement. (Attorney General Report—Executive Summary-Part A Major Findings)9 3 As a result o f these perceived exigencies, the report concluded that the District of Columbia DOC and the CCA colluded in the transport of large numbers of under classified inmates; the NEOCC, a facility designed to hold medium and, at most, 9 3 John L. Clark, Report to the Attorney General re: Northeast Ohio Correction Center (Washington.: The Department o f Justice, November 25, 1998) Executive Summary part A, http://www.usdoj.gov. 47 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. high medium prisoners, was flooded with maximum security, violent inmates. A class-action lawsuit filed on behalf of the inmates is still winding its way through the courts. The company’s decline was exacerbated by a 1998 complicated business consolidation that reconfigured the company profile. CCA re-emerged as CCA Prison Realty Trust (PRT-traded as PZN), a real estate investment trust (REIT) spun- off from its CCA parent. Although all facility operations were subsumed under the same CCA rubric, they were essentially split into three divisions: a newly configured CCA, Prison Management Services, Inc., and Juvenile and Jail Facility Management Services, Inc. The purpose of the restructuring was to take advantage of REIT’s federal tax-exempt status. Under the new organization at least 95% of the previously anticipated federal assessment was to be distributed to shareholders. Despite this seeming shareholder bonanza, the deal was strongly criticized by some influential shareholders, including some of the nation’s largest pension funds, as a scheme that favored high placed executives at the expense of ordinary shareholders.9 4 At the time of the restructuring the price per share was hovering around $30, by mid 2000 it had fallen to an all-time low of $2.00. In between the company had been crippled by a series of ever more egregious missteps including gross misrepresentations of costs and profits, charges of lax security, food shortages, evidence of altered medical records, and high staff turn-over rates; a string of ^Mobley and Geis, “The Corrections Corporation of America” 7. 48 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. murders, assaults, and escapes rounded out a rather dismal portrait of corporate mis management and ineffectiveness. A 1998 Tennessee Department of Correction analysis, for example, contrasted a state privatized turnover rate of 104% and 82% respectively with a 34% public average. Similarly, Mother Jones reports that CCA facilities experienced 79 escapes between the years 1995-98 nationwide; in contrast, California, housing more than twice the number of inmates, only endured 9 breakouts.9 5 CCA attributes these high figures to start-up difficulties and insists their national turnover rate is lower than critics report, hovering around 45%.9 6 Nevertheless, despite the Youngstown debacle, CCA continues to position itself as a classification arbiter; refuting the claim that they mix classifications, company officials maintain that they merely implement a single standard— translating one state’s requirements into another’s structure. Insistent on their right to set their own classification standards, CCA has further asserted their legal right to keep their composition mix models confidential. Thus when two sex offenders escaped the CCA Houston Processing Center, a facility ostensibly serving undocumented persons, Texas was caught unaware albeit still responsible for their capture. The casual mixing of sex offenders from Oregon with immigrant detainees in Houston was deemed by CCA not sufficiently important to warrant disclosure to its host state. 9 5 Barry Yeoman, “SteelTown, Lockdown,” Mother Jones (May/June 2000): 41. % e-Watch 16 May 2000. 49 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Thus, it was not that surprising that the May 15,2000, first quarter operational report revealed a net loss of $30 million. Anticipating a $200 million loan from Pacific Life Insurance Company, PRT moved to amend its credit line and accelerate further restructuring and development plans. Their financial condition gradually improved; a 1 to 10 reverse stock split at the end of June 2001 appeared to generate an upswing in stock prices as per share value rose from a low of $.86 to $13.82. In the same month, Standard & Poor revised its rating criteria for prison financing. As Barry Yeoman notes, despite its variable and often dismal record, private corrections continues to enjoy the support of many powerful backers. Countless investors are enticed by the specter of an ever-expanding correctional market and extant “cut-rate prices.”9 7 With several bids speaking to the company’s ultimate viability, CCA’s hopeful outlook is nurtured by its carefully cultivated political connections. While privatization proponents maintain that private prisons’ influence peddling is simply a liberal apparition—an invention made out of whole cloth to slander upstanding companies—CCA’s political manipulations have become legendary, garnering them a poster-corporation status for political promotion. In 1997, for example, the wife of the speaker of the Tennessee legislature was named the company’s chief state lobbyist, the county oversight monitor’s son had been placed on the CCA payroll, and five state employees, including the governor, the ’’Yeoman, “SteelTown, Lockdown” 47. 50 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. House speaker, and the privatization bill’s legislative sponsor, were business partners with CEO Beasley in other ventures. Nationally, CCA has contributed to such pro privatization stalwarts as governors, Tommy Thompson of Wisconsin, and Frank Keating of Oklahoma. Perhaps not so incidentally, Wisconsin is the leading purveyor of out-sourced prisoners, while Oklahoma’s correctional policy is distinguished by the fact that a majority of its medium-security beds are privatized.9 8 While corporate contributions to political campaigns have become entrenched practice, in many ways the nightmare catalyst that drives financing-reform dreams, its correctional ramifications are particularly pernicious as “soft money” turns into exceedingly “hard time.” Wackenhut In contrast, the Wackenhut Corrections Corporation, a division of Wackenhut Corporation, comes to table with its parent company’s patina. An international Florida-based security firm, Wackenhut’s CEO, George Wackenhut, is a former FBI agent. Until recently, Wackenhut was seen as the “class” in the field, a corporation with a professional security track record and considerable public relations savvy. Within five years of the opening of its first prison in 1989, it had achieved sufficient financial success to generate an initial stock offering. At the end of 1999, a record year, Wackenhut Corrections Corporation had amassed $439 in revenue and a ^Mobley and Geis, “The Corrections Corporation of America” 11. 51 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. $22million profit. At the time, Wackenhut stock was rated by major Wall Street analysts as a “buy” or a “strong buy.”9 9 However, by mid-2000, this seemingly rosy picture had been considerably altered by a series of disasters in four states—disasters exacerbated, from WCC’s perspective, by an onslaught of attendant national media attention, including a well- publicized 60 Minutes II expose. A New Mexico legislative investigation precipitated by the riot-related deaths of an inmate and a corrections officer, faulted WCC’s classification mix (maximum prisoners within a medium-security facility) as well as its inadequate, poorly paid and trained staff. Two juvenile facilities, the Coke County Juvenile Justice Center in Texas, and the Jena Juvenile Justice Center for Boys in Louisiana, were cited for forcing their young charges to live in subhuman conditions. And in East Austin Texas, in what state officials dubbed the “biggest sex scandal” in their state’s history, the WCC’s contract at the Travis County Community Justice Center was terminated as a result of indictments handed down against 1 1 former officers and a manager. Allegedly sex became a medium of barter as women were routinely forced to submit to sexual initiatives in exchange for such necessities as shampoo and underwear. Even within the context of historically endemic prison abuse, these incidents, along with a series of “outright rapes,” caused long-time Austin lawyer, civil suit litigant, Ron Weddington to characterize Travis County "James McNair, “Wackenhut Prisons Mired in Abuse Scandals,” Miami Herald http://www.miamiherald.com 16 April 2000. 52 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. systemic abuse as “pretty much off the charts.”1 0 0 In addition to the possibility that the case could ultimately involve allegations of misconduct against 20 more officers, obstruction of justice charges are also being explored. The Coke County juvenile facility, opened in 1994, promised to deliver innovative treatment and rehabilitation to troubled adolescent females. While paid at Texas’ highest state per-diem, WCC failed to deliver its rehabilitative package. The 60 Minutes II piece charged that counseling sessions were being run by officers, instead of the promised credentialed psychologists, and that a profiled young woman was promoted through three grades of high school in just six months. Rather, a different type of “education” was taking place according to a 1999 lawsuit filed on residents’ behalf. Young women, forced to engage in “offensive sexual contact, deviant sexual intercourse and statutory rape” on a regular basis, were additionally physically brutalized “to the point of being hospitalized with broken bones.”1 0 1 The profiled resident told her family that while being molested nightly she was cautioned not to tell her family because it would result in their deaths. While two indicted officers have pled guilty, WCC has yet to address litigant charges of corporate responsibility for inadequate officer screening, training and supervision. What they have done, however, is remove the female adolescents; Coke County is now a facility for adolescent boys. '“ James McNair, “Wackenhut Prisons Mired in Abuse Scandals” 6. l0 1 McNair, “Wackenhut Prisons Mired in Abuse Scandals” 6. 53 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Lest one think that WCC has had a better track record with young males, one has only to review the Jena case record. Within the context of Louisiana’s dismal public prison human rights record, Jena was inaugurated in December of 1998 as a hopeful private counterpoint, a model treatment facility with professional substance- abuse staff. Scarcely more than one year later, it was the subject of a scathing 277- page Justice Department civil rights report that directly linked widespread abuses to “the reluctance of Wackenhut Corrections to spend adequate funds to provide for the care of the youth.” A former warden of the Angola prison, hardly a prison-rights advocate, concurred with the Justice Department’s pecuniary comments, tagging WCC as “just cheap.”1 0 2 The report concluded that juveniles were subjected to “cruel and humiliating punishments” with officers “routinely us(ing) excessive force.”1 0 3 Documented abuses ranged from lack of basics such as food, clothing, shoes and blankets, to grossly inadequate medical care and education, to wide scale officer brutality linked to inadequate screening and training. Within the first 13 months of its operation the report substantiated that Jena’s 180 positions had experienced a 600- person staff turnover; at least 20 hired staff were found to have had criminal records and/or been named in previous correctional abuse cases. Five wardens came and went. Horror stories ranged from residents being placed in solitary confinement for ,0 2 Fox Butterfield, “Privately Run Juvenile Prison in Louisiana is Attacked for Abuse o f 6 Inmates,” New York Times 16 March 2000: A-14. '“ Response of the United States to the Court’s Order of 11/6/98 Concerning the Jena Juvenile Justice Center 22 Feb. 2000: 8. 54 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. months on end without apparent reason, to 100 documented incidents of “serious traumatic physical injuries,” including five sexual assaults, and 8 suicide attempts. A lawsuit filed on behalf of Jena juveniles claims that some suicide attempts and mutilations were desperate attempts to escape violent officers’ control.1 0 4 On 60 Minutes U a profiled young marijuana user claimed that he failed to receive promised drug counseling. What he found, instead, were officers selling and using drugs with inmates as well as inmate/officer sexual activity. “The guards were ju st. . . like inmates,” he maintained, the one distinction being “they got control over us.” Shortly after the Justice Department report’s release, moved by the facts of specific cases—including a 17 year old shotgun victim whose mistreatment by an officer pushed part of his intestines into his colostomy bag and a 15 year old who tried to commit suicide 20 times—Judge Mark Doherty of Orleans Parish Juvenile Court ordered the release of seven residents. Explaining his decision, Judge Doherty noted that juveniles at Jena were “treated like animals.”1 0 5 Less than one month later, on April 5,2000, WCC turned over control of the facility to the state of Louisiana; on May 17th all juveniles were removed and Jena was converted into an adult facility. Despite this series of calamities, CEO George Foley, whose PR sensibilities are ordinarily fairly astute, refused to acknowledge any responsibility when interviewed on camera for the 60 Minutes II piece. However, a series of corporate l0 4 e-Watch 16 May 2000. '“ Butterfield, New York Times A14. 55 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. steps to ameliorate the problems of, what Foley terms, their “under performing facilities” have taken place. An ombudsmen reporting directly to company president, Wayne Calabrese, has been hired to review inmate grievances and serious incident reports, a former U.S. Bureau of Prisons’ agent has been hired to oversee an internal audit, and the senior vice-president of operations has been replaced. Additionally, prior to WCC’s pull-out, Zoley had hired an esteemed private prison critic to conduct a safety and security review at Jena. Last, but certainly not least—in what it reveals about the extent of current corporate apprehensions—on May 31,2000, Wackenhut Corrections changed its public designation to WCC. Much like CCA, significant detrimental publicity has effected a diminished corporate bottom line. Nevertheless, echoing the WCC public posture that recent adverse fortunes reflect to-be-expected growing pains—anticipated temporary glitches in a challenging, complex industry—financial experts’ predictions that 2001 would witness a positive corporate turnaround have thus-far been bom out. While the company is still losing money, stock prices rose to a recent high of $16 per share in June, 2001 as a result of reported revenue increases in several of its key business sectors. For example, Global Security Services division rose 4.8 % from the previous year and its national division expanded due to new contracts and increases in existing revenue stipulations. Hedging their bets, nonetheless, a 6/27/01 Reuters news service story reported that CCA and Wackenhut have responded to their recent travails by contemplating a shift and/or expansion of focus. While not abandoning their 56 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. correctional facilities, both providers are moving to initiate and/or increase their mental health and substance abuse treatment facility business according to this report.1 0 6 Conclusions Any discussion of correctional policy at the turn of the 21st Century must acknowledge the obvious: public and private U.S. prisons are, despite some ameliorative programmatic pockets, largely harsh and unforgiving environments. While prison officials will allow that, at least theoretically, the sentence is the punishment—not the place, and/or the conditions of confinement—the place, nevertheless, appears to take on an inextricably punitive cast as evidenced by the benchmark 1971 Stanford Prison Experiment. Simulating a prison environment, “normal,” even self-described pacifist Stanford students were randomly assigned either a prisoner and/or a guard “role.” Although planned for a two-week period, the experiment was stopped after 6 days due to extreme participant distress. Many “prisoners” suffered acute psychological distress; many “guards” engaged in previously foreign sadistic and brutal acts. Exemplifying the power of institutional environments to shape behavior—replicating the patterns of extant correctional facilities—the study reported that “despite the fact that guards and prisoners were l0 6 e-Watch 28 June 2001. 57 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. essentially free to engage in any form of interaction. . . the characteristic nature of their encounters tended to be negative, hostile, affrontive and dehumanizing.”1 0 7 Given this institutional predilection, it may be anticipated that efforts to improve pervasively deplorable conditions will be met with a considerable measure of conscious and/or unconscious resistance. Shifting the paradigm will require enormous effort; incentives that buttress existing institutional currents will, accordingly, be more easily implemented. After all, social beneficence is uneasily achieved in the best of circumstances, with the most “deserving” populations. Christian ideals notwithstanding, beneficent, rehabilitative concerns for those alleged to have caused social harms are viewed by many as counterproductive and suggestive of a subversive double message. Sadism seems more syntonic with extant institutional imprimaturs. As a result, the question as to whether for-profit corrections exacerbates or diminishes de-humanizing proclivities assumes a central position in this thesis. Reviewing the history of money’s role in the punishment process, it appears that attendant profit making interests have, on the whole, functioned to decrease, rather than increase, countering institutional social welfare/rehabilitative proclivities. However, while historically profits were typically derived from the maximization of prison labor outputs—often by any means necessary—the current privatization paradigms are largely dislodged from this labor/profit nexus. Based, in the main, on 1 0 7 Craig Haney and Philip Zimbardo, “The Past and Future of U.S. Prison Policy: Twenty- Five Years After the Stanford Prison Experiment,” American Psychologist (July 1998): 710. 58 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. anticipated operational savings and efficiencies, prison-labor generated income serves, at best, as an intermittent appendage. Given the parameters of correctional operations, with start-up savings and technological efficiencies of limited long-term application, the extraction of any profits must, of necessity, be realized via labor force and/or inmate services’ cutbacks. That is not to say that there are no safe private facilities that treat prisoners humanely while providing good programmatic content. The Wackenhut Kyle facility in Texas, for example, has been acknowledged for its innovative wrap-around drug treatment programs. What it does suggest, however, is that profit-seeking dynamism functions differently than public sector economics. That, overall, the private sector is guided by a single-mindedness in which, particularly in a correctional context, exploitation is too easily justified in the name of profit maximization. As Schlosser notes, “when free enterprise intersects with a captive market abuses are bound to occur.”1 0 8 This “truism” has, nevertheless, failed to impede the market remedy juggernaut. Some state systems have, for example, started to revive the medieval, fee-for-service, correctional stalwart as fiscal relief for public incarcerative excess. As reported in the July 10,2000, New York Times. Kentucky is joining a handful of other states, in granting its 85 jails the power to charge for their “services.” A discretionary system, allegedly linked to an inmate’s ability to pay, this new '“ Schlosser, “The Prison Industrial Complex” 63. 59 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Kentucky legislation gives local short-term correctional personnel the option to levy a series of charges—including up to $50 a day for room and board. Fees may be negotiated and negative balances may be forgiven, collected post-release, or remain on the books in anticipation of enhanced resources during future “visits.”1 0 9 In a similar vein, it has been reported that Los Angeles is considering a two-tiered jail system, in which those with money can be assured more livable detainee facilities. Prospectively replicating the deplorable range of medieval forbearers’ abuse, it is not yet clear what systems of accountability can minimize this second-tier punitive surcharge. Yet although a market-based system augurs obvious problems, it does, nevertheless, offer a disciplining, rather immediate report card. And, as the recent downturns of Wackenhut and CCA have demonstrated, the market operates with great efficiency in this capacity. As Harding notes, “the private sector will always be more vulnerable than the public sector whose malfeasance, however negligent, or brutal or incompetent, will never lead to its having its prison taken away from it.”1 1 0 Granting the essential truth of this assertion, however, does not automatically result in a clear privatization mandate. For example, it says little of the relative overall merits of either system. Market discipline simply suggests out that given instances of equally bad facilities, privatized ones will suffer greater penalties for poor l0 9 Frances X. Clines, “Rooms Available in a Gated Community: $20 A Day,” New York Times 10 July 2000: A 14. "°R. W. Harding. Private Prisons and Public Accountability fUK: Open UP, 1997) 15. 60 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. performance; it takes for granted public intractability. Most importantly, it fails to address the likelihood and/or the contours of “malfeasance” within disparate public/private paradigms. In reality, what CCA’s and Wackenhut’s financial downturns most clearly evidence is the absence of an agreed upon correctional telos. Operating within a largely punitive, “throw away the key” cultural mandate, the two privatized industry leaders have, nevertheless, been financially disciplined; market sanctions have responded to claims of inefficient security management as well as allegations of inmate abuse and lack of services. However, given the complicated, often contradictory, extant criminal justice messages, the fact that CCA and Wackenhut have been chastened will not necessarily augur a more humane privatized prison management in the long term; the public mandate is obviously unclear. Thus, while NEOCC oversight, much like judicial review of certain public prison systems, has brought short-term improvements, it remains to be seen how corporate/commonweal tensions will ultimately be resolved. Paradoxically, privatized failure often effects an ostensibly increased public presence in the form of more extensive and costly contractual stipulations and oversight."1 Given the often countervailing pressures of investor/public priorities, privatized proponents who tout greater contractual accountability, ultimately fail to consider the ramifications of being answerable to two, at times, conflicting masters. Trans versing the efficiency/values divide within a pluralistic—often contentious and confused— "'Elliott D. Sclar, You Don't Always Get What You Pav For (Ithaca: Cornell UP, 2000) 122. 61 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. public domain remains an exceedingly difficult, perhaps insurmountable, challenge for privatized corrections. Most importantly, however, privatization failures should not somehow be reconfigured as privatization success—somehow indicative of an inherent systemic superiority. While the re-emergence of privatized corrections implies a dissatisfaction with the current public system, the privatized “solution” fails to even approach such perplexing, essential, mainframe questions as: What is the nature and purpose of punishment? How does prison satisfy its primary intentions? How do modes of punishment support extant social values? How do we understand efficacy within a correctional context? Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. CHAPTER II THE ASCENDANT LENS: ECONOMIC AND POLITICAL REPERCUSSIONS “Justice without force is impotent, force without justice is tyrannical”1 1 2 Introduction For Charles Lindblom the balance between political and economic forces, the degree to which the market replaces government or government, the market, is critical. It is, he contends, “the most significant distinguishing lens” through which to understand state/governmental functioning.1 1 3 At the same time, it is widely acknowledged that the two are, in many ways, inextricably woven; they are integral to each other’s processes. Much of government’s focus is on legislating economic matters; economic policy is, by definition, driven by political considerations.1 1 4 Both may be viewed as processes directed towards the resolution of competing interests and thus emblematic of disparate systems of authority. Discerned via a Hobbesian " ’Jacques Derrida, “Force of Law: The Mystical Foundation of Authority,” Cardoza Law Review 11. 5-6 (July/August 1990): 937. " ’Charles E. Lindblom. Politics and Markets (New York: Basic Books, Inc., 1977) ix. ,M George Will, Statecraft as Soulcraft: What Government Does (New York: Simon and Schuster, 1983) 124. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. hermeneutic, the state is essentially understood via its mandate to lawfully constrain. Conversely, the crux of economic authority is grounded in our property right canon.1 1 5 George Will distinguishes the two by noting that the market “tests popularity, not truth”1 1 6 ; it functions to satisfy immediate preferences and allocate resources. Political institutions, defined by Will as “the authoritative assignment of social values,” are, in contrast, required to consider long term communal responsibilities."7 Politics implies a normative focus. For Socrates, politics signifies ethics writ large; for Aristotle, it informs the cultivation of virtuous citizenry. Capitalism, in contrast, denotes moral neutrality. Attempts to link capitalism to moral considerations are perceived, by many, as misguided, anathema to its essential dynamism."8 Its neutrality, a single-minded pursuit of wealth and profit, is, in this view, understood as integral to its efficiency. While many argue that from a strictly utilitarian perspective capitalism’s ability to generate wealth is ultimately beneficent, this is a highly disputable supposition given the market’s fundamental obliviousness to normative, allocation concerns. Paradigmatically, economics is informed by an exchange, the state through the exercise of its power. Viewing prison privatization 1 1 5 Lindblom, Politics and Markets 8. ll6Will, Statecraft as Soulcraft 33. ll7Will. Statecraft as Soulcraft 118-120. U 8 Paul Johnson, “The Capitalism and Morality Debate,” First Things (March 1990): 18-20. 64 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. as a blurring of these two articulations, this chapter will explore the significance of this conflation within the context of a coercive, total institution. Appropriating, as leitmotif, David Garland’s useful distinction between punishment as governance, a political, moral and social instrument accountable to the government, and punishment as management concern, a central question guiding this inquiry is how one might anticipate the nature and import of punishment in relation to the shifting primacy of the economic/political hermeneutic and discourse. Judgment will, of course, be informed by standpoint, by how one prioritizes and perceives the appropriateness and importance of such disparate punishment ends as deterrence, retribution and/or reform. Punishment—Significance and Purpose Punishment, via a Durkhemian articulation, serves to delineate a society's moral boundaries. It is, in this view, essential to our understanding of communal justice norms, an index of society’s moral bonds and a “key to unlock [the] larger cultural text.1 1 9 Relying on the importance of symbolic substitution, its intention is to “convey a message and efface wrong.” Although the full scope of that intent can never be actually realized—punishment, as L. E. Goodman reminds us can never actually “efface a wrong”—its symbolic system is nevertheless essential to the commonweal. As Goodman notes: “Punishments are ritual in nature. . . they specify and schematize what in itself is immeasurable. What all penal schemes have in "’David Garland, Punishment and Modem Society (Chicago: The U of Chicago P, 1990) 12. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. common is that they are constitutive symbolic systems. They define a hierarchy of values.”1 2 0 David Garland reiterates this theme o f apparent ineffectuality, albeit from a disparate viewpoint. Lamenting the “degree of futility [that] is the tragic quality of punishment,” he notes that punishment may be “politically necessary for the maintenance of a particular form of authority and [yet] limited in its capacity to control crime.”1 2 1 It offers comfort by suggesting that, at the very least, “authorities are in control, that crime is an aberration, and that the conventions which govern social life retain their force and vitality.”1 2 2 The discrepancy between the promise of “just” commensurability and/or effective deterrence, and a reality that falls far short, has occasioned the development of varying and competing measures and interpretations of the criminal justice mission. Its disjunctive necessarily informs any nuanced exploration of competing political/economic paradigms. Eschewing any hopes for justice as punishment stakeholder, penal practices are perceived by functionalist and /or Marxist theorists, for example, as emanating from the requirements and demands of socio-economic elites. In a seemingly consummate blending of political and economic articulations, political power qua penal policy serves, they contend, to strengthen and sustain the economic order. I2 0 L. E. Goodman, On Justice (New Haven: Yale UP, 1991) 48. l2lGarlan<L Punishment and Modem Society 80. l2 2 Garland, Punishment and Modem Society 59. 66 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Skeptical of a truly ineffective institution’s survivability, Michel Foucault maintains that “prison is retained for its failures and not in spite of them.”1 2 3 Functioning as punitive exemplar, the creation of the “criminal” and his/her recidivism serve, he contends, to terrorize and discipline the working class. Similarly, Michael Ignatieff argues that the persistence of our penal policy is largely “inexplicable” if understood within the framework of a crime control objective. Informed by the economic concerns of a newly emerging industrial world order, it is, he suggests, a policy wrought from “a larger social need to re-establish order.”1 2 4 Concurring, sociologist David Greenberg maintains that if the United States was truly interested in fighting criminal behavior, an alternative, more productive, strategy would emerge. Throughout American penal history, he suggests, income distribution, in tandem with an expanded and improved educational system, would have proved a more effective crime control strategy than the range o f historic and extant punishment practices1 2 5 ; it would render, he believes, the prison expansion movement wholly unnecessary. Mark Moore is more sanguine about justice’s possibilities. While echoing Garland’s concerns regarding punishment’s less than optimum crime control capacity, he, nevertheless, underscores justice’s enduring legitimative functions. '“ Garland, Punishment and Modem Society 150. l2 4 Michael Ignatieff, A Just Measure of Pain: The Penitentiary in the Industrial Revolution: 1750-1850 (New York: Columbia UP, 1978) 210. l2 5 David F. Greenberg, Crime and Capitalism, ed. David F. Greenberg (Philadelphia: Temple UP, 1993) 1. 67 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Central to a society’s political articulation, the promotion of justice, he opines, serves to legitimize the system irrespective of its ability to control crime. While not addressing the commensurability issue per se, Moore understands justice’s primary task as the furtherance of civic responsibility—that is mutual concern and commitment to commonweal interests. Paradoxically, however, he acknowledges that representations of justice appear less pivotal, of diminished consequence, at the very time when efforts to create greater equity in the system have, in his view, achieved a modicum of success.1 2 6 Unfortunately, a weakened justice advocacy will ultimately serve to weaken these efforts. Validated neither through its track record on crime control nor prisoner rehabilitation, with equity concerns on the wane, what are the values that extant punishment represents? Violation of the Sacred If punishment, as Durkheim contends, is “fixed by a sense of the sacred and its violation,”1 2 7 it may be useful to explore its political/economic subtext and interface by way of its sacred/profane implications. “Sacred” traditionally implies, depending on the theorist, social, holy, awe-inspiring, fascinating and/or powerful, sphere of order and perfection, eternal, substantive, mysterious, miraculous, emotive, moral and substantive; it is customarily situated within the domain of the political. “Profane” denotes a mundane, individual and/or utilitarian focus. It implies evil as '“ Mark Moore, “The Legitimation of Criminal Justice Policies and Practices,” Perspectives on Crime and Justice 1996-7 Lecture Series (Washington: National Institute of Justice, 1997) 50-54. 1 2 7 Garland, Punishment and Modem Society 32. 68 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. opposed to good, outcast as opposed to member; it suggests the technological and/or business concerns of the economic domain. Yet what Mircea Eliade terms “the terror of history” (i.e., intimations of life as a pointless trajectory ending in death), seemingly animates both spheres. It stimulates a universal desire for transcendence and significance that customarily attaches to the political/social/sacred; it buttresses the need to refute human vulnerability and impotence via economic rationality’s illusion of control. If the sacred appears insufficient to the challenge of the incomprehensible, the profane suggests the possibility that endemic existential frustration can be mollified via efficient management. Maintenance of the sacred/profane border engages a significant amount of socio-political energy; upkeep relies on an appreciable grasp of the omnipresent potential for violent, coercive power that political power qua sovereignty represents. Yet it is precisely at the border where the two worlds collide—no where more markedly than in the criminal justice system—that the potential for violence is most pronounced. As Victoria Erickson contends in her feminist reworking of Durkheim, violence is “the natural and inevitable outcome and precondition of contact between the sacred and the profane.”1 2 8 Punishment, a symbolic rendering of their embrace, is at once perceived as remedy, deterrent and perpetrator, the sacred is proclaimed and buttressed through the imposition of pain on the profane. Mutually informing, one cannot, a priori, exist without the other. '“ Victoria Lee Erickson, Where Silence Speaks (Minneapolis: Fortress Press, 1993) 27. 69 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Responsibility for the juncture between the legal, military, and law enforcement spheres, for the control of external and internal violence, has been a quintessentially political role; sovereignty as territoriality provides, through its law making and enforcing agency, “an ordering principle for what is internal and external (read sacred/profane) to their power.”1 2 9 Pointedly and eloquently Robert Cover notes: “Legal interpretation takes place in a field of pain and death. . . it constitutes justification for violence which has already occurred or which is about to occur.”1 3 0 Punishment, retributive justice’s worldly enactment, functions, in part, as borderline enforcer; it rests on the presumption that a politically legitimated violence will foster social cohesion and quell disruptive, disaffected voices. In its symbolic manifestation it sets the line between what is good and bad or, alternatively, it serves to differentiate between what a society deems legal and illegal activity. If the boundary appears equivocal and/or indistinct, a disparate, yet nevertheless, similarly clear message is transmitted. Within the closed prison universe, optimally differentiated law-making and law-enforcing functions are joined; the legitimacy of legal authority is compromised as correctional authority commandeers a quasi-judicial role. While ostensibly serving to pacify, the authoritative institutional arrangements function to undermine, 1 2 9 Anthony Giddens, The Nation State and Violence (Berkeley: U of California P, 1987) 281. l3 0 Robert Cover, Narrative. Violence and the Law: The Essavs of Robert Cover, eds. Martha Minow, Michael Ryan, and Austin Sarat (Ann Arbor: The U of Michigan P, 1995) 203. 70 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. rather than enhance, peaceable interactions as customary communal inhibitions towards violence recede.1 3 1 It is in addressing the admixture of law and punishment, morality and justice, that the line appears most distinct and, at the same time, most fragile. While one could argue that the criminal justice system endures, in effect, to draw that line—at the same time it seemingly functions to obfuscate. It is at once a system of majesty and meaning, an attempt to render an efficient calculus of pleasure and pain, and a vehicle to safeguard elite class interests. If, as Niebuhr contends, politics is understood as the place where, “conscience and power meet,”1 3 2 the justice system may be viewed as the political institution par excellence. Yet, the justice/punishment spectrum is, in fundamental ways, articulated via an economic discourse. Lawrence Freidman, for example, states that “all criminal justice is economic in one crude primary sense; its rules are attempts to fix prices or ration behavior. . . stiffening a penalty is like raising a price.”1 3 3 While 17th and 18th Century culture was primarily informed by an amalgam of sin and crime, morality and legality, the 1 9 th Centuiy, according to Wai Chee Dimock, evidenced the admixtures’ disengagement.1 3 4 Superseded by the force of an l3lCover, Narrative. Violence and the Law 221. l3 2 Reinhold Niebuhr, Moral Man and Immoral Society (New York: Simon and Schuster, 1932)4. '“ Lawrence Friedman, Crime and Punishment in American History (New York: Harper Collins, 1993) 107. I3 4 Wai Chee Dimock, Residues of Justice (Berkeley: U of California P, 1996) 18. 71 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. economic world view that rooted justice in the contractual relation between creditor and debtor, it posited barter as “the cognitive foundation for the law”; penalties were accordingly quantified “according to the variable of time.”1 3 5 Through concepts such as the fault principle and assumption of risk, the justice system was given the dubious task of quantifying the incommensurate— of making an economic assessment of injury and loss.1 3 6 Market concepts, what Daniel Bell refers to as the priority of “legal rights of ownership and property, prevailed over moral claims and became the arbiter of all economic and social relationships.”1 3 7 Rules were promulgated as remedy for the arbitrariness that appeared to characterize the archetypal monarch’s practice. Yet the legal system, and the justice it purports to impart, continues to normatively inspire. In its role as society’s integrating principle, in its stated responsibility towards the good of the whole, intimations of justice evoke ethical, transcendent possibilities; it is in this context that the political qua sacred dimension is most clearly visible. Concomitantly, however, “the political,” the deemed science of the good, presupposes the interests of the polis, and a dedication to communal, oft times messy— in some instances even mundane—concerns. Economic articulations rely on thematically comparable notions of commensurability. An attainable, 1 3 5 Angela Davis, The Angela Y. Davis Reader, ed. Joy Janies (Malden: Blackwell Publishers, 1998) 97. 1 3 6 Dimock, Residues of Justice 159-60. l3 ? Daniel Bell, The Cultural Contradictions of Capitalism. Twentieth Anniversary ed. (New York: Basic Books, 1996) 283. 72 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. idealized, justice is expressed through the hermeneutic of an exchange and/or as a conceptual “mean”; it is, according to Aristotle, “a reciprocity in accordance with proportion.”1 3 8 Mathematically configured theoretical representations—apart from the context of lived life—are, in this instance, singularly determinative. As Richard Sennett notes, “the invisible hand is... an abstraction; it is attached to the body of no single human being.”1 3 9 Hence tweaking the initial analogous pairing, sacred/political and profane/economic reveals a substructure with distinctly crossover elements. The “sacred’s” implied purity, its fervent and ascetic disciplinary power, presupposes a transcendent, immortal potential that defines mathematical infinity, and is most easily delineated within an economic hermeneutic. The “profane,” awash in impurity and death, is a political, all too human, configuration. Again, each serves to define, nurture and mask the other. Efforts to approximate justice may therefore best be understood as a struggle to achieve a sacred/profane balance—not blindly, as in the celebrated eponymous scales, but with full cognizance of the scope, variance, interrelated and distinguishing attributes that might inform a proper embrace. The omnipresent statues of “blind” justice, dating back to the 16th Century, denotes an impartial, careful, weighing of evidence; then, as now, they seemingly offer symbolic sanctification to an economic 1 3 8 Aristotle, The Nicomachean Ethics, rev. J. L. Ackrill and J. O. Urmson (New York: Oxford UP, 1980) 117. l3 9 Richard Sennett Authority (London: Seeker and Warburg, 1980) 43. 73 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. rendering. Although alternate artistic interpretations of justice endure (e.g., justice as exemplar of Roman authority marked by the carrying of a bundle of rods surrounding an ax, and/or justice as angel, crowning the righteous and beheading the sinner), the symbol that sustains contemporary sensibilities evokes an economic lens. The strength of this lens has, however, proved problematic. Thwarting a seemingly elusive political/economic equilibrium, market actors and ideology appear to impound the contours and terms of any policy-related debate. Yet Durkheim’s delineation of punishment’s normative charge (i.e., an informed perception of the sacred and an awareness of what constitutes its defilement) still, and ultimately, appears socially vital. Therefore, given the murkiness of the terrain, a singular question emerges. Under whose authority, and upon what bases of legitimation, are the shifting contours of the sacred delineated? Traditionally affiliated with priorities of operative sovereign power, politics has sustained nomos through the establishment of sanctions; it has established order through its law-making charge. Hence, governance’s focus has been, a priori, directed towards the creation of boundaries, the setting of limits, and to the regulation of our “appetites and passions.”1 4 0 At the opposite end of the spectrum, millennium capitalism, building on prior incarnations, is distinguished by its very boundlessness, by a dynamism that is defined by its resistance to limits. Initially informed by the drastically disparate i4 0 Bell, The Cultural Contradictions o f Capitalism 279. 74 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Calvinist conceptions of restraint and delayed gratification, Bell attributes capitalism’s transmutation to the diminishment of the religious/moral mandates and the attendant decline of recognized, heeded, communal norms. In a world shaped by postmodern sensibilities, the new “norm” has been recast as “no norm.” Change has replaced tradition as the prevailing paradigm; absent boundaries, the sacred has been seemingly eclipsed.1 4 1 Although many theorists, including most notably Max Weber, suggest that there is a causal, perhaps necessary, relationship between the emergence of rationalism and the de-sacralization of society, it is possible to argue that the “sacred,” in its awe-inspiring, reverence-inducing meanings, need not evoke the ethereal. Transcendence, it may be argued, can be variously located. The Transcendent Economy In an article entitled “The Market as God, ” religion scholar Harvey Cox suggests, for example, that the “sacred” has not been lost, merely relocated; it is to be found enshrouded in the mysterious workings of the divinely inspired “Market.” Insisting that a “grand narrative about the inner meaning of human history” can be unearthed via a careful reading of contemporary business reportage, he notes, for example, that “The lexicon of The Wall Street Journal and the business sections of Time and Newsweek. . . bear a striking resemblance to Genesis, the Epistle to the Romans and the Saint Augustine’s City of God.”1 4 2 While nationalism has been the ‘ ■ “Bell, The Cultural Contradictions of Capitalism, xx. ,4 2 Harvey Cox, “The Market as God,” The Atlantic Monthly March, 1999: 18. 75 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. traditional purveyor of a prevailing symbolic system, including, most importantly, a myth of origin that nurtured a sense of history, place and communal purpose,1 4 3 Cox reports that the business pages now strive to provide an alternate canon. Evidencing an “entire theology,” replete with its own “myths of origin, legends of the fall, and doctrines of sin and redemption . . . there is never enough”1 4 4 serves, he contends, as first commandment. Although American business acumen has always been venerated, it has never been accorded, insists Cox, the centrality that it now enjoys. The Market, absent restraining, competing, world-views, has been enshrined as “First Cause”; it is accordingly able to both define the terms of discourse and to construct social meaning. There is, he cautions, “no conceivable limit to its inexorable ability to convert creation into commodities.”1 4 5 For example, land is transformed into real estate, the body into saleable parts, cherished religious and historical artifacts find themselves auctioned to the highest bidder. Unprofitable life finds itself marginalized as profit drives meaning and value is singularly attached to wealth. Referencing the religious vocabulary, Cox contends that the Market’s omnipotence and omnipresence ultimately serves to constrict social meanings and discourse; all human questions and activities are increasingly discerned via a market hermeneutic. “Sentimental” communal and personal attachments, alternate value constructs, are seen as subverting the prevailing market leitmotif of “exchange l4 3 Giddens, The Nation State and Violence 216. l4 4 Cox, “The Market as God” 23. l4 5 Cox, “The Market as God” 20. 76 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. value.” From this view, within the context of a profit-maximizing imperative, all is understood as interchangeable and mobile; functioning to quell the distinctive, particular impulse, the attendant quest for homogenization and standardization serves this paradigm well. Reiterating this point from a slightly different perspective, Bell contends that while the market diffuses and obscures “responsibility for decisions and effects,”1 4 6 the political, in his parlance, “the public household,” provides a much needed and significant counterweight, affixing responsibility and evidencing consequences. One would accordingly surmise that an economic lens would promote a sacred/profane elusiveness, while a political perspective would be more likely to sustain each lens’ distinctive viability. Presupposing Cox’s economic/sacred conflation, how might this new arrangement condition our ability to make any requisite sacred/profane distinctions? How will it impact the configuration of sanctions and the development of our criminal justice policy? For example, one might, within such a singularly focused lens, presume a narrowed, univocal, sacred/profane axis; one might similarly anticipate a blurring of the fact and ramifications of this narrowing. Precariously situated within an essentially amoral construct, one could construe an imperiled normative divide. If, as David Garland contends, punishment serves as social index offering a “histoiy of relations between the rich and the poor.. .”1 4 7 and/or, more l4 6 Bell, The Cultural Contradictions of Capitalism 235. l4 7 Garland, Punishment and Modem Society 92. 77 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. specifically, how to both “care for and control the poor,”1 4 8 it would seem evident that economics has traditionally played a critical role in shaping punishment practices. What differentiates second millennium social arrangements, however, is this seeming depletion of the political, normative counterweight. As John Kenneth Galbraith cautioned over 30 years ago, if economic goals are singularly venerated, “it is natural that the industrial system should dominate the state and the state should serve its ends. . . all other goals will be made to seem precious, unimportant and anti-social.”1 4 9 Absent a significant political balance, he counseled, there would be insufficient institutional focus on social ends unrelated to the industrial system’s priorities. Capitalism, which admonishes against the evil and inefficiency of a singular, non-competitive paradigm has seemingly evolved into a manifestation of its own truth. The Economics of Punishment—Labor Compliance The realization of Galbraith’s admonishment is particularly troubling given the coercive license that informs punishment practices. Historically deferential to extant economic priorities, punishment practices are, according to sociologists George Rusche and Otto Kirchheimer, inherently and inextricably linked to a given society's productive, economic arrangements. Their severity and/or reach is, Rusche and Kirchheimer maintain, in direct relationship to a society’s labor supply (i.e., the 1 4 8 Garland. Punishment and Modem Society 128. i4 5 John Kenneth Galbraith, The New Industrial State (Boston: Houghton Mifflin Company, 1967) 398-99. 78 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. more abundant the supply, the more reckless the practices that affect human life). Conversely, as labor becomes more scarce, rehabilitative efforts are more likely to emerge.1 5 0 Functioning to ensure labor market compliance and/or docility, punishment, from this view, serves to secure the overall market requirements of stability, predictability and security. Additionally, the persistence of a pervasively deplorable prison milieu has been virtually assured by the requirements of so-called “less eligibility” mandates, a socially accepted wisdom that jail conditions should not, in any way, be more satisfactory than prevailing poor community standards. Within what Ignatieff deems a system of “political capitalism,” the penitentiary is typically proffered as a political solution to the problem of market substance and support Similarly, for many theorists crime is not recognized as a "natural category," clearly evocative of that which is harmful to society. More precisely, particularly Marxist thinkers argue, crime is shaped by socially constructed legal categories that are utilized to define, stigmatize, and criminalize forces that threaten the elites’ hegemony; punishment merely secures compliance. As Ignatieff advises, what separates the poor from the rich, and the law abiding from the criminal, is often not “good” or “bad” behavior, but any given behavior’s visibility, the amount of attention it receives from the state. Positing that incarceration is the end-product of political decisions “to treat some social harms as deserving penal sanction and others I5 0 Garland, Punishment and Modem Society 93. 79 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. n o t. . . with little regard to the actual extent of social damage,”1 5 1 Joan Smith and William Fried contend that the eco/legal apparatus functions to mask this triaging process; in so doing, it serves to “de-politicaliz[e] the nature of crime and the role of the penitentiary.”1 5 2 Mirroring the first and second-order distributive slights-of-hand described by Guido Calabresi and Philip Bobbitt, in Tragic Choices.1 5 3 the second order political decision to utilize penal institutions as a pervasive eco-social remedy, noted by Ignatieff, masks first-order class-related decisions regarding the very “nature of crime,” identified by Smith/Fried. The need to mask deeper first-order decision making processes, so central to our social arrangements, allows second-order decisions to appear inevitable. In as much as the “political” distinguishes and the “economic” serves to conflate and obscure, it is not unreasonable to assume that class-masking imprimaturs will be exacerbated within the new, economically ascendant, world order. As Anthony Giddens notes, “the de-politicizing of economic relations is basic to (our system of) class domination.”1 5 4 Viewing the construction of deviance through the lens of medieval English Poor Law development, an obvious colonial bequest, it becomes clear that an l5lJoan Smith and William Fried, The Uses of the American Prison (Lexington: D. C. Heath and Company, 1974) 140. l5 2 Smith and Fried, The Uses of the American Prison 1. 1 5 3 Guido Calabresi and Philip Bobbitt, Tragic Choices: The Conflicts Society Confronts in the Allocation of Tragically Scarce Resources (New York: W. W. Norton and Company, 1978) 186. 1 5 4 Anthony Giddens, The Nation-State and Violence (Berkeley: U o f California P, 1987) 211. 80 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. overwhelming proportion of historically sanctionable acts were related to so-called “idle” behaviors. The 1349 Statute of Laborers, the 1535 Henrican Poor law, and the still significant 1601 Elizabethan Poor Laws, confirm that the undeserving (i.e., “lazy” poor—known in the parlance of the day as “sturdy beggars”) were subject to punitive sanctions; broadly construed, profane signified that which the economic regime viewed as “unproductive.” It is from this standpoint that justice has been deconstructed by Marx as an idyllic representation of elite economic requirements, and, similarly by English historian Douglas Hay as “an ideological structure . . . universal in appearance and deeply class oriented in effect.”1 5 5 Penal policy critics have, in fact, long asserted that eco/legal discourse has been focused on issues of robbery and assault, in part, as a strategy to camouflage the “social injuries” of class.1 5 6 Predicated on an individual injury model, communal and/or institutional social, racial, and/or economic violence has been historically ignored and/or belittled. Grounded both in the presumption of an imaginary equal- access playing field, and a conviction concerning a dubious free-will causation, notions of penal justice, contend Smith and Fried, are accordingly misplaced; it is impossible, they argue, to envision the possibility of a just penal system within an unjust society.1 5 7 1 5 5 Garland, Punishment and Modem Society 120. l5 6 Garland, Punishment and Modem Society 118. 1 5 1 Smith and Fried, The Uses of the American Prison 142. 81 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. An Economically Ordered Paradigm The specific contours of punishment practices signal the extant political/ economic juncture. As David J. Rothman has suggested, “preoccupation with crime has less to do with the real incidence of crim e. . . and more to do with general social attitudes about a society in change. . . [and] whatever the reality,. . . a subjective vision of disorder.”1 5 8 Tracing the link between changing political/eco/social relations and punishment practices in England between 1775 and 1840, Ignatieff, for example, demonstrates how the ordered prison regimen reproduced the new industrial order’s institutional exemplar, the factory. “Sharing the same universe of assumptions about the regulation of the body and the ordering of time,”1 5 9 evidencing a mutual regard for similar authority constructions and beliefs in the perfectibility of man through discipline, prisons were and are, opines Foucault, “the perfect realization of the modem state.”1 6 0 Any changes in the internal prison regimen and/or systems of authority, must, contends Ignatieff, “be linked to changes in class relations and social tactics outside the walls.”1 6 1 The socio-economics of industrialization, that is, the disjuncture between work and home, as well as the growth of a seasonal and/or temporary work fueled 1 5 8 David J. Rothman, “Perfecting the Prison,” The Oxford History of the Prison, eds. Norval Morris and David J. Rothman (New York: Oxford UP, 1995) 105. l5 9 Rothman, “Perfecting the Prison” 111. l6 0 Rothman, “Perfecting the Prison” viii. l6lIgnatiefF, A Just Measure of Pain xiii. 82 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. prison expansion. Freed from prior notions of paternalistic responsibility, private employers were no longer willing to board and/or maintain seasonally unemployed workers. Mirroring many aspects of the contemporary socio-economic landscape, prisons consequently and increasingly functioned, along with local poor and workhouses, as one of several domiciles of last resort. Responding to market dictates, the state assumed the costs of labor market discipline.1 6 2 In the same way, England’s imperialist drive to dominate and populate new territory in the 17th Century paralleled the introduction of transportation, and/or banishment as a punishment tool. Serving to both relieve prison overpopulation and provide much needed cheap labor for its new colonies, young “incorrigible” males were shipped to emerging labor markets and sold to private employers at one-third the price of Africans.1 6 3 However, as increased opportunities for post-indentured workers expanded, the effectiveness of “less eligibility” banishment constraints diminished; an ever more vocal, protesting slave market sealed the practice’s demise. The economic impact of the abolition of slavery similarly spawned new racially inspired punishments in the American South. During slavery, corporal punishment was the preferred penalty as imprisonment would deprive slave owners of the products of their investment.1 6 4 After emancipation, however, an abundant '“ Ignatieff, A Just Measure of Pain 180-85. ‘“ Peter Spierenburg, “The Body and the State: Early Modem Europe,” The Oxford History o f the Prison, eds. Norval Morris and David J. Rothman (New York: Oxford UP, 1995) 68-69. lo 4 David F. Greenberg, Crime and Capitalism: Readings in Marxist Criminology (Philadelphia: Temple UP, 1993) 452. 83 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. free-labor market eased concerns regarding worker replaceability; the horrors of the emerging convict leasing system were believed to serve as more efficient disciplinary tools. This period, between 1850-1900 has, in fact, been referred to as U.S. penology’s “dark ages.”1 6 5 A big business, robber baron, profitability at-all-costs mentality led many, particularly Southern, localities to privatize their correctional operations. The results, as documented in Chapter One, were singularly disastrous. In each of these instances, economic needs and perspectives prevailed. Absent, a strong countervailing consensus, a fragmented political structure deferred to a clearly articulated economic voice. Historically, it has been this entrepreneurial press, suffused and driven by marketplace appetites, that has been largely responsible for the proliferation of the modem prison. Prodded by what some have characterized as “delusional swindlers,” the extant prison expansion/privatization is the end result of a long-standing drive to convince “government officials that they could create and maintain an extensive penal system at little or no cost when the state lacked administrative capacity.”1 6 6 While private providers often appear able to step to the plate and remedy what appears to be an attractable correctional problem, the long range consequences of their innovations—a costly increase in the range and pervasiveness of the state’s coercive grasp—has, contends Malcolm Feeley, been singularly inefficient. l6 5 Joel Dyer, The Perpetual Prisoner Machine: How America Profits from Crime (Boulder: Westview Press, 2000) 195. l6 6 Feeley, “The Privatization of Prisons in Historical Perspective” 138. 84 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Transport, for example, was an intermediate sanction proposed by the business community to cope with social order problems of the 18th Century. The result was an outstretched penal arm that led to galley slavery, overseas penal colonies, and transatlantic/indentured labor. Similarly, today, high-tech surveillance paraphernalia is being marketed as a way to increase surveillance efficiency for low- level offenders that may have previously received a short-term probationary or suspended sentence. Others critique an eco-determinist perspective as too constricted a lens; noting that a multiplicity of socio-cultural elements inform the political space, they point out that most other developed, capitalist, countries have far less punitive penal policies. Angela Davis, for example, suggests that race occupies a place of prominence, as a particularly American legitimative imprimatur. Thus, while the economics of slavery precluded pre-Emancipation Black incarceration, the Reconstructionist socio-cultural politics of race prejudice informed an almost entirely Black, privatized, convict leasing system. “Free black people,” recounts Angela Davis, “entered into a relationship with the state unmediated by a master; they were divested of their status as slaves in order to be accorded new status as criminals.”1 6 7 Currently, racism’s power is most clearly visible, she argues, in its ability to '7 Davis, The Angela Y. Davis Reader 100. 85 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. legitimize the expansionist, technological, pressures that have fueled correctional privatization.1 6 8 The Politics of Penal Reform: The Normative Counterweight According to Anthony Giddens, all social structures contain elements of “signification (meaning), domination (power) and legitimation (sanctions).” What differentiates political and economic institutions is, he contends, a disparate ordering o f power relations; in political institutions, the authoritative as opposed to the allocative is pre-eminent.1 6 9 Yet it is the normatively allocative, the quest for distributive justice, which, some would say, is the quintessential political task. Similarly, although sovereignty has been traditionally circumscribed by its monopoly on legitimated violence, it has also been shaped and sustained by its normative, communal, mandate. Punishment, ostensibly an interface between signification and power, has historically attempted to mask its allocative functions. The politics of penal reform, circa the turn of the 20th Century, relied on the ascendancy of new, normatively-focused, political voices, voices that provided a counterweight to the previously prevailing economic hermeneutic. Paralleling the growth and centralization of government power, reform initiatives that buttressed the idea of a publicly directed, tax-revenue financed, correctional institution gained increasing support. Evidencing an optimistic view of human rehabilitative potential, l6 8 David, The Angela Y. Davis Reader 70. l6 9 Giddens. The Nation-State and Violence 19. 86 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. inmate advocacy influenced the rights-based, due process focus that was the hallmark of 1960’s legal activism. While prison conditions in the early part of the century were generally deplorable, such “reforms” as the institution of parole, probation and indeterminate sentencing practices were nonetheless instituted at this time.1 7 0 The Progressive era’s reformist ideology was bolstered by a belief in the power of government to remedy social wrongs through the implementation of large- scale restorative social programs, when necessary. As the Depression evidenced capitalism’s limitations as all-purpose panacea, the New Deal, and the attendant nascent union movement, functioned to modify a “naked economic relation.” Drawing upon this newly instilled faith in government’s normative role, varying institutional interests came together to secure the demise of private prisons. Muckraking exposure of private corrections’ horror stories buttressed a union/farmer coalition’s opposition to the use of convict labor and sale of convict goods; growing public support for increased welfare-state management responsibility1 7 1 exerted and sustained multi-level anti-privatization pressures. This confluence of political potency proved necessary to counter the private, entrepreneurial, magnitude that had informed the privatization movement. The nascent scientific, therapeutic, model offered yet another, alternative, lens through which to process deviancy. Paralleling public health success in curing l7 0 Friedman, Crime and Punishment in America 295. 1 7 lFeeIey, “The Privatization o f Prisons in Historical Perspective” 138; Dilulio, “The Duty to Govern” 160. 87 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. communicable disease, the emergence of Freudian thought suggested that prisoners were not “bad,” merely “maladjusted”; they were capable, ultimately, of being “cured.”1 7 2 Key to the Progressive rehabilitative model was an appreciation of context, and the salience of fostering communal ties. Ideally, it was anticipated that communal reintegration could be encouraged via a dual pronged approach, i.e., the maintenance of bonds with significant family, friends and/or institutional figures while imprisoned, and the use of incarceration as a skills-building point of intervention through the creation of in-house communal forms. Penal systems are, nevertheless, defined by their all-encompassing institutional intransigence. Given inmates’ considerable social/psychological/ educational deficits, rehabilitative success was/is tenuous at best. “Can you rehabilitate someone who has never been habituated,” asks Joseph Hallinan, in his recent odyssey, Going up the River: Travels in a Prison Nation. Although admittedly, not easy, “not trying,” he is sure, “is even worse.” The vacuum created by the absence of rehabilitative efforts ensures the emergence, of what he terms, “baser considerations,” a focus on profit and the prevalence of indifference.1 7 3 The reformist impulse was sustained and revitalized, in part, by the conflation of post WWII prosperity and institutional idealism. Manifest, internationally, by the advent of the United Nations and the Marshall Plan, the aforementioned 60's Great l7 2 Edgardo Rotman, “The Failure o f Reform: United States, 1865-1965.” The Oxford History of the Prison, eds. Norval Morris and David J. Rothman (New York: Oxford UP, 1995) 159. i7 3 Joseph T. Halliman, Going Up the River: Travels in a Prison Nation (New York: Random House, 2001) 216. 88 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Society programs and civil rights legislation substantiated its domestic agenda. For some a paradigm of the “just war,” World War II provided a template of normative politics, communal effort and sacrifice triumphant. Imbued with a normative patina, absent crime hysteria, the government responded to calls for a more equitable social fabric with a series of rights-based initiatives that sought to redress extant Black, female and prisoner distress, to assist and empower the dispossessed. Activists utilized 8th Amendment protections against “cruel and unusual punishment,” and an expanded writ of habeas corpus scope to allow more liberalized constitutional challenges to state convictions. Originally designed to offer protection to newly freed slaves, largely unutilized sections of the Civil Rights Act of 1871, allowing plaintiffs to supersede local jurisdictions and bring constitutional issues directly to federal court, were unearthed via a 1961 police misconduct case, and increasingly utilized.1 7 4 Yet many of the contemplated prison reforms remained on the drawing board; others were effected in a haphazard, unsystematic fashion. This lack of a pervasive, planful implementation ultimately served to undermine the rehabilitative paradigm and curtailed further reform efforts. Judged a policy blunder, it’s alleged ’’ failure” gave currency to an emerging, punitive 1970's backlash.1 7 5 l7 4 Rotman, “The Failure of Reform” 172. 1 7 5 Rotman, “The Failure of Reform” 157-69. 89 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Globalization and Surplus Populations The movement to re-privatize prisons tracked the advent of global capitalism. Resisting devolution pressures, penal operations have emerged as the only state social order activity that has not been reduced; in significant ways, punishment practices appear to evidence sovereignty’s last stand. Operating as counterpoint to what Edward Luttwak has characterized as the “worldwide retreat of the state from the marketplace,”1 7 6 privatization strives to reposition institutional punishment by replicating global capital edicts. It mirrors capital’s disinterest in governance and/or regulation; it similarly focuses on improved management and professionalization. Reprising aspects of 1890’s Robber Baron era, globalization, like its precursor, is characterized by the growth of big business linked to “radical shifts in market scale and technology.” It mirrors the discrediting and consequent retreat of government institutions and labor unions, it manifests a similar conflation of economic insecurity and enormous wealth, and it prides itself on its embrace of a Social Darwinian ethic.1 7 7 What is different is that contemporary globalization allows capital an unparalleled stage upon which to flex its economic muscle. Any moderation requires what it currently lacks: the “counter-force of political power.”1 7 8 l7 6 Edward Luttwak, Turbo Capitalism: Winners and Losers in the Global Economy (New York: Harper Collins Publishers, 1999) 37. l7 7 Charles Derber, “Morality and the Market,” Tikkun (May-June 1996): 29. 1 7 8 Luttwak, Turbo Capitalism x. 90 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. The ascendancy of the economic sphere via the power of the globalization juggernaut has resulted in a profoundly altered inner-city economic landscape. It has demolished normative concepts of community and served to eviscerate hard-won working-class union protections. As a result of its transnational pursuit of cheap labor, globalization has succeeded in destroying the inner-city urban economic base. It has done this, opines Angela Davis, by “consigning huge numbers of people to joblessness, leaving them prey to the drug trade . . . affecting the education system, social welfare.. . . And turning the people who live in those communities into perfect candidates for prison.”1 7 9 Reflecting what Saskia Sassen refers to as global cities’ “new geography of centrality and marginality,” concentrated elite corporate power is set apart from the “otherness” of the formerly industrial, now impoverished, urban areas; communities that are literally “starved for resources”1 8 0 are progressively obscured from public concern. People in disaffected areas, “unmoored” from what was (and is no longer) a sustaining community, find themselves in perpetual limbo. The visibly heightened disparity between the “urban glamour zone and the urban war zone,” in tandem with a prevailing indifference to “war zone” misery and rage, has, contends Sassen, sharpened the brutalization of contemporary class conflict.1 8 1 As only those profit l7 9 Davis, The Angela Y. Davis Reader 66-67. l8 0 Saskia Sassen, Globalization and Its Discontents (New York: The New Press, 1998) xxiv- vii. 1 8 1 Sassen, Globalization and Its Discontents xxxiii. 91 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. sectors capable of generating super profits remain viable, low-producing communities are perceived as expendable and irrelevant to the economic order. The relationship between an increasing pool of the deemed expendable and irrelevant, and the ease with which a mushrooming prison population is sustained and encouraged, cannot be ignored. This process of creating “surplus” or “redundant” populations, long a component of the market economy, has thus been exacerbated by the forcefulness of the globalization dynamic. Fueled by a harsh and, ofittimes, ruthless perspective, so- called “surplus” persons have been increasingly perceived as social non-entities, potentially disruptive to the communal order; regulatory/coercive governmental measures—including containment through imprisonment—has, as a result, become routinely utilized.1 8 2 Declared a “slave o f the state” and “civilly dead”1 8 3 in an 1871 court case, prisoners are, by virtue of their inmate status, perceived as legally dead; many are deprived of any ability to vote, even after their parole. Transposed from citizen to commodity, from name to number, from decision maker to obedient cipher, their superfluous status is confirmed. As Richard Rubenstein notes when “money came to be the measure of all that is real, people without money became unreal. . . those whose labor fetches no price ' “ Richard Rubenstein, The Age of Triage: Fear and Hope in an Overcrowded World (Boston: Beacon Press, 1983) 1 . l8 3 Rotman, “The Failure of Reform” 175. 92 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. . . . worthless.”1 8 4 An overarching cost-benefit paradigm came to inform what he terms a “logic of triage”; human life, desacralized and unprivileged, emerged as simply another component in the calculus—depending on outcome assessment, clearly expendable.1 8 5 Privatization’s emergence was, in fact, affixed to a series of policy decisions that identified imprisonment as the social remedy of first and last resort for seemingly intractable communal problems. Following triage logic, those whose failure is all but assured should not be granted social resource beneficence. Thus, a perpetually inverse relationship between coercive and more charitable placative strategies characterizes the crux of late 20th Century social policy. “Changing welfare as we know it,” the cornerstone of President Clinton’s domestic success, provides the backdrop to spiraling incarceration rates. Efficient Punishment Since shareholders have eclipsed stakeholders as the operative institutional focal point, “efficiency” interests have narrowed; a sanctified, univocal perspective has prevailed. Much as management has superseded governance as the prevailing hermeneutic, economic efficiency has supplanted long-standing concerns regarding “social efficiency,” i.e., matters related to such concerns as communal health and family stability. Even minor accommodations to long-standing relationships with persons or communities are quickly set aside given the distinctive priorities of the l8 4 Rubenstein, The Age of Triage 5-6. |g 5 Rubenstein. The Ape of Triage 195. 93 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. new corporate structures. The prevailing leitmotif, as articulated by Luttwak, is that “what is efficient is automatically desirable . . . implying that nations exist to sustain economies rather than the other way around.”1 8 6 A narrowly-focused efficiency and expertise are invoked to solve the seemingly unsolvable; long-standing, social problems such as poverty, crime, and drug abuse are refiamed as discreet, remediable professional challenges.1 8 7 In a world without boundaries, in nations without a center, public administration is no longer perceived as implementing the collective “will,” but rather as a purveyor of services linked to the needs of selected private interests. Given this reconfigured diminution of mission, the ascendancy of the market lens makes it appear self-evident to many, according to Jean Marie Guehenno, that services previously located in the public domain “will (and should) be remunerated.”1 8 8 Consequently, one of the attendant hallmarks of globalization is the privatization of extant public institutions (e.g., universities, hospitals, and prisons). Evidencing the truth of Galbraith’s forecast, society has apparently lost interest in non-profit making ventures. While the state’s historical telos—to concurrently encourage social harmony and promote wealth accumulation—have oft times been at odds, current circumstance appear to offer a clear directive; in the new global l8 6 Luttwak, Turbo Capitalism 4. 1 8 7 Guy B. Adams and Danny L. Balfour, Unmasking Administrative Evil (Thousand Oaks: Sage Publications, 1998) 137-51. 1 S 8 Jean Marie Guehenno, The End of the Nation-State (Minneapolis: U of Minnesota P, 1995) 104-05. 94 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. environment wealth accumulation has totally eclipsed the state’s equity promoting functions. This take-over is rationalized in two ways: (1) the widely held assumption that publicly managed institutions are condemned to ineffective service delivery and (2) an articulated presumption of a non-existent synchronization of private and public interest. Thus, for example, hospital privatization promises a more efficient delivery of needed health care services. Efficient, in this context, denotes both cost- containment and, implicitly, greater consumer satisfaction derived from a more responsive, higher quality level of care. However, as David Shichor notes, operative supply and demand, free-market, assumptions are not applicable within a closed non-choice environment. Within the privatized prison context he delineates three parties: the customer who pays for the service (i.e., the government), the client who receives the service (i.e., the prisoner), and the provider (i.e., the for-profit corporation). What is striking about this configuration is the split between the purchaser of services and the service recipient. While consumer choice typically disciplines market inefficiencies, a closed, captive prison environment—defined by the totality of its consumer compliance—precludes a comparable performance.1 8 9 This deviation is more pronounced in prisons than in other public institutions; publicly funded hospital patients and child welfare clients, for example, still retain a modicum of consumer choice. Lacking citizenship safeguards and rights, prisoners l8 9 Shichor, Punishment for Profit 71-73. 95 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. are, in contrast, the prototypic profane. The extent of their pain and consumer dissatisfaction may be perversely perceived as efficient, nurturing the community-at- large’s social cohesion. Prison, explains Shichor, blurs the prototypic “cui bono,” (who benefits) determination; unlike most routine market calculations, the preferences of inmate beneficiaries are largely precluded from consideration. While Shichor proffers the commonweal as primary proxy recipient, the diminishment of a commonweal focus and/or force gives license to a market articulation of social 190 purpose. Efficiency, of course, implies prudent fiscal management. How it is understood and implemented, however, varies with institutional setting. The profit maximization imprimatur of the private sphere, a priori, suggests an incentive structure geared to minimizing institutional beneficence unrelated to an increased bottom line. In as much as correctional savings are exceedingly difficult to extract, economic considerations will doubtless foster a considered disregard for the needs of a consumer base deemed ineffectual and irrelevant. Shareholder priorities are concisely conveyed in Eric Bates reportage regarding South Central Correction Center in Clifton, Tennessee. The two most visible signs upon entering the facility— one proclaiming the “excellence” of their professionalism, the other, right below it, is the previous day’s CCA stock closing—clearly reflect the new institutional 1 9 0 Shichor, 73. 96 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. priorities.1 9 1 Public institutions, while not indifferent to the perceived “disposability” of their charges, have a more direct, multi-vocal constituency and legitimation. Efficiency as Moral Inversion Given the importance of the “efficiency” rubric as a driving force within the privatization movement, a key question surfaces within the context of corporate structure: How does one “efficiently” punish? Guy Adams and Danny L. Balfour’s work, Unmasking Administrative Evil, raises an ancillary question concerning whether expertise and efficiency serve to mask their eponymous “evil.” Noting that complex organizations are typically characterized by both “diffuse personal responsibility” and role compartmentalization, Adams/Balfour trace an ensuing bureaucratization, a “techno-rationalization” that informs a largely unrecognized imposition of pain. Expertise encourages, what they term, a moral inversion, that is a role compliance and compartmentalization that reframes what one might ordinarily consider evil or destructive into something good and worthy. With “evil” masked, normative judgment is increasingly confused; as a result, ethical choice appears largely irrelevant.1 9 2 In this context, the distancing power of discourse is crucial. Technical language is frequently utilized to obfuscate normative concerns. Historically, for example, such terms as “collateral damage” and “final solutions” serve to conceal the l9lBates, “Private Prisons” 14. 1 9 2 Adams and Balfour, Unmasking Administrative Evil xxi-xxiii. 97 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. scope and heinousness of military operations. Similarly, intently focused, insular roles foster a detailed concentration that fails to grasp more transcendent, universal issues.1 9 3 In a prison context, where efficiency is primarily understood as order, the term “use o f force,” for example, conveys a rather sanitized articulation of the sanctioned brutality that is rife within prison walls. Punishment, of course, evokes complex and often contradictory feelings and attitudes. In this way it may be seen as congruous with morally inverse considerations. From a parent who justifies child beating as being in his/her child’s best interests, to an officer who believes that “good” job performance requires a detached ruthlessness, instances of rage are contained and vindicated via the projection and transposition of anger and/or aggression into the “good act.” Providing insulation from contaminating, disruptive, inner turmoil, the projection is perceived as personally protective.1 9 4 Reprising Erickson’s perception o f the inherent volatility of sacred/profane proximity, the thin line separating inmates and officers, both spatially and socio-comically, fuels an apparent need to distance and distinguish—to project outward that which one most fears. Similarly, inmate trustees, those given special privilege by the administration, often need to signal their distinction through excessive brutality. 1 9 3 Adams and Balfour, Unmasking Administrative Evil 14-16. 1 9 4 Adams and Balfour, Unmasking Administrative Evil 11. 98 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Without significant regard to justification and severity, force applied to the inmate population, is almost always articulated as a “good.” Professionally sanctioned, it is viewed as an effective and efficient method for quelling disorder within the prison walls. Less acknowledged and/or discussed, violent suppression may provide officers a needed release. Again, within a correctional structure, narrowly focused administrative tasks allow the luxury of tunnel vision; broader normative implications are simply external to job performance scope. The need to maximize profits serves to endorse and underscore this constrained perspective. The Prison Industrial Complex Private prisons, a seemingly new and inexhaustible market, have whetted corporate appetites. As recently as September 2001, the judicious Wall Street Journal, for example, opined in a front page story that “prison expansion [had]. . . spawned a new set of vested interests with stakes in keeping prisons full and building m ore.. . . The result has been a financial and political bazaar with convicts in stripes as the prize.”1 9 5 Proffering inmates as corporate fodder, profits distort punishment’s significance and legitimation. Referencing President Dwight D. Eisenhower’s cautionary note regarding “the military industrial complex’s” self-aggrandizing manipulation of an illusory missile gap, Eric Schlosser posits an analogous “prison industrial-complex—a set of bureaucratic, political, and economic interests that l9 5 Gruley, Bryan, “Wanted: Criminals: Why Did Mississippi Agree to Pay for Cells for ‘Ghost Inmates,’” Wall Street Journal 6 Sept. 2001: A 1-8. 99 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. encourages increased spending on imprisonment, regardless of the actual need.”1 9 6 Fueled by such disparate factors as the interface between electoral success and crime apprehension, and the need for a reliable rural economic redevelopment strategy, a spiraling prison population has spawned a diverse correctional entrepreneurship. What invites an inevitable military-industrial complex comparison is the fact that since 1991 the prison population has increased by 50%, despite a 20% decrease in the crime rate during the same time period. The prison boom has, states Steven R. Donziger of the National Criminal Justice Commission, “its own inexorable logic.” Serving to both incapacitate and deter, prisons are ostensibly needed to house criminals during a spiking crime rate; a declining rate is attributed to their deterrent value.1 9 7 While conceived, in part, as a strategy for electoral success, crime apprehension’s economic pay-off has nourished its persistence; it has persevered even though actual crime rates were relatively flat during the height of the early 80’s “war on crime” hysteria. While police reports did suggest a crime rate spike, the National Criminal Justice Commission attributes the purported increases between 1973-88 to such factors as new computer reporting technology, a reporting strategy that counts arrests instead of numbers of crimes committed, and an expanded police force that was encouraged to increase numbers of arrests. l9 6 Schlosser, “The Prison Industrial Complex” 54. l9 7 Schlosser, “The Prison Industrial Complex” 54. 100 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. The lure o f profits has, Schlosser maintains, significantly altered all aspects of the criminal justice landscape. It has generated new and expanded markets whose viability rests on the continuance of the prison expansion, privatization, juggernaut. Shifting crime reporting priorities, it has also influenced the manner in which defendants are represented, charged, sentenced, housed and fed. In as much as prison contracts are predicated on assurances of a relatively consistent, and/or expanding, consumer base—with nowhere else to go—prisoners have been transformed into economically valuable commodities. While fear has always been a powerful policy motivator, the historically unique reach and power of modem media propels crime mythology—as anxiety generating fodder for public consumption—to new excess. Given the reality that journalism’s profits must compete with all other business ventures for investor dollars, it is not surprising that editorial subject matter has been increasingly responsive to market forces; content must evidence an ability to draw viewers and, hence, increase advertising dollars. Following the logic of this economic trajectory, it is clear that advertising dollars inform the selection and play of prevailing national themes; they can, and do, re-create reality according to their special interest priorities.1 9 8 Media-created drama and emotionalism, propelled by advertising/ market share interests, has given voice and “legs” to a perceived crime/correctional crisis. l9 *Schlosser, “The Prison Industrial Complex” 58. 101 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Supporting the perception that crime sells, the Center for Media and Public Affairs (CMPA)’s 1995 study reported a tripling of crime reportage between 1991- 93. Television’s pivotal role in the construction of a “shared consciousness”1 9 9 has perpetuated the erroneous perception that American society is inundated by violent crime; it has informed the public view that crime is our number one social problem. Hence, although sensational crimes accounts for less than 1% of the total crimes committed, sensational crime stories account for most of the news stories seen by the general public; inasmuch as crime reportage increases viewership, news outlets that focus on crime are consistently rewarded for their over-the-top focus. While, Joel Dyer acknowledges that journalism was never exactly “pure” in its intent, in the past, editorial departments still held a balance of power that they could judiciously utilize. Mirroring the larger social landscape, absent sufficiently powerful counterweights, media economic priorities are now allowed virtually free reign. In all aspects of international entertainment media, violence has proved commercially viable; it translates well. Reflecting the power of economic elites, big money has provided the “legs” for new “tough-on-crime,” truth-in-sentencing legislation; economic interests have additionally fostered a corruption of standard public processes through dubious financing schemes that bypass the need for public approval. For example, while the public has consistently voted against new general obligation funds for prison '"Schlosser, “The Prison Industrial Complex” 85-87. 102 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. enhancement, it has, nevertheless, rewarded a “tough on crime” political stance. Were it not for considerable financial fortunes at stake, this inconsistency might be addressed through public education regarding other, less expensive, ways to address social harms. Currently, however, economic and political interests have colluded to forge a dubious prison financing scheme; private contractors who front construction dollars and are paid back through lease revenue bonds that are issued to, and then transferred from, another government entity. The stipulated lease revenue stream is, in reality, the transferred tax revenue. Providing politicians their much needed tax increase cover, this strategy—given an increased insurance, interest, and bond debt—is, on average, 15 or 20% more costly than general-obligation fund financing.2 0 0 In 1981, for example, New York State voters rejected a $500 million bond issue targeted for public construction. Faced with the overcrowded legacy of the draconian mandatory minimum Rockefeller drug laws, then governor, Mario Cuomo, decided to bypass the public will and finance new prison construction via a public corporation, the Urban Development Corporation (UDC). Why the UDC? It had a dubious and decided appeal—it could issue bonds without voter approval.2 0 1 Despite successfully turning the UDC “into a rural development corporation” (28 out of the 29 correctional institutions built during the Cuomo years were in rural 2 0 0 Schlosser, “The Prison Industrial Complex” 248. 2 0 1 Schlosser, “The Prison Industrial Complex” 56. 103 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. areas), it proved difficult to keep pace with a Rockefeller drug law driven demand. As a result of a nearly fivefold increase in the inmate population, prisons were more overcrowded in 1995 than at the start of the burgeoning construction program. Seemingly oblivious to the need for sustaining family and community ties, or to the importance of ultimate reintegration, decisions regarding awarding of new sites appeared based primarily on community economic development needs. Thus, despite the fact that approximately 80% of state inmates are New York City residents, state prisons are uniformly built in rural areas. In a most telling statistic, the upstate New York town of Dannemora now “has more inmates than inhabitants.”2 0 2 A recent New York Times editorial underscores this linkage by noting that recent incremental policy shifts towards a more humane, alternative to incarceration, community-based treatment model, has caused alarm in these same rural communities. Questioning whether legislators will be deterred from supporting these initiatives, perceiving “a vote for reform” as tantamount to “a vote for unemployment,” the editorial notes a “nagging little fear” about the possibility of future layoffs in what has been advertised as a “recession-proof industry.”2 0 3 The late lO^-Century prison construction project has provided new and lucrative source of employment for previous hi-level defense industry Cold 2 0 2 Schlosser, “The Prison Industrial Complex” 58. “ ^‘Full-Employment Prisons,” New York Times 23 Aug. 2001: A18. 104 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Warriors2 0 4 ; paradoxically, it as also generated jobs for inner-city, and/or rural uneducated young adults, “the very populations” that Angela Davis suggests are essentially “criminalized by this process.”2 0 5 As fear of crime has replaced fear of Communism in fueling the national paranoia, many companies with defense/security expertise, e.g., Westinghouse Electric Corporation, Minnesota Mining and Manufacturing Co., and GDE Systems, have re-oriented their business focus, shifting from foreign to domestic security and/or opting for a multi-use technology2 0 6 Prisons have whetted the entrepreneurial appetite of a range of businesses, from phone companies seeking to comer the lucrative inmate lifeline telephone market, to architectural and construction firms, to purveyors of security paraphernalia. More particularly, privatization has encouraged new and expanded service industries. For a per-inmate surcharge, of between $2.00 and $5.50 per day, privatization brokers locate national beds for swamped local jurisdictions; private prisons’ national scope has similarly spawned a huge inmate transport industry.2 0 7 As correctional pay phones, on average, generate five times more business than community-based pay phones (some generate up to $15,000 per year), telephone companies eagerly vie for the extremely lucrative long distance inmate business. Profitable for both the correctional system as well as the telecommunications 2 M "Full Employment Prisons” 63. 2 0 5 Davis, The Angela Y. Davis Reader 67. 2 0 6 Da vis, The Angela Y. Davis Reader 69. 2 0 7 Dyer, The Perpetual Prison Machine 15-16. 105 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. corporation, contracts are typically awarded on the basis of highest percentage of prison profit-share guarantee, not on lowest service cost; in fact, prison telephone rates are considerably higher than comparable community services.2 0 8 Rates for New York state inmates, for example, are “at least a third more than rates available to the general public—and most of the money is kept by the state.”2 0 9 As inmates can only call collect, it leaves their family and/or friends in the position of having to accept hugely inflated phone bills to retain any connection; the increased distances from communities-of-origin that characterize privatized correction only exacerbates this inmate reliance on telephone services. Recognizing an opportunity when they see one, entrepreneurs that cater to African-American tastes and/or needs—from foods to hair products—are similarly eager to serve this expanding consumer market. In each instance the need to sustain and expand a market has typically resulted in cutting comers and, for some, questionable ethical practice. And finally, evincing a globalization perspective, the use of prison labor has, once again, become attractive. For select businesses, from furniture companies to Victoria Secret lingerie, correctional institutions compete with third-world sites for industry investment; absent third-world relocation difficulties, prisons offer cheap labor rates, and the likelihood of a more educated, stable, and comparably compliant labor pool. 2 0 8 Pver. The Perpetual Prison Machine 14. ^Jo h n Sullivan, “New York State Earns Top Dollar From Collect Calls by Its Inmates,” New York Times 30 Nov. 1999:A1/BI2. 106 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Transformed from “ niche business” to a multi billion-dollar industry, the private prison industry is no different from other entrepreneurial private concerns: its profits are linked to the creation of appetite for its services. Manifesting public interest/private appetite tensions, obvious monetary incentives to increase both the numbers of inmates and the length of their sentences have caused trepidation regarding an increasing commodification of punishments. The fact that for-profit correctional lobbyists have a decided monetary stake in persuading legislators to enact harsher prison sentences and other ‘get tough’ measures only serves to exacerbate these concerns. For example, CCA’s Northeast Correctional facility was built entirely on speculation. Initially unutilized, the empty site cost the company $643,000 per month to operate. Hearing of anticipated court-imposed jail closings in Washington, DC, CCA hired lobbyist Joseph K. Johnson, Jr., a former colleague of Jesse Jackson, and a known associate of Washington, DC, political heavy-weight, Marion Barry, to curry favor. As a result of Johnson’s efforts, the ensuing DC Request for Proposals (RFP) was written in a way that virtually assured a CCA award; as the contract required inmate replacement in 14 days, the contractor had to have considerable empty jail space to comply. Johnson received a remuneration of $328,000 for his lobbying efforts; with stock options, he garnered a total of $2,407,000.2 1 ° It is 2 ,0 Hallinan, Going Up The River 177-79. 107 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. consequently not surprising that legislators who play a key role in advancing criminal justice legislation are consistently targeted for campaign contributions.2 1 1 When business success is linked to increasing numbers of “man days,” when profit-maximization is the driving force that shapes incarcerative policy, punishment loses much of its normative import. Analogizing between the hotel and prison industries, Schlosser notes that both have “a strong economic incentive to book every available room and encourage every guest to stay as long as possible”2 1 2 ; given high correctional labor costs, penal profitability necessitates a 90% occupancy rate. Consequently, when forced to choose between occupancy and safety, as in the aforementioned Northeastern Facility, over and over private corrections opts for mixing classifications perilously. Critics evidence concern that “an entire industry [has seemingly been created] with a pecuniary interest in maintaining or even increasing the number of people incarcerated.”2 1 3 The destructive ramifications of this amalgam were most visibly highlighted by recent events in Mississippi. As prison construction outstripped cell demand, a statewide “shortfall” of 2000 inmates caused Wackenhut and other local providers to lobby the legislature to subsidize so-called “ghost inmates.” Despite the fact that essential state educational and mental health services were being cut, Wackenhut 2 1 IBrigette Sarabi and Edwin Bender, The Prison Pavoff: The Role of Politics and Private Prisons in the Incarceration Boom (Portland: Western Prison Project, November 2000) 7-10. 2 1 2 Schlosser, “The Prison Industrial Complex” 64. 2nNoral Morris, "The Contemporary Prison: 1965-Present,” The Oxford History of the Prison, eds. Normal Morris and David J. Rothman (New York: Oxford UP, 1998) 228. 108 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. CEO, Wayne Calabrese, successfully convinced certain legislators to sponsor and ultimately pass a bill effectively subsidizing the industry. While ultimately vetoed by an angry and embarrassed governor, the bill’s passage demonstrated a considerable industry clout; arguing that they needed the aforementioned 90% guaranteed occupancy rate to remain viable, CEO Calabrese in essence maintained that Wackenhut’s business interests required that cells be filled or subsidized.2 1 4 To comply Mississippi had two options; it could increase the numbers of incarcerated persons by increasing sentence severity or divert money from other budget priorities to compensate for the unanticipated inmate shortfall. Either alternative effectively manipulates and undermines the legitimacy of the public agenda. Legitimation—The Force of Law Questions of legitimacy and authority have, of course, been traditionally understood as emanating from state-based institutional actors. As James C. Scott contends, states realize mandates through their “ability to give [their] categories the force of law.”2 1 5 Through the power of administrative infrastructures, states create a language of social meaning. Suggesting a confluence of ideals and communal will, a coercive imprimatur defines sovereignty and effects a monopoly on sanctioned violence. It is this monopoly qua punishment that manifests consequence, that particularizes justice through the imposition of penalty. The state as representative 2U Gruley, Wall Street Journal A 1-8. 2 1 5 James C. Scott, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (New Haven: Yale UP, 1998) 3. 109 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. and proxy for the injured and aggrieved is, along with the victim, deemed entitled to compensation.2 1 6 While law in its generality—ideal, infinite, incalculable—is detached from its particularized representations, justice implicitly offers the promise, if not the actuality, of contextual discernment. As states legitimate punishment practices through “just” law, punishments buttress the legitimation process by effecting compliance. As Robert Cover contends, “the normative world building that constitutes law is never just a mental or spiritual act. A legal world is built only to the extent that there are commitments that place bodies on the line.”2 1 7 Identifying and labeling, classification informs legitimacy as the legal code offers a guidepost as to what is criminal, alien, patient, and/or sinner.2 1 8 Functioning to facilitate the delineation between “the ethics of an act and its legal status,” between secular and moral authority, the shift from manifest physical torture to incarcerative administration has conveyed the implication “that moral right is on the side of those in control, that right rather than might is operative.”2 1 9 Discouraging intimations of a legal/moral disjuncture, laws, pronouncements of state volition, have been institutionally designated and marketed as “just”; their disobedience, in effect, defines criminality. 2 ,6 Martin Daly and Margo Wilson, Homicide (New York: Aldine De Gruyter, 1988) 65. 2 l7 Cover, Violence and the Word 208. 2 1 8 Smith and Fried, The Uses of the American Prison 7. 2l,Smith and Fried, The Uses o f the American Prison 100-01. 110 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Denoting normative potential, state authority is, at the same time, imbued with considerable license. As Foucault reminds us, state sovereignty has the power to identify “the whole indefinite domain of the non-conforming (as) punishable.”2 2 0 Penalty can thus be exploited to pacify and dominate any number of so-called “recalcitrant” groups; it can easily be re-directed as social priorities—and disdained minority groups—shift.2 2 1 Communal accord regarding the legitimacy of mandates can be similarly influenced through the development and manipulation of supportive public consensuses. Ostensibly symbolizing “the moral boundaries of social authority,” penalty, opines IgnatiefF, in actuality represents and legitimates “the outer limits of authority that the rich have over the poor.”2 2 2 Within the new global context, penalty typically masks its economic, order-enhancing priorities through frenzied retributive rhetoric; it legitimizes elite priorities by ostracizing the dispossessed. Evidencing the oft-mentioned inverse relationship between laws and norms, uncompromising, harsh laws most often denote a fragile, societal concordance—a lack of legitimation, if you will. Strong norms inform social cohesion; they imply an extant, meaningful, voluntary social contract. Given that the current prison expansion/privatization continuum is predicated on an ever-increasing sentencing severity, one can surmise a correspondingly fragile legitimation. Absent citizen trust ^"Michel Foucault Discipline and Punish fNew York: Random House, 1978) 179. “ 'Giddens, The Nation-State and Violence 186-87,303. ^IgnatiefF, A Just Measure of Pain xiii. I l l Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. and responsibility, a purported fusion between economic might and right threatens an exacerbation of social tensions; toxic to the complex inter-connections of a new global world order, a self-perpetuating, destructive cycle suggests the possibility of more, albeit increasingly diffuse, disruptions and an ever more severe, array of penal options. In a balkanized and fragmented universe, the possibilities of state-based legitimacy, in a pluralist, postmodern, context are increasingly called into question. Progressively detached from an identifiable political core, Jean Marie Guehenno opines that law as an expression of common concern and/or principles has already begun to lose much of its legitimizing import. Previously prized as a moral, philosophical, touchstone, law is now, he believes, singularly venerated for its procedural functionality. Reversing political and economic prototypes, laws, previously sanctified as expressions of normative consensus, are now largely utilized to regulate and enforce the paradigmatic economic exchange—of all things and people; the market has been, conversely, sanctified. Reversing the view that truth entails functionality, law, more and more, reflects the current systems of belief inference that if it is functional, it is true. The Loss of Boundaries—The Diminishment of Legitimation For Guehenno, it is the significance, power, and permeability of boundaries that provides the key interpretive lens for the new world order. Rendering obsolete traditional notions of sovereignty qua state-based territoriality, globalism, he argues 112 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. in his recent volume, The End of the Nation-State, has signaled the death of politics.2 2 3 Its demise elfectively trivializes extant notions of citizenship and stymies national debate regarding governing principles and ideals. In the absence of an agreed upon commonweal destiny and principles, the “common space of the political,” he opines, “has lost its legitimacy”; no one, he suggests, appears willing to sacrifice for the greater, national good.2 2 4 Effectively separating legitimation from credible power, the influence of markets eludes and undermines state-based authority.2 2 5 Absent structure, norms have become ever-uncertain prescriptions. Much as mobility has supplanted territoriality as the defining socio/political paradigm, international networks have replaced delineated, state-based, arrangements as a societal organizing norm. Constructions of personal success have followed suite. Achievement is, in large measure, substantiated by one’s mobility. Successful individuals, their capital and/or businesses, are rarely co-located; the quest for ever- higher profit margins drives an international dispersal and detachment of persons from their money and/or businesses). The new millennium’s significant status gap, as articulated by Guehenno, is between those who “can escape boundaries and those who can’t.”2 2 6 A priori, the paradigmatic symbolism and fact of prison walls as boundaries serves to accentuate inmates’ demeaned position as social pariah; ^Guehenno, The End of the Nation-State 58. ^Guehenno, The End of the "Nation-State 12. “ Sennett, Authority 43-44. 2 2 6 Guehenno. The End o f the Nation-State 10. 113 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. sustained by the mobility of international capital, privatized corrections’ essential portability reproduces the extant, globalized, regime. Given the new, venerated, permeability of borders, it makes sense that the historically state-focused disparity between internal and external security, between war and crime, will be ever more ambiguous. As a consequence, Guehenno predicts that international networks, rather than nation-states, will be responsible for a range of security operations. Detached from the constraints of territorial sovereignty, law enforcement, functioning as special interest security, will be increasingly privatized. Detached from ideological and/or territorial struggle, Guehenno anticipates a more diffuse violence; legitimation, he opines, seems curiously beside the point.2 2 7 As Elizabeth Bounds notes, capitalism has traditionally served to undermine what she terms the “stability of legitimation.” Displacing, unmooring persons from their extant communal life, capitalism fosters the growth of “impersonal and transcommunal networks . . . connections that enabled persons to integrate identity with a social order have been eliminated or else reappear in a commodified form.”2 2 8 Absent a cohesive, national voice, globalization’s “transnational and hyper mobile character” contributes to a proliferating sense of powerlessness; fragmenting the social fabric, economic globalization resists traditional, normative sacred/profane distinctions. 2 ~ 7 Guehenno. The End of the Nation-State 108. ^Elizabeth Bounds, Coming Together/Coming Apart (New York: Routledge, 1997) 33-36. 114 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. The criminal justice system, specifically the new sentencing structures, provides one venue where the disjunctive between an eco-systems’ resistance to limits and a socio-political mandate to effect needed boundaries, is most clearly evidenced. Reinforcing the aforementioned asymmetry, serving time has become enduring timelessness. Refusing the reality of limits, a finely tuned judicial calibration has been largely discarded in favor of a never-ending retributive power. At the same time, sentence severity has effected a paradoxical result. Since studies have indicated that offenders’ calculations of potential desert is typically done “at the margins”—in a calculation of how many extra years an activity will possibly incur—sentence severity, in actuality, may encourage more egregious misdeeds; as a rule the homogenization of severity decreases rather than increases any deterrent effect.2 2 9 Extending its reach, desensitizing the population to new and renewed penal harshness, severity allows punishment an ever-wider latitude of legitimacy. Those who would posit that the absence of boundaries is, in actuality, freeing, and/or perhaps, even, empowering, fail to discern the built in tension between order and mobility. In a social context, mobility requires and resists order; the more it resists, however, the more it requires. Noting the extraordinary will to imprison in a country defined by its espousal of democratic political rights, de Tocqueville and de Beaumont’s early 19th Century study of American prisons posited that the need for order—and the concomitant need to identify, stigmatize, and incarcerate—may, in “ ’Roger LeRoy Miller, Daniel K .. Benjamin, and Douglass C. North, The Economics of Public Issues (Reading: Addison-Wesley, 1999) 144. 115 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. certain circumstances, increase in relation to the extent of a given society’s extension of liberties2 3 0 ; where liberty is most prized, the sanctioned removal of liberties, the ultimate penalty, may be singularly, and extensively, utilized.2 3 1 Searching for new centers of legitimation, an upsurge in ethnic/identity politics has joined the resurgence of “religious, ascriptive, and primordial” authority and power.2 3 2 Struggling to maintain a sense of communal identity, many nations are asserting their illusoiy muscle via a more stringent immigration policy.2 3 3 A significant bellwether in parsing extant sovereignty-related punishment issues, immigration control, of course, speaks to boundary issues. Manifesting a desire to sustain and order territoriality, it serves to anchor the sacred/profane distinction via the citizen/alien lens. In an interesting confluence of interest, the Federal Bureau of Prisons, has increasingly turned to corporate corrections to service the mushrooming INS detainee population. Repudiating political boundaries, poor immigrants are increasingly confined for turning global permeability on its head. Forsaking their assigned space, resisting and disrupting the prescribed social order, immigrants are imprisoned for relying on a presumed, yet illusory, political/economic alignment; they are penalized “ “Gustav de Beaumont and Alexis de Tocqueville, On the Penitentiary System in the United States and Its Application in France (Carbondale: Southern Illinois Press, 1964) 47. “ ‘Giddens, The Nation-State and Violence 188. 2 3 2 Bell, The Cultural Contradictions of Capitalism 330. “ 3 Sassen, Globalization and Its Discontents xxvii. 116 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. for trusting a permeability devoid of class-constrictions. Exemplifying a seemingly perverse globalization logic, unboundaried private prisons appear to sustain state- based territoriality through the detention and constraint of the mobile poor; suggestive of new hierarchies, territoriality serves globalization in its ability to order potentially disruptive populations. In its refusal to heed territoriality mandates, privatization symbolizes the duality of the boundaried struggle. Thematically signifying “passion play” tensions between those “who cannot escape boundaries,” and the mobility of those who can, privatized corrections serves, at the very least, to distinguish the economic winners from the economic losers; it evidences a paradigmatic, economically-informed “order.” Substantiating the crime/social disarray correlation, order implementing institutions are increasingly proffered as proxy legitimation, in and of themselves, in a paradigmatic law-making/law-enforcing, might-makes-right configuration. Advancing global economic provisos, private corrections tenders profit as an enhanced, validating dynamic. At the advent of the new millennium, with a barely discemable, legitimating, public square, the church and the prison clearly beckon. Not as apocalyptical as Guehenno, Sassen contends that state’s power properties, its territoriality and sovereignty, while essentially undermined, are not extinguished by the advent o f globalization. What is significant, in her view, is that “the exclusivity and scope of their competence has changed, that there is a narrowing Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. range within which the state’s authority and legitimacy are operative.”2 3 4 As stability and order displace cohesiveness as punishment’s elemental charge, the crucial inquiry shifts from “Is it just and/or legitimate?” to “Does it effectively pacify?” Given an ever-shrinking scope of state-based authority, it is not too farfetched to imagine, for example, a slippery slope from the privatization of punishment (long considered a core state-function) to the reintroduction of international penal transport. In as much as the privately run Newton County Correctional Center in Newton, Texas had, by 1996, become Hawaii’s third largest prison,2 3 5 what is to keep private, international, corrections corporations from establishing themselves in more profitable Third World locations? Currently, for example, Dominion Management skirts Colorado’s mandated, in-state, public-program parity stipulations by shipping their inmates to Texas; sidestepping Colorado’s two inmates per cell regulations, Dominion exacts more profit from Texas’s programmatic leeway, where 26 inmates may be legally celled together.2 3 6 If private corporations now ship inmates across state lines to avoid a more regulated, program intensive, mandate, why not extend this practice to the international theater? In that instance, more than ever, prisoners—the paradigmatic losers in the new economic world order—will serve as exemplars, literally embodying the diminishment of the state-based political order. 2 3 4 Sassen, Globalization and Its Discontents 25. 2 3 5 Schlosser, “The Prison Industrial Complex” 65. 2 3 6 Dyer, The Perpetual Prisoner Machine 209. 118 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Characterized as “governance without government,”2 3 7 the global economy’s re-articulation of the state’s legitimizing function, has, opines Sassen, “created new sites o f normativity”; the formation of new transnational legal regimes and regulatory institutions have taken over functions until recently located in governmental institutions. Thus, it is significant that here, at the heart of the state’s coercive mandate, that a normative critique of penal practice is being mounted by the international human rights community. While state-based equity-generating and enforcing sectors have been curtailed and demeaned, an international effort that refuses citizen/alien distinctions has emerged as an alternative, albeit currently rather toothless, alternative. Given that global markets now “concentrate sufficient power and legitimacy to command accountability from governments,”2 3 8 it is unclear how an amorphous human rights politics will be able to challenge the strength of prevailing power centers. Reciprocity/Legitimation and the Social Contract Punishment practices offer a road map; schooling our perception of political obligation, they frame the seminal social contract. The nexus at which the state/citizen relationship is intelligibly articulated, the legitimative dominion authorizes coercion when society’s normative vision has been violated; it fluctuates between enforcing compliance and buttressing cohesiveness. Yet if a presumed “ ’Sassen, Globalization and Its Discontents 97. “ 'Sassen, Globalization and Its Discontents 93-95. 119 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. “equality before the law/”citizen obligation quid pro quo is missing, what expectations regarding citizen/legal compliance are appropriate? Similarly, if extant economic imperatives undermine notions of citizen/state beneficence and/or reciprocity, would and/or should this disjuncture serve to de-legitimize operative authority arrangements? Finally, does the commodification of inmates essentially nullify the extant social contract and de-legitimize current punishment practices? In as much as legal and penal categories function to illuminate a state authority conditioned by, and reflective of, underlying economic power relations, it is conversely possible to argue, however incongruously, that inequity may represent a legitimating leitmotif. Much as ecclesiastical authority informed, and legitimated, medieval political operations, extant political authority is shaped and determined by the sanctification and authority of market forces—forces that presume and sustain inequity. Given the ascendancy of this “efficient” economic lens, a profit-bearing charge manifests a certain paradigmatic consistency and coherency. Is it, however, legitimate? The answer invariably centers on whether one believes legitimacy denotes and/or requires a structured, normative universe. While Daniel Bell asserts that: “Any society in the end is a moral order that has to justify [and/or] legitimate its allocative principles and the balances of freedoms and coercions necessary to . . . enforce such rules.”2 3 9 Does the presumed legitimacy, for example, inevitably 2 3 9 Bell, The Cultural Contradictions of Capitalism 250. 120 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. connote a given principle, such as reciprocity and/or equity? Does it presume just practice and/or a viable social contract? Conversely, is unjust practice inherently illegitimate? Viewed through another hermeneutic, realizing institutional mandates may be said to effect legitimate ends. In as much as legitimacy is perceived as essential to punishment’s normative telos, does privatization’s basically anormative stance, thus undermine its essential purpose? While legitimacy rests most easily and effectively on a normative frame, imperial and/or theocratic regimes have traditionally claimed legitimacy via a coerced citizen loyalty and/or compliance. The old adage that might makes right, that power fashions its own legitimacy has considerable historical mileage. Yet, perhaps, a more crucial contemporary question emerges; given extant persuasive techniques, can a manipulated imprimatur, absent meaningful choice, be legitimate? While Sennett suggests that governing on the basis of moral principle, as opposed to “material or intellectual force,” is ultimately more effective,2 4 0 legitimacy, manifesting the mutability of the public will, has been historically volatile. Political authority, for example, has been alternately legitimated as a coercive tool of elite economic interests and the means by which social equity is articulated. Ever variable, state authority has endorsed the expansion of penal operations and, at a different time, legislated the panoply of rights-based initiatives that have granted prisoners the power to challenge the fact and terms of their incarceration. For 2 4 0 Sennett, Authority 22. 121 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Foucault, state power, invidious and invisible, serves to undercut equity forces through its disciplinary functions. For Bell, the political realm’s very essence is understood as “the axial principle o f equality before the law”2 4 1 ; its capacity and interest in fashioning rights-based remedies serves, in his view, to substantiate that premise. The authoritative bond and/or relationship, as Richard Sennett observes, presumes inequity2 4 2 ; state authority, however, is best used to promote a more equitable distribution of its goods. Like transcendence, legitimacy can, it appears, be variously placed. Offering a more concise rejoinder, Giddens suggests that legitimation is most accurately predicated on an alignment of the economic and political realms.2 4 3 Thus, state attempts to replicate and/or wrest the legitimacy associated with business efficiency through the privatization of core public services, signifies, depending on one’s perspective, an extant imbalance or an attempt at realignment. Regardless of the answer, critical questions, nevertheless, remain. How will governments that divest themselves of defining responsibilities, sustain any semblance of legitimacy? Can one buttress a diminished authority through a borrowed imprimatur? Yet, according to some, legitimacy may no longer even be a relevant category and/or concern. In as much as social fragmentation has effected a diminished reliance on a social consensus imprimatur, extant legitimation is now articulated, 2 4 1 Bell, The Cultural Contradictions of Capitalism xvii. 2 4 2 Sennett, Authority 4. 2 4 3 Giddens, The Nation-State and Violence 140. 122 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. according to Giddens, primarily through states’ surveillance activities and day-to-day practices.2 4 4 Legitimation, shrunk to surveillance, offers up punishment as its primary sustaining agent. Privatization essentially underscores its normative insolvency. Conclusion In fashioning a fitting answer to this chapter’s principal question regarding the impact of economic or political primacy on punishment ends and practices, it may, at this point, be helpful to summarize the two disparate configurations. The market, distinguished by a largely here-and-now orientation, evinces profit maximization as its singular “normative” guide. Its much-venerated wealth producing capacity has effected an ever increasing income gap. For example, since 1977 there has been a doubling of the after-tax income gap between the rich and the poor; the top 1% of the wealthiest Americans currently has as many after-tax dollars to spend as the bottom 100 million.2 4 5 Similarly, the compensation disparity between executives and line employees increased from a 1980,42-1 differential, to a far more excessive 419-1 disparity in 1998.2 4 6 Serving to diffuse and obscure political/economic imprimaturs through the legitimation of professionalism and ^Giddens, The Nation-State and Violence 323. 2 4 5 David Cay Johnston, “Gap Between Rich and Poor Found Substantially Wider,” New York Times 5 Sept. 1999: A16. ^Frank Rich, “Who Doesn't Want to be a Millionaire?” New York Times 20 Nov. 1999: A13. 123 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. expertise, the Market resists equity-informed initiatives; it rests on the premise of the exchange. The political purview is, in contrast, long-term. Normative in its sensibilities, it seeks to delineate meaning and sustain social cohesion through state-informed justice/equity producing action; it, at the same time, dominates and defines through its coercive, violent capacities. Nonetheless, both functions are sanctioned via the creation of legal codes that serve to legitimate and affix responsibility. Assuring compliance, punishment as “deed” concretizes and particularizes the “word” of the law. The three prevailing leitmotifs (i.e., exchange, power, and equity), infuse penal policy in differing proportions. Reproducing operative societal arrangements, punishment practices purport to represent a retributive just exchange, while evidencing and reproducing the command of state authority. Perhaps most completely understood via the paradigm of an inequitable, forced exchange, the equity imparting energies of the tripartite configuration remain precariously and intermittently nourished. Examining penal practices through its exchange-dominated discourse one notes that the prefix “re”—defined as either “denoting action in a backward direction, action to undo a situation, or action done over”2 4 7 —pervades criminal justice colloquy. The imposition of punishment seeks to symbolically resemble and 2 4 7 Random House, Webster’s Dictionary (New York: Random House, 1995) 1121. 124 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. hence nullify and/or reverse a crime’s toxicity. The aggrieved may seek monetary recompense; the state may require retribution and/or encourage an offender’s reform. Punishment operations are consequently articulated in an economic discourse, in as much as they center, albeit symbolically, on forms of exchange. Thus, the Marxist maxim of capitalism “evil,” the thesis that one is ultimately reduced to one’s exchange value, may be perceived as a longstanding premise of the criminal justice system. It is evidenced in the way money and status, from biblical times onward, have been able to purchase alternate forms of penalty; it informs the essence of the plea bargaining process—a transaction predicated on the assumption that a diminished sentence proffer is dependant on a defendant’s ability to provide damaging information about another in exchange. Consequently, it seems plausible to suggest that privatization, the commodification of pain qua state sanctioned punishment, the exchange of prisoners for profit, will most likely serve to strengthen the economic/coercive aspects of the exchange, power and equity configuration; in a seeming zero sum construct, the justice promoting features will surely suffer. The sought after sacred/profane balance is similarly displaced. Its increasingly disproportionate configuration undermines the political/economic alignment upon which legitimation rests. The sacralization of the economic lens suggests a disparagement of the personal “relation” and a veneration of the abstract; the profaning of the political connotes a dwindling normative base. Replicating the sacred/profane interface, a market-oriented lens suggests the openness of a free exchange, while nurturing an implicit and aggressive labor discipline; the political 125 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. lens presumes coercive control, but is more and more deferential to an economic imprimatur. Increasingly fused within the anormative ascendancy of the economic lens, a sacred/profane amalgam, serves to render traditionally normative delineations obsolete, as the privatization of punishment signals a commonweal retreat; the rich/ poor schism, as predominant, pervasive, line of demarcation, remains. How one understands punishment’s justification and purposes will determine how one ultimately assesses the significance of economic and political distinctions regarding theory and practice. In contrast to a Platonic reliance on the harmonious, punishment as deterrence and or incapacitation is informed by disproportion. Relying on the “saliency o f the image” . . . [putting a] premium on disproportion,2 4 8 a dehanded thief, as L. E. Goodman reminds his reader, only stole a loaf of bread, not a hand. Punitiveness, as disproportion, may thus be perceived as an effective penal tool in its incapacitation and alleged deterrent capabilities. Reform-focused punishment must of necessity be concerned with long term issues, i.e., retribution, the possibility of personal rebirth, and the difficult task of communal reintegration. Perceived through a short-term, efficiency-minded hermeneutic, it may be a process at odds with itself. A punishment system, deemed as intractable and unsolvable as the crime it purports to address,2 4 9 has seemingly lost its way to a future, more hopeful, vision. In its promise of efficient day-to-day ^Goodman, On Justice 4. ^Garland, Punishment and Modem Society 4. 126 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. management, in its disaffected community posture, privatized corrections functions to sidestep, not confront, a broad chasm of socio-political problems. While retributive punishment’s charge to affix responsibility appears to be at variance with a market-focused mandate to obscure, privatization’s link to a more expanded and severe sentencing structure suggests a greater tolerance for vengeful expression. In the singularity o f its appetite creating, wealth producing, mandate, privatized punishment may ultimately prove to be an oxymoron. For if one truly punishes successfully, i.e., if practice fosters deterrence, retribution and reform, recidivism will decrease, and prisons—with a dwindling customer base—will go out of business. On the other hand, if one follows the Market’s mantra, eschewing limits, everything will be done to increase the boundless supply of prisoners/ consumers. It would appear that private corrections viability ultimately rests on in efficient management. Analogizing from Ignatieffs supposition of factory as prison template, how might computers, surely the heart of the new economic order, impact punishment practices? If the factory was about ordered time and discipline, the computer defies distinctions and borders—it is timeless and without place. As Peter Drucker opines, “In the new mental geography of e-commerce, distance has been eliminated.”2 5 0 If the factory was an obvious presence and institutional hub, the computer is less obvious, hidden and without institutional affiliation. The computer heralds what a 2 3 0 Peter Drucker, “Beyond the Information Revolution,” The Atlantic Monthly (October 1999): 50. 127 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. privatized penal system suggests, a decontexualized, unseen operation with interchangeable parts. In the current context, Guehenno maintains that it is “just as incongruous to pose the question of legitimacy as to question whether a computer program is 'just' or 'unjust'”2 5 1 ; lacking a sense of collective purpose and/or destiny, legitimacy has seemingly become a fungible concept. “ 'Drucker, “Beyond the Information Revolution” 58. 128 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. CHAPTER III GOVERNANCE AND/OR MANAGEMENT: A SINGULARLY AMERICAN PERSPECTIVE “The rejection of private punishment is the birth of civility and in a way of the state itself’2 5 2 “The government is best which governs not at all”2 5 3 Introduction The word “public” is variously configured. Depending on the context it may be interpreted as evocative of the communal interest and well-being, as open to civic scrutiny, as a reflection and/or aggregation of popular desires, and/or as suggestive of the institutions and activities that characterize the government, not-for profit, and business nexus. Both an idea (that of communal as opposed to personal interests), as well as a capacity (the ability to work together for the general good), the “public,” traditionally encompasses, but is not synonymous, with government.2 5 4 Nonetheless, ^ L . E. Goodman, On Justice (New Haven: Yale UP, 1991) 45. ^H enry David Thoreau, Walden and Civil Disobedience, ed. Owen Thomas (New York: Norton, 1966)224. ^ H . George Frederickson, The Spirit of Public Administration (San Francisco: Jossey-Bass Publishers, 1997) 52. 129 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. at its most hopeful, democratic government may be perceived as a manifestation and expression of the public’s “moral and philosophical aspirations,”2 5 5 as well as its considered core—a deliberative process informed by a system of laws and justice. Positing the public as encompassing the more universal world “of equalities, reason, individualism and impartiality,” Carol Pateman distinguishes the particularity of the “private,” as a realm affected by “natural subjection, ties of blood, [and] emotion”2 5 6 ; it suggests “out of public view.” When alluding to the delivery of social goods and services, the private sector typically references the non-govemmental, not- for-profit and/or for-profit institutions and/or corporations; it denotes an attenuated or absent delineation of public accountability. As in the “public” conflation of the governmental and the entrepreneurial, “private” may both evoke the “personal,” and be differentiated from it. In a further parsing, the public/private distinction may rest on the perception of a commonweal, as opposed to a profit-based telos. Extrapolating from the original implications and meanings of “public” and “private,” this chapter will explore how the ideology and historical trajectory of these two conceptions have informed current privatization trends and decision making; it will highlight the import o f long-standing, American, anti-government antipathy in shaping the prevailing privatization “mania.” By teasing out the distinguishing characteristics of both sectors, it will specifically address how public/private 2 5 5 John D. Donahue, The Privatization Decision: Public Ends. Private Means (New York: Harper Collins, 1989)20. ^C arole Pateman, The Disorder of Women (Stanford: Stanford UP, 1989) 43. 130 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. proclivities inform the distinctive conceptual and contractual realms of correctional privatization. Finally, this chapter will contemplate penal arrangements from the purview of a reciprocally bifurcated public/private, justice/punishment continuum. Exploring both manifest and latent implications of the public/private divide within our national psyche, this chapter will ultimately consider how foundational justice/vengeance notions interface with, and shape, these controlling paradigmatic dualities. The overarching and governing hypothesis is that, given the singular vulnerability of prisoners to camouflaged and/or concealed institutional abuse, correctional management initiatives—public and/or private—demand the burden of an enhanced scrutiny and accountability. Accordingly, the ensuing inquiry will focus, in large measure, on whether the public or private domain augurs for a more normatively responsive and visible institution. Lastly, in as much as the rituals and symbols associated with crime and punishment evidence the “inherently public nature” of its mandate, how is this imprimatur affected by a privatized, diluted chain of command? Is there any substantive difference, queries criminal justice expert John Dilulio, between privatizing corrections, and/or privatizing the courts and/or our domestic police force? Why is one, he asks, seemingly more acceptable than the others?2 5 7 2 5 7 DiIulio, “The Duty to Govern” 173-77. 131 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Origins and Interpretations Derived from the Greek words pubes or “maturity,” and koinon, “common” and/or “to care with,” “public” historically implied an “in-relation” perspective; it denoted a shift from selfish concerns and an ability to appreciate the consequences of one’s actions on others. Accordingly, the conflation of “maturity,” “common,” and “to care with, presupposes both a public “working with” as well as a ’’looking out for others” purview.2 5 8 “Private” similarly has two Greek antecedents. One, the derivative of our word “idiot,” connoted an individual with a totally egocentric life view; the second word, stemming from the Greek “oikos,” implied a family and/or household orientation.2 5 9 While currently a preeminent and valued sphere of activity, “private’s” early usage signified a “state of deprivation”2 6 0 — a sphere apart from the more venerated, life of the polis. In a conflation o f the public with the official, a private person has been etymologically defined as one without “public position.”2 6 1 More recently, John Dewey correlated the private/public distinction with the “extent and scope of the consequences”2 6 2 of any individual act. If, in his view, the consequences are limited to persons directly engaged in the activity, it is a private 2 5 8 Frederickson, The Spirit of Public Administration 20. 2 5 9 David Matthews, “The Public in Theory and Practice,” Public Administration Review, ed. H. G. Frederickson and R. C. Chandler (March 1984): 122-23. 2 6 0 P. J. Palmer, The Company of Strangers (New York: Crossroads, 1981) 18. 2 6 1 John Dewey, The Public and Its Problems (Athens: Ohio UP, 1927) 15. 2 6 2 Dewey, The Public and Its Problems 15. 132 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. act; if the consequences affect others, it is public. Foreswearing an a priori public/beneficence equivalence, Dewey argues that many so-called private acts, most conspicuously philanthropic endeavors, have a socially useful role. Similarly, pointing to the extensive record of public violence, public acts, he suggests, are not uniformly altruistic.2 6 3 In its prevailing mandate to “care for the consequences of transactions between persons”2 6 4 the public is represented and organized via the authority it imparts to its officials. Defining the state as “the organization of the public effected through officials for the protection of the interests shared by its members,”2 6 5 Dewey differentiates the government per se, as a part of, yet not tantamount to, “the state.” While a public lens does not assure social beneficence, it is, nonetheless, distinguished via its equity concerns. “The public” inherently presupposes a mandate to remedy social disparities; at its best, it assumes responsibilities to attend to the interests of the dispossessed and the vulnerable.2 6 6 Highlighting the absence of a comparable “private” social equity charge, Michael Walzer notes that the archetypical private sphere, the familial world of affection “is the place where favoritism begins.”2 6 7 2 6 3 Dewey, The Public and Its Problems 12-14. ^Dewey, The Public and Its Problems 16. 2 6 5 Dewey, The Public and Its Problems 33. 2 6 6 Dewey, The Public and Its Problems 62. 2 S 7 Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, Inc., 1983) 232. 133 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Eschewing any view of a monolith “public,” Elizabeth Bounds proposes a commonweal informed by multiple publics; “opinion and social identity are enacted and formed”2 6 8 through ongoing cultural and ideological negotiations. In Susan Muller Okin’s formulation, “public” connotes the “world of the political life and the market place”; private suggests the inter-personal, familial realm.2 6 9 Perhaps the most complete definition of the “public” has been articulated by C. Ventriss: “A public is a community of citizens who attempt to understand the substantive interdependency of social and political issues to the community and who maintain a critical perspective on the ethical implications of government policy making.”2 7 0 The public and private realms, in actuality, inform each other, they are understood both in their contrast to, and relationship with, the other. According to Brian Fay, notions of public/private are paradigmatic in that they provide “structure and give coherence to all known ways of life.” The boundaries between them and the categories they embody help to create a moral environment, and organize our understanding of the substance and reach of political life. They additionally guide our “understanding of the meaning and role of work; its concepts of agency; its ideas 2 6 8 Elizabeth Bounds. Coming Toeether/Comine Apart (New York: Routledge, 1997) 9. 2 6 9 Susan Moller Okin, Justice. Gender and the Family (New York: Basic Books, 1989) 111. 2 7 0 C. Ventriss, “The Pubiicness of Administrative Ethics,” Handbook o f Administrative Ethics, ed. T. L. Cooper (New York: Marcel Dekker, 1993) 201. 134 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. about authority, the community, the family; its notions of sex; its belief about God and death and so on.”2 7 1 Criminal Justice Implications: The Justice/Vengeance Dyad Conceptually, criminal justice public/private realms correspond to critical justice/vengeance proclivities. In actuality, public attention is intermittently focused throughout the trajectory of the criminal justice process. Aroused by the drama of courtroom ritual, the public’s attention span dwindles thereafter; it is, as Garland reminds us, the “declaration of punishment rather than the process of punishment”2 7 2 that ostensibly captures the public imagination. This disinterest, is, nevertheless suspect. Reproducing the public/private duality, the crime/trial/sentencing/ punishment trajectory serves as a material representation of the justice/vengeance continuum. Our intense interest and investment in the public arena buttresses our ego ideals; our alienation from the mechanics of punishment, evidences our desire to disavow sadistic, and/or vengeful proclivities. Lacking the courage to confront the repercussions of our true desires, we prefer, instead, to sequester them within what Hannah Arendt refers to as the “the sheltering darkness of privacy.” 2 7 3 In as much as the establishment of communal authority delineates the limits of tolerable individual indulgence, the creation of systems of justice under the rule of 2 7 1 Brian Fay, Social Theory and Political Practice (London: Allen and Unwin, 1975) 78. 2 7 2 Garland, Punishment and Modem Society 71. 2 7 3 Hannah Arendt, Politics. Conscience and Evil (Totowa: Rowman and Allanheld, 1983) 34. 135 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. law constitutes the “decisive step of civilization” according to Freud. Predicated on the need for protection from potentially brutal assault, the need to safeguard commonweal concerns demands that instinctual license be sacrificed and accordingly bounded.2 7 4 Nevertheless, if Durkheim is right when he argues that “passion is the soul of punishment and vengeance. . . the primary motivation which underpins punitive actions,”2 7 5 if punishment’s essence is, as he suggests, truly informed by “unthinking emotion,” it is appropriate to ask how and where this paradigmatic emotive/justice tension is situated and expressed within the current criminal justice process. In its early manifestations “private punishment,” connoted a retaliatory realm of blood feuds and clan indemnities. The shift from the public sanctioning of personal retributive desire paralleled a changing medieval framework; an ever- increasing central authority superseded kin solidarity as society’s organizing principle. Equating “the rejection of private punishment” with the “birth of civility,” L. E. Goodman contends that the move to a publicly ordered punishment was, in fact, key to the foundation of state-based authority.2 7 6 The state, in its role as commonweal guarantor, represented and/or supplanted the individual victim as the aggrieved party. Manifesting a monopoly on “juridical, legislative and coercive 2 7 4 Sigmund Freud, Civilization and Its Discontents, trans. Janies Strachey (New York: W. W. Norton and Company, 1961)49. 1 7 5 Emile Durkheim, The Division of Labor in Society, trans. George Simpson (Glencoe and New York: Free Press, 1933 and 1960) 86. 2 7 6 L. E. Goodman, On Justice (New Haven: UP, 1991) 45. 136 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. authority,” the state shifted the locus of vulnerability from “the immediate victim to the body politic”2 7 7 ; criminal offenses presumed a normative public universe. Usurping and abstracting the retributive role, concepts of a state-based public justice have disallowed and discredited personal vengeance proclivities; once thought a “sacred duty,” over time, vengeance has been largely recast as a “shameful urge.”2 7 8 Aggrieved parties are, nevertheless, encouraged by the resurgence of victims’ rights groups to, at the very least, verbally express their “outrage” at trial. Lobbying for non-release at parole hearings, for example, has become standard operating practice; an effective point of intervention for the exercising of punitive, and/or vengeful proclivities, ever-dwindling parole boards are particularly responsive to “communal sensitivities.” On a broader level, vengeful predispositions have been evidenced in ever more punitive sentencing structures, and in an increased sanctioning of retributive rationales. Ideally, justice demands a disinterested, impartial trier of facts; absent retributive emotion, s/he is more able to render a rational and fair verdict. While the materiality of lex talionis (i.e., an eye for eye), is perceived as barbarous in the contemporary western world, its evocation of equivalences informs the symbolic substitutions that shape extant punishment practices; understood as “only” an eye for an eye, it is, in reality, an attempt to “contain” not expand the potential for vengeful 2 7 7 Goodman, On Justice 47. ^D aly and Wilson, Homicide 240. 137 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. excess.2 7 9 Susan Jacoby, however, insists that this is a sterile and ultimately unsatisfying rendition; justice, in her view, must include aspects o f the emotive qua revenge if it is to be truly restorative.2 8 0 Conversely, Goodman, disparaging the “excesses and arbitrariness” that typically inform vengeful acts, seeks their elimination from the justice equation; justice, in his view, demands a retribution based on a violation of social norms and/or dignity, not the particularity of personal injury.2 8 1 Advancing the notion of an ever more considered, publicly-focused, judicial rendering, Garland suggests that punishment’s increasing concealment is, in fact, directly related to vengeance’s diminished acceptability. It must, however, be argued that decreased acceptability does not necessarily imply diminished influence and/or power; the allure of “forbidden fruit” has been all too well documented. The private/public distinction is additionally mirrored in the “opposition [between] shame and honor”2 8 2 and/or between honor and justice, as delineated in Fox Butterfield’s superb exploration o f antebellum southern violence, The Bosket Family and the American Tradition of Violence. While Arendt’s theoretical frame understands honor as a worldly invocation of public courage, an antithesis to the shame of unseemly, often bodily, desire, for Butterfield, honor has historically 2 7 9 Daly and Wilson, Homicide 240. “ “Daly and Wilson, Homicide 240. “ 'Goodman, On Justice 47. ^Arendt, Politics. Conscience and Evil 3. 138 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. represented the quintessential civilized, albeit, private settling of dispute. “The code of honor,” he notes, “reached its apogee in the duel A gentleman did not go to court.”2 8 3 Functioning as antithesis to a weakly implemented and enforced legal system, one’s willingness to impulsively defend one’s honor from any and all slights—real or imagined—was viewed as a spirited and sanctioned form of personal valor. Discerning a “fine line between [both] heroism in the name of honor and criminality. . . [between] deeds of valor and acts of violence.”2 8 4 Butterfield evidences an appreciation of honor’s multiple evocations. Denoting its chameleon private/public possibilities, honor may be best understood as lynchpin in a trajectory that ranges from shame, through vengeance to justice. Considerations of honor have served both as rationale for the post-Civil War South’s vigilante system of justice and the internecine violence that informs much of modem ghetto life. In recent times it’s validation of extra-legal remedy has informed the kneecapping propensities of Irish “freedom fighters” and the “honor” killings/ suicides of “disgraced” women worldwide. In all instances, it denotes the absence of a legitimated and/or trusted system of law. Replicated in the extra-legal terrain of the prison complex, the permutations of honor/vengeance, what Butterfield refers to as 2 8 3 Fox Butterfield, The Bosket Family and the American Tradition of Violence (New York: Alfred A. Knopf, 1995) 11-12. ^Butterfield, The Bosket Family and the American Tradition of Violence 11-12. 139 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. “a creed for a dangerous world,”2 8 5 suffuse prisoner-prisoner as well as prisoner- officer relations. Notions of “ justice as fairness,” to use a Rawlsian conception, have, in actuality, always experienced a historically precarious validation. For example, in an early 19th Century wrestling match, as described by Butterfield, “the contestants were asked if they wanted to ‘fight fair’ or ‘rough and tumble.’ When they replied ‘rough and tumble’ the crowd roared in approval.”2 8 6 Similarly, using contemporary sport as metaphor, while events are refereed to insure adherence to rules and regulations, the implicit understanding—as evidenced in its language (e.g., steals, faking) and sanctioned actions (e.g., hockey brawls)—is that rules are to be circumvented, that the “honor” of winning is paramount. Even within the judicial public display, the adversarial contest is more focused on the fruits of victory than the securing of a just result; justice is an occasional, fortuitous, byproduct as long time litigators have frequently disclosed. The rules, representing wider societal intonations of justice and honor, serve as “social constraints” containing an omnipresent adversarial and/or vengeful passion. However, while intimations of justice suggest the potential of enlightened governance, the legal system’s existence is predicated on its enforceability; as “ ’Butterfield, The Bosket Family and the American Tradition of Violence 85. “ ‘Butterfield, The Bosket Family and the American Tradition of Violence 10. 140 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Derrida notes, “justice without force is impotent.”2 8 7 Occasioning the enactment of violence upon others, “a legal world.” Cover opines, “is built only to the extent that there are commitments that place bodies on the line.”2 8 8 In as much as the particularity of justice, qua law, evidences a socially constructed purview, it provides an interpretive key to the political anatomy o f power. In as much as violence and domination are implicit in both the act of sentencing and the reality of punishment,2 8 9 the opportunities for vengeful expression are ubiquitous. Hence, in their representation of the range of public/private implications, public prisons already evidence a fusion of public/private interests. Diverting attention from its emotive implications, privatization encourages a further moral inversion. The more we conceal, the more we reveal; shadows are suspect as the more detached, efficient and “private” we need to be (paradigmatically the Nazi death camps), the more vengeful, messy, and punitive are our secret yearnings. Thus, to answer John Dilulio’s initial queries, prison privatization appears more acceptable than private courts/police forces, and or armies, because prison already evidences extensive private register proclivities; in its inherent embrace of the emotive and the vengeful, punishment suggest a sanctioning of private indulgence—personally and economically. “ ’Jacques Derrida, “Force of Law: The Mystical Foundation of Authority,” Cordozo Law Review 11.5-6 (July-August 1990): 937. “ ‘Robert Cover, “Violence and the Word: The Mystical Foundations of Authority,” Cordozo Law Review 11:919 H990* 1601. “ ’Cover, “Violence and the Word” 1604-607. 141 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Historical Shifts Using the shift in our understandings of “public” and “private” as a key interpretive hermeneutic, Richard Sennett details a gradual historic disparagement of the “public’s” work and implications. When first used it denoted “the common good”; by the end of the 17th Century it suggested a less approving idea of being “open to the scrutiny of anyone.” In contrast, and in response, “private” came to mean a positively regarded “sheltered region of life.”2 9 0 By the 18th Century the public/private distinction could be suitably articulated as the split between the “artifice” and impersonality of the cosmopolitan, as opposed to the “natural” claims of the family.2 9 1 As the affinity of the private and the expressively particular were not yet manifest, the private’s governing impulses, in marked contrast to contemporary predilections, “were those of restraint and the effacement of artifice”; the “public” implied human creation and will.2 9 2 With advent of industrialization, however, the capitalist “invisible hand” fostered a growing sense of personal impotence as well as an increased tolerance for moral irregularities. As a consequence, Sennett contends that “gradually the will to control and shape the public order eroded”2 9 3 ; the tainted public domain, no longer 2 9 0 Richard Sennett, The Fall of Public Man: The Social Psychology of Capitalism (New York: Random House, 1978) 16. 2 9 1 Sennett, The Fall of Public Man 18. 2 9 2 Sennett, The Fall of Public Man 89,98. ^Sennett, The Fall of Public Man 19. 142 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. the venerated civitas, was more to be defended against than engaged. Although the “restrained” private/domestic sector had, by the turn of the 20th Century, gradually morphed into the realm of the emotive and the particular, the province of the family remained idealized as morally superior, while the public domain was steadily deligitimized. In efforts to further obviate public concerns, the private, in the semblance of an imposed, albeit contrived, intimacy was superimposed on the public; as the distinction between feeling and display narrowed, the public/private distinction became imperceptible.2 9 4 Addressing the wider contemporary panorama, Bounds articulates a similar scenario. Absent a palpable public/private demarcation, a fusion of interests, she argues, has resulted in an increasingly privatized public, and—in an exceedingly prescient observation—she states that the private, has “become grist for the public mill”2 9 5 (as the Clinton debacle and reality TV have clearly evidenced). Paralleling Sennett’s feeling/display fusion, there has been an ever-increasing crossover between the public/not-for-profit/for-profit realms. As a result, Bounds contends, it has become more and more difficult to distinguish the legitimated activities of an increasingly murky public square. The implications of this diffusion for penal institutions are particularly foreboding. Absent a clearly delineated forum to address broader notions of fairness and justice, the pervasive, albeit tacit, institutional 2 9 4 Sennett, The Fall of Public Man 24-27. 2 9 5 Bounds, Coming Together/Coming Apart 75. 143 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. endorsements regarding the exercise of excessive and/or misplaced authority recede ever further from public consideration and debate. Arguing from a somewhat disparate standpoint, H. George Frederickson, nonetheless, affirms this changing, more constricted perception of the “public.” As many of the earlier associated meanings have been narrowed and/or lost, the term “public,” currently denotes a singular focus on government and/or politics. Inasmuch as the “purposes of government have been reduced to private well being. . . a summing up of the aggregate of private interests,”2 9 6 the “public” no longer appears to summon an a priori focus on the greater good and reciprocal responsibilities. The locus of attention accordingly shifts from commonweal considerations to queries concerning whether varying competing interests are afforded equitable regard. Within the context of this historical trajectory, extant privatization trends evidence the aforementioned public/private fusion; recalling its etiological antecedents, absent public position, privatization fosters an insular view and advances our pervasive “state of deprivation.” Traditional normative concerns have been eclipsed by the private sector’s profit making telos. Negating rather than integrating the public voice, the public/private partnership has effected a deferentially positioned “public”; ever more difficult to discern, the authoritative and the legitimate has been streamlined and subsumed within a private managerial authority. The “private” sphere once the 2 9 6 Frederickson, The Spirit of Public Administration 21 -22. 144 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. model of restraint has become the repository of excess; the public, in its regulatory, restraining role, has continued to be the object of disdain. Defined by John Donahue, as a “means of enlisting private energies to improve the performance tasks that would remain in some sense public,”2 9 7 extant privatization implies both public “broad consequences” and private “natural subjection”; it presages the efficiency of the market in the service of public goals. The portrayal of an opportune and uncompromised collaboration is, nevertheless, misplaced. The fact that “private energy” frequently contravenes public objectives, has been largely ignored in the rush to replicate the currently venerated private/public paradigm; as a result privatization’s full contours and consequences have been left largely unexplored. Nonetheless, the envisioned sanguine conflation obviously presumes some distinction. Absent an anticipated improvement based on the changing configuration, the re-assignment of public duties to private organizations seems purposeless and lacking in justification. Attributing the historical oscillation between the two spheres to disappointment, Albert O. Hirschman theorizes that just as unrealized public hopes lead to the search for private sector remedy, disillusionment with “private” excess and/or unresponsiveness induces a revival of public innovation.2 9 8 2 9 7 Donahue, The Privatization Decision: Public Ends. Private Means 7. 2 9 1 A. O. Hirschman, Shifting Involvements: Private interest and Public Action (Princeton: Princeton UP, 1982) 10. 145 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Privatization and the Anti-Government Sensibility The advent of the early 1980's privatization movement was the result of a confluence of socio-cultural, political, and economic predispositions and events. As the traditional American antipathy towards government strengthened, the resurgence o f a decidedly pro-business perspective was concretized by the election of conservative Ronald Reagan to the presidency. Governmental deficits deterred conspicuous public spending, as Margaret Thatcher’s seemingly successful devolution policies served as paradigmatic exemplar. Constitutional historian, Arthur Lovejoy, traces this long-standing American anti-govemment theology to the legacy of a Puritan-inspired pessimism. The belief in the inevitable corruptibility of human nature resulted, he asserts, in a weak, “insecurely seated,” governmental authority.2 9 9 Concomitantly persons who were drawn to political power, perceived as toxic to any and all aspirations o f integrity, were suspect. Largely discredited, the very concept of public professionalism was perceived as an oxymoron; most citizens believed that public officials were certain to be affected by the potential for abuse inherent in their official responsibilities.3 0 0 Analogously, these same pessimistic proclivities may be evidenced in a review of 2 9 9 Arthur Lovejoy, Reflections on Human Nature (Baltimore: Johns Hopkins UP, 1961) 46- 47. ^G arry Wills, A Necessary Evil: A History of American Distrust o f Government (New York: Simon and Schuster, 1999) 42. 146 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. public welfare policy. Beneficence, particularly public beneficence was thought to “enslave” its recipients, in ways that a privately distributed charity would not.3 0 1 Gariy Wills situates the seeds of this distrust in our “vulgarized” understanding of Locke’s Social Contract. Emanating from presumed freedom/governmental authority tensions, popular perceptions presupposed an inverse relationship between the size of one’s government and the amount of freedom that accrues to any individual; ergo, any increase in the extent and force of state power invariably effected a concomitant decrease in personal freedoms. “Public beware” emerges as leitmotif, a watchword that exhorts the populace to be wary, to calculate the implications of each and every potential governmental trade off.3 0 2 Wariness and/or (depending on one’s perspective) paranoia, informs what Orlando Patterson refers to as “our extreme commitment to anti-paternalism.”3 0 3 Similarly, focusing on anxiety as critical socio-cultural lynchpin, George Will reminds us that the rationale for social contract ideology was not a shared political philosophy or concern for others, but anxiety regarding personal and material security.3 0 4 3 0 1 Walter I. Trattner, From Poor Law to Welfare State (New York: The Free Press, 1999) 277. 3 0 2 Trattner, From Poor Law to Welfare State 299-300. 3 0 3 Orlando Patterson, “Life, Liberty and Excessive Force,” New York Times 28 Feb. 2000: A19. 3 0 4 Will, Statecraft as Soulcraft 109. 147 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Identifying two opposing value clusters, Gary Wills suggests that the traditionally pro-government belief structure, characterized by an affiliation for the cosmopolitan, expert, secular, efficient and regulatory discourses, has been perceived as essentially subversive to the anti-government, uniquely American, exaltation of the provincial, amateur, religious, authentic, and voluntary perspectives.3 0 5 Paradoxically, however, the same so-called “pro-governmental values” cluster, as Wills acknowledges, essentially undergirds contemporary business culture. As a result, private identity demands a clear resistance to public sector regulatory mandates; in its embrace of a capitalist theology, corporate actors assert their dedication to the “private cluster4 4 value constructs. Defending the mythology of the amateur entrepreneur, they maintain the illusion of their “spontaneous,” anti- government stripes.3 0 6 Evidencing rather contradictory perspectives regarding the potential for government efficiency, we at once hold to the view that “inefficiency is to be our safeguard against despotism,”3 0 7 yet bemoan the lack of governmental efficiency. Similarly, while a 1992 survey found that 70% of Americans believe that government programs are 4 4 usually inefficient and wasteful,”3 0 8 voters, nonetheless, consistently refuse to fund, and thus empower, its accomplishment. Similarly, while a high level 3 0 5 Wills. A Necessary Evil 17-18. 3 0 6 Wills, A Necessary Evil 20. 3 0 7 Wills, A Necessary Evil 319. 3 0 8 Frederickson, The Spirit of Public Administration 185. 148 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. of medical and/or legal expertise and professionalism, for example, is appropriately valued and compensated, the volunteer, part-time legislator—as evidenced in Texas’s 4 month bi-annual legislative sessions—has been touted as national model by George W. Bush in his recent presidential bid. In its evocation of a public/private partnership, privatization appears to suggest a way out of this seemingly contradictory morass; in its purported cross sector embrace, it suggests the rather dubious possibility of dual allegiance. While most exegeses for the current privatization trend situate this historic anti-government proclivity in a federated, pluralist legacy absent centrist institutions and traditions, Cheryl Simrell King and Camilla Stivers offer a somewhat disparate, up-dated, perspective. While acknowledging the political/socio-cultural antecedents that have informed our freedom at-almost-all-costs tradition, they nevertheless suggest that extant discontent with the public sector is qualitatively different from prior eras due to the import of globalization and its impact on our political economy.3 0 9 The conflation of huge corporate profits and ever-more generous compensation packages, have served to insulate and envelop certain sectors of the population in a protective wrap. As King and Stivers note, “the privileged classes have made themselves independent not only of crumbling industrial cities, but of 3 0 5 Cheryl Simrell King and Camilla Stivers, Government is Us: Public Administration in an Anti-Government Era (Thousand Oaks: Sage Publications, 1998) 17. 149 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. public services in general (e.g., schools and health care).”3 1 0 Concomitantly, middle and working class citizens, acutely aware of the growing precariousness of most employment, have grown steadily resentful of the perceived exclusivity of governmental largesse, a largesse that they viewed as solely serving the underclass, the so-called “undeserving” poor. While Americans still perceive a largely positive, fairness “arbiter” role for government, a 1999 poll sponsored by the Council for Excellence in government, revealed that “more than twice as many Americans (64%) feel ‘distant and disconnected’ from government than feel 'close and connected.'”3 1 1 Thus, whether in the form of anger and/or obliviousness, anti-government antipathy has served as the repository for, and manifestation of, disparate forms of economic, social, and cultural uncertainty. In response, the government has seemingly identified with its “the aggressor.” Devolving and/or “reinventing” itself in a “private” image, it has failed to provide a cogent and compelling rationale for the continuance of its normative proactive role, and/or for the importance of the distinctively public realm. Public/Private Sector Distinctions Denoting a somewhat cynical view of the modem privatization process, John Donahue cautions that political pressures will more than likely “retain for the public sector functions where privatization would make sense and... privatize tasks that 3 I0 King and Stivers, Government is Us 23. 31,Bob Herbert, “A Nation Loosening Its Bonds” New York Times 26 Aug. 1999: A17. 150 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. would be better left to government.”3 1 2 Keeping this instructive admonition in mind, what are the varying considerations that inform privatization decision-making in general? In view of an increasingly intertwined, private/public realm, what are the salient distinguishing factors? Three disparate organizing principles—exchange, beneficence and legitimated political authority—respectively inform the market, voluntary not-for- profit, and public sectors; both the market and the government additionally serve as mechanisms of social coordination.3 1 3 While both public and private management articulate efficiency and economy concerns, these considerations are balanced, the equation altered, by public sphere equity interests. Similarly, accountability imprimaturs, manifest largely as efficiency mandates within the private realm, are widened to include normative responsiveness in the public square. Whereas market return is the primary indicator of private success and/or failure, insulation from market place remuneration is the key distinguishing feature of public bureaucracies. While the entrepreneur is prompted to deliver a product in exchange for a specified price, the civil servant “accepts instructions” in return for a wage.3 1 4 Although market success presumes consumer satisfaction, public sector perpetuity is perceived as largely impervious to consumer challenge. Often called upon to represent and service an “inchoate” and/or barely perceptible public, the impetus for improved 3 l2 Donahue. The Privatization Decision: Public Ends. Private Means 13. 3 l3 Donahue, The Privatization Decision: Public Ends. Private Means 17. 3 1 4 Donahue, The Privati7ation Decision: Public Ends. Private Means 39. 151 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. performance is inconsistent; poverty amelioration, as Frederickson suggests, does not have a very vocal lobby.3 1 5 Debate concerning whether or not to privatize typically rests on the supposition of an enhanced private efficiency; a privatization decision suggests that the private sector will be able to deliver better goods at a lower cost. When dealing with multiple, geographically disparate, sites, privatized efficiency additionally presumes the benefits of the economy of scale, i.e., a streamlined, consolidated administration in tandem with an enhanced management information systems’ coordination. Privatization proponents maintain that public/private contractual relationships grant the public sector all the advantages of the market—without undermining the level of public service. Opponents contend that privatization necessarily reformats priorities, placing “market concerns” ahead of “equity and access” considerations.3 1 6 The picture is additionally muddled by the fact that market truths are often unrelated to the complexity of public authority mandates. The accountability burdens of the public-square, complicate and compromise market imprimaturs; the enhanced competition and explicit output indicators that drive efficient performance are often missing from many aspects of public/private contractual arrangements. Even if attempts are made to replicate private sector discipline, traditional efficiency 3 l5 Frederickson, The Spirit of Public Administration 46. 3 1 6 Elliott D. Sciar, You Don't Always Get What You Pav For: The Economics of Privatization (Ithaca: Cornell UP, 2000) 4. 152 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. paradigms may prove unresponsive to public sector concerns, and, therefore are ultimately more expensive. Further, as failure to advance social equity interests and/or ineffective representation of commonweal concerns may resist precise calculation, the politically diluted relationship between deficient performance and reactive discipline is further attenuated via the contractual process. If, as Mark Moore contends, “political accountability is to the public sector what customer accountability and competition are to private sector organizations,”3 1 7 their confluence, muddying both political accountability and competitive discipline, augers poorly for future public/private initiatives. The deregulation of the airline industry, for example, was promoted in an effort to enhance competition and ipso facto promote efficiency; the overall results were nevertheless mixed. Fares between large cities grew more competitive, whereas smaller markets’ service declined markedly. Absent a profit driven reason to sustain an equity imprimatur, and serve the underserved, market considerations prevailed. Accordingly, the most lucrative markets were the best served as redistributive, commonweal concerns were ultimately deemed irrelevant. Deregulation has also had a negative impact on prevailing standards of airline safety. As David Shichor notes, “with the diminution of regulation, the caveat emptor (let the buyer beware) ethos of American business has returned to the marketplace.”3 1 8 3 l7 Mark H. Moore, “The Legitimation of Criminal Justice Policies and Practices.” National Institute of Justice: Perspectives on Crime and Justice: 1996-7 Lecture Series (Washington.: U.S. Department of Justice, 1997) 70. 3 l8 Shichor, Punishment for Profit 9. 153 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. While Diana Henriques’s study, The Machinery of Greed, posits that the “unbridled discretion, lax internal controls and ambivalent ethics”3 1 9 that distinguish public sector practices would benefit from the greater precision of private sector management controls, she, nonetheless, acknowledges that public/private partnerships impose special burdens on both sectors. Absent customary touchstones, the public/private overlay discombobulates and disorients. The conflation of disparate values, telos and perspectives lead, she contends, to greater confusion at all levels. With inter-sector violations increasingly camouflaged, vulnerability to corruption, in the guise of political spoils and/or unlawful, unethically generated profits, is consequently enhanced.3 2 0 Frederickson maintains that the unswerving mandate to increase profits, as well as the absence of clear social equity directives, ultimately serves to subvert potential privatization savings due to the increased opportunities and/or propensities for corruption. Positing a distinction between individuals who are civically inclined and individuals who are drawn to the private sector, he asserts that privately inclined individuals’ belief systems and values are largely “at odds with governmental and public definitions of ethical behavior.”3 2 1 Research regarding the various junctures of individual propensity and institutional proclivity (see Figure 7.1 reproduced below) suggests that “degrees o f corruption and unethical behavior increase as more 3 1 9 Diana B. Henriques. The Machinery of Greed (Lexington: Lexington Books, 1986) 107. 3 2 0 Henriques, The Machinery of Greed 108. 3 2lFrederickson. The Spirit of Public Administration 179. 154 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. privately inclined people are appointed to governmental positions and as more governmental services are based on the enterprise model.”3 2 2 “Figure 7.1. The Effects of Personal Inclinations and Organization and Structure on Corruption and Ethics in Government Personal Inclinations Civic Private Likely to be least Likely to experience corrupt, most ethical some corruption and Government unethical behavior, but within government Organization and Structure As distance from Most likely to government experience Enterprise increases, chances corruption and for corruption and unethical behavior unethical behavior due to a lack of increase controls” Absent competition, lacking clear systems of accountability, bureaucracies, whether public or private, typically suffer from “slack,” and “struggle against entropy.”3 2 3 Thus, although “collective endeavors” have historically been associated with “chronic inefficiency,” Donahue maintains that public bureaucracies should not be singled out as exclusively deficient. “Bureaucracies are not uniformly 3 2 2 Frederickson, The Spirit of Public Administration 180. 3 2 3 Donahue, The Privatization Decision 49. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. inefficient,” he opines; “if well matched to a particular task, bureaucracies can perform well.”3 2 4 Correctional Privatization: Contractual Issues The delivery of public goods has two basic dimensions—financing and performance. Given this paper’s specific correctional focus, the discussion will concentrate on initiatives that are publicly financed and contracted out for to private management. Assuming varying degrees of government oversight, this chapter will specifically address the unique challenges of correctional management. Do correctional industry configurations suggest the likelihood of privatized success; does correctional privatization essentially provide documentation for Donahue’s well-placed skepticism? Competitive contracting presumes multiple, expert providers, and easy market access. The complexity of government contracting, on the other hand, has resulted in the prevalence of multi-year contractual arrangements; the system, by and large, encourages single provider dominance and impedes easy access. These difficulties are only exacerbated by the multiple system stresses and constraints that inform correctional industry contracting. Currently, for example, the privatized correctional market is dominated by two major providers, with only a few other, somewhat competitive players, such as Cornell Companies, Inc.; between them, the Correctional Corporation of America (CCA) and Wackenhut, command a 75% share 3 2 4 Donahue, The Privatization Decision 49-50. 156 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. of the privatized correctional market. Sustaining this dominance, CCA contracts, for example, typically run for 20 or 30 years, with clear compensatory stipulations in the advent of cancellation. Covering a broad spectrum of activities from security to program development, from medical care to court compliance, correctional management is a unique expertise that resists easy replication. Inverting traditional market dynamics, private corrections is charged with disciplining their direct consumers, instead of being “disciplined” by them. Problems, including an ensuing built-in latitude to abuse, emerge both as a result of vaguely drawn contracts and concomitant, inconsistent, oversight. While privatization ostensibly situates the ultimate responsibility for service delivery in public hands, government’s ability to remedy perceived problems is diminished via the attenuated contractual relationship; an already suspect commitment to secure contractual “quality” services for a stigmatized population is thus given appreciable contractual cover. Much anticipated, highly touted, costs-savings are similarly questionable in an enterprise “with relatively little scope for resources-sparing technical progress.3 2 5 Without robust measures to guarantee the conditions of confinement,” contends Donahue, “the business people least constrained by scruples are likely to enjoy a competitive advantage in the imprisonment industry.”3 2 6 3 2 5 Donahue. The Privatization Decision 162. 3 2 6 Donahue, The Privatization Decision 170. 157 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. In his book, You Don’t Always Get What vou Pav For. Elliott Sclar offers a comparable argument. In his view, the precise contours of the correctional industry, i.e., long term contracts and exceedingly complex services, precludes significant market-induced savings. In these circumstances, it is, he maintains, “the characteristics of the contractor-agency relationship (that) principally determine service quality and cost savings, not the competitive market place.”3 2 7 As a result of often secluded parameters of correctional management, an on-site private contractor with unique expertise can exercise considerable leverage over an intermittently present public “overseer.” If the public/private relationship is at all acrimonious, the controlling public authority may have limited, if any, control over what actually happens within the facility. More than likely, however, close public/contractor ties will encourage a protective stance. Incentives to be critical will be muted, given the public authority’s vested interest in its contractors’ perceived success.3 2 8 Additionally, the “revolving door between state agencies and private providers”3 2 9 can undermine effective oversight as public monitors may wish to cuny favor with future private employers. As direct labor costs total approximately 60% of any correctional budget, the options for cost saving innovations, either through streamlined procedures or technological improvements are small. Further evidencing, what Sclar calls, an 3 2 7 Sclar, You Don’t Always Get What You Pav For 13. 3 2 8 R. W. Harding, Private Prisons and the Public Accountability (UK: Open UP, 1997) 33-34. 3 2 9 Charles Logan, Private Prisons: Cons and Pros (New York: Oxford UP, 1990) 219. 158 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. “atmosphere of uncertainty,” the inclusion of extensive sanctioning precision denotes, he contends, an implicit contractual awareness of the likelihood of “defective adherence.” When failure does occur, the result is typically not more efficient and economical services, but a lengthier, more costly contractual arrangement. Using correctional contracts as a “textbook example of contract fattening process,” Sclar notes: With each prison malfunction, such as escapes, brutality or deaths among prisoners, public officials step in to write a lengthier contract. The intention is to avoid repetition of the specific abuse that caused public embarrassment in the first place. [Yet] each time the more information and performance standards are demanded the cost of the contract increases. “No one involved in this field,” he asserts, “seriously argues that private prisons run to public standards save money.”3 3 0 While some private facilities’ living accommodations and services have been favorably compared with public institutions, many of these so-called “showcases” are nevertheless, deemed to be unrepresentative of prevailing practice by industry experts. As even CCA executive, Tom Beasley, has acknowledged, the highly touted Silverdale Detention Center in Chattanooga, Tennessee, “was set up deliberately as a showcase to attract clients, not to generate profits.”3 3 1 Correctional privatization’s preoccupation with cost-cutting acumen, fosters an avoidance of, and/or retreat from, the political ramifications of criminal justice 3 3 0 Logan, Private Prisons 122. 3 3 ‘Christine Bowditch and Ronald S. Everett, “Private Prisons: Problems within the Solution.” 4 J.O 441 (1987): 445. 159 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. policy. At its most benign it suggests an “indifference” to the extant incarcerative frenzy; at its most toxic, it implies an explicit interest in its expansion. What is particularly worrisome to the human community, opines Rosemarie Tong, is the “shrinkage” of the political domain relative to the “knowledge domain” as technical analyses “substitute for heated debates” concerning a political and ethical vision.3 3 2 Union-Labor Issues Correctional institutions are labor-intensive organizations. In as much as total personnel expenditures, including direct and indirect labor costs (i.e., salary, benefit, screening and training expenses), have been estimated to be as high as 80- 90% of a correctional budget,3 3 3 cost cutting strategies naturally target these line items. As Shichor explains, labor costs may be targeted in a variety of ways: (a) cutting salaries or the pay scale of employees; (b) providing less or no fringe benefits and pension funds; (c) economizing on the screening procedures of employees; (d) hiring fewer employees; (e) hiring less qualified employees; (f) providing less training; or (g) a combination of any of the above.3 3 4 What is particularly disconcerting, however, is that economization on any item on this list can seriously impair and/or even undermine workforce competency. Again, without positing public corrections officers as uniformly model citizens, their superior pay scale and generous benefits, nevertheless, holds the 3 3 2 Rosemarie Tong, Ethics in Policy Analysis (Englewood Cliffs: Prentice Hall, 1986) 43. 3 3 3 Douglas W. Dunham, “Inmates Rights and the Privatization o f Prisons.” Columbia Law Review 86. 158 (1986): 1498. 3 3 4 Shichor. Punishment for Profit 190. 160 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. promise of attracting a more qualified and proficient work force. Money spent on adequate screening and training procedures similarly enhances the possibilities of a more professionalized service delivery. A high stress job that optimally requires mature judgment and great restraint, its attempts to professionalize, i.e., to be “officers” (conjuring a more prestigious police role) as opposed to “guards” (evoking a minimally regarded security detail), to be correctional experts instead of brutal enforcers, has met with only minimal success in the public mind at-large. Popular culture representations of corrections officers are rarely balanced. Perpetrating negative stereotypes, enactments most often feature behavior involving the oft-times brutal misuse of authority, as opposed to portrayals of finely nuanced interpersonal discretion (the recent movie, The Green Mile, being a notable exception). Absent positive status, stigmatized and stereotyped, attempts to upgrade the correctional workforce are particularly dependent on the accompanying salary/ benefit package. Correctional unions have been instrumental on both fronts— in their attempt to convey a more professionalized image and, at the same time, in their efforts to ensure an ample compensation package. Most importantly, given the shielded license afforded corrections officers, concerns regarding disasters-in-waiting induced by a minimally qualified, immature, correctional workforce appear warranted. Even in the states with generous salary/benefit packages (e.g., New York and California), extant recruitment is difficult. “One can only imagine,” opines criminal justice expert Judith Greene, “what kind of officers (lower paying, private 161 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. firms) they’re hiring.”3 3 5 West Virginia’s Charleston Gazette, recently reported, for example, that the state was having to consider the deployment of the National Guard to supplement their correctional workforce because of personnel shortages.3 3 6 Using personnel turnover as a key indicator of officer caliber, the 1999 Corrections Yearbook, for example, reports that private facilities experienced a 25.5% higher rate of turnover than comparable public institutions.3 3 7 This concern has been substantiated by the fact that there have been, unfortunately, numerous instances of correctional problems attributed to a deficient workforce. Investigations following the 1995 riot by inmates at the INS Esmor Correctional Services facility evidenced an “ill-trained, overworked and outnumbered workforce” that had “routinely abused inmates.”3 3 8 Other well- publicized incidents have similarly manifest staff inexperience; the videotaped spectacle of inmates forced to crawl through a phalanx of attacking, minimally trained officers and their dogs, provided substantive fodder for a recent spate of additional cases coming out of Louisiana, New Mexico, and Texas facilities. Most recently, The Arkansas Times (November 17,2000) reported on a series of interviews with Wackenhut, Newport facility staff in which officers themselves 3 3 5 Judith Greene, personal interview, 6 Nov. 2000. 3 3 6 e-Watch 16 Nov. 2000. 3 3 7 The Corrections Yearbook 1999: Adult Corrections, eds. Camille Graham Camp and George M. Camp (Middleton: Criminal Justice Institute, 1999) 152. 3 3 ®Sharon Dolovich, “The Ethics of Private Prisons,” unpublished paper, November 1999, 51. 162 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. disclosed a pattern of “inmate mistreatment, corrupt officers,. . . and inadequate staff . . . and gross understaffmg.” As one officer noted, “they are doing just enough to satisfy who they have to satisfy and no more.”3 3 9 Similar staffing problems were chronicled in a report out of Wisconsin State Senator Gwendolynne Moore’s office. The report specifically identified difficulties in officer retention due to low pay, group terminations, and high vacancy rates. In particular, it noted that CCA officers seemingly use private corrections jobs as training for public employment; many leave after completing the requisite one-year of experience necessary for a higher paying Minnesota Department of Corrections position.3 4 0 One can certainly argue that increased training will not significantly alter corrections’ officers’ essential biases. Public officers’ are likely to have as little concern for the legitimate penological interests of the state as officers in private facilities. Sharon Dolovich, however, argues that, in the main, it is not individual officers’ initial investment that typically informs day-to-day behavior. Rather, it is his/her “role obligations” and mandate to realize institutional values that informs the bulk of penal practice. While public prisons are far from perfect, their correctional operations must, she contends, evidence awareness of state mandates and responsibilities. 3 3 9 e-Watch, 29 Nov. 2000:2. 3 4 0 Lehn Fitzgerald, Office of Senator Gwendolynne S. Moore, “Inmate Transfers to Out of State Private Prisons,” Special Report on Wisconsin Inmates in Out-ot-Sate Private Prisons 3 Aug. 2000: 10. 163 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Since privatization’s rationale is largely dependent on a presumed cost- cutting efficiency, the privatized workforce is, in general, largely non-union. Reflecting a national anti-union mind set, privatization has nurtured unions’ precipitous decline; whereas unions represented 30.8% of non-agricultural workers in 1970, by 1996 only approximately 17% o f the workforce was still unionized.3 4 1 Faced with the enormity of their labor budget, it is hardly surprising that correctional privatization has sought to follow suit. O f the approximately 160 privatized facilities, only three are at present unionized, e.g., two CCA facilities—a treatment facility in Washington, DC, and The Readjustment Center in Beatsville, Kentucky— and a Cornell facility in Rhode Island. The move towards privatization, and the attendant shift from an organized to a non-union workforce, are mutually informing according to Chuck Davis, Director of Private Sector Programming at the University of Minnesota’s Industrial Relations Center. Although privatization is touted as a more efficient alternative to public sector management, Davis insists that tiying to ascertain relative public/private efficiency levels—a difficult task at best—is a largely unproductive endeavor; it is, he contends, essentially a diversionary tactic. The real telos of public sector privatization is, he maintains, “an appropriation of value from the public to the private sector, alter[ing] the distribution of societal wealth and income. . . ^'Howard Jacob Karger and David Stoesz, American Social Welfare Policy (New York: Addison Wesley Longman, Inc., 1998) 140. 164 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. upward.”3 4 2 Given for-profit corrections’ hostility to the labor movement’s redistributive mandate, it is not surprising that the dismantling of union power has become an integral part of this strategy. At its heart, as Davis asserts, privatization “is essentially a process in which a privately paid worker is substituted for a public one.”3 4 3 It makes sense that anti-union animus plays a vital role in privatization’s ascendancy; it similarly follows that correctional unions are among the most vociferous privatization opponents. Historically a thom in the side of entrepreneurial aggrandizement, equity mandates, in the form of what economists refer to as accompanying “rents” (i.e., higher salaries, benefits, pensions and security arrangements), diminish profit margins; union rules are similarly regarded as hampering administrative efficiency. While proponents extol the benefits of privatization’s “enforced competition,” critics deplore its ensuing downward economic pressures; both, however, anticipate a diminishment of heretofore customary union packages and an overall lowering of wage assignments in competing public and private sectors. Thus, while the 1999 Corrections Yearbook reports a fairly narrow differential between average public and private state corrections officers’ entry level salaries ($21,885-$19,344 in the public/private spheres respectively), there is a 3 4 2 Chuck D. Davis, Privatization: Common Themes. Similar Outcomes, paper presented at the Private Prison Workshop, U of Minnesota School of Law, 29-30 Jan. 1999: 3. 3 4 3 Davis, Privatization 8. 165 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. considerable disparity at the upper end ($34,728 in the public sector as compared to $21,790 in private facilities). Private sector benefit packages, generally in the form of stock options and/or 40IK plans, are largely dependent on, and thus are vulnerable to, variations in corporate profits. Conversely, public unions secure the stability of officers’ pension and health benefits.3 4 4 Private sector workers’ work rules and pay schedules are at the discretion of management; public sector employees have organizational protections and some negotiating equity. Based on the premise that an uncertain, often part-time and/or temporary workforce, is a more compliant workforce, the private sector has, for the most part, assumed a decidedly anti-union stance; it is palpably unconcerned with preserving unions’ traditional stabilizing, solidarity promoting features. In fact, the economic case for privatization frequently comes down to whether the labor cost differential between public and private management is sufficient to offset the added administrative costs of public oversight.3 4 5 Davis ultimately insists that a re-energized government role in the “reproduction and expansion o f private capital,”3 4 6 has fostered the increasing privatization of previously public functions. Benefiting corporate elites at the expense of working, middle-class striving employees, the shift to a non-union workforce becomes vital to this process. 3 4 41999 Corrections Yearbook 150-51. M S Davis, Privatization 8. 3 4 6 David, Privatization 4. 166 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Access and Accountability Much like the military or intelligence organizations, penal institutions cite issues o f security as a rationale for “covert” operations. By effectively quashing most unanticipated scrutiny, prison security constraints buttress public discard and disinterest. For example, the controlling First Amendment 1974 Supreme Court decision, Pell v. Procunier (1974), ruled that press rights did not exceed standards of public access; if the public could not enter, neither could the press.3 4 7 In a seeming “catch-22,” press attempts to interview inmates have been, at times, refused because reporters, excluded by the warden from pre-determined “rehabilitative” categories, could not be included on inmates’ visiting lists. Granting wardens almost total discretion as to what information they may choose to make public, and when they may do so, state corrections departments have “little motivation to share anything.” As reported by Daniel Bergner in his excellent expose, God o f the Rodeo: The Quest for Redemption in Louisiana’s Angola Prison: The category of “significant injury” in a prison’s annual report can mean almost anything depending on the state’s directives and the warden’s own definition and his instructions, direct or subtle to employees about what to write down and to leave unrecorded. . . . So by allowing prisons the authority to shut down the press, the Supreme Court has aided in the guarantee that the lives of our inmates occupy no place in our minds.3 4 8 M 7 Bergner, God of the Rodeo 176. ^Bergner, God of the Rodeo 177. 167 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Angola, and the system it represents, is, however, public; its context presumes public scrutiny and disclosure entitlements. While one might anticipate that contractual government oversight will serve to secure only a similarly abhorrent, privatized standards and practices, history has demonstrated that an attenuated public link actually encourages an ever more egregious license. Access to private corrections’ documentation is additionally hampered by entrepreneurial “trade secret” concerns; these private-sector protections may, in fact, serve to embolden an already reticent public authority to further insulate itself. As Steve Chand, of the Correction and Criminal Justice Coalition notes, while both “Freedom of Information Act” mandates and sunshine laws can be brought to bear on access-resistant public institutions, private correctional authorities typically refuse to share the “business” details of their contractual negotiations; more significantly, they are only required to reveal contractually stipulated operational particulars. While it may appear private provider reticence could be easily remedied via revised contractual specifications, the industry’s limited number of viable contractors cedes considerable contractual control to the “expert” provider.3 4 9 Absent a clearly articulated political mandate, private firms’ obligations to conduct open proceedings or to make known reasons for their decisions is, as Davis suggests, “significantly curtailed.”3 5 0 Positing an inverse relationship between public control and/or 3 4 9 Steve Chand, personal interview, 14 Nov. 2000. 3 5 0 Davis, Privatisation 7. 168 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. accountability and a privatized status, Davis points out that attempts to regulate private property rights are not easy; they must, he insists, “meet a ... stringent test of the public interest.”3 5 1 As has been previously noted, the more elaborate the contractual oversight, the higher the costs; accordingly, the more effective the accountability framework, the less privatization makes sense from an economic perspective. Thus while Donahue associates public sector management with a “weakened” accountability structure, the political/economic dynamics of privatization fail to provide a clear remedial pathway. Accountability and responsiveness, are generally disciplined via the reaction—positive and/or negative—of one’s consumer and/or stakeholder group; in the private sector market place indicators evidence consumer priorities. In correctional institutions, however, two sets of consumers, with frequently disparate priorities might appropriately inform correctional practice. The primary consumer’s response, however, is deemed largely irrelevant (penal riots may provide the primary form of feedback); stakeholder investment and interest, as manifest in considerations of the public and/or governmental realm, are analogously attenuated. Since correctional accountability concerns surface primarily as a result of internal crises or due to a perceived threat to public safety, visibility with the so-called policy agenda 3 5 1 Davis, Privatization 7. 169 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. “iron triangle,” “producer groups, well-placed legislators, and key constituencies,”3 5 2 is erratic at best. As a result, finding ways to embed primary consumer-responsive, normative accountability mandates presents a considerable challenge. Given limited moral interest in how the details of punishments are actually carried out, and the infrequent incidence of citizen outrage (the Attica rebellion may be a notable exception), institutional managers are rarely prodded to reform. Fighting an array of public and private apathy and/or antipathy, legislators inform and reflect the public-at-large’s disdain for the inmate population. If accountability denotes an accordance of “government action with the will of the people,”3 5 3 a public inured to the ethical consequences of inmate-focused activity suggests that haphazard accountability stipulations will not be sufficiently challenged. While the current privatization debate is predominantly played out as a lobbying contest between public unions and private corporations, the needs and concerns of the inmate population—while intermittently alluded to as lobbying rationale—are, nevertheless, understood as tangential to each group’s understanding of success (e.g., job/salary security and/or enhanced profits). In this context, given the wide disparities in stakeholder social influence, the salient query, “accountability to whom and for what” takes on an added significance; as Shichor notes, when the 3 5 2 Donahue, The Privatization Decision 55. 3 S 3 Donahue, The Privatization Derision 23. 170 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. purchaser of a good is unable to monitor its use, problems are likely to emerge.3 5 4 Given that accountability mandates regarding ethical concerns and legal values are precariously represented in a public penal context, it is fair to suggest that private sector profit imprimaturs, might exacerbate the normative dissonance and plausible conflicts of interest between “public good and private greed.”3 5 5 On a micro-level, accountability efforts do benefit from the recurring, systemic, deployment of such management stalwarts as employee evaluations that result in prompt institutional repercussions for inadequate performance. While these practices are only intermittently employed in the public sector, the private sector’s ability to adjust performance standards to meet corporate bottom-line goals, while suggesting a greater accountability, may, in fact, sanction a more egregious set of operational mandates. Conclusion While public/private connotations have evolved over time, the current landscape is distinguished by an increasingly murky and diminished public square struggling to maintain its legitimated, normative, toehold in the face of a late 20th Century private, for-profit, onslaught. The extant privatization of public goods and services rests on several assumptions. In the American context it draws upon a traditional antipathy towards government. Prizing freedom, above all, government’s 3 5 4 Shichor. Punishment for Profit 186. 3 5 5 Shichor, Punishment for Profit 259. 171 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. power to curtail liberties has led to a pervasive wariness about supporting extensions of its power. Its much maligned inefficiency is thus paradoxically, and ambivalently valued. While ostensibly desirous of professionally administered goods and services, public inefficiency is subliminally viewed as a communal safeguard; inept power is believed to temper a corrupt and despotic potential. Representative of the 80’s institutional devolution movement, the much touted public/private partnerships are seen by proponents as bringing the best elements of both spheres to the proverbial table. Resting on the supposition that an enhanced private efficiency will effect substantive cost-savings, the public/private conflation suggests that the private sector’s faster start-up capabilities, enhanced overall mobility, and the benefits of the economies of scale will ultimately, in tandem with public oversight and accountability, create a better product. The marriage, however, has significant drawbacks. On a general level, disparate public/private discourses have been found to disrupt rather than persuade as market truths are at variance with public, normative, equity charges. Pragmatically, the elements that typically inform a competitive contracting environment—multiple expert providers and easy market access—are noticeably absent from correctional endeavors. The complexity of government correctional contracting has, in fact, resulted in two dominant providers and the prevalence of multi -year contracts. Additionally, the vast distances that frequently separate a government purchaser of services from an actual prison site impede effective contractual oversight. With labor costs occupying an overwhelming part of correctional budgets, desired cost- 172 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. savings—thus far minimal or non-existent—and profit maximization are plausibly pitted against safety and service-delivery mandates. A lower paid, minimally trained, largely non-union, labor work force has effected a comparably high for-profit staff turnover, compromising operations further. And perhaps, most importantly, operational accountability is diluted through a more attenuated oversight, and a less accessible corporate process. Symbolically and structurally, the correctional public/private divide intimates governance/management tensions. Public judicial proceedings evidence ritual communal judgment, while the punishment, itself, administered by so-called correctional management “experts,” occurs behind closed doors. Impenetrable and inaccessible, penal institutions resist public scrutiny; entrusted with virtually total control over inmates’ lives, the hothouse penal atmosphere exudes potential for exploitation and/or abuse. Nonetheless, the wider community evidences a socially sanctioned disinterest in penal affairs. Apart from the occasional pro forma normative enunciation, public concern appears dormant, surfacing primarily in response to ruptures of penal imperviousness, to escapes, “premature” parole, and/or stories of salacious scandal. At the same time, manifesting an ever-widening series of concentric circles, the most private aspects of personal life are recast as public ritual within the correctional institution itself. Theorists from Jeremy Bentham to Michel Foucault have located penal disciplinary power in a correctionally-imposed inmate visibility; in their view it is the “silence” and “concealment” that enshrouds penal life that 173 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. secures its parameters and enhances its weight. Conflating the personal and the private, intimating Pateman’s aforementioned world of “blood, subjugation . . . and passion,”3 5 6 penal vulnerability to the arbitrary, emotive and unreasoned, underscores the importance of a greater, as opposed to a diminished, countervailing public, normative, presence. The “legal register of justice,” functions as antithesis to the “extra-legal register of [penal] discipline.”3 5 7 By diverting public attention, judicial “public” proceedings provide needed cover; they serve to camouflage and obscure the prevalence of the “private,” in-house, disciplinary activity that regulates prison- life. Private “discipline” is actually afforded the license to supersede “public” imprimaturs in many ways. In privatizing, the penal institutions command over the disciplinary register expands; the already precarious normative mandate is accordingly diminished. In their charge to contain chaotic, difficult, feelings and experiences, penal institutions in many ways mirror, serve as counterpoint to, religious mandates. Yet, as a principal purveyor of state legitimated violence, penal institutions’ proclivities privilege the corporeal as opposed to the spiritual. Equipped with enormous power and latitude, penal institutions are given the green light to contain the chaotic with muscle; absent consistent public scrutiny, they are provided the tools to effectively operate a parallel private system of justice within a most difficult vortex. Trusting in 3 5 6 Pateman, The Disorder of Women 43. 3 S 7 Adrian Howe, Punish and Critique: Towards a Feminist Analysis of Penalty (New York: Routledge, 1994)301-02. 174 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. the neutrality and value of expertise, privatization exacerbates built-in clandestine proclivities, thereby emboldening the exercise of arbitrary, and unregulated power. This is not to say that public prisons are institutions of normative probity. As the discussion in chapter two suggested, so-called “administrative evil”—the all-too- customary moral inversion that sanctions a sanitized, role-specific, technocratic infliction of pain and suffering—pervades the public system. What I am suggesting, once again, is that privatization only serves to magnify this negative propensity in its predisposition to valorize the “efficient” and the profitable at the expense of normative concerns. In contrast, abuse in public prisons is generally the result of an individual and/or group of officers’ decisions regarding the disciplining of particular inmates; it does not particularly serve the systems’ overall mandate and/or interests. As Sharon Dolovich points out, “there is nothing about the state’s interests (e.g., security, efficiency, and the safety and well-being of inmates) with respect to the prison interests that necessarily puts inmates at risk.”3 5 8 In contrast, she argues, abuse in private correctional facilities “becomes almost inevitable” as a result of the confluence of officer discretion and structural for-profit incentives.3 5 9 It is not that capitalism presupposes immorality, rather, as British Historian Paul Johnson suggests, it is morally neutral, “indiffer[ent] to the notion of moral choices.”3 5 0 3 5 8 DoIovich, “The Ethics of Private Prisons” 53. 3 5 9 Dolovich, “The Ethics of Private Prisons” 54. 3 6 0 Paul Johnson, “The Capitalism and Morality Debate,” Moral Issues and Christian Response, eds. Paul Jersild, Dale A. Johnson, Patricia Beattie Jung, and Shannon Jung (Fort Worth: Harcourt Brace, 1998)294. 175 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Profit-focused management demands a singular, focused intent; corporate legal moral minimums are tantamount to corporate maximum moral output. The fact that internal disciplinary procedures potentially impact inmates’ length of sentence is troubling to many commentators. Potentially subverting public intent, the fact that latent, profit driven, proclivities may inform length of stay, constitutes for Donahue a “major ethical and practical drawback”3 6 1 to privatization efforts. Underscoring these concerns, Dilulio reports, “there is a mountain of evidence” to support the contention that administration discretion impacts length of stay “at every level.”3 6 2 Inasmuch as history shows that “social pressures against inmate abuse and political corruption will be at a low ebb whenever largely underclass populations o f offenders are placed in non-public hands,”3 6 3 Dilulio suggests that more attention be paid to analogous antecedents in assessing current privatization trends; as he pointedly contends, pre-1980's correctional privatization experience was “unvaryingly bleak.”3 6 4 Serving a similarly vulnerable but clearly more “worthy” population, Trattner’s description of tum-of-the century for-profit children’s institutions evidences a similarly despondent pattern: As many youngsters as possible were brought in, fed and cared for as inexpensively as possible and retained for as long as possible. The story was often told of the manager of one such place who 36lDonahue. The Privatization Decision 176. 3 6 2 DiIulio- The Duty to Govern 176. 3 6 3 Pilulio. The Duty to Govern 163-64. 3 6 4 PiIulio. The Duty to Govern 159. 176 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. each night before going to bed would pray for more orphans so that he could build a new wing to his institution.3 6 5 3 6 5 Trattner, From Poor Law to Welfare State 115. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. CHAPTER IV A QUESTION OF CULTURE: PIETY AND PAIN “A suitable amount of pain is not a question of utility, crime control, of what works. It is a question of standards based on values. It is a cultural question.”3 6 6 Introduction Disturbingly, penal practices at the outset of the 21s t Century appear, more than ever, to substantiate the aforementioned deTocquevillian insight regarding the seemingly contradictory, inverse, relationship between the extent of a nation’s civil liberties and the pervasiveness of its incarcerations practices. These exacerbated bi polar tensions have culminated in a rather “dubious distinction”; the United States now “enjoys” the second highest rate of imprisonment, world-wide—superseded only by that model of democratic process, Russia. Starting in the 1970's, the United State’s relatively constant 20th Century incarceration rate of 110 inmates per 100 thousand people began a precipitous rise. By the end of the century, the incarceration rates had skyrocketed to an overall 445 3 6 6 Nils Christie, Crime Control as Industry: Towards Gulags Western Stvle. 2n d ed (New York: Routledge, 1994) 183. 178 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. inmates per 100,000 persons; adult male incarceration rates were estimated to be 1,100 per 100,000.3 6 7 The level of incarceration, as noted by the Washington-based Sentencing Project is “6-10 times that of most industrialized nations.”3 6 8 While a most recent New York Times report cited a leveling off imprisonment rates,3 6 9 the mid-2000 Bureau of Justice statistics, nevertheless, documented 1,931,859 incarcerated persons in United States prison and jails. A more comprehensive mid- 1999 report, including INS, military and juvenile facilities documented 2,025,596 incarcerated persons. Future BJS projections anticipate that by year-end 2001, two million people, one-quarter of the world’s imprisoned persons, will be incarcerated in U.S. prisons and jails. It is these numbers, and the suppositions they represent and effect—of a system run amok, of a wish to distance from what appears to be an insurmountable problem—that have led, seemingly inexorably, to the call for a private sector remedy. This chapter will identify the socio/cultural/psychological and religious themes that have informed this incarcerative, entrepreneurial groundswell; it will seek to unearth the rudiments of our punitiveness. Finally, it will suggest a paradigm of correctional policy as mirroring communal shadow. Symbolically, privatization of punishment represents a confluence of two singularly American cultural markers—Puritanism and the social Darwinian 3 6 7 Eric Schlosser, “The Prison-Industrial Complex,” Atlantic Monthly (December 1998): 52. 3 6 8 http://www.sentencingproject./org/brief. 3 5 9 David Firestone, “U.S. Figures Show Prison Population is Now Stabilizing,” New York Times 9 June 2001: 1. 179 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. romance, perhaps obsession, with the “individual.” These two concepts’ resurgent resonance and increasing synergy have provided a fertile cultural context, informing the trajectory from punitiveness to privatization. As Richard Rubenstein—among a host of commentators—notes, the two ideas in actuality inform each other. “Social Darwinism,” he states, “can be seen as a secularized form of Calvinism in which the survival of the fittest is the Darwinian equivalent of the Calvinist “salvation of the elect.”3 7 0 Weber’s representation of the Protestant Reformation’s paradigmatic conflation, the adherence of piety and business,3 7 1 is widely acknowledged as receiving its most conspicuous articulation in the United States. Acknowledged for both its religious and capitalist zeal, Daniel Bell extrapolates the essence of the American character as “Piety . . . obsessed with human depravity and practicality. . . oriented to a world of possibility and gain.”3 7 2 Offering clear evidence of its Puritan birthright, prison privatization may be best understood as the archetypical exemplar of Bell’s amalgam. A manifest representation of core Puritan derivatives, privatization exemplifies the political/economic impetus to regulate, control, and profit. 3 7 0 Richard Rubenstein, The Age of Triage: Fear and Hope in an Overcrowded World (Boston: Beacon Press, 1983) 217. 3 7 1 Max Weber, The Protestant Ethic and the Spirit of Capitalism, ed. S. N. Eisenstadt Los Angeles: Roxbury Publishing Company, 1996) ix. 3 7 2 Bell, The Cultural Contradiction o f Capitalism 58. 180 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Puritan Legacy Much of the 17th Century Puritan movement’s normative framework and world view are, despite a significantly altered social landscape, still enormously influential. Acting as theoretical linchpin, the Puritan emphasis on the need for social and moral order has secured the ancillary American themes of prohibition and the ascetic ideal; these ideas have, in turn, informed our punishment rituals and institutions. Privatization is merely an added Puritan emphasis, syntonic with its basic formulation. As Van Wych Brooks has remarked: “When the wine of the Puritans spilled, the aroma became transcendentalism and the wine itself commercialism.”3 7 3 This heady “brew” has nurtured a sanctified and abiding Darwinian apprehension—an unremitting uneasiness and uncertainty that has been recast and sublimated within an exacting public and economic posture. Attendant personal and/or collective rage surfaces most palpably, with a profusion o f societal endorsement, as moral outrage—the mother’s milk of punitive sanctions. Thus, it is through an appreciation of the nuances of this socio-religious legacy that the subtext of particularly American punishment practices emerge; it is by examining disparate systems of meaning that their interface becomes intelligible. The Protestant Reformation has been traditionally portrayed as a move towards secularization qua demystification. Max Weber’s The Protestant Ethic and the Spirit of Capitalism challenges this view, articulating the shift as one of 3 7 3 Bell, The Cultural Contradiction of Capitalism 61. 181 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. heightened, not diminished, religiosity—albeit a religiosity of a different order. Moving religious asceticism from the cloisters to the Main Street, Weber contends, actually raised the holiness bar; expectations regarding displays of the exemplary ethical life came to permeate all aspects of everyday activity. Marrying the sacred to the profane, one was no longer absolved of sins through religiously sanctioned contrition. With salvation dislodged from intermediary earthly intercessions, worldly success—initially linked to a range of disciplined and ethically informed endeavors—emerged as a critical indicator, a possible intimation of God’s favor.3 7 4 Punishing the clearly dispossessed merely serves to buttress this secular, capitalist, scorecard. Nevertheless, the accent is distinctly on the “possible,” perhaps probable, but surely not incontrovertible. In the Calvinist view salvation is severed from works; it is a salvation predestined and decided by God. Unsalvageable by human actions, it is accordingly unrelated to human ethical agency. Hence the essential dilemma of the “free but fated” concept is mirrored in Puritanism’s ambivalent stance toward individual power. While each individual is ennobled via his/her direct prayerful link to God, s/he is simultaneously dis-empowered, and anxious, unaware of her/his ultimate status. God’s presumed approval, ostensibly evidenced in a life shaped by the perpetual search for daily moral perfection and in the rewards of disciplined work and economic restraint, must await an afterlife affirmation. Although Calvin 3 7 4 Max Weber, The Protestant Ethic and the Spirit o f Capitalism 172. 182 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. counseled a perspective of mutual regard, suggesting that “every believer. . . accept that he was among the elect and... look upon others as the same,”3 7 5 in reality, an incessant search for the line of demarcation between the saved and the damned has prevailed. Dostoyevsky’s solidarity exhortation—(to “throw in [one’s] lot with the damned”)—has met with historically persistent resistance.3 7 6 Thus, the doctrines of faith and grace, intended as comfort, avowedly indicative of a loving, forgiving deity, nevertheless imparts—via the doctrine of predestination—an existential anxiety. “Grace,” as Wai Chee Dimock postulates. . . [is] God’s way of showing preferences, his inexplicable fondness for some, his inexplicable aversion to others.”3 7 7 As supplicant, apprehensively striving to decipher manifestations of favorable divine judgment, mankind is condemned, if you will, to the punishment of never knowing, to the uncertain, cold comfort of appearances. The power of pardon is, of course, absolute; it is not accountable; it is, according to Webster’s Dictionary, a “kind indulgence.” Reconciled to the mystery of that which is beyond one’s control, faith and grace buttress the prototype of an unaccountable judicial rendering and, according to Albert Camus, a consequent resigned acceptance to the presence of evil and to the endurance of worldly 3 7 5 John Calvin, John Calvin Selections from His Writings, ed. John Dillenberger (Garden City: Doubleday and Company, Inc., Anchor Books Edition, 1971) 17. 3 7 6 Albert Camus, The Rebel (New York: Vintage Books, 1956) 56-57. 3 7 7 Dimock, Residues of Justice 128. 183 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. injustice.3 7 8 If all transpires according to God’s plan, the extent of human accountability is, at the very least, called into question. Freud similarly professes that Christianity’s embrace of the afterlife serves to deflect and justify worldly suffering via a discounting of life’s value. A godly paradigm of unaccountable judgment sustains an extant, intangible, criminal justice potpourri; in the same way, privatization’s increasingly obscured penal operations fails to disturb. Habituated to the unknowable, we have turned to the comfort of ordained, mandatory structures. Counterpoised to this existential trepidation qua denial o f agency is the seeming antithetical primacy of the will. Characterized by R. H. Tawney as “the essence of Puritanism,”3 7 9 the notion and importance of will emerges, perchance, as a reaction formation. Its resolute prominence serves as counterpoint to the perceived magnitude of human impotence. Yet, given the central import of the line between will and willfulness, as well as the centrality of the sin of pride and self-love within the Christian tradition,3 8 0 it may be alternatively hypothesized that in recognition of the essentially human will to power, the sanctioned denial of human agency functions as necessary restraint. The relationship between these two forces is thus held ambivalently in tension: will tempered by existential humility; acknowledged transcendental 3 7 8 Camus, The Rebel 56-57. 3 7 9 R. H. Tawney, Religion and the Rise of Capitalism (New York: Harcourt Brace & Word, Inc., 1926)201. 3 8 0 Judith Plaskow, Sex. Sin and Grace: Women’s Experience and the Theologies of Reinhold Niebuhr and Paul Tillich (Lanham: UP of America, 1980) 76. 184 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. powerlessness, prescribed obedience and divine veneration within a canon of personal responsibility. This deferentially pious stance, delineated by Peter Berger as a “masochistic shift,” is sustained by what he deems the “intoxication of surrender.” Antidote to human isolation, it is a blissfulness typified by transcendent absorption, a perception that “I am nothing and He is everything.”3 8 1 Paradigmatic of a totally disparate, hierarchical, power relation, the penal setting provides a mirroring human rejoinder in its “sadistic counterpoint”—its recreation of a darker, coerced deference and its human appropriation of a god-like authority. Parallel images, the power of the punitive impulse rests on the magnitude and pervasiveness of an undercurrent of—extant and/or potential—social malaise, uncertainty, and/or impotence. Thematically precipitated by Adam and Eve’s “willful” disobedience, the prescribed Christian redress for a tainted, sinful birthright has been the remediation of suffering. Consistently celebrated, its power has been most profoundly epitomized in the piercing image of Christ’s crucifixion. Absent evidence of deliberative Divine thought, one archetypically disproportionate punishment is purportedly remedied by another, equally egregious, occurrence; an eternally-fixed sexually transmitted death sentence (the seminal STD), the result of Adam and Eve’s single act of disobedience, is thematically resolved through the injustice of Christ’s death. Lacking culpability, His death, nevertheless, provides the means to expiate all of humankind’s sins. 3 8 lPeter Berger, The Sacred Canopy (New York: Doubleday, 1967) 56. 185 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Both paradigmatic narratives signal an ontological shift. With expectations of a divine, tempered justice on earth apparently dashed, theological focus has been reframed, converging on reflections regarding the sinfulness of man.3 8 2 Absent a clear manifestation of divine justice, the zealous pursuit of a seemingly elusive, substantive, justice can be largely discarded; ostensibly not part o f God’s plan, it can be relegated to the unlikely-to-be realized category of “utopian goal.” What we are therefore left with, qua Puritan penal leitmotif, is a manifest confluence of sin and surrender, a firmly established existential anxiety, linked to a belief in suffering as corrective nostrum. In Daniel Bell’s analysis the converse concepts of “release and restraint”— alternatively, and/or more dramatically rendered, as “asceticism and prodigality”— further illuminate the struggles and/or contradictions inherent in the Puritan/capitalist relationship. While seemingly concepts in opposition, both have historically functioned to fuel each other. Characterized by sobriety, the avowedly disciplined, even ascetic Calvinist work life, conveyed the notion of a professional calling; a frugal disposition that served to temper indulgent proclivities was deemed an essential, personal, characteristic. Nevertheless, at the same time, the indispensable element in capitalist triumphs is, and always has been, a seemingly incompatible, unbridled and acquisitive spirit. Over time, the equilibrium between the two has, according to Bell, been subverted. The strength of what he refers to as capitalism’s 3 8 2 Berger, The Sacred Canopy 77. 186 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. internal contradictions, the hedonistic need to endlessly acquire at the expense of disciplining imprimaturs, has, in confluence with a diminished religious voice, occasioned the demise of its historic symmetry. Similarly, the current incarcerative excess functions to undermine its intended ability to discipline and shame as prison time becomes an anticipated rite of passage, rather than a singular, and significant, mark of communal censure. The newly appended privatization dynamic, evidencing its capitalist imprimatur, fuels this excess. In its need to assure an ever-increasing consumer base it may, as previously noted, subvert its ostensible, deterrent intent. It may be particularly instructive to consider release and restraint/asceticism and prodigality tensions within the context of punishment practices. Strikingly, both the words themselves, and their implied connotations, clearly evoke a penal context. Offering a heightened representation of both elements, prisons suggest but, nonetheless, have thus far failed to provide, a satisfactory communal resolution. They do, however, evidence palpable repercussions; ostensibly shoring up our communal moral resolve, they shoulder a portion o f sin’s symbolic weight. More to the point, however, an increasingly ascetic penal practice, in which rehabilitative, educational programs are viewed as excessive frills, serves as “shadow,” a necessary doppelganger to our increasingly acquisitive, indulgent lifestyle—reassuring us of what we purport to value, but strive to elude. Thus it is, paradoxically in prison, for example, that the Weberian ascetic ideal of excessive discipline, may be most clearly evidenced; it is here that the traditional Calvinist paradigm surfaces most pointedly 187 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. as a sublimated, collective, penal nightmare. Profit taking, the American utilitarian emollient, launders a turbulent Thanatos, thereby serving to sweeten and, hence lessen, the burden. Proffering the illusion of control, moneymaking intimates an ability to both tame and benefit the savage soul. Punishment practices exact a puritan regimen; they exemplify and satisfy a projected communal super-ego in which selective class-based sins have re-emerged as significant social categories. Given, as Rubenstein notes, that America perceives itself as “God’s elect,” and/or borrowing from the Jewish tradition, as the “chosen nation,” Darwin’s thought resonates with America’s black and white touchstone, both in terms of its racial politics and its competitive winner/loser controlling dichotomy.3 8 3 Viewed through a Malthusian prism, just as natural selection and/or elimination, is perceived as “God’s plan for population surplus,”3 8 4 so poverty is understood as a social analog—God’s method for eliminating the unfit and unproductive. In an American context, poverty may serve to ensure a “community’s racial soundness and cultural rigor.”3 8 5 The social triaging implicit in the cultivation of an underclass, similarly sanctions the “natural selection” dynamic of broad-based incarcerative strategies. Employing a morally neutral cost-benefit framework and analysis, the “logic of triage” mandates so-called surplus populations, persons with no viable societal or 3 8 3 Rubenstein, The Aee of Triage 217. 3 8 4 Rubenstein, The Age of Triage 219. 3 8 5 Rubenstein, The Aee of Triage 220. 188 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. economic role, as useless; clearly unfit, they are perceived as non-elect and consequently disposable. Accordingly, viewed through this hermeneutic, punitiveness is nothing more or less than a mechanism for aiding and abetting a divinely inspired natural law trajectory. It is, therefore, perhaps not that surprising, that in an era dominated by the intensification and expansion of both religious and capitalist domains, a mirroring escalation of derivative punishment practices has occurred. As excess has replaced and/or intensified discipline as globalization’s primary mantra, their configuration has specified an ever more punitive criminal justice policy; it is, in fact, the “excessive” sentences of increased restraint that have informed the reemergence of privatized corrections. Recasting Shakespeare’s infamous “pound of flesh,” privatized corrections can be appreciated as the “definitive” commodification. Instead of the Bard’s implied pound for pound substitution, body in lieu of money, in privatized corrections bodies are money. Transforming social failure into economic success, so-called surplus populations emerge as the quintessential surplus value. Referencing governing “less eligibility” constructs, if majoritarian human values and social relations are increasingly sullied by globalization’s commodification “juggernaut,” punishment practices cannot do less. Any examination of punishment in America must be cognizant of a multiplicity of lens. Punishment, for example, not only carries God’s imprimatur, but uniquely evidences our individual and communal psychological, social, economic, and cultural intersection. Informed by a confluence of these factors, the 189 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. incarcerative frenzy may be best understood my the following rule-of-thumb hypotheses—that ideas o f “original sin” and innate badness buttress a punitive, individually focused, imprimatur and that group cohesion is often purchased via heightened aggression towards a marginalized, “outsider,” group. The Individual, Context, and Class American culture’s veneration of the lone hero has symbolically epitomized its ostensible liberal, Protestant, underpinnings. However, while its professed core beliefs suggest the essential value, freedom and rights of each individual, its criminal justice policies evidence a more ambivalent, class-based standpoint. On one hand it is assumed that each individual’s actions are freely chosen, that s/he, not the society at large, is responsible and accountable for his/her “deviant” behavior or alleged crimes. Punishing with “clean societal hands,” demeaning contextual mitigation pleas as whining, so-called “abuse excuse” gambits, the criminal justice system supports an illusion of individual, typically masculinized, dominion; it suggests the purview of an independent, invincible, largely unrelated human being. Exemplifying the uniquely American “manifest destiny” optimism—a belief that all is possible, given the proper effort—extant criminal justice policy seeks to deflate and dismiss lingering anxieties regarding the arbitrary and the uncontrollable through its focus on the primacy of individual responsibility and the predictability of mandatory sentencing guidelines. 190 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. On the other hand, this creative optimism and belief in unending individual improvement has not generated any significant social investment in the currently unproductive, apparently non-elect, surplus populations. This critical perceptual split solidified under the Reagan administration’s aegis as a “bad” seed, not a “bad” society, became the sole presumptive offender; his elitist, individualistic, mantra led to the refutation of any contextualized, mediating, compassion. Incapacitation supplanted prevention as the policy option of choice; rehabilitative efforts were, given the character of its subjects, believed to be doomed. Stripped of the rights and responsibilities typically attached to individual citizens, sentenced and dislodged from his/her community, prisoners were viewed as “social pariahs,” deserving of disregard. In contrast, in countries with more cohesive communities such as Sweden, for example, criminal justice offenders are invariably perceived as integral members of the commonweal and, as such, worthy of communal investment.3 8 6 This perspective was legislatively enacted in the 1984 Sentencing Reform Act’s “reforms” and the consequent establishment of the Federal Sentencing Commission. As a result of the Commission’s work a new mandatory sentencing structure was implemented in 1987. Distinguished by the imposition of more frequent and longer prison sentences, the new guidelines also reduced or eliminated any mitigating focus. An individually-focused “old penology” was supplanted by so- called “new penology” priorities; seeking to manage instead of transform, these new 3 8 6 Marc Mauer, Race to Incarcerate (New York: The New Press, 1999) 136. 191 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. priorities evidenced the need for population-based surveillance and control. Accordingly, the identification and classification of deviant and dangerous groupings came to shape much of police activity.3 8 7 Within these groupings, criminal justice cast a wide net; police profiling encouraged individual arrests based, in part, on group affiliation. Hence, while context increasingly influenced notions of culpability, its was deemed increasingly irrelevant to sentencing practices; it was used to punish but not absolve. Relatively untouched by this escalating class- targeted punitiveness, there was/is, maintains psychological theorist Craig Haney, no impetus for majoritarian restraint.3 8 8 Still, the person charged is, albeit absent particularity, held individually accountable. While most researchers, for example, have posited that upwards of 90% of prisoners have experienced childhood abuse,3 8 9 an individual’s “right” to violently discipline his and/or/her child has been and, unfortunately, for many still is, a cherished part of America’s non-interventionist, “get tough” proclivities. Its personal, systemic, and societal ramifications are increasingly discussed but, given the extant mandatory sentencing thrust, deemed largely outside the sentencing purview. 3 8 7 Malcolm Feeley and Jonathan Simon, “The New Penology: Notes on the Emerging Stage of Corrections,” Criminology 30.4 (1992): 452. 3 8 8 Craig Haney, “Psychology and the Limits to Prison Pain: Confronting the Coming Crisis in Eighth Amendment Law.” Psychology. Public Policy and Law 3.4 (December 1997): 514. 3 8 9 Alice Miller, “Against Spanking,” Tikkun 15.2 (March-April): 18. 192 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Those imbued with the prosecutorial power to charge and/or judge are similarly unindividuated. Largely discerned and defined via their institutional role, the responsibility for the imposition of any individual sentence is substantially diffused. While judges make the final determination, they are increasingly constrained by legislative stipulations; no one person can be held liable. Disbursed between members of Congress, members of the sentencing commission, the executive branch and the judiciary, responsibility is hard to pinpoint. The actual writers of the guidelines are, for example, largely unfamiliar, and clearly unrelated to any individual cases. Evidencing what Foucault characterizes as “the reversal of the political axis of individualization” that distinguishes a disciplinary, modem regime, individualization, within the criminal just context, is conspicuously “descending,” inversely proportionate to conveyed power. Thus, he contends, “as power becomes more anonymous and more fimctional, those on whom it is exercised tend to be more strongly individualized.”3 9 0 Power, in this view, is normative and amorphous, deviancy individualized. I would, however, suggest that a more nuanced and accurate rendering would distinguish a deemed “spectrum of accountability.” While power remains diffused and irreproachable in its anonymity, it is essentially free to evidence and/or require a more conforming or individualistic posture at will. Thus, members of “surplus 3 5 0 Michel Foucault, Discipline and Punish, trans. Alan Sheridan (New York: Random House, 1978) 192-23. 193 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. classes” are, from elites’ purview, essentially unspecified in their communities, yet held uniquely accountable before the bar, reprising the “shadow metaphor,” it is, of course, in prison that individuality is most totally subsumed. Underscoring the importance of personhood within the American value construct, the criminal justice drama zig/zags between both ends of the continuum. Yet, as primary locus of our rights-based liberal heritage, the individual remains key—the fundamental social unit and the principal American touchstone. Maintaining the fiction of his/her power serves to insure the status-quo. Masking the largely hidden dynamics of structural, institutional eco-political power, the mythology serves as a barrier to a more beneficent social governance. Similarly, while the economic order of modern-day capitalism is informed by a celebration of individual achievement linked to an unceasing quest for personal gain, it, at the same time, reinforces an aura of an impersonal, undistinguishable non-accountability. Within the correctional purview, privatization reinforces this dynamic by serving to further obscure operations through the legal protections that adhere to the so-called corporate work product. Inasmuch as punishment is about fixing blame, current practice scapegoats the individual at the expense of a broader social inquiry. Eschewing the communal responsibility implicit in public, and/or not-for-profit funding, privatization serves to buttress the view that individuals within prison walls, in contrast to the God fearing majority, are solely accountable for their fate. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Punitiveness Classical psychological theory has maintained that the extent of any system’s punitiveness is directly correlated to the availability of alternate outlets for libidinal and/or aggressive drives.3 9 1 Typically, for example, research has associated a sexually prohibitive society with punitive practices, and vice versa. Thus it is somewhat bewildering that in an era characterized by most as more libidinally emancipated and/or loose—depending on one’s perspective—the punitive impulse has been intensified. What these facts suggest, if one accepts the initial hypothesis, is that despite a much heralded sexual openness and ease, the culture is unsettled and uncertain—in reality, at odds with itself. Concurrently, this disjuncture informs an incessant preoccupation with the permutations of restraint, shaping an array of existing social prohibitions. Although the development of these prohibitions functions as a “demand (for) the renunciation of certain pleasures—such as aggression or sadism—the unconscious wish remains.”3 9 2 According to Craig Haney, however, the sadistic wish can hardly be described as a listless remnant; the “rage to punish,” he asserts, is all too alive and well in our contemporary culture. It is, if anything, so overly indulged that competing demands for justice are barely heard.3 9 3 According to Freud, for example, 3 ,1 Donald R. Cressey, “Hypothesis in the Sociology o f Punishment,” The Sociology of Punishment: Socio-Structural Perspectives, ed. Dario Melossi (Brookfield: Ashgate Publishing Company, 1998) 396. 3 9 2 David Garland, Punishment and Modem Society (Chicago: U of Chicago P, 1990) 238. 3 9 3 Haney, “Psychology and the Limits o f Prison Pain” 500. 195 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. sadistic proclivities are alleged to evidence endemic, unrealized, fantasies of omnipotence. Informed by an erotically charged death instinct, a heightened aggression is discharged externally and internally via its complementary sadistic/ punitive and masochistic/guilt producing components.3 9 4 Addressing the same material—albeit through a disparate lens—Jessica Benjamin construes domination as emanating from a “denial of dependency. . . on others. . . (and/or) from the need for recognition.”3 9 5 Punitiveness, implying violence, either explicitly or implicitly, rests according to Benjamin, on an individualistic need to inflate one’s sense of self while, at the same time, nullifying the subjectivity of the “other.” Failing to realize a desired omnipotence, unable to quell the anguish of vulnerability, dominating, aggressive proclivities ultimately emerge. Benjamin avers that western individualism, and the attendant negation of nurturance in public life actually serves as social analog to the trajectory of male differentiation, i.e., “the repudiation of the mother, in which the other is objectified and instrumentalized.”3 9 6 Male imperatives also inform court proceedings, evoking, according to George Herbert Mead, “the emotions of battle.”3 9 7 The juridical contest evinces a 3 9 4 Freud, Civilization and Its Discontents 72. 3 9 5 Jessica Benjamin, “Master and Slave: The Fantasy of Erotic Domination,” Powers of Desire: The Politics of Sexuality, ed. Ann Snitow et al. (New York: Monthly Review Press, 1983) 283. 3 % Benjamin, “Master and Slave” 295. 3 ? 7 George Herbert Mead, "The Psychology o f Punitive Justice,” American Journal of Sociology (1919): 221. 196 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. competition between individual and group dictates; court proceedings more often resemble staged duels in which the end result owes more to the wile, skills, aggression, money and happenstance of the opposing parties than any impartial, thoughtfully considered, rendering of a just verdict. Mead contends, however, that the combat and adversarial hostility that inform the contest, may, in fact, be more important than the judiciousness of its eventual outcome. Even if a criminal’s social harm is, in reality, marginal, even if his/her prosecution is faulty, the entire proceedings may, nevertheless, be vital to securing needed social cohesion. Dominant among all other human instincts, hostility may be particularly pivotal in postmodern, pluralist America. It serves to ameliorate the increasingly fractured interactions that typify contemporary cooperative efforts. Demonstrating what Garland refers to as “the emotional solidarity of aggression”3 9 8 hostility, whether directed at an internal or external enemy, functions as social glue; the more public support is needed, the more aggressive the terminology—(e.g., the wars against drugs, and the campaign against AIDS). Accordingly, the more external and/or internal “enemies” are objectified and/or demonized, the greater the range of acceptable punitive responses. Given the race disparities that permeate current penal practices, crime policy seemingly offers a much needed point of commonality for an increasingly distressed and eclipsed white majoritarian culture. 3 9 8 Garland, Punishment and Modem Society 77. 197 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Fox Butterfield provides an additional and/or alternate thesis. Locating the genesis of a pervasive, uniquely American “lethal impulse” in the antebellum rural South,3 9 9 Butterfield contends that America’s violent and punitive culture is inextricably bound to the Southern system of slavery; it is inextricably linked to the postwar objectification of African-American citizens in Southern institutional apartheid. Forever “the other,” black objectification has, to this day, informed the prevailing acceptance of widely disparate incarceration rates for blacks and whites. For example, the black rate of incarceration is nationally 7.66 times that of whites; in 12 states the disparity is even more pronounced rising to as much as 10 times the white imprisonment rate.4 0 0 It is America’s imprisonment of its males-of-color that has primarily effected America’s preeminent incarcerative position; in contrast, the rate of white incarceration mirrors that of most progressive European nations.4 0 1 Reprising Freud and Benjamin, black subjugation and objectification has provided fodder for the illusory white male notions of omnipotence and impervious self-sufficiency (women have been essentially spared the luxury of such delusions) that have nourished the nation’s punitive psychodynamics. Notions o f a genetically defective, hardened, and damaged breed (whose torment is perceived, for the most part, as largely inconsequential) have structured the punishment landscape. Haney 3 9 9 Butterfield, The Bosket Family and the American Tradition of Violence xv. 4 0 0 Marc Mauer, “Intended and Unintended Consequences: State Racial Disparities in Imprisonment,” The Sentencing Project Policy Reports (Washington: The Sentencing Project, 1997) 1. ‘ "’’Haney, “Psychology and the Limits to Prison Pain” 512. 198 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. contends that these views have fostered a momentum “in which increasingly extreme endpoints on the continuum of severe punishment serve as anchors making harsher punishments more tolerable at all other points along the scale.”4 0 2 Serving as principal incarcerative precipitant, America’s extant drug policy is indisputably informed by this dynamic, as evidenced by a racially disparate configuration, impact and implementation. Hence, a potent cultural admixture of disparately configured dualities—of excess and restraint, of Northern and Southern particularities, of sadistic and masochistic impulses, has produced an amalgam one might deem “Puritan licentiousness,” an ever available, uniquely American, punitive wellspring. Researchers Leslie Wilkins and Ken Pease approach punitiveness from a somewhat disparate perspective. Social punitiveness, they argue, is directly correlated to the relative potency of a society’s capitalist paradigm; greater positive rewards at one end of the spectrum are typically balanced by increased negative “rewards” at the opposite end. Specifically, they assert that the extent and acceptance of social inequality is the key variable in determining the extent and acceptance of a society’s punitiveness.4 0 3 Ergo, societies with a more equitable distribution of social goods tend to be more universally socially compassionate. Following this theoretical trajectory, the fact that the comparative ratio of executive to factory worker pay has widened from 42 to 1 dollars paid in 1980 to a "“ Haney, “Psychology and the Limits to Prison Pain” 550. "“ Warren Young and Mark Brown, “Cross-National Comparisons of Imprisonment,” Crime and Justice: A Review o f Research, ed. Michael Tonry (Chicago: U of Chicago P, 1993) 41. 199 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 419 to 1 dollar gap in 1998,4 0 4 augurs poorly for the return of a more benevolent sentencing structure. Evidencing the veracity of this hypothesis, the sentencing disparities between the U.S. and Canada and England have historically paralleled the relative social welfare proclivities of each country. In the United States burglars, for example, serve an average of 16.2 months as compared to 5.3 months in Canada and 6.8 months in England.4 0 5 Cultural Issues: Gender Implications Culturally, the historic period referred to as the 60's, but symbolically encompassing a more extensive span of years, served witness to a profound social transformation—a transformation that ultimately reconfigured national perspectives and discourse regarding punishment practices. Informed by nascent 50's civil rights activities, as well as the cross-over popular culture ramifications of such figures as Elvis Presley, the 60’s evidenced the decimation of seemingly unremitting, stalwart socio-cultural strictures. At its turbulent conclusion—marked by the resignation of Richard Nixon in 1974 and the end of the Vietnam War in 1975—the certainties and irrefutable implications of traditional gender and racial demarcations had been significantly diminished by highly successful civil rights and feminist movements. 4 0 4 Rich, “Who Doesn’t Want to be a Millionaire” A13. 4 0 5 Mauer, Race to Incarcerate 37. 200 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. The resulting backlash, as interpreted by Ellen Willis, was distinguished by “white male muscle,”4 0 6 i.e., an increased aggressiveness, in social, cultural, political and economic terms. Fueling an ever more vengeful penal policy, punitiveness, in this context, may be understood as an attempt to re-establish and institutionalize the essentialist gender marker of male aggression. The infusion of profit into the mix functions to both extend and diffuse its unconscious, albeit unashamed, virility in a more socially acceptable manner. The archetypical landscape of “masculinism” has, Willis asserts, traditionally served to create a subliminal bond between the paradigmatic “outlaw” and the law-and-order posse4 0 7 ; that women have entered both sides of that equation has only served to increase the manliness, “take all prisoners” stakes. As the pervasive expanse of androgynous cultural messages increases, a perceptible “mother” abounds. As a consequence, separation for some may stipulate a heightened testosterone profile. Perceived within the disparate framework of contemporary penal structures, Haney pursues this theme suggesting that hi-tech maximum security prisons have “elevate(d) masculine domination almost to the status of a religion.”4 0 8 4 0 6 ElIen Willis, “Beyond Good and Evil: Crime and Cultural Politics,” Tikkun (May-June 1994): 51. ■ “"Willis, “Beyond Good and Evil” 51. ■ ““Haney, “Psychology and the Limits to Prison Pain” 573. 201 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Michel Foucault’s definition of punishment “as everything that is capable of causing humiliation, a certain coldness (and) indifference,”4 0 9 similarly suggests the paradigmatic American fortress of white male privilege. Within this construct the racial politics of “manliness” has played a significant role in shaping the lexicon of what constitutes the “criminal.” For example, challenges to white male supremacy via assertions of black manhood, derogatorily referred to as “uppity” behavior was, and perhaps still is, perceived as justification for the most severe punishments. (Recently, for example, a Black American was sodomized in a New York City Police station; because, in part, his assailant police officer found his conduct disrespectful.) Southern “honor,” pivotal to all conceptions of regional, implicitly white, manhood, traditionally presupposed, rested upon, the humiliation and/or subjugation of black males. The Religious Right In addition to factions informed by an apparent need to reclaim masculine privilege, varying neo-puritan groups, categorized under the rubric of “the religious right,” surfaced as part of a widespread 60’ s backlash. Rev. Jerry Fallwell’s Moral Majority, for example, sought to organize and politicize religious Christian conservatives in the late 70's as part of an effort to reign in, what was perceived to be, a profligate and out-of-control national agenda. Heir to the humiliation of the Scopes trial’s creationism repudiation, fearful of a securalist annihilation, this latest, ^F oucault Discipline and Punish 178. 202 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. predominantly southern conservative wave, was linked to a world-wide resurgence of religious fundamentalism. Largely influential, the Moral Majority spawned a later generation of politically active, evangelical, fundamentalist groups such as Operation Rescue, the National Right to Life Committee, Focus on the Family, The Promise Keepers, and the Christian Coalition. Distinguished by a misplaced nostalgia, these standard bearers of the “religious right” personify an anti-modernist desire to “return” America to the comfort of a former, simpler moral vision. Predating this latest influx, but significantly influential within its purview, the Southern Baptist Convention needs special mention. Historically notorious for its anti-black, pro-slavery zeal, its members were historically distinguished by their role in the launching of the Ku Klux Klan. Although the group has recently disavowed this legacy, the shift has seemingly not signaled a greater tolerance, but merely an ideological shift to an alternately identified “other”—from the black to the gay community. What all these groups share is an embrace of the puritan thesis, in its literalist, biblical sensibility, and a wish to encourage a religiously-infused, hopefully fundamentalist Christian, public square. Manifesting a “spare the rod and spoil the child” attitude, doctrinal disobedience and/or deviancy is tantamount to sin; punishment, bearing God’s imprimatur, is a requisite response. Their success in relocating the social political nucleus to the right of center, has fostered an austere, unyielding criminal justice policy; a burgeoning “throw away the key” consensus appeared to track the growth of this fundamentalist, politically powerful, religious 203 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. movement. Both reflect efforts of disparate morally-charged constituencies to cope with an increasingly complex, unsettling era through a simplistic, unrelenting Zeitgeist—a Zeitgeist that is in sync with Calvinist, Darwinian natural law conceptions of divinely preordained social winners and losers. Essentially at odds with secular, democratic pluralism, disdainful of communal efforts to reach common ground, the sectarian religious right is resolute regarding the import of its truth. Singularly uncritical of capitalist systems, seemingly unrelated to any equity, distribution concerns,4 1 0 the religious right is programmatically aligned with privatization priorities. Espousing a Malthusian objection to the use of public beneficence as a strategy to mitigate the harshness of life’s lottery, the religious right disavows and distrusts secular altruism. It prefers, instead, to encourage discipline through penal restraint and state sanctioned capital killing. Coalescing and drawing energy from their emotive opposition to a range of despised ungodly “others,” the frenzy that emanates from crime fears supplies a sustaining prop, a pivotal raison d’etre, for many of these groups. Inasmuch as extant criminal justice policy appears largely irrational, costly, and inefficient in meeting its stated crime reduction goals, Willis contends conservatives’ high-pitched anti-crime rhetoric, and arguably draconian 4l0 Rubenstein, The Age of Triage 230. 204 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. policy initiatives, are self-serving, masking the fact that the Right compels the very crime they decry.4 1 1 For example, despite some verbal morsels regarding a Christian obligation to forgive the sinner, the religious right’s political muscle has consistently supported harsher penal penalties, the trying of children as adults and, most significantly, the extension of the death penalty. The latter, a palpable and significant gauge of social punitiveness was declared unconstitutionally “cruel and unusual” during a brief period between 1972 (Furman v. Georgia) and 1976 (Gregg v. Georgia). Its post-60's resuscitative ruling privileged procedure over substance, arguing that as long as it appeared to be administered “fairly” there was nothing inherently “cruel” about its imposition despite its historic, marked, racially disparate impact. Using Texas as socio-cultural exemplar, it is noteworthy that of the 624 executions that have occurred since 1976,211 have taken place in Texas; Virginia comes in second at 76. Examining the confluence of supportive cultural factors, this leading capital punishment state evidences significant fundamentalist activity (the siege at Waco comes to mind), a definitively individualist outlook (it is after all the Lone Star State) and a belief in the virtues of an unfettered private enterprise. This cultural anti-commonweal, private sector, valorization is exhibited across state functions; public beneficence appears to be an unfamiliar, clearly out-of-fashion, concept. The Sierra Club, for example, has reported that Texas ranks first in toxic 4 1 'Willis, “Beyond Good and Evil” 96. 205 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. releases to the environment, first in total toxic air emission from industrial facilities, first in toxic chemical accidents and first in cancer-causing pollution. As Bob Herbert notes in the New York Times, the Houston business community is not interested in alerting city residents to potential pollutants because “it’s bad for business.” To insure this continued ignorance, the Governor George W. Bush appointed a chemical company CEO with the task of regulating chemical pollution.4 1 2 In the same vein, Adam Clymer reports that Texas has . . . one of the nation’s worst public health records More than a quarter of its residents have no health insurance. . . [and] the state ranks near the top in the nation in rates of AIDS, diabetes and tuberculosis and teenage pregnancy, and near the bottom in immunizations, mammograms and access to physicians 4 1 3 And, finally, according to the Texas Board of Education, 118,701 school children were paddled during the school year 1996-97.4 1 4 A strong proponent of correctional privatization, Texas is second only to the federal government in the numbers of privatized facilities it supports. Acknowledging the Durkheimian insight that passion, most particularly vengeance, “lies at the heart of punishment,”4 1 5 it is, perhaps, not that surprising that the religiously peddled victims’ rights lens—the seemingly compassionate, 4l2Bob Herbert, “In America Bush Goes Green,” New York Times 6 April 2000: A27. 4l3Adam Clymer, “Bush and Texas Have Not Set High Priority on Health Care,” New York Times 11 April 2000: A l. 4l4John Guthrow, letter, New York Times 28 May 2000: A 10. 4l5 Garland, Punishment and Modem Society 31. 206 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. unassailable, politically correct posture of the day—has historically been associated with more punitive, callous, criminal justice proclivities.4 1 6 Cultivating the outrage that emanates from a siege mentality, at times manipulating victims’ understandable sorrow and rage to their own ends, the religious right has consistently sought to secure the certainty and comfort of a vengeful institutional response. Vulnerability and the Need for Social Order A significant measure of certainty is, after all, critical to a society’s essential well-being. Proffered as social balm, order serves as antidote to the anarchy that informs crime’s most pernicious aspects. As Willis contends, crime, at its most malevolent, is distinguished by its arbitrariness; it is the total unpredictability of its occurrence and the tenuousness and/or absence of a relationship between perpetrator and victim that exposes our vulnerabilities. It is ultimately this core irrationality that sets street crime apart from white-collar offenses, that informs a sense of acts “beyond understanding.” Crime is thus, in her view, singularly insidious as it evidences our consummate impotence, our inability to appreciate and/or control the space and events that shape our lives.4 1 7 At the turn of the 21s t Century, it serves to aggravate and inflame the already festering wound of post-60’s personal and social insecurity. Absent previously relied upon touchstones, punishment, particularly the 4l6CaroIyn Strange, Qualities of Mercv: Justice. Punishment and Discretion, ed. Carolyn Strange (Vancouver: UBC Press, 1996) 8. 4 1 7 Willis, “Beyond Good and Evil” 51-52. 207 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. automatic pilot of mandatory sentences and/or deportation, provides welcome assurances. Further informed by the disconnect between an ostensibly sound economy and an increasingly uncertain economic viability, middle-class insecurity has invariably led to a proliferation of prohibitions. In what Edward Luttwak terms “the non-economic expression of economic dissatisfaction,” anger and dissatisfaction find expression in “the insatiable demand” for ever more stringent penalties, including the expansion of the death penalty.4 1 8 Concurring, sociologist Dario Melossi argues that punitive crime policies are causally linked to economic stress. Specifically, he links working-class uncertainty to an elite doomsday anxiety; he suggests that an ensuing crisis mentality invariably shapes an ever-expanding punitive landscape.4 1 9 Worshiping at the Market’s Holy Grail, yet feeling increasingly unable to affect it, our economic prospects and stability appear beyond our control in the new global world order. Working harder at jobs that offer diminished and/or demolished security and benefits, paying lip service to restraint in a culture that rewards indulgence—ambivalent social messages lead us to question our insights and lose faith in our ability to truly discern; we increasingly prefer the automatic pilot of officer-holder term limits and mandatory sentences. With privacy and autonomy under siege in the technologically amplified workplace, even those with secure jobs 4 1 8 Edward Luttwak, Turbo Capitalism— Winners and Losers in the Global Economy (New York: Harper Collins Publishers, 1999) 68-69. 4 l9 Dario Melossi, “Gazette of Morality and Social Whip: Punishment, Hegemony, and the Case of the USA 1970-92,” Social and Legal Studies 2 (1993): 266. 208 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. feel palpably compromised. Certain only of the imperative struggle to attain “winner” status, exceedingly punitive penal policies serve to both justify the many attendant sacrifices associated with success, and underscore the dire consequences of failure. More to the point, perhaps, they are perceived as protective; an omnipresent, dreaded, “loser” potential is sealed off from the possibly contaminating influences of the socially despised. Accordingly, inasmuch as the need to sustain social order affords a rationale for the establishment and, if needed, extension of punishment practices, it is not surprising that perceptions of an increasingly fragile “order” have led, seemingly inescapably, to a reliance on the touted efficiency of an expanding private sphere. Reaching for the comfort zone of an economic, rationalist paradigm, we punish with something we can measure—time. Similarly, “efficiency” mutates to “security” via a measurable bottom line. Governance, however, resists neat answers. It presumes a certain messiness, a complexity if you will; it conveys an understanding that some problems such as racism, poverty, crime, and drug abuse, elude neat solutions. Conversely, the economic sphere’s focus on the “immediate and the quantifiable” suggests that so- called market “efficiency” can furnish a missing social order, or, at the very least, a perception of control. As John Kenneth Galbraith notes, “for many it will always Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. seem better to have measurable progress toward the wrong goals than unmeasurable and hence uncertain progress toward the right ones.”4 2 0 Thus, it should not be surprising that punitiveness has secured validation from some venerated academic economics quarters. Touting the cost-benefit economic purview described in the preceding chapter, University of Arizona professor, Michael Block, recommends increased prison “unpleasantness” as a cost- effective. criminal justice, strategy. Lamenting the “burdensome” oversight and regulatory stipulations that successive prison litigation efforts have effected, he advocates an unfettered punitiveness for the efficacy of its measurable variables.4 2 1 The Demise of Beneficence The constraints on severity that rehabilitative programs provided—most particularly during the post-WWII era—have, at the start of a new millennium, been largely eviscerated. Declared ineffectual and/or worthless by Robert Martinson’s highly influential 1974 Public Interest article, rehabilitation’s luster has yet to be rekindled; unfortunately, his later more nuanced exploration, retracting the initial wholesale condemnation, was largely ignored.4 2 2 The Martinson article’s significance, in part, rested on its resonance as a cultural marker. Despite its 4 2 0 Galbraith, The New Industrial State 408. 42lMichael Block, “Supply Side Imprisonment” (Washington: National Institute of Justice, 1997) http://www.usdoj/gov/nij. 4 2 2 Mauer, The Race to Incarcerate 47-48. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. persuasive articulation of an anti-rehabilitation purview, voices at both extremes of the Left/Right ideological divide paradoxically embraced its import. Opposing rehabilitation as an expression of elitist condescension, the Left perceived rehabilitative efforts as misguided, doomed, attempts to coerce treatment. Critiqued for drawing attention from the admittedly more difficult task of encouraging requisite, structural, societal change, they were accordingly disparaged as essentially diversionary. Albeit based on a disparate lex talionis, retributive, world-view, conservative pundits evidenced a similar rehabilitative antipathy. Unified by a collective antipathy to intimations of institutional paternalism, this incongruous pairing produced a significant, deleterious policy shift. Accordingly an “unwarranted pessimism” that nothing works has replaced an “unrealistic optimism” regarding the possibility of individually-oriented sentences effecting positive, personal change.4 2 3 Consequently, punitive containment has replaced rehabilitative aspirations of positive change as our main incarcerative objective. Serving to assuage our sense of impotence, privatization portends efficacy; it holds out the promise that competent management can turn a perceived social failure into a dynamic economic success. A similar cynicism has informed the abandonment of previously established barriers to penal abuse. In January 2000, New York Times reported, for example, that the federal 1996 Prison Litigation Reform Act, initially enacted, according to its 4 2 3 Strange, Qualities of Mercv 13. 211 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. proponents, to remedy one type of perceived extremism, i.e., to “restrain liberal federal judges who see violations of constitutional rights in every prisoner complaint,” has functioned to perpetrate another. Veering to the opposite end of the spectrum, the act has, according to its detractors, served to extricate correctional systems from sorely needed remedial judicial oversight.4 2 4 Voicing the concerns of the prison advocacy community, Elizabeth Alexander, director of the American Civil Liberties Union’s National Prison Project, has suggested that “without the guarantee of those (court supervision) orders, there is no natural barrier to prevent conditions from returning to the horrendous level they were a generation ago.”4 2 5 A federal judge in Texas, ruling the Reform Act unconstitutional, maintained that continuing oversight was critical; inmates, he argued, face an n unacceptable threat of violence, living in a “fear that is incomprehensible to most of the state’s free-world citizens.”4 2 6 Using the 8th Amendment’s prohibition regarding “cruel and unusual punishment” as a yardstick with which to evaluate contemporary penal policy, Haney similarly concludes that the imposition of “prison pain is not only widespread but has become the raison d’etre of American corrections.” Inasmuch as “widespread correction harm is no longer ‘unusual,’ but neither is it regarded as cruel by popular 4 2 4 SulIivan, “State and Cities Removing Prisons from Courts' Grip” 1 . 4 2 5 Sullivan, “State and Cities Removing Prisons from Courts' Grip” 2. 4 2 6 “Judge Retains U.S. Oversight of Texas Prisons,” New York Times 2 March 1999: A15. 212 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. constituencies,”4 2 7 legislators have increasingly relied on its imposition to boost their electoral viability. As evidence of America’s “punitive obsession” Haney articulates a prevailing moral inversion in which “practices previously condemned as inhumane [such as chain gangs] are being proposed as innovative reforms.”4 2 8 In the affiliated lexicon, usurped from its borders’ culture, a “bad jail” is understood as exceedingly punitive, and hence “good.” Yet at the turn of the 21s t Century, public discourse concerning prison protections has been virtually eliminated. Informing what Haney has dubbed the “mean season” of correctional policy, penal philosophy has been recast, emerging as little more than devising “creative strategies to make offenders suffer.”4 2 9 Social nurturance has become passe; suffering is curiously “in.” Vowing, in the name of encouraging personal responsibility and fiscal efficiency, to end “welfare as we know it,” President Clinton has extended this harsh governance by acceding to the elimination of long-standing social welfare safety net protections. Evidencing these new priorities, state and city expenditures for corrections have out-paced spending on education for the first time in this country’s history; correctional spending has, in fact, emerged as largest growth segment of state budgets 4 3 0 The stick of 4 2 7 Haney, “Psychology and the Limits to Prison Pain” 505. 4 2 ®Haney, “Psychology and the Limits to Prison Pain” 509. 4 2 9 Haney, “Psychology and the Limits to Prison Pain” 500. 4 3 0 Mauer, Race to Incarcerate 11. 213 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. imprisonment—increasingly absent even a taste of the carrot—has by default and design become the social policy of first and last resort. Policy Ramifications The Drug Wars With this historical, theoretical, lineage as stipulating context, a number of critical incarceration-promoting strategies have emerged in bas-relief: the so-called “war on drugs,” mandatory, increased sentences, truth-in-sentencing and three strikes legislation. All have functioned to expand the market for correctional services by insuring an ever-increasing consumer base; accordingly, all have informed the prison-industrial market’s investment allure. Imparting a fundamentalist, dour, and exceedingly punitive world-view, these tactics evidence an adversity to nuance, an unyielding rigidity, and enmity towards the generous and expansive impulse. In response to an anxious yearning for order amidst the globalized maelstrom, restraint rather than release, or from a disparate perspective restraint as release (release from the obligation to distinguish), has emerged as the prevailing policy paradigm. Given the greatly increased costs attached to these dubiously effective stratagems, one must surmise that crime reduction is only one of a panoply of rationales that have informed the incarcerative rise. As Marc Mauer notes in Race to Incarcerate. “research has demonstrated that changes in criminal justice policy, rather than changes in crime rates, have been the most significant contributors leading to the rise 214 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. in state prison populations.”4 3 ' Reiterating the unswerving progression from escalating incarceration rates to privatization industry growth, it is essential to understand the etiology and bases of these changed policies. It is largely undisputed that the late 20th Century American prohibitionist obsession, most recently embodied in President Ronald Reagan’s 1982 “war on drugs” policy initiative, has been a primary agent, either directly or implicitly, for the precipitous rise in the numbers of persons incarcerated at the federal, state, and local level. According to FBI and Bureau of Justice Statistics, drug arrests have tripled since 1980, from a total of 581,000 arrests in 1980 to 1,532,000 in 1999. Similarly, while in 1980 drug offenders in state and federal prison were respectively 6% and 25% of the total number, by 1999 the figures had risen to 21% of the state prison population and 57% of the federal system.4 3 2 These figures represent, of course, only those imprisoned specifically for drug offenses. The numbers of persons imprisoned for offenses prompted by drug purchase needs, such as theft and/or prostitution, is estimated by the Washington, DC-based criminal justice research and policy organization, the Sentencing Project, to be between 61 and 75% of incarcerated persons depending on whether one is talking about the local, state, or federal system. Despite public perception to the contrary, the same time period witnessed a commensurate decline in the numbers of persons convicted of violent offenses, from 4 3 ‘Mauer, Race to Incarcerate 34. 4 3 2 "Drug Policy and the Criminal Justice System,” The Sentencing Project Briefing/Fact Sheets (Washington: The Sentencing Project, December 22,1999) 1-2. 215 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 55% to 47%; between 1985-95 61% of new inmates were incarcerated for drug and/or non-violent property crimes (which, as previously noted, may also be drug related). Thus, the confluence of new mandatory sentencing policies, in conjunction with increased drug arrests, led to a 447% rise in the chance of receiving prison time for a person arrested on drug offenses between 1980 and 1992. In the federal system, prior to the imposition of mandatory stipulations, drug offenders served, on average, 30 months in prison. After the imposition of mandatory penalties, the average rose to 66 months. At the local level, in New York City, for example, it is estimated by the New York City Department of Correction that upwards of 85% of women sentenced or awaiting trial at Rikers Island are imprisoned for drug or drug related/procurement offenses; nationally, between 1986-1991, The Sentencing Project has reported that state imprisonment for drug offenses for black women rose by 828 per cent. Since then, while the overall numbers of women imprisoned for drug offenses have continued to rise, the ascent has been less dramatic. Evidencing what might be appropriately construed as a culturally “drug induced,” incarcerative, delirium, this Puritan legacy of prohibitionist restraint evidences wider culture wars. Distinguished by Bell as “the great symbolic issue of American cultural politics,”4 3 3 prohibition, a disciplined denial of the purely pleasurable’s release, seeks to secure the Puritan ascetic emphasis, serving both religious and economic ends. Thus, ethicist Willard Gaylin posits a drug policy 4 3 3 Be!l, The Cultural Contradictions o f Capitalism 77. 216 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. dichotomy shaped by tensions between “pharmacological Calvinists” and “psychotropic hedonists.” Drug intervention, he argues, is typically sanctioned for the curing of disease and relieving pain—to bring a person’s physiological or behavioral function up to medically determined levels of normalcy. Using drugs for purely recreational purposes, to enhance rather than normalize, has been deemed unacceptable. Manifesting its Puritan birthright, American institutional culture appears guided by a euphoric apprehension that has been “less distressed by drugs that bring us down than drugs that perk us up.”4 3 4 Drug prohibition first surfaced in response to nativist enmity towards the Chinese immigrant population at the end of the 19th Century. Targeting primarily working-class, Chinese, opium-smoking activity, this seminal 1881 California state law anticipated the selective implementation that continues to distinguish American drug policy.4 3 5 This legacy is most clearly manifest in the racially disparate impact of penalties attached to the use of “crack” and pure cocaine. In the mid-1980's, national drug legislation mandated 5 year sentences for persons convicted of sales and/or possession of less than one ounce (5gms) of crack (the drug of choice for the largely urban, poor, persons of color), while a powder cocaine offender (customarily a more affluent offender), would need to have/sell 500 grams for a similar sentence. Accordingly, the Puritan restraint and asceticism that informs current drug 4 3 4 Willard Gaylin, “Feeling Good and Doing Better,” Feeling Good and Doine Better: Ethics and Non-therapeutic Drue Use, eds. Thomas H. Murray, Willard Gaylin, and Ruth Macklin (Clifton: Human Press, 1984)3-4. 4 } S Kenneth J. Meier, The Politics of Sin (Armonk: M. E. Sharpe, 1994) 23. 217 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. prohibition laws must be understood not only as a pleasure-seeking bar, but, perhaps more significantly, as a manifestation of class-based, racial enmity, by a desire to control the so-called “lower classes.” In contrast, a more monolithic 19th Century populace enjoyed easy, legal, access to narcotic and hallucinogenic drugs. Medical providers typically relied on a variety of opiates as pain-killers, and considered the regulation, maintenance, and treatment of addiction, what might today be termed “addiction medicine,” as a legitimate aspect of their practice. Over-the-counter availability included such products as synthesized heroin, marketed by the Baker Chemical Company as a “non-addictive” substitute for codeine and morphine, and cocaine, advertised by the Parks-Davis company as a cure for hay fever and sinus problems. Historically, marijuana has been used as a medical treatment for coughs, insomnia, convulsions, asthma, opiate addiction and menstrual cramps; between 1850-1942 it was listed as a recognized medicine in the Unites States Pharmacopeia.4 3 6 The Harrison Act of 1914 was the first law that specifically addressed the issue of narcotic trafficking; its enactment served to fulfill international commitments made at the 1912 Hague Conference. Administered under the auspices of the Treasury Department, it was conceived solely as a revenue and regulatory piece of legislation (i.e., sales of specified drugs were to be taxed and recorded). Interests in institutional aggrandizement, however, led to the formation of a separate 4 3 6 Meier, The Politics of Sin 23. 218 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. narcotics division that appeared “more interested in enhancing their powers than in record keeping.”4 3 7 Touting cocaine’s potent properties, Black usage was linked to assaults on the white population, while southwest “Anglo” claims that marijuana precipitated Mexican-American criminality were used to buttress an increasing anti marijuana hysteria. The consequences of alcohol abuse are, depending on one’s perspective, more or, at least, comparably destructive. Nevertheless, European cultural comfort with wine use and Judeo-Christian religious symbolism, have, absent the experience of the Volstead Act (1920-33), encouraged a less contentious stance. The United States, however, has refused to follow Western Europe’s more sanguine approach to narcotic use. Viewed more as a social service delivery issue than a criminal justice problem, drug use, absent underclass connotations, is conceptualized as a public health concern4 3 8 The contrasting American criminal justice approach has been critiqued both for its lack of efficacy as well as its enormous personal and fiscal costs. It is certainly indisputable that despite law enforcement’s considerable efforts, people continued to drink alcohol during Prohibition, and that, currently, a significant portion of the American populace continue to use drugs. Suggestive of a depraved and undisciplined spirit, drugs, as well as other so- called “vices” such as prostitution, have occupied an ambiguous cultural position. 4 3 7 Meier, The Politics o f Sin 25. 4 3 8 Peter Reuter, Mathea Falco, and Robert MacCoun, “Comparing Western European and North American Drug Policies: An International Conference Report,” Rand Drue Policy Research Center Report (Santa Monica: Rand. 1993) 10-13. 219 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Historically disdained and disparaged, they have, mirroring current privatization efforts, nonetheless encouraged public as well as private entrepreneurial proclivities; countless aspects have served to prime the economic pump. For instance, tariffs imposed on “lawful” addictive substances, such as the ever-increasing cigarette tax, are relied upon for a range of public initiatives; a depleted public arts’ budget has been, in large part, supplanted by private tobacco philanthropy. Criminalizing the drug trade, has similarly stimulated government, particularly criminal justice sector, growth. The so-called “war on drugs” has fueled an incarcerative industrial arc as increased spending on narcotic law enforcement has spawned the need for more and more courts; a consequent increase in the numbers of convictions has ultimately fueled the extant, unprecedented, prison growth. Fueling the prison-industrial complex, the “war on drugs” functions to stimulate moribund, largely white, rural economies through prison construction projects. At the same time, it facilitates the decimation of urban, largely persons-of- color, communities through turf war violence and imprisonment. Drug use criminalization has additionally encouraged underground urban entrepreneurial activity; it has spawned a largely unregulated, high-risk, black market economy where the drug marketer is free to create and market/his/her product as s/he sees fit. It is the very reality of this market that essentially undermines penal incapacitation strategies. As Marc Mauer notes, whereas incarcerating rapists will, no doubt, improve the public safety—rape, after all is a personally-driven violent, demented act—drug marketers’ incapacitation will, conversely, only result in a business-site 220 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. transfer or a replacement hire.4 3 9 The enormity of unregulated drug profits continues to lure large segments of the urban poor; rationally considered, the considerable prospective benefits seem to override potential risks. In a pro-legalization article, James Ostrowski asks readers to consider whether the much touted narcotic harms are related to drug-use or drug-prohibition. Are they, he asks, harms intrinsic to drug use, such as addiction, and/or death due to overdose; are they instead caused by the drug’s current illegality, for example, crime, inflated prices, violence, increased law-enforcement costs, contaminated products, HIV transmission, discouraging of legitimate employment, and flaying of the social fabric as a result of brazen disdain for the law?4 4 0 Edward Luttwak maintains, however, that these questions overlook a critical dimension. Deterring potential drug harms is not, he insists, the bases for spiraling drug-related incarceration rates. Rather, he contends, drug-related mass incarceration provides a means, particularly in the dense urban context, for locking up and removing from circulation potentially violent, disaffected, economic “losers”; the arrests, in effect, help to keep “the lid- on” those at-risk for fomenting low-level insurrections.4 4 1 Whatever the underlying rationale, however, drug-use criminal penalties have served a critical role in expanding the prison population. It is thus not happenstance 4 3 9 Mauer, Race to Incarcerate 114. 4 4 0 James Ostrowski, “The Moral and Practical Case for Drug Legalization,” Hofstra Law Review 18 (1990): 620. 4 4 1 Luttwak, Turbo Capitalism 24. 221 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. that Mauer dates the onset of the incarcerative climb to 1973, the same year that witnessed the passage of New York State’s Rockefeller Drug Laws, named for, then- govemor, Nelson Rockefeller. Precursor of the extant mandatory sentencing structure, the legislation was enacted in response to fears generated by an escalating crime rate and the 60's loosening of institutional leverage; it imposed lengthy, mandatory minimum sentences up to and including life imprisonment on persons convicted of drug charges. In what appears to have been an attempt to insure imposition, the bill stipulated restrictions on attendant plea bargaining.4 4 2 In 1979 the law was amended in response to even prosecutorial outcries concerning the egregiousness of prescribed penalties. Nevertheless, while stipulating some reduction in marijuana related penalties, the amendment, as critics note, did not essentially dismantle the existing punishment structure’s harshness re the possession or sale of heroin, cocaine and other hard drugs.4 4 3 Still on the books, for example, is a mandatory 15 years to life sentence for anyone convicted of selling 2 ounces or possessing 4 ounces of a narcotic substance. As the Correctional Association, a criminal justice policy/advocacy group reports: “The penalties apply without regard to the circumstances of the offense or the individual’s character or background. Whether the person is a first-time or repeat offender, for instance is irrelevant.”4 4 4 ^Lawrence Friedman, Crime and Punishment in American History (New York: Harper Collins, 1993)411. ^ T h e Correctional Association, Position Paper on the Rockefeller Drue Law Repeal (New York: The Correctional Association, February 1999) 1. 4 4 4 The Correctional Association, “Rockefeller Drug Law Repeal” 1-3. 222 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. The misplaced critical measure is weight of substance in possession, not extent of culpability, as determined by an investigation regarding the apprehended person’s role in acquiring or transacting the narcotic substance. Mandatory Sentences Fixed, drug-related sentencing policies effected a burgeoning of across-the- board mandatory stipulations. These new sentencing structures have played a crucial role in fueling the startling rise in numbers and length of prison sentences. For example, the numbers of sentenced offenders rose 84% from 1985 to 1995; for drug offenses, the risk of receiving a prison sentence rose 447% between 1980-1992.4 4 5 Yet despite these numbers, and the increasingly punitive outcomes they evidence, the move to mandatory sentencing must be understood in context, as the end-result of a somewhat contorted historical and/or philosophical journey. Discretionary justice, critiqued as early as the 18th Century, has been perceived by generations of reformers as inherently arbitrary, an essentially oxymoronic concept; a just result, in their view, was a largely serendipitous happenstance. Governed by unaccountable, and often capricious, authorities, discretionary systems were impeached as essentially arbitrary and abusive. Espousing the inherent superiority of the “rule of law (over) the whim of officials,”4 4 6 the contemporary move to harsher, mandatory, guidelines has sought ■^The Sentencing Project, “Drug Policy and the Criminal Justice System” 2. 4 4 6 Strange, Qualities of Mercv 12. 223 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. to replace an admittedly imperfect, uncertain law/discretion polyglot, with the illusion of perfect and sure justice. Concomitantly, sentencing power has shifted from the judiciary to federal and state legislatures, from the individually-focused particularity of the bench to a less differentiated, broad-based legislative locus. Extant discretionary power, such as it is, is most prominently evidenced in the prosecutor’s ability to charge and plea- bargain. Mirroring the public/private correctional shift, vital decisions are increasingly made, absent public scrutiny, from the singular perspective of criminal justice actors charged with punishing. The move to mandatory penalties is observed in mandatory minimums as well as the curtailing of “good behavior” and/or parole early release options. Bill Clinton’s politically determined “get tough” anti-crime initiatives, the Violent Crime Control and Law Enforcement Act of 1994, and the ensuing Violent Offender Incarceration and Truth-in Sentencing Incentive Formula Grant Program (VOI/TIS), tied prison construction funds to state-based qualifying legislation that requires violent offenders to serve 85% of their imposed sentences. This 6 year, $30 billion dollar legislative package, earmarked nearly $8 billion for prison construction, with an additional $1.8 billion appropriated for the incarceration of illegal aliens.4 4 7 Prior ■ “ ’Mailer, Race to Incarcerate 76. 224 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. to the program’s enactment, in contrast, a study by the Bureau of Justice Statistics reported that violent offenders served, on average, 50% of their sentences.4 4 8 Between 1996-98, the VOI/TIS grant program conferred $1.3billion to encourage states’ compliance. By the end of 1998, four years after VOI/TIS passage, it was clear these financial incentives were having their desired effect; in addition to the District of Columbia, the number of states requiring violent offenders to serve at least 85 % of their prison sentences jumped from 5 to 27,4 4 9 Bolstering a containment focus, 14 states had abolished parole board release for all offenders. Absent stipulations barring usage for privatized facilities, these funds can be currently used as individual state legislatures see fit. In an attempt to modify extant provisions, Congressman Ted Strickland (D-Ohio) introduced a bill (HR 979, known as the Public Safety Act) in March of 1999 stipulating that VOI/TIS federal monies should only be used to support publicly managed facilities. Reintroduced this year, there has, to this point, been no substantive action on this proposal. While most commentators approximate that truth-in-sentencing legislation will likely result in an initial increase of approximately 15-20% in prison populations, proponents argue that over time, its ultimate deterrent/incapacitation effect will significantly lower crime rates. The extent that TIS legislation lengthens prison sentences, of course, is dependent on the overall sentencing structure; states ^P aula M. Ditton and Doris James Wilson, “Truth in Sentencing in State Prisons,” Bureau of Justice Statistics Special Report (Washington: U.S. Department of Justice, January 1999) 7. 4 4 9 Ditton and Wilson, “Truth in Sentencing in State Prisons” 1. 225 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. with a less punitive over-all sentencing structure, may, even after adopting TIS legislation, evidence lower average lengths of stay than more punitive states who have not embraced TIS. Nevertheless, the increase in numbers attendant to this legislation has prompted a number of states to contract with private firms who promise lower per diems outside the state’s jurisdiction. Changing gears, replacing a “good time” lens with a punitive, “bad time” hermeneutic, inmates are punished with increased time for not following rules while previous, early release, positive incentives have been increasingly eliminated. Similarly, inflexible mandatory stipulations have informed the rise in the numbers of immigration detainees. Housed in an increasingly privatized federal system—the federal system currently houses the highest number of privatized inmates—immigrants are caught in the never-land of a newly “firmed up” immigration policy. In a series of Op-Ed pieces in the New York Times. Anthony Lewis has highlighted the seemingly unjust ramifications of an inflexible 1996 Immigration Act. Through several vignettes of pending deportation, Lewis depicts a system stymied through its enacting legislation’s rigidities. Exemplary adults are deported due to juvenile and/or minor misdemeanor records; long-ago expedient pleas to ensure the avoidance of jail time and/or deportation, regardless of the circumstances, haunt law-abiding citizens due to the retroactive stipulations of the 1996 Immigration Act These instances manifest what Lewis terms the “fundamental flaw(s)” in the 1996 Immigration Act. Specifically, much like the mandatory sentences that 226 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. currently confront citizens, the new immigration legislation “sets out to eliminate all judgment, all weighing of individual factors. . leading, he asserts, to “countless cases [of] inhumanity.”4 5 0 Targeting an external instead of internal “other,” both systems, nevertheless, evidence a longing for a palpable, seemingly elusive, sense of security—a security that is configured within the framework of a largely vanished homogenous, cohesive, national entity. A significant ruling by the Supreme Court in June 2001 afforded some relief when it ruled that federal authorities cannot indefinitely detain immigrants who have committed criminal acts simply because they come from countries without repatriation agreements with the United States. Three Strikes Legislation One of the most celebrated offspring of the “get tough” movement is California’s three-strikes law, which mandates life prison terms for repeat felons. Enacted in 1994 in the wake of the kidnaping and subsequent murder of a 12 year old suburban girl, its proponents argued that a literal throwing away of the key (25 to life terms for felons convicted of any third felony with a history of “serious” or “violent” felonies) would significantly reduce communal violence. However, a 1999 report of a 3-year (1994-97) research project by the San Francisco-based, Justice Policy Institute, has demonstrated that its implementation has failed to yield these hoped for results. 4 5 0 Anthony Lewis, “No Second Chance,” New York Times 18 Feb. 2000: A 15. 227 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. The two major hypotheses—that California counties with a strict Three Strikes enforcement profile would experience greater crime reduction than counties who were more lenient, and that the targeted over-30 age group would similarly evidence more significant decreases in crime patterns than largely unaffected groups—were refuted. The results established that while California crime fell 24% statewide during that period, reductions occurred across counties irrespective of their Three Strikes stance. In fact, San Francisco, the most lenient three-strikes constituency, experienced a greater reduction in violent crime, homicides and all index crimes than the six heaviest enforcing counties. Similarly, surveyed within a national context, Justice Policy Institute researchers found that crime reduction occurred nationwide without any relation to a jurisdiction’s Three-Strikes capacity. The absurdity of the legislation is evidenced by a January 19,1999, New York Times Supreme Court Roundup item that reported on the failure of a Three Strikes challenge as a “cruel and unusual punishment” by a California inmate serving a 25- to-life sentence for shoplifting a $20 bottle of vitamins.4 5 1 On a more minor, but similarly punitive and absurd scale, an 18 year old high-school basketball player was sentenced to five years in prison for “elbowing an opponent” during a game.4 5 2 4 5 lLinda Greenhouse, “'Three Strikes' Challenge Fails, But Others are Invited,” New York Times 20 Jan. 1999: A12. 4 5 2 "Texas Judge Declines to Cut 5-Year Term in Sports Case,” New York Times 11 March 2000: A 12. 228 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Conclusion The re-emergence of correctional privatization rests on a confluence of cultural factors. Informed by an increasingly punitive public stance, dramatically rising incarceration rates provided the ostensible rationale for a reconsideration of the privatization option. Prevailing receptivity, however, more specifically evidenced long-standing, deeply held, American religious and cultural themes. First and foremost, the American puritan legacy has encouraged a preoccupation with sin, a mistrust of pleasure, and a belief in the remediation of suffering. The legacy fuels the prohibitionist drug laws that have been in large measure responsible for spiking incarceration rates; it nourishes a prevailing cultural apprehension and insecurity that, resisting the complexity of nuance, seeks the comfort of a clearly stipulated, religiously infused, punishment blue-print; mandatory minimums, truth-in sentencing and three-strikes legislation serve as ostensible, albeit un-substantiated, safety-net representations. Within the context of social Darwinist, natural selection, notions of Divine judgment, understanding “survival of the fittest” formulations as manifestations of “secularized Calvinism,” punitiveness may, in fact, be perceived as aiding and abetting God’s work. Similarly, worldly success, traditionally understood as a manifestation of God’s favor, has encouraged a veneration of business acumen and gain. The confluence of the two has served to fuel the privatization solution. Efficiency linked to monetary measures offers the illusion of control in a post-60’s world o f uncertain categories. While the unpredictability of street crime exacerbates 229 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. unwanted feelings of vulnerability and dependency, the dominion of penal institutions suggests a still pre-eminent and viable masculine domain. Profit taking alters our gaze, substituting economic performance for punitive zeal. Conceiving prisons as disciplinaiy excess, shadow and counterpoint to communal prodigality, privatization practices evidence extant communal standards in its supposition that one can have one’s cake and eat it to. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. CHAPTER V SOLIDARITY: SOCIAL ARRANGEMENTS AND INSTITUTIONAL IMPLICATIONS “Different forms of solidarity give rise to different forms of punishment.”4 5 3 “We live in a world in which there are no more links.. . . We’re just particles.”4 5 4 Introduction Postmodernism has functioned as both cultural critique and key late 20th Century social hermeneutic. In its embrace of the fragmented, the illusory and the chaotic, it functions as an antithesis to our quest for certainty; in its synergy with standpoint, it suggests disdain for the possibilities of common ground. Nurturing an intellectual resistance to solidarity struggles, reflective of contemporary anomie, it evokes the aforementioned apprehension regarding our ability to discern. Postmodernists, as Edward O. Wilson has remarked “doubt we can know anything at all.”4 5 5 4 5 3 David Garland, Punishment and Modem Society (Chicago: The U of Chicago P, 1990) 49. 4 5 4 Michel Houellebecq, as quoted in Emily Eakin, “Le Provocateur,” The New York Times Magazine 10 Sept. 2000: 38. 4 5 5 Edward O. Wilson, “Back from Chaos,” Atlantic Monthly March 1998:40. 231 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Punishment, on the other hand, is based on a system of laws and attendant sanctions; it presumes judgment. The solidity of a verdict—assumed “correct” and or “just”—cannot be easily challenged, even with compelling new evidence. Furthermore, while invoking aspects of the surreal, the deprivations and degradation o f prison life, as inhabitants will attest, are all too real. Grounding sanction in its ability to effect cohesion, punishment may be perceived as a key postmodernist counter force. In our “search for more secure moorings”4 5 6 punishment’s protective shelter has seemingly much to recommend. The advent o f privatization, however, challenges the presumptions of this dichotomy. Re-positioned within the fluid, postmodern, purview of money, punishment’s role as steadying compass has been accordingly revised. Manifesting the detached logic of an increasingly fragmented polity—embracing a “virtual” as opposed to communal hermeneutic— its profit making priorities have called into question its commonweal rationale. Within the context of this socio-cultural dichotomy, in an era distinguished by its disintegrative proclivities, this chapter will focus on the penal implications of solidarity arrangements, the connotations of the inclusion and/or exclusion of the poor from national concern. Specifically it will document the relationship between the demise of the Left/Progressive social consensus and the privatization impulse, between a culturally validated detachment and the veneration of the inner gaze, 4 5 6 David Harvey, The Condition of Postmodemitv (Malden: Blackwell, 1990) 292. 232 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. between a rights-focused culture and the breakdown of reciprocal concern, between a fragmented polity and a more strident correctional policy. Establishing the connections between a postmodern cultural focus, psychotherapy’s reflective world view and progressive political antipathy, it will outline how the Left’s public neglect led to the pre-eminence of the Right’s privatizing agenda. Identifying elements of a late 19th Century socio/economic/political structural resuscitation, it will posit an analogous neo-Victorian criminal justice restoration. Solidarity and the Left Progressive Social Consensus American history, according to Nicholas Lemann, has been shaped by a series of broad social consensuses. The splintering of the New Deal progressive social alliance, extant between 1930-1980, signaled the end of the last and longest functioning American socio/political/economic paradigm.4 5 7 Nurtured by the severity of the Great Depression’s economic dislocations, the consensus’s core ideology sustained the Progressive Era’s penchant for government activism. Perceived as a positive force, government was lauded for providing an opportune economic buffer that sheltered its citizens from the worst vagaries of an unpredictable and/or erratic market economy. Functioning as catalysts for group cohesion, the Great Depression and the ensuing Second World War enlarged the communal societal tent. In varying 4 5 7 Nicho!as Lemann, “The New American Consensus,” The New York Times Magazine 1 Nov. 1998:40. 233 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. milieus, both events made notable inroads in ameliorating long-standing racist practice. The prevailing paradigm of government/citizen reciprocity encouraged the emergence of equity and beneficence as the era’s preeminent Zeitgeist. Mutually empowering and innovative citizen/government initiatives, in tandem with an increasingly significant union movement, enlivened the public square. Demonstrating significant reach, the consensus affected members of a broad social spectrum, including the poor, the working/middle class and the intellectual elite. However, considering the span of time and multiplicity of interests it represented, it is hardly surprising that this consensus was neither univocal nor static. Nevertheless, its largely optimistic purview fostered the belief that even inmates—not entirely a despised “other”—were potentially redeemable. Interest in prison reform—grounded in either a commitment to rehabilitative potential or an economic/political critique of imprisonment practices—haltingly, yet increasingly, informed mid-20,b Century correctional policy. An established window to punitive proclivities, death penalty support among the American populace, as reported by the Gallop organization, plummeted to a low of 42% in 1966.4 5 8 (During the last decade support has fluctuated between a high of over 80 % to a more recent re-assessment low of 65%.)4 5 9 As a by-product o f this progressive confluence a short-lived 4 5 8 Dario Melossi, “Gazette of Morality and Social Whip: Punishment, Hegemony and the Case of the USA, 1970-92,” Social and Legal Studies 2 (1993): 272. 4 S 9 The National Coalition to Abolish the Death Penalty, personal interview, 5 Sept. 2001. 234 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. moratorium on capital punishment from 1972 (Furman v. Georgia) until 1976 (Gregg v. Georgia) raised the specter of a systemic criminal justice moral critique, challenging our concepts regarding the parameters of “cruel and unusual.” Distinguished by such benchmarks as the Great Society’s legislative agenda and the Civil Rights and Feminist Movements, the 60’s era is perceived, by many, as progressive halcyon days. Yet is important to recall that the period also marked the onset of the Left alliance’s fragmentation. While these alliances generated movements of revolutionary promise, with much documented accomplishment, many groups gradually imploded, awash in internecine incriminations. Similarly, in stark contrast to WWII’s coalescing properties, the Vietnam War fractured, rather than solidified, a sense of national purpose. Hence, in part, as a result of the emergence of identity politics and the competing power interests it effected, and in part as a result of an emerging eco/political stasis, the erstwhile broad-based consensus was recast and gradually narrowed. Thus, forty years later, extant public initiatives appear singularly focused around the concerns of the “deserving” middle class, that is those citizens who appear to play by the prevailing “rules of the game.” Rhetoric and/or interest in reducing economic disparities, and/or in ameliorating the lives of the poor, are palpably missing from the public debate. Absent war, with possibilities of domestic economic and/or political upheaval seemingly remote, the minimally pacified, no- longer-needed poor are to be “disciplined” through work, and/or controlled in the modern-day workhouse qua correctional institution. 235 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. It is not surprising that in an age distinguished by the prevalence of mutual distrust and disdain “public policies that depend on the good will of others are,” as Lemann contends, “hard to sell.”4 6 0 With the public’s attention conveniently refocused around such individually-framed issues as “values” and/or “character,” as opposed to systemic concerns regarding economic disparities and joblessness, a communal disregard for social lottery losers has prevailed. Prisoners—the poor bearing the additional stigma of an adjudged “morally deficient” label—are consequently perceived as patently “unworthy”; deemed responsible for their own demise, they have been removed from the majoritarian purview. Historically, the tasks of inspiring concern for the problems of the socially dispossessed and/or, more broadly, redressing issues of inequity, have been shouldered by the political Left. It is this public re-distributive focus that has, in the main, typified the 20th Century demarcation between the American Left and the American Right.4 6 1 Absent this focus, lacking a vision for positive communal change, the Left’s raison d’etre has, according to Richard Rorty, been largely eviscerated. Chronicling the eclipse of the political Left (represented by the activist New Deal alliance) by the cultural Left (informed by a postmodernist veneration of difference), Rorty and Todd Gitlin suggest that in its valorization of “cultural identity 4 < 0 The National Coalition to Abolish the Death Penalty, personal interview 69. 4 6 1 Richard Rorty, Achieving Our Country (Cambridge: Harvard UP. 1998)48. 236 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. at the expense of political citizenship”4 6 2 the cultural Left has abandoned its natural and historical constituencies and lost its true voice—its hope of effecting a more just and responsive public square. As a result, the Left’s historic role in politicizing its social critique, in evidencing the criminal justice repercussions of socio-economic deprivation, has been significantly diminished. As Mimi Abramovitz and Ann Withom note, “by focusing on individual values and behavior, rather than institutional classicism, racism, and sexism,”4 6 3 the person rather than the system is blamed. The result, according to the authors, is both an increased tolerance for government surveillance of the urban poor, as well as a decreased focus on the development of ameliorating structural initiatives. A movement of progressive “agents” engaged in political struggle was transformed into a collection o f “spectators” immersed in cultural commentary. Rorty characterizes the shift as evidencing a retreat from “practice to theory,” a preference for “cultural politics over real politics,” and an affinity for “knowledge over hope.” Hopelessness, he opines, “principled, theorized, philosophical hopelessness”4 6 4 has, as a result, become fashionable. Less politically and emotionally risky than the high wire ramifications of a trumpeted optimism, a “ • “ Todd Gitlin, The Twilight of Common Dreams (New York: Henry Holt and Company, 1995)237. “ “ Mimi Abramovitz and Ann Withom, “Playing by the Rules: Welfare Reform and the New Authoritarian State,” ed. Adolph Reed Without Justice for All. (Boulder Westview Press) 171. ^Rorty, Achieving Our Country 36. 237 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. detached and cynical theorizing replaced solidarity-building, socio-political activities. As a result, beliefs regarding the redemptive possibilities of singularly dispossessed prisoners have, for the most part, receded into the neer-world of futile rumination. Securing “otherness” as a critical interpretative lens, rejecting the possibility of “coherent representation” as inherently repressive and/or illusory,4 6 5 postmodern precepts endorse a disjointed and despairing perspective. Sponsoring the view that problems must be experienced to be genuinely understood and/or appropriately addressed, postmodernism’s mandatory “search for authenticity” has served to buttress an insular stance and impede inter-group cooperative efforts. With indices of solidarity at their historical nadir, notions of uniting for the social good, exercises in empathetic awareness, have largely disappeared from the public discourse.4 6 6 As Garry Wills notes in a criminal justice context: The more different from “us” the criminals are made to seem, the more distant from average Americans, the harder it becomes to cope with the conditions that foster crime, unemployment, demographic imbalances, urban obsolescence, drug traffic, improper police administration. The more different the objects of fear become, the more useful they are politically. As victims of social conditions, they might nag at the conscience or even stimulate the imagination of political reformers, but as devils they prove too handy to the moralists who bring on social war by denouncing it.4 6 7 4 6 5 Harvey, The Conditions of Postmodemitv 52. ‘ '“ Ruth Sidel, Keeping Women and Children Last (New York: Penguin Books) 173. “ ’Gary Wills, Under God: Religion and American Politics (New York: Simon and Schuster) 238 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. While unlawful activities run the spectrum—from stranger violence to income tax fraud—public anxiety is largely focused on the specter of drug-infused inner-city Blacks and Latinos run amok. The more familiar, syntonic, middle/upper class entrepreneurial endeavors that comprise “white-collar crime” are oft-times clandestinely admired; viewed by many as indicative of inventive business and/or personal cunning, perpetrators are treated with far more communal indulgence. As always, the greater the perceived distance between the adjudged and the violated, the greater the social outcry. As the poor have faded from public view, violation of sanctified economic elites has assumed the status of secular blasphemy. The synergy between a more insular public consensus, greater economic disparities, and increased incarceration of the poor, demands a progressive political response. Yet despite the important work of prison ministries, as well as the expanding efforts of such newly emerging groups as Critical Resistance, Not with Our Money: Students Stop Prisons-for-Profit, and the Public Safety and Justice Campaign, a clearly visible, empowered, Left has yet to emerge. Thwarted by its fixation on group difference, broad-based communal endeavors appear elusive, as “majoritarian thinking (is) frowned on as a sign of accommodation.”4 6 8 The ascendant identity politics are, at base, a politics o f introspection. Indicative of weakness, not strength, they evince self-absorption rather than compassion and solidarity. In its emphasis on group status it serves as a more potent, 4 6 8 Gitlin, The Twilight of Common Dreams 230. 239 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. organized rendering of individual interest; in its embrace of group privilege it functions to preserve the status quo. Running counter to notions of consensus and solidarity, the processes associated with identity politics have undermined efforts to forge a progressive, national policy agenda. Appropriating conservative priorities, progressive academic elites, according to Rorty, think less about “laws that need to be passed than about a culture that needs to be changed.”4 6 9 Evidencing the academic shift from a Marxian to a Freudian hermeneutic, apprehensions regarding psycho/sexual sadism, he contends, have replaced concerns about economic inequality. Failing to reach revolutionary nirvana, the New Left’s preference for purity, as opposed to reformist pragmatism, has resulted in an abandonment of social justice’s ideological centrality, and a related relinquishment of activism as a movement defining political strategy. For example, the previously powerful and successful ideas of communal sisterhood have lost their currency. So-called female “essentialism”—the belief that a knowablc, universal entity known as “woman” exists—has been discredited and abandoned by the Left academic elite in favor of a socially constructed, variously- situated postmodern paradigm. Deference to racial, economic, and ethnic “differences” have been deemed more important than the identification of, and struggle for, mutually important political goals. 4 6 9 Rorty, Achieving Our Country 78. 240 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Wherefore the Old Left’s focus was on commonweal projects and the encouragement of an ever-evolving moral identity, the New Left has, in its political abdication, served to encourage the “abandonment of the secular, anti-authoritarian vocabulary of shared social hope in favor of a vocabulary built around the notion of ‘sin.’”4 7 0 Absent the common narrative embodied in the Left’s historical role, what Gitlin characterizes as the “the mobilization for equality and against arbitrary power,”4 7 1 the utopian, universalist, impulse has moved to the Right. As a result, the persistent yearning for transcendental meaning, for knowable “truths,” human connection, and social wholeness is most frequently sought in religious communities and/or in the power of global markets and/or freedoms. Evidencing its postmodern poster boy/girl status, the Left’s divisive indulgence has, almost by default, sanctioned the growth of the prison-industrial complex. Manifesting a palpable sense of public impotence, affixed to a “deconstructive” rather than a “constructive” lexicon, the Left has essentially “privatized” itself. Ergo, it is hardly surprising that neither a sustained privatization critique, nor attendant, widespread, anti-penal activism has been forthcoming. Money’s allure enjoys an across the board appeal. 4 7 0 Rorty, Achieving Our Country 32. 4 7 1 Gitlin, The Twilight of Common Dreams 236. 241 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. The Inward Gaze: Detachment, Irony, and the Therapeutic Ideal Detachment and the Repressive Consensus Since the country’s inception the American character has been variously defined as irreverent, skeptical, pragmatic, and largely optimistic. Fusing the perfectionist aspirations of the secular and religious communities, its renowned “can do” outlook suggests a belief in unlimited possibility and an expectation of future abundance. Imbued with a Christian apocalyptical spirit, America has perceived itself as die Holy Grail. Inspired by a belief in its “manifest destiny,” Americans claim a God-given imprimatur to achieve, conquer and disseminate its “truths.” Social and/or institutional problems that resist rapid relief challenge this presumed efficacy. Fueling a palpable discomfort and impatience, the difficulties in fashioning a rehabilitative “quick fix,” for example, proved instrumental in squashing penal reform efforts. Prior to privatization’s 1980’s re-emergence, efforts to improve jail conditions and operations appeared in limbo; with reformist efforts substantially disparaged, absent any strategy for enhanced performance, pessimism prevailed. “Punishment,” Garland contends, “appealed) to lack a future—or at least a vision of one which might be different and preferable to that which currently prevail(ed).”4 7 2 Apparently dysfunctional, punishment, like crime, was perceived as a chronic, perplexing and socially toxic construct. 4 7 2 Garland, Punishment and Modem Society 5. 242 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. While both the Left and the Right despaired, the Left, mired in its Rortian “hopelessness” turned inward. The Right, while similarly engaged in extant cultural debate, turned outward instead, engaging the public square. Appropriating the terms of the political debate, defining the issues—from root causes to potential remedies— the Right worked to actualize their socio/eco/political agenda. Arguing from a paradigm of personal rather than social responsibility, the Right’s proposed answers to the crime/punishment quagmire—getting “tough” through more aggressive policing and harsher sentences, privatization to encourage fiscal efficiency— resonated with large segments of the populace. Speaking to the American self-ideal, the Right embraced the American “can do” ethics. Evidencing confidence in their ability to effect positive outcomes, their strategy refused a defeatist stance; it suggested control. In a country that gloried in its business acumen, absent historical prospective, the Right’s embrace of privatization suggested a here-to-fore elusive mastery. Ilence, the erstwhile progressive consensus was superseded by a repressive one. Functioning as communal glue in a pluralistic, postmodern, less certain world, the need for what Francis Fukuyama refers to as a shared “language of good and evil”4 7 3 effected the establishment of tough on crime, throw-away-the-key mantras qua political touchstones. “The greater the ephemerality,” as Harvey notes in a more general context, “the more pressing the need to discover or manufacture some kind of 4 7 3 Francis Fukuyama, Trust (New York: The Free Press, 1995) 270. 243 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. eternal truth.”4 7 4 Seemingly oblivious to these normative needs, absent a countering, more progressive, communal vision, a Left vacuum of meaning—its only “truth” a disavowal of other knowable “truths”—ceded the socio-political criminal justice agenda to a more confident, lest anguished, forward-looking Right. Conservative “spare the rod” warnings intensified prevailing anti-coddling sentiments, sanctioning ever-harsher prosecutory and penal practices. While the Right encouraged communal and religious attachments, the academic Left, largely disdaining the hope-infused earnestness of faith, chose instead to cloak itself in the detachment of an ironic sensibility. Hope, after all, presupposes exposure; it fosters a vulnerability to disappointment. Irony, while intimating a greater understanding, a more clever discernment, if you will, is ultimately more timid, relying on the emotional safety net of a scoffing, distanced purview. Grounded in a sullen and, at times, petulant pessimism, a dejected, formerly utopian, Left came to eschew the commitments of a large scale social movement. By actively debunking America’s “chosenness,” by resisting its self-ideal, the Left, losing much of its political viability, was repositioned as socio-cultural anathema. Postmodernism provided a much needed intellectual refuge. Particularly enticing to an extant “disillusioned optimism” and/or desperation, postmodernism, Pauline Rosenau contends, validate(s) “political and social inaction,. . . complacency, even 4 7 4 Harvey, The Conditions o f Postmodemitv 263. 244 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. (a denial of) our own responsibility for own lives.”4 7 5 The uneasiness and uncertainty of the vulnerable position, the fear of being “without protection” has effected a proverbial double-edged response. The expansion of postmodern license has joined the intensification of, what Richard Sennett refers to, as the “the negating authority.”4 7 6 Detachment and the Therapeutic Ideal It is, in fact, the prefixes “de” away from, and “dis” apart, asunder,4 7 7 that so aptly capture the current socio/eco/political conceptual landscape. While post World-War II America grappled with fears of widespread conformity, as discussed in such paradigmatic texts as William H. Whyte’s Organization Man and David Riesman’s Lonely Crowd, present-day socio/political hand-wringing focuses on issues of detachment, disintegration and devolution. Although currently disparaged as a time of sexual and cultural repression, a postwar optimism and majoritarian cohesiveness, nevertheless, provided the launching ground for a series of integrative, beneficent communal initiatives. As noted, the seeds of the civil rights movement were planted, returning veterans were provided ample reintegration assistance, and the Marshall Plan dispensed generous resources to aid European post-war recovery. 4 7 5 Pauline Marie Rosenau, Post-Modernism and the Social Sciences (Princeton: Princeton UP, 1992)11. 4 7 6 Richard Sennett, Authority (London: Seeker and Warburg, 1980) 48. 4 7 7 Random House, Webster’s College Dictionary (New York: Random House, 1995) 347, 382. 245 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Fast forwarding the historic reel, shifting from assimilation to assertion, images of the civil rights movement fragmenting into Black and White power morph into pictures of Vietnam War veterans returning largely scorned and uncelebrated. America’s erstwhile commitment to cooperative foreign efforts has, in addition, been increasingly impeded by the government’s unwillingness to be guided by, or contribute to, universal normative structures such as the United Nations and/or the International Court. Whether debating the United States’ role as the world’s moral police, and/or touting our globalization leadership, we insist on our political singularity; inter-connectedness is established most conspicuously via the more comfortable abstractions of the economic sphere. Ravaging 60's mythology, Michel Houellebecq, the new infant terrible of the French literary world, has suggested that the period’s true legacy has been misinterpreted; selfishness and isolation rather than peace and love are, he insists, its true bequests. “We live,” he opines, “in a world in which there are no more links.. . . We’re just particles.”4 7 8 Aiding and abetting this insular focus, psychoanalysis’ emergence as secular confessional and communal hermeneutic, has encouraged the aforementioned intellectuals’ paradigmatic shift from ‘"the social and the political to the private and the psychological.”4 7 9 As the compelling and previously un-chartered contours of the unconscious tantalized, academic analyses moved from socio/political concerns to 4 7 8 Michel Houellebecq, The New York Times Magazine 38. 4 7 9 E. O. Wilson, Atlantic Monthly 58. 246 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. the emotional/psychological/cultural realm. The ensuing socially pervasive “therapeutic attitude” and/or sensibility spawned a psychoanalytic model that featured detachment as a critical component; with manifold applications it has grown to inform contemporary interpersonal, social and structural expectations. Ultimately portending the inward gaze of “new age” mysticism, the therapeutic dyad, and or group, retained emotional center stage, providing a rationale for withdrawal from the public arena. Actually dubbed the “detachment cure” in some quarters, therapy evidences a particularly delineated conflation of “closeness and distance.” Outside of history, disconnected from the patient’s ongoing life, therapy provides a distilled, time- limited intimacy—intimacy as therapeutic technique—in exchange for money. Characterized by Robert Bellah as both “intimate and instrumental,” the money that exchanges hands is, in fact, considered a necessary requirement for therapeutic success.4 8 0 More precisely discerned as a quasi or “virtual” relationship, it presaged the hi-tech illusory discourse of the 21s t Century. Focused on self, rather than communal actualization, “feeling good” superseded “doing good” as the prevailing socio/cultural leitmotif; the primary question changed from a judgment infused “is this right or wrong” to a self-directed “is this going to work for me.”4 8 1 “ “ Robert Bellah, Habits of the Heart (New York: Harper & Row, 1985) 121-23. “ “ Bellah, Habits o f the Heart 129. 247 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Informed by a therapist’s largely non-judgmental stance, the patient’s essentially unchallenged value constructs provide the critical therapeutic perspective. Authenticity, in this discourse, “knowing how you are feeling,” is again acknowledged as a critical telos, evidencing a postmodem/therapeutic overlay. Extrapolating from the “contractual ethic” that informs the therapeutic encounter,4 8 2 a comparable, continuing, scrutiny is presumed operative with other relationships; all are subject to renegotiation and/or termination at any time. As a result, what Fukuyama describes as the breakdown of the previously heeded “formal and informal laws, rules, norms and obligations” (those that, for example, protected mothers and children by “limiting the freedom of fathers to simply ditch one family and start another”4 8 3 ), gave way to a sense of unlimited possibility. The uniquely American competitive strain, what de Tocqueville characterized as a culture of anxiety and sadness,4 8 4 has been noticeably exacerbated by the psychic demands of a culture of increasing impermanence. Thus, at the same time that an uneasiness and/or dread of unanticipated, or undesired, endings informs our social relations, prisons increasingly exemplify the permanence of never endings. In both instances, the individual is, in the parlance of the day, viewed as garbage, essentially “dumped.” Existential aloneness appears to prevail. 4 8 2 BeIlah, Habits o f the Heart 128. “ • “ Francis Fukuyama, “The Great Disruption: Human Nature and the Reconstitution of Social Order,” Atlantic Monthly May 1999: 72. “ • “ Alexis de Tocqueville, Democracy in America, trans. George Lawrence, ed. J. P. Mayer (New York: Doubleday and Co., Anchor Books, 1969) 536-38. 248 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. As above, punishment practices serve to invert and/or reflect the greater culture’s prevailing paradigms. Accordingly, a socio/cultural landscape of diminished accountability and/or judgment has paralleled legal statutes’ increased severity; attempts to locate an ever more elusive normative core have increasingly relied on the legal domain’s alleged “normative world building” and judgments. While the therapeutic process exhorts the unraveling of the “authentic self,” prison life depends on its containment While therapeutic relationships suggest intimacy, but are essentially detached, prisons are circumscribed by boundaries, but suffused with intimacy. It is, however, an intimacy that is, at once, evocative and unsettling. The emergence of privatization, serves to alter the center of our focus, shifting our anxious gaze from the intense intimacy of penal surveillance and inmate/officer practices, to the more comfortable abstraction of profits to be garnered. Extrapolating from the much revered therapeutic tenet that money is the sine qua non of patient commitment, newly revived ideas of inmate contributions and profit- inspired punishments are noteworthy, not only substantively, but because they replicate rather than invert the prevailing economic Zeitgeist, i.e., the quantifying of all things and the pursuit of profit. Evidencing both money’s consistency and its transmutability, privatizing initiatives manifest the economic sphere’s essential detachment, its ability to resist any and all preconceived paradigms. The political ramifications of this therapeutic purview have been significant. Eschewing an ethically-based system of obligation in favor of a utilitarian and/or 249 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. expressive moral individualism, patients/citizens are advised to rely on themselves, that they “can only be responsible for their own actions.” A largely urban/urbane practice and sensibility, therapy’s cerebral and emotional appeal has resonated most intensely with city-based, progressive individuals, individuals who, in the past, would have been most likely to lead an activist, anti-incarceration/privatization charge. Influencing the core of a solidarity-prone constituency, its individualist impact is accordingly magnified; dampening a systems’ perspectives’ activism, therapy’s political ramifications have encouraged a more conservative status-quo. This more emotionally distanced purview served to de-intensify and/or debunk the rapture of potential rescue, whether from an unjust society and/or a sinful nature. Accordingly, at least for a time, this remoteness appeared to serve inmate interests by balancing the detrimental effects of the Left’s impoverished penal activism with a seemingly, less retributive, more “enlightened” therapeutic inquiry regarding the appropriate communal treatment of anti-social behavior. However, while therapy affords a much sanctioned psycho/social cover for middle/upper-class narcissistic indulgence, analogous attempts to vindicate a range of comparably impulse driven, selfish behaviors, more characteristic of the poor, have met with increasingly less communal approbation. As Sennett notes, “naked power draws attention to itself’; whether an expression of military force, communal and/or personal impotence, it is violent. In contrast, elite driven political/economic power, Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. qua influence, is most often veiled and nuanced.4 8 5 It is, as a consequence, less jarring to the public sensibility. Similarly, while recognition functions as a powerful motivator for both groups, the positive recognition that is purchased in a therapist’s office is at a distinct distance from the rites of passage and status—the negative attention—that is garnered in a correctional institution. Given the extent of this schism, therapeutic exoneration has, over time, ultimately effected its own undoing in a criminal justice context. With the “self’ as primary focus and subjective feelings the dominant barometer, trust has been increasingly enjoined to an ever narrower circle of affiliated “authentic” voices making it notably more difficult to create and sustain cross/group political action. Further, if judgment is suspect and/or even perhaps precluded, how can one prioritize and strategize priorities and policies for the common good without an agreed upon common narrative? Rights and Reciprocity From its inception the prison movement functioned as counterpoint to the strength and cohesiveness of corresponding communal structures. Given prisons’ origins as ersatz commonweal guarantor, it is altogether reasonable that its expansive resurgency should track further communal devolution. Shifting from a cooperative to a more confrontational paradigm, manifestations of a diminished social trust and an intensified rights-focus sensibility are mutually informing; their confluence is a “ ^Sennett. Authority 174. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. clear provocation and/or indication of social fragmentation. A totally rights-based focus, is, after all, indifferent to potentially negative, communal ends. Its liberal context suffers from “an inability to chart social goals”4 8 6 ; its competitive purview reproduces the extant, capitalist perspective. A hermeneutic of “claiming” and/or “seizing” from others, rights-focused rhetoric is intrinsically adversarial. As Harvard Law Professor Mary Ann Glendon asserts, a rights-focused social lens evokes a “strident” legalism, an “exaggerated absoluteness (a) hyper individualism, an insularity, and . . . silence with respect to personal, civil and collective responsibilities.”4 8 7 Distinguished by the absolutism of its win/lose dichotomy, it is a zero sum game in which the winner, so to speak, “clears the deck,” and the losers, as Glendon aptly remarks have “to get out of town.”4 8 8 Recast in defeat as a “non-entity,” the loser is perceived as largely absent essential humanity and/or reason. Whereas the reciprocity that typifies communal cohesiveness presumes a mutuality of moral agency, rights-based stridency disregards and/or disputes the viability of that assumption. As an ensuing “us vs. them” mentality buttresses the degrading of the loser “other,” prisoner maltreatment and/or commodification surface as remarkably comfortable options. 4 8 6 Andrew A. Dobelstein, Politics. Economics and Public Welfare (Englewood Cliffs.: Prentice Hall, 1986) 89. ‘ ‘ ’’Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: The Free Press, 1991) x-xii. ‘“ Glendon, Rights Talk: The Impoverishment of Political Discourse 9. 252 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. This is not to say, however, that rights-claims are without commonweal value. While increased rights-reliance most often denotes a depleted cooperative proclivity, its equity-infused precepts have, at times, functioned to expand the range of social stakeholders. Evoking the majority’s promise to the minority—to share power, to respect each individual’s dignity—rights’ universalism can suggest the possibility and promise of common ground. Conversely, however, an ever more active group-rights advocacy summons a particularist lens. Based on distinction, rather than commonality, absent the mutuality of an “overarching containing structure,”4 8 9 the more frequent extolling of group-based claims, invariable promotes social strain and as Glendon has remarked “impedes the grammar of cooperative living.”4 9 0 A priori, rights imply a coinciding duty and/or obligation; to have a right is “to be, the beneficiary of another’s duty.”4 9 1 However, while theoretically triggering this presumed reciprocity, the sense of deprivation that informs rights stridency, in actuality, signals its absence. If reciprocity is most appropriately defined as an “appeal to reasons that are shared, or could come to be shared,”4 9 2 and/or as an 4 8 9 Michael Walzer, What It Means to be an American (New York: Marsilio, 1992) 8. “ ’“Glendon, Rights Talk xii. 4 9 1 David Lyons, “Rights Claimants and Beneficiaries,” Rights, ed. David Lyons (Belmont: Wadsworth Publishing Company, Inc., 1979) 58. 4 9 2 Amy Guttman and Dennis Thompson, Democracy and Disagreement (Cambridge: The Belknap Press of Harvard UP, 1996) 14. 253 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. activity requiring “committed praxis of mutuality,”4 9 3 the diminishment of shared communal narratives, of necessity, signals a frustrated reciprocal enterprise. In an atmosphere where intention is suspect and distrust abounds, this adversarial context hampers efforts to create committed inter-ethnic/class relationships. Even more daunting are the prospects of forging solidarity interests with persons under a sanctioned “cloud of suspicion,” persons charged with crimes and/or already convicted. Reversing the customary rights/duty dyad, if prisoners are undeserving of obligatory communal recompense, one might presume a commensurate absence of claiming legitimacy. Thus, while rights-claims have often been touted as an equalizing mechanism, the bases of constitutional safeguards for the dispossessed, others have maintained that they are often least heeded, and consequently minimally effective, for those at the bottom of the communal ladder. As an alternative, Elizabeth Wolgast, among others, has suggested that a focus on obligations and responsibilities would ultimately be more responsive to overall commonweal concerns. Using the doctor/patient relationship as exemplar, she notes that the more hierarchical the relationship, the less educated the patient, the greater the difficulty in pressing effective claims.4 9 4 4 9 3 Elizabeth Bounds. Coming Together/Coming Apart fNew York: Routledee. 1997) 120. 4 9 4 Elizabeth Wolgast, The Grammar of Justice (Ithaca: Cornell UP, 1987) 34. 254 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Prisons are, of course, quintessentially hierarchical; they define the outer extremes of disparate power arrangements. Already life-schooled in the fragility of right-based claims, prisoners become decidedly “rights-deficient” by virtue of their imprisonment; their already tenuous claims regarding obligatory communal recompense has been commensurately narrowed. In his review of recent 8th Amendment Supreme Court law decisions, “Psychology and the Limits to Prison Pain: Confronting the Coming Crisis in Eighth Amendment Law,” Craig Haney documents the unfeasibility of prisoners relying on rights-claims rescue. Positioning prisoners as losers in the zero-sum game, as persons “totally without merit and/or humanity,” makes it, Haney contends, all the easier to gradually narrow their cause- of-action options. Prisoners can, the Court has argued (Whitley v. Albers- 475 U.S. 312 1986) appropriately “anticipate pain” for a variety of reasons; only pain that might be considered extreme, and/or totally gratuitous, would, according to current Court thinking, warrant an appropriate “cruel and unusual” claim.4 9 5 In Block v. Rutherford (468 U.S. 576 1984) the Court overturned the rulings of two lower courts in upholding a Los Angeles County policy that denied pre-trial detainees contact visits, regardless of the pending charges; in Wilson v. Seiter (501 U.S. 294 1991) Justice Scalia, writing for the majority, narrowed prison condition cause of actions to a provable intent standard of “deliberate indifference.”4 9 6 Presaging what some fear 4 9 5 Craig Haney, “Psychology and the Limits to Prison Pain: Confronting the Coming Crisis in Eighth Amendment Law,” Psychology. Public Policy and Law 3.4 (December 1977): 559-60. 4 9 6 Haney, “Psychology and the Limits to Prison Pain” 558-61. 255 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. may be a “new hands-off doctrine in correctional law,”4 9 7 a diminished and desensitized perception of communal obligation has largely eviscerated former rights-based prisoner protections. Evidencing the pervasiveness of a laissez-faire economic climate, the Court’s rulings reflect current anti-regulatory imprimaturs; privatization is simply another manifestation of this hands-off governmental stance. James Q. Wilson conceptualizes duty as “ the way people cope with the free rider problem in the absence of coercion.”4 9 8 Hence a “miniaturization” of communal concern, notably reciprocated on both sides of the class divide, has effected both an enhanced demand for, and comfort with, communal coercion. Exacerbating extant class divisions, the institutional coercive response, nevertheless, appears singularly biased. Thus, while certain urban street crimes could be perceived as commensurate, underclass, coercive reciprocity, it is clear that disparate clout occasions distinctly disparate consequences. Trust Francis Fukuyama defines trust as “the expectation. . . of regular honest, and cooperative behavior based on commonly shared norms on the part of other (communal) members”4 9 9 ; it is, he believes, key to fostering beneficial reciprocal relations. Absent trust, he maintains, a society is more likely to rely on its formal 4 9 7 Haney, “Psychology and the Limits to Prison Pain” 565. 4 9 8 James Q. Wilson, The Moral Sense (New York: Simon & Schuster, 1993) 115. 4 9 9 Fukuyama, Trust 26. 256 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. rules and regulations, increasingly litigated and coercively enforced. Widespread distrust, he opines, entails “transaction costs. . . a kind of tax on all forms of economic activity, a tax that high-trust societies do not have to pay.”5 0 0 That a balkanized United States pays more than other western industrialized nations for litigation, police, and corrections costs, appears to substantiate his thesis. Citing a “causal link between the inability to cohere (to subordinate one’s individual inclinations and work together for any purpose) and poverty,”5 0 1 Fukuyama, inverts our cherished preconceptions, in his identification of the underclass as society’s pre eminent individualists. With the poor increasingly detached from cooperative ventures, their “individualism” and lack of commonweal concerns contribute significantly to the ever more prevalent, expensive, prison “transactional cost.” Nevertheless, it is society’s disinterest in addressing economic empowerment, and/or encouraging multi-class stakeholder status that sets the stage, shaping the parameters that inform the current terms of engagement. Diminished communal involvement has been additionally documented in a myriad of other venues. Recent research projects have evidenced, for example, that when a private beneficent impulse is aroused, it is typically manifest in the sending of a check-not in any participatory activity; not surprisingly, “being involved in your community” or “having a lot of friends” scraped the bottom of a recent survey of ^Fukuyama, Trust 27. 5 0 1 Fukuyama, Trust 303. 257 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. individual values.5 0 2 In a vignette indicative of wider communal proclivities, political sociologist, Robert Putnam’s notable 1995 article, “Bowling Alone: America’s Declining Social Capital,” substantiated that while increasing numbers of people are bowling, for example, far fewer are bowling in leagues.5 0 3 When popular culture 2000 is transfixed by a so-called “reality” television show focused on the perpetual anxiety of weekly ostracization ceremonies, punishment’s institutional appeal and prevalence should not be that surprising. Teaching the utility and rewards of adversarial treachery, prohibiting any communication with newly stigmatized individuals, the show provides a distilled and heightened representation of communal detachment and disintegration; any mitigating explanations and/or acknowledgements of regrets are strictly forbidden. This “punishment for enormous-profit,” soap opera has, for many, been afforded the status of communal ritual. That millions tune in each week via the comfort of their own home, sometimes with friends, attests to both the tenuousness of, and yearning for, communal rites and traditions. Foundations This confluence of centrifugal forces—the demise of the Left, the emergence of a postmodern, therapeutic sensibility, the prevalence of rights-stridency and a concomitant lack of trust—both reflect and inform a currently diminished, 5 0 2 Andrew J. Cherlin, “I'm OK, You're Selfish,” New York Times Magazine 17 Oct. 1999: 44-46. ^Cherlin, “I'm OK, You're Selfish” 48. 258 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. fragmented, commonweal focus. The emergence of the “punitive” paradigm as cohesive remedy has effected an exponential increase in the numbers of imprisoned persons; the re-emergence of private, for-profit management, has contributed to the structural extension of penal practice and, at the same time, occasioned considerable criminal justice disarray. Reiterating the assumption that norms are informed by structure,5 0 4 the following section will approach the solidarity/punishment configuration by tracing the connections between social/political/and economic structural arrangements, government programs, and penal practice. Punishment, as Nils Christie contends, is the “infliction of what is bad, and corresponding deprivation of what is good. . . the means of punishment employed reveals what values predominate. . . among those actually exercising power in the community in questions.5 0 5 Adrian Howe accordingly identifies three punishment “epochs”—i.e., a system of penance and fines suited to the Early Middle Ages peasant economy, the severe torture, aggravated death practices of the Late Middle Ages, and, the emergence of imprisonment in the 17/18th Century.S 0 6 Discerning punishment as a system of exchange value, a symbolic substitution for social injury, one can extrapolate a shifting normative pre-eminence from money, to purity and 5 0 4 Norbert Elias, On Civilization. Power and Knowledge (Chicago: The U of Chicago P, 1998) 117. 5 0 5 Nils Christie, “Changes in Penal Values,” Scandinavian Studies in Criminology 2 (1968): 162. 5 0 6 Adrian Howe, Punish and Critique: Towards a Feminist Analysis of Penalty (New York: Routledge, 1994) 15. 259 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. freedom. One can similarly identify a graduated hierarchy of sacrifice—a shifting sensibility of the inauspicious, if you will—from poverty, to the sacrilege of the sin- infused body, and, reflecting Enlightenment priorities, to the loss of liberty. The progression reflects a comparable shift in socio/political/economic arrangements, i.e., from agricultural fiefdoms, to medieval towns to larger, more centralized, political constructs; from primitive, to religious and then secular institutional authority, from fragmentation to coherence. Current practice, however, intimates a reverse trajectory, effecting, in part, what might be appropriately termed a Victorian restoration and/or a neo-Victorian sensibility. In addition to reprising the socio/political devolution and economic ascendancy of late 19th Century economic and political arrangements, body-imposed punishments, and new fee-based stratagems are experiencing a sanctioned revival. Attitudes are increasingly reflective of a Darwinist punitive propensity as for-profit corrections has re-emerged as cutting-edge practice. Additionally, the inauguration of some graded systems of accommodations based on one’s ability to pay, the fee-for service regimen and the return of prison industries all connote a reversion to former penal operations. Yet at the same time, distinctly turn of the 21s t Century forces are at play. 4 ? * Thus, while the historic retreat from penalty-as-spectacle signaled a shift in power discourses, from violence to the administrative state,5 0 7 the prevailing penal nostalgia 5 0 7 Anthony Giddens, The Nation State and Violence (Berkeley: U of California P, 1987) 188. 260 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. suggests a postmodern structural pastiche. Evoking what Harvey refers to as an archeological sensibility,5 0 8 the dredging up of penal policy remnants, absent a cohesive, rationalizing meta-narrative, suggests privatization’s all too prevalent mix of categories and venues; it mirrors an extant political/economic/social disarray. Positing a “new medievalism” at hand, David Rieff cautions that, given the power of the globalized corporate sector, even “the sine qua non of state power, a monopoly on violence” is in doubt.5 0 9 Using a Foucaultian interpretive lexicon, extant power relations may be understood via their asymmetrical infrastructure. Receding from prior considerations of equilibrium and parity, they are defined by their pursuit of excess qua surplus— surplus discipline, the disposability of a surplus population, a veneration of surplus value. Sociologist Dario Melossi argues that this extant asymmetry was initially fostered by concerns regarding the declining profits and lower wage differentials that characterized the 1960s; it is, he insists, the result of a calculated and successful attempt by political and economic elites to restore prior levels of “class inequality and economic profitability.”5 1 0 In the same way, the re-emergence of fee-based penal structures, abolished, in part, in an effort to equalize prisoner treatment, suggests a growing comfort with social disparities. ““Harvey, The Conditions of Postmodemitv 56. 5 0 9 David Rieff, “The False Dawn o f Civil Society,” The Nation 22 Feb. 1999: 14. 5 1 0 Melossi, “Gazette of Morality and Social Whip” 268. 261 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Historically, punishments have evolved within the context of an ever- changing balance between external and internal constraints.5 1 1 Hence, in a society increasingly typified by the extreme—of poverty and wealth, of political disintegration and economic expansion, of socially validated internal indulgence— the balance has clearly shifted to a “disproportionate” external response. Current political and economic imprimaturs exacerbate this asymmetrical proclivity; postmodern thought legitimizes it. The erstwhile punitive spectacle is recast in the postmodern veneration of the extreme. Durkheim In The Two Laws Of Penal Evolution. Durkheim outlines his thesis regarding the structure/punishment nexus. Articulating a relationship between forms of punitiveness and the social and governmental structures from which they emanate, he contends that the severity of punishment typically reflects a society’s primitiveness and/or the authoritarianism of its central governing power. Intricately interwoven, the two factors may, according to Durkheim, operate in conjunction or opposition.5 1 2 In addition to these structural determinants, socio/political/cultural and economic beliefs and arrangements may inform the range of acceptable and available punishment practices. For example, the notion of prisons as punishment, not as temporary preventive detention (to prevent flight, for insuring payment of debts) is 5“ Elias. On Civilization. Power and Knowledge 19. 5 1 2 Emile Durkheim, “Two Laws of Penal Evolution,” originally published in 4 Annee Sociologique, Cincinnati Law Review 38 (1900; 1969): 36. 262 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. derived, in part, from Christian ideas of remedial solitude developed in monasteries. Reflecting the inordinate authority of the mediaeval institutional church, sentences could fluctuate from short-term detention to life sentences in a monastery setting. Anticipating the current, in vogue, “life without parole” movement, Durkheim explains that early maximums were typified by “perpetual solitary confinement in a cell built by the prisoner, symbolizing the irrevocability of his sentence.”5 1 3 His study of primitive societies focused, in part, on their pervasive notions of collective responsibility. In contrast to a more modem, largely individualist, perspective, primitive societies typically held the family and/or community liable, with, or in lieu of, the culprit should s/he default.5 1 4 Depending, in part, on the punitiveness of the prevailing authority, notions of community obligation might be brought bear to intensify or mitigate sentence severity. Yet, in as much as this doctrine of collective responsibility virtually assured some form of restitution, jails, particularly as preventive detention facilities, were largely superfluous. While punishment practices are admittedly multi-determined, the Durkheimian thesis still seems curiously out of sync with aspects of the current American penal vista. A highly developed society with a decentralized, increasingly curtailed, central authority, a Durkheimian purview would seemingly anticipate diminished punitive proclivities; yet recent U.S. history has evidenced a conflicting 5 l3 Durkheim, “Two Laws o f Penal Evolution” 45-46. 5 1 4 Durkheim, “Two Laws o f Penal Evolution” 46-47. 263 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. reality. Conversely, most other western developed nations appear to substantiate the Durkheimian premise; abhorring the death penalty, European prison systems are more humane both as to length and conditions of sentences. Contrasting American/European social solidarity characteristics suggests several significant points of departure. First, the United States is appreciably less homogenous than other developed countries with more beneficent punishment policies; it has historically been more religious, more puritanical and more punitive. It’s tortured racial history as well as its Darwinian, capitalist, winner-take-all proclivities have exacerbated extant internecine social divisions. Lacking the state- based social planning that typifies our European counterparts, America’s individualist propensities serve to undermine any comparable notions of communal accountability; the “invisible [unaccountable] hand,” of the market has seemingly prevailed. Ostensibly effecting social cohesion, punishment, nevertheless, manifests our internal contradictions. Called upon to ground us, by providing a sense of order and security, penal institutions’ viability, particularly in the private sector, appears to be dependent on society’s evidencing and perpetuating these deeply engraved fissures. Focusing almost exclusively on notions of individual accountability, absent more European concepts of communal liability and/or responsibility, American prisons now appear indispensable, hardly superfluous, in today’s world. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Geography Reiterating a “surplus” theme, Ruth Wilson Gilmore suggests in her article “From Military Keynesianism to Post-Keynesian Militarism” that prison expansion has been a “geographical solution” to the socio-economic problems generated by an excess of finance capital, land and labor in an era of increasing “nation-state obsolescence.”5 1 5 Discerning the incarcerative swell as counterpoint to the forces of state disintegration, and hence as prop for waning authority, Gilmore argues that the correctional funding crisis and the ensuing privatization solution have little to do with fluctuations in the crime rate. Incarcerative excess, she suggests, is more accurately a manifestation of decisions by economic elites, to locate and engage their surplus problems within a correctional system; privatization merely suggests an ability to profit from extant socio/economic/political disruptions—to create its own “surplus value.” Shifting from a macro- to a micro-geographical focus, the locations of new prisons have evidenced another aspect of this “solution,” furthering a sense of communal fragmentation in astonishing and “novel” ways. For example, one little discussed consequence of the prison population’s exponential growth, has been a shift in census-related resources from urban to rural communities. Census rules now mandate, that prisoners be counted as part of the communities in which they are incarcerated-not their communities of origin. As a result, it is anticipated that the 5 1 5 Ruth Wilson Gilmore, “Globalisation and US Prison Growth: From Military Keynesianism to Post-Keynesian Militarism.” Race and Class 40.2-3 (1998-1999): 174-79. 265 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. urban core’s share of census-related federal funds will be significantly diminished. Census, however, impacts not only federal dollar distribution; it is also used to shape and/or reapportion legislative districts.5 1 6 Both of these census-related consequences suggest that political and economic power will accordingly flow from progressive inner cities to more conservative rural outskirts. Prison privatization furthers this communal disengagement. Tracking the capitalist inspired uncoupling of economic and communal life noted in Elizabeth Bounds’ critique, census-legitimated post modem “virtual” communities, ever further from prisoners’ neighborhoods-of-origin, exacerbate the evisceration of their substantive community-of-origin needs. The logic of this geo/political slight-of-hand is not difficult to fathom; a further destabilization of largely urban centers through the depletion of needed resources can only serve to increase the size of the prison consumer pool. Once again, money, as Jeremy Waldron notes, is an “abstract measure of exchange value. . . [it] above all symbolizes the absence of boundaries,. . . the inter penetration of one’s good meanings and those associated with others.”5 1 7 Transgressing boundaries and subverting traditional precepts, it exemplifies the notion that any commodity may be traded for another. In a time of rapid transformation, money lubricates, serving to facilitate the structural paradigm shift. 5 l6 Tracy Huling, “Prisoners of the Census,” Mother Jones 10 May 2000, http://www.motheijones.com/realitycheck/census.html. 5 l7 Jeremy Waldron, “Money and Complex Equality,” Pluralism. Justice and Equality, eds. David Miller and Michael Walzer (New York: Oxford UP, 1995) 144-45. 266 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Given the ascendant disequilibrium of globalized markets, privatized corrections reflects and inform the new socio-economic arrangements. The Absence of Class American class obliviousness, the prevailing tendency to frame issues within an amorphously delineated “general interest,” further impedes authentic cross-class solidarity initiatives. While effecting the illusion of cultural cohesion, class obliviousness actually serves elite interests, furthering the class divide. Reprising Giddens' observation that “the depoliticizing of economic relations is basic to class domination,”5 1 8 most American’s unwillingness to acknowledge the existence of significant class divisions connotes an unwillingness and/or an inability to engage in relevant penal analyses. For example, the singularly erroneous illusions that the law is equally applied and that American prisons are “equal-opportunity” confiners, thwart efforts to remedy extant abuses. Conversely, the veneration of ethnic and cultural distinctions, while suggestive of progressive predilections similarly serves an elitist divide and conquer strategy, diverting attention from the economically informed disparities of class. Almost all Americans, except those at the very outer extremes of wealth and/or poverty aspire to be, and/or self-describe as middle-class; many frequently vote against their own economic self-interest. As Ruth Sidel has so succinctly expressed, “blaming the rich doesn’t jibe with American ideology. Americans don’t 5 I8 Giddens, The Nation State and Violence 211. 267 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. want to resent the rich; Americans want to be rich.”5 1 9 Consequently, it was not surprising, for example, that the principal objection to A1 Gore’s generally well received presidential acceptance speech was its populist, class conscious, content. Even a modicum of acknowledgment was disparaged as “class war” rhetoric, unfitting for American political discourse analyses. A country imbued with the importance of political rights, the United States lexicon omits any conception of comparable economic entitlements. Given that rights imply corresponding duties, this omission appears fitting as the national will, with brief exceptions, has consistently resisted economic redistributive schemes. Evidencing a national blind spot, American’s class obliviousness allows the problems of the poor to fester, largely unnoticed; seemingly fearful of contamination, distance is thought to immunize the populace-at-large. Transporting prisoners across multiple state lines, distancing the “tainted goods,” privatization serves communal denial, subliminally offering the much-valued delusion of enhanced safety. This desire for class insularity has informed contemporary living arrangements, narrowing our sense of communal possibilities. Whereas older cities’ cores used to be a place of culture and community, new cities, such as Los Angeles, are structurally fragmented. Most accurately described as a series of small, disconnected villages, even its downtown business section is largely abandoned after work hours. Class, and most often racial apartheid prevails, as the urban poor are 5 1 9 Ruth Sidel, Keeping Women and Children Last (New York: Penguin Books, 1996) 19. 268 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. encased in disparate, segmented communities apart from the more affluent, and increasingly suburban, communal life. Again, citing Los Angeles as exemplar, a meager city transportation system primarily serving the urban poor (i.e., those without cars) offers one of the few opportunities for serendipitous inter-community meeting. Bolstering the national one-class mythology, this pervasive geographical isolation furthers a sense of disengagement on both sides of the class/racial divide. With opportunities for inter-group mingling diminishing, stereotypes prevail; the poor are discouraged from assuming any inter-communal investment while the economically more affluent are encouraged in their obliviousness to urban disintegration. The criminal justice system has historically functioned to support this national mirage. While exhorting an individual equality under the law, any detailed examination of judicial outcomes clearly evidences a class hierarchy at work. Charged with the task o f straddling the dichotomy between general and elite concerns, the legal code is, in fact, perceived as the most visible gauge for assessing a society’s solidarity index.5 2 0 Hence, its continual failure to acknowledge and/or address significant class disparities suggests a socially validated, albeit veiled fragmentation. This propensity to obfuscate significant distinctions similarly informs attendant penal operations. Conflating a judicial, “legal power to punish,” with a correctional “technical power to discipline,” penal operations serve, according to 5 2 0 E. Durkheim, The Division of Labor in Society, trans. George Simpson (Glencoe: Free Press, 1933, I960) 64. 269 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Foucault, to “efface what may violent in one and arbitrary in the other.”5 2 1 In focusing on money to be saved and/or profits to be earned, privatization furthers “homogenizing” proclivities, masking the expansion of a counterfeit and repressive cohesiveness. Public Beneficence Fluctuations in punishment practices are, according to most theorists, significantly correlated to the vicissitudes of public/private attitudes and treatment of the poor. Specifically, the prevalence and generosity of public beneficence programs provide a significant gauge of their relative inclusion or exclusion from public concern. In his book, Punishment and Welfare. David Garland suggests that turn of the 20th Century, English, penal structures began to change when the Victorian stance “that is was morally right to hate criminals,” was no longer sanctioned in criminal justice policy debate. Criminals became less “other,” more part of the social fabric; they were to be “pitied, cared for, and if possible reclaimed.” The meanings of penal discipline shifted from “crush and break” to “fortify and build up character.”5 2 2 Increasingly a policy choice of last resort, public punishment was to be used only when all else had failed. Perceived as “an unpleasant, but unavoidable evil(s),” punishment had, according to Garland, “become a shameful thing.” In a related, but not surprising, policy shift, reform gained new currency as the “central and 52lMicheI Foucault, Discipline and Punish (New York: Vintage Books, 1977) 303. 5 2 2 David Garland, Punishment and Welfare (Brookfield: Gower Publishing Co., 1985) 234. 270 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. predominant signifier in the new penal discourse.”5 2 3 Acknowledging the need to differentiate between the poor who had, and those who had not, committed criminal offenses, the state “imposed an exclusive claim upon the treatment and administration of offenders.”5 2 4 A priori, correctional reforms, as opposed to other social and/or therapeutic interventions, assumed an extension of state responsibilities and power. Emerging from this new sensibility, an incipient American welfare state effected a massive assignment of government resources into New Deal programs; from AFDC to unemployment insurance and workers pensions, these initiatives sought to encourage the poor to be social stakeholders. Fostered by the wish to reinstate outcast members, institutions of insurance are, according to Garland, a key component in the maintenance of any social solidarity/security nexus. Emanating from a redistributive ethos, social insurance, much like private insurance, spreads social liability and functions as a form of social integration.5 2 5 Bill Clinton, of course, was elected upon, and made good his much-touted promise to “end welfare as we know it.” With his signing of the 1996 Personal Responsibility and Work Opportunity Reconciliation Act, the social safety net that had existed since the enactment of the 1935 Social Security Act was, in parts, effectively ended and/or drastically overhauled. Most importantly, the program that 5 2 3 Garland, Punishment and Welfare 27. 5 2 4 Garland, Punishment and Welfare 124-25. 5 2 5 Garland, Punishment and Welfare 231 -32. 271 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. replaced the previously stalwart AFDC, the Temporary Aid to Needy Families (TANF) program, effectively eliminated previous federal guarantees. Under AFDC, qualifying needy families were assured assistance; contractually a sense of entitlement prevailed. Under the new system, states secured the power to determine, with only marginal federal oversight, the criteria and conditions for public assistance allocation.5 2 6 Emanating from a posture of charity, rather than justice, ever changing state largesse has become increasingly uncertain; gratefulness has accordingly replaced a sense of just entitlement as a required comportment. Perceived in some quarters as the culmination of the devolution process started by the Reagan administration, the decentralization of government welfare services evidenced the national anti- government, most particularly anti-big government, mood. Welfare dysfunction, not poverty, was perceived as the problem to solved. Similarly, privatization has reframed salient punishment issues; correctional mismanagement has supplanted social despair as the prevailing focus. While the results of Welfare Reform have been variously reported, Abramovitz and Withom suggest that the ultimate result will be the “the cheapening [of] the cost of labor, weakening trade unions,. . . (and) weakening the power of social movements to fight back. Government benefits embolden workers.. . . Bashing welfare show[ed] white people Clinton can be tough on blacks without ’“ Howard Jacob Karger and David Stoesz, American Social Welfare Policy (New York: Addison Wesley Longman, Inc., 1998) 273-74. 272 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. saying so.”5 2 7 With the middle-class and the poor fighting for an ever-decreasing government dollar, “the strategy to save the whiie middle class at the expense of the poor” they believe, “inherently endorses punitive proposals.”5 2 8 Assuming Howe’s dictum that “the use of coercive control is inversely related to the maintenance of placative control,”5 2 9 the incarcerative upswing can be viewed as the harbinger of Welfare Reform; the Reagan devolutionary process can be comparably perceived as the penal systems’ nourishing progenitor. Accordingly, prisons, as well as other “social order activities,” have been largely, although not entirely, exempt from the government slashing frenzy. Citing the criminal justice system as the “only place where the state has not shrunk,”5 3 0 the precarious confluence of an enhanced punitiveness and a diminished legitimacy has allowed privatization ventures to be miniaturized as merely a new, rather unproblematic, form of entrepreneurship. Extrapolating from the criminal justice context to the educational realm, the demand by Americans for more and better schools has been reframed as a call for both smaller classes, and more community-based, innovative, experiments like charter and/or magnet schools. Prison privatization repositions punishment within this framework. While still nourishing our punitive need for “bigger and badder,” in 5 2 7 Abramovitz and Withom, “Playing by the Rules” 167-68. 5 2 8 Abramovitz and Withom, “Playing by the Rules” 172. 5 W Howe, Punish and Critique 31. 5 3 0 Giddens, The Nation-State and Violence 321. 273 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. its contrast to government expansiveness, privatization veils this propensity by suggesting smaller and more contained. Indicative of an extant “reversal of (mis)fortunes” neo-Victorian punitiveness can be additionally discerned in the re- emergence of “crushing and breaking” as a penal principle, in the discrediting of human “reclaiming” possibilities, in the supplanting of justice-based entitlements by the precariousness of charity, and in the pervasive political shaming of any perceived “soft on crime” proclivities. Central to this trajectory has been the resurrection of the “other” as pre-eminent policy lens. The Deconstruction of Foucault Michel Foucault’s seminal work, Discipline and Punish, focuses on the significance of the normalizing and disciplining of “the other.” Contemporary social fragmentation and an ensuing structural devolution have, however, suggested a re- evaluation of the Foucaultian hermeneutic. Characterized as a “political tactic situated within the general field of power relations,”5 3 1 punishment was initially nuanced by Foucault as securing normalization through the disciplining of bodies. While outlining an historical, carceral, trajectory that leads from “being an art of unbearable sensations,. . . [to] an economy of suspended rights, ”5 3 2 he suggests a shift from punishments that “rained down on the body . . . [to] punishment(s) that “ 'Garland, Punishment and Modem Society 137. 5 3 2 Garland, Punishment and Modem Society 11. 274 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. acts in the depth of the heart.”5 3 3 Acknowledging a still operative, albeit clandestine, “trace of torture” in current corporal punishment, sexual deprivation, and/or solitary confinement practices, with bodily surveillance still a key element in his analysis, a somewhat unclear perspective as to the extant punishment/body interface remains. In an era of pluralist disengagement, however, the captivation of the soul appears to be a substantially discredited endeavor. When convicted killer, bom again, prison minister, Karla Fay Tucker asked for a gubernatorial reprieve, for example, her reconstituted heart seemed entirely besides the point. Outside the social tent, efforts to “correct” offenders’ souls are perceived, for the most part, as a waste of time and money. Hence Foucault’s depiction of a paradigm shift—from “avenging the crime to transforming the criminal”5 3 4 —seems dated, out of step with current retributive passions. At the same time, violence, the adjudged erstwhile “economy of power” that informed body-focused punishments is enjoying a socially sanctioned resurgence. No longer replaced by the so-called “disciplines of mildness, production and profit,”5 3 5 violence is merely subsumed in a power/discipline nexus, evidenced most clearly in its privatized rendition. Similarly, while the last part of his tripartite carceral configuration, “the techni-medical model of cure and normalization” is given some perfunctory nods, it is more often considered an S 3 3 Garland, Punishment and Modem Society 16. 5 3 4 Garland. Punishment and Modem Society 136. 5 3 5 Foucault, Discipline and Punish 219. 275 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. expendable cost in today’s economically constrained public and/or private correctional budgets. The more essential structural question is that if the “whole domain of the non-conforming is punishable,” absent an agreed upon common narrative, whose standard predominates? What and/or whose behavior is tolerated? How, after all, is normality constructed? Absent a shared communal narrative, normality has been quantitatively reconfigured. Money as universal hermeneutic has zeroed in on the nonconformity of poverty; as a corollary, profit has come to circumscribe the contours of punishment. Returning to Howe’s tripartite configuration, a neo-feudal resurgence has retrieved money/poverty as the key normative dynamic. With the perpetual pursuit of social coherence seemingly stymied, the new power relation will invariably be distinguished by the ever more asymmetrical profile of the incarcerative embrace, the asymmetries intrinsic to “disciplinary subjection.” If, as Harvey contends, postmodernism is, at its essence, “nothing more that a logical extension of the power of the market to take over the whole range of cultural production,. . . [including] the production of needs and wants,. . . [and] the mobilization of desire and fantasy,”5 3 6 private jails intimate its immeasurable triumph. Assailing multiculturalism as “global capitalism’s consumerist ideological adjunct,” subversive to cohesive “cultural conceptions,” except “in the most debased 5 3 6 David Harvey, The Conditions o f Postmodemitv 61-62. 276 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. commodified form,”5 3 7 David Rieff similarly helps draw the parallel between veneration of difference, the fragmentation of solidarity efforts, and privatized penal enterprises. Conclusion If penal arrangements are informed by structural schemata, as David Garland suggests, any exploration of privatization practices must consider extant social forms and arrangements. Predicated on the over-use of coercive mandates, privatization’s re-emergence tracks the demise of a largely Leftist, equity promoting, activist culture; it dates a growing disdain for common ground, solidarity, initiatives. Sidetracked by an increasingly indulgent introspection, ceding center stage to the political Right, the progressive political agenda has been, in large measure, abandoned. Driven by the allure and essential asymmetry of ever-increasing profits, inured to capital’s underlying class-inequities, privatization reflects a conflation of Leftist, postmodern veneration of the extreme and the chaotic. Its essential links to late-stage capitalist expansion are revealed in its transcendence of established categories and presumptive boundaries; its mobility and frequent disregard for stipulated criminal justice procedures amplifies extant social disarray. Exacerbating distances between inmates and their communities of origin, for-profit corrections facilitates the creation of “virtual communities,” shifting census-related dollars from urban cities to ofttimes remote, out-of-state, rural enclaves. Presumptively de- 5 3 7 Rieff, “Civil Society and the Future o f the Nation State” 14. 277 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. legitimizing long-standing communities ties, privatization seeks to create “surplus” value out of “surplus” populations. The ascendancy of coercive solutions has historically served as counterpoint to a fraying and fragmented governmental authority; it signals a diminishment of welfare proclivities. Inasmuch as extant institutional devolution mirrors certain aspects of Victorian social/economic/political arrangements, it is not surprising that this cultural reprise encompasses the return of for-profit, even fee-based, punishment ascribed to a Darwinist punitive propensity. Furthering this social trajectory, social welfare programs that had historically served to distribute social liability and, hence, provide safety-net guarantees, have been singularly eviscerated. With confrontation superseding cooperation as a national leitmotif, a strident rights-infused discourse has fueled a balkanized body politic; concomitantly personal gain has eclipsed prior notions o f communal obligation and duty. Within this maelstrom money functions as a universal medium. Absent shared communal narratives and/or values, money, by default, increasingly serves as social arbiter. Acting as collective measure of exchange value, money’s ascendancy serves to camouflage critical political difference; it’s homogenizing dynamic perpetuates class obliviousness and elite control; its internal logic sanctions the commodification of all persons and things. Given the hue and cry for smaller and more “efficient,” the expansion of the prison-industrial complex has presented something of a national conundrum. Running counter to prevailing, streamlined, “reinventing government” mandates, the 278 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. corrections infrastructure has, in contrast, expanded exponentially. Facilitating an alignment with a universalist, money-focused discourse, privatizing repositions corrections. “Reinventing” penal arrangements, privatization, in contrast to its seemingly unwieldy public counterpart, appears smaller and more contained. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. CHAPTER VI A PHILOSOPHICAL VIEW: PRINCIPLES AND UTILITY “Man’s ethical will is always in tension with the motive of selfishness.”5 3 8 “A decent society is one whose institutions do not humiliate people.”5 3 9 Introduction Punishment denotes and informs our normative universe; its sanctions, John Stuart Mill maintains, serve to differentiate “morality from mere expediency.”5 4 0 For that reason, the ensuing ethical analysis of for-profit prisons must be grounded in an understanding of punishment’s essential moral charge. While examining privatization’s link to the penal expansion that spawned and sustains it, this inquiry, at the same time, considers the normative implications of the transfer of core public responsibilities to the private sector. Mindful of such critical, utilitarian issues as penal policy benefits and/or harms, this analysis additionally addresses intrinsic issues of commodification. 53,Claes G. Ryn, Democracy and the Ethical Life (Washington: The Catholic U of America P,1990) 172. 5 3 9 Avishai Margalit The Decent Society (Cambridge: Harvard UP, 1996) 1. ^D avid Lyons, “Human Rights and the General Welfare,” Rights ed. David Lyons (Belmont: Wadsworth Publishing Company, Inc., 1979) 180. 280 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. More specifically, this chapter’s ethical exegesis will focus on the following correlated concerns: (1) How does privatization impact the tension between the expedient and the normative? (2) Does it enhance or diminish the realization of society’s principled ideals? (3) Does privatization serve to enhance or diminish the likelihood of just proportionality in the criminal justice system? Is it, for example, complicit and/or predictive of the recent trend towards sentence severity? (4) How does privatization affect our understanding of reciprocal societal/individual rights and responsibilities? And finally (5) if current correctional policy—both in its severity and its related fiscal policies—reflects the public will, is it appropriate and/or ethical for political leaders to resist this communal directive? Sustaining Robert Goodin’s supposition that it is “unreasonable to suppose that the goodness or badness of an action is entirely independent of its probable consequences,”5 4 1 this chapter’s ethical inquiry will presume an intrinsic interconnectedness between a deontological and consequentialist purview, between a principled and a utilitarian point of view. Simply put, it is my belief that ethics are invariably social, that effective policy is informed by normative concerns. Justice exemplifies this amalgam in its crossover implications; within a criminal justice context, justice as key normative principle and virtue informs justice as critical social end. Accordingly, for example, Gregory Vlastos can opine that an “action is just if, and only if, it is prescribed exclusively with regard for the rights of all whom it ^'Robert E. Goodin, Protecting the Vulnerable (Chicago: U of Chicago P, 1985) 115. 281 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. affects substantially,”5 4 2 while David Hume goes so far as to argue that “justice is approved for its utility alone.”5 4 3 Exploring the ethical implications of correctional privatization through several, disparate lens, this chapter will make the case that privatization fails to meet multiple moral theories’ standards for ethical practice. Theoretical Framework Historically, however, the appropriateness of punishment practices have been considered and debated on the basis of what amounts to a principled/consequentialist distinction; a punishment’s ability to deter has been differentiated from its retributive, just, proclivities; corresponding moral perspectives have been informed by the implicit contrast of these disparate lenses’ focus. It is this author’s contention, however, that this apparent divergence may be overstated; the principled, consequentialist divide may serve to obscure rather than clarify a normative penal assessment. For example, utilitarianism, as generally conceived, is a consequentialist moral theory; it is concerned with policy outcomes. Viewed through an aggregate lens, utilitarians seek to ensure that attendant social benefits outweigh social harms. Although most popularly construed as “the greatest good for the greatest number” utilitarianism more precisely focuses on the importance of “utility,” i.e., on maximizing that which is useful to society. Defined by William Frankena as the ^M artin P. Golding, “Justice and Rights: A Study in Relationship” in Justice and Health Care ed. Earl E. Shelp (Boston: d. Reidel Publishing Company, 1981) 23. M JDavid Hume, “An Enquiry Concerning the Principles of Morals,” Masterpieces of World Philosophy, ed. Frank N. Magill (New York: Harper Collins, 1990) 301. 282 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. view that “the moral end to be sought in all we do is the greatest possible balance of good over evil (or the least possible balance of evil over good) in the world as a whole,”5 4 4 utilitarianism understands good and evil as nonmoral, quantifiable and comparative constructs. “Goods” can thus be variously defined; the so-called “hedonistic” school, for example, prefers to interpret “goods” as happiness and/or pleasure. Partially in response to this rather amorphous normative guidance, the rule utilitarian school of thought—as advanced by John Stuart Mill among others— diffuses the power of a rather undefined collective good by insisting on the comparable importance of rules, principles, and individual rights as normative guideposts. Selected on the basis of their utility, these rules, nevertheless, function as communal ballast, averting the need for a never-ending recalculation of communal interest; thus, while privileging a utilitarian purview, these principles serve to convey the importance of a principled/consequentialist reciprocity. Further, inasmuch as societal norms inform communal stability, a rule-focused ethic must be perceived as intrinsically beneficial to the overall functioning of the commonweal. Thus, while a traditional utilitarian analysis might emphasize such outcome issues as cost- effectiveness and efficiency, a rule utilitarian perspective would more likely underscore the need to evaluate outcomes within the purview of just practice. 5 4 4 WilIiam Frankena, Ethics (Englewood Cliffs: Prentice Hall, 1973) 34. 283 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Looking at privatization also from a deontological perspective, this chapter will be guided by Beauchamp and Childress’ four overarching principles: viz., autonomy (respect for persons/freedom/liberty), beneficence (an obligation to contribute to persons’ welfare), nonmaleficence (the obligation to refrain from enacting harm), and the aforementioned justice.5 4 5 Kant’s categorical imperative, that one should act in a way that one would want universalized, and the Rawlsian precept of “justice as fairness,” will anchor the guiding, deontological conceptual framework for this endeavor. While a strictly deontological purview would insist that autonomy, beneficence, and nonmaleficience principles are to be valued without respect to consequences, in the context of this discussion, I will propose that, similarly to justice, these principles have innate social utility. Thus while rule utilitarianism presumes principles based on utility, I will, via a slightly disparate prism, suggest that deontological principles are themselves inherently useful. Privileging justice as central to penal ethics, it is my view that effective punishment requires, is in fact legitimated through, just policies and practice; absent this framework its essential raison d’etre is significantly diminished. Justice both provides a principled framework for policies and, as a utilitarian tenet, may be employed as arbiter when rules and/or principles conflict. For example, maximization of private profit interests and/or rights may conflict with an enhancement of prisoner treatment and/or rights; focus and/or dollars spent in the ^T om L. Beauchamp and James F. Childress, Principles o f Biomedical Ethics (New York: Oxford UP, 1989) 38. 284 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. service of one may be at the expense of the other. I would contend, however, that justice/equity requires that prisoners’ rights, conceived with social utility ends in mind, must necessarily trump more narrowly focused market mandates; corporate success may serve, but is not tantamount to, social utility broadly construed. Most importantly, referencing a broader canvas, Ralph Ellis notes that, “most people are happier [and ultimately more efficient] if they feel confident that they will be treated fairly than if they must continually fear injustice.”5 4 6 Although some theorists argue that the fundamental tension between aspirations of efficiency and normative concerns precludes an equity-informed utility, I would, nonetheless, demur. While this supposition does not refute the possibility—some would argue, the probability—that a common interests’ purview may negatively affect individual fortunes, this analysis, will suggest that a conflation of the two is ultimately predictive of social well-being, broadly construed. Punishment Inferences In a criminal justice context the consequentialist/principled split is evidenced most palpably in the deterrence/retribution divide. Offering the retributive view, Walter Moberly contends that “punishment is a particular application of the general principle of justice that men should be given their due.”5 4 7 Strict utilitarians, on the other hand, believe that state-ordered punishment can only be justified if it serves to 5 4 4 Ralph D. Ellis, Just Results: Ethical Foundations for Policy Analysis (Washington.: Georgetown UP, 1998) 17. ^ ’Walter Moberly, The Ethics of Punishment (Hamden: Archon Books, 1968) 36. 285 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. deter, if it “reduces crimes and attendant harms to a tolerable level.”5 4 8 Whether or not any individual citizen receives his or her just deserts is, in this view, not the state’s concern. In contrast, those who focus on retributive moral aims, notably Kant, believe that “just deserts” are a critical social marker; it is through the modeling of desert, through an insistence on personal accountability, that punishment buttresses moral agency. Accordingly, retributivism’s most vocal proponents aver that punishment must be judged solely by its ability to effect proportionate moral desert. Its effectiveness, in this view, should be judged apart from any deterrent repercussions; its implementation should not be tempered by concerns regarding attendant social costs such as higher correctional expenditures.5 4 9 Linking state political coercion to corporate economic gain, however, calls the legitimacy of retribution into question. Even so, retributive thinking is often not without consequentialist implications. If punishment is perceived as a “means towards the end” of advancing moral agency and/or accountability, it implicitly suggests a future orientation. At the core of retributivist thinking one finds the Aristotelian belief that habitual practice of virtuous habits will promote a more ethical commonweal; modeling “just” deserts, there is the trust that punishment will enhance “right” and/or “just” individual and/or communal activity. Retribution, nevertheless, does present a conundrum; indicative 5 4 8 Alan H. Goldman, “The Paradox of Punishment,” Punishment eds, A. John Simmons, Marshall Cohen, Joshua Cohen, and Charles R. Beitz (Princeton: Princeton UP, 1995) 35. M 9 Ellis, Just Results 24-25. 286 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. of normative, proportional desert, it is, at the same time, vulnerable to vengeful excess. Similarly, consequentialist, deterrence-focused, strategies are not without normative connotations. While sentencing mandates are ostensibly forged with a view to securing normative parity concerns—one in which the severity of penalties is said to be matched to the egregiousness of the committed crime—deterrence informed penal schedules shift this locus. Relying on the imprimatur of outcomes, deterrence informed penalties disproportionately punish in order to effect diminished future harms. Given that deterrence is most effective, as Goodman has noted, with those least likely to offend, efficacy seemingly necessitates a disproportionately punitive response.5 5 0 Masking an implicit vindictive excess, these efforts, validated in the name of a dubious social efficiency, have, implicit retributive enticements. While some disproportion may be situationally warranted, depending on the circumstances of the perceived need, sacrificing equity for unknowable future outcomes is invariably problematic; on a personal level elevated harms unrelated to individual agency and/or liability is morally bankrupt. Thus, while it is conceivable that one could make the case that a harshly deterrent policy might effect less crime and thus have considerable social utility, one could not posit that policy as just. Some theorists go so far as to suggest an inherent conflict between deterrent efficacy and just 5 5 0 L. E. Goodman, On Justice (New Haven: Yale UP, 1991) 4. 287 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. punishment; Alan Goldman insists, for example, that to mandate one is to seemingly preclude the other.5 5 1 Accordingly, a rule utilitarian perspective would deny its efficacy and preclude its use. Privatization Ethics It was, in fact, a confluence of unmet retributive/deterrent objectives that provided the impetus for the re-emergence of correctional privatization. Sidestepping the more complex exegesis presented in preceding chapters, crime appeared to be rising and, as a result, people were angry; punishment excess was proffered as communal remedy. While marketed in consequentialist terms, the emergence of privatization actually evidenced the triumph of the arbitrary and/or the irrational over the efficient, the disproportionate over the just. Camouflaging, but still unable to detach from its essentially retributive roots, privatization manifests the moral configuration of its origins. Ushered in by an unprecedented penal expansion, privatization provided the mirage that one could have one’s cake and eat it too. It suggested that failed social policy was without cost; one could, in fact, profit from it As previously noted, however, retribution suggests a spectrum of meanings from repayment to recompense and/or retaliation; retributive validation may be accordingly used to increase and/or moderate the severity of punishments. Differentiating vengeful passion from a “ just deserts” proclivity, L. E. Goodman points out that while “an avenger acts out of anger; the state, seeking retribution, 5 5 lGoldman, “The Paradox of Punishment” 39. 288 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. [acts] out of a particular conception of justice.”S S 2 Contractually distanced from this normative burden, private corrections provides latitude for the privileging of retribution’s vengeful proclivities over state-based ethical restraints; an attenuated state role, denotes a diminished state responsibility. While Robert Goodin admonishes a special duty to “protect all those who are particularly vulnerable to our actions and choices,”5 5 3 the devolution of state responsibilities models a distanced indifference; it fosters a view of punishment absent its moral and/or communal resonance. As Vincente Medina notes, “public rights are more important than private rights, since it is through the state that our moral rights are in fact validated, recognized and protected.”5 5 4 By shifting the central focus away from normative concerns, the corrections industry effectively diminishes their import; coarsening the correctional enterprise, profit functions to obviate the moral dimension, effecting a more, not less, fertile ground for abuse. As Ellis points out, “purely empirical approaches [to policy]. . . avoid the philosophical problem of setting value priorities. . . minimiz[ing] the problem of legitimacy of consent whether in an actual or hypothetical social contract.”5 5 5 Imparting a moral patina to the non-moral norm of rationality, an 5 5 2 Goodnian, On Punishment 47. 5 5 3 Robert E. Goodin, Protecting the Vulnerable 11. 5 5 4 Vincente Medina, Social Contract Theories: Political Obligation or Anarchy? (Lanham: Rowman and Littlefield Publishers, Inc., 1990) 143. 5 5 5 Ellis, Just Results 4. 289 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. empirical lens recasts cost-benefit analysis as preeminent ethical standpoint; it is proffered as providing “the essential normative form of argument.”5 5 6 Market imperatives have, in fact, historically functioned as counterpoint to equity-based, justice-directed initiatives. Rogers Smith recalls, for example, that market concerns played a significant role in strengthening the constituency opposed to the 1964 Civil Rights Act; the Act had, he reminds us, committed the “ultimate sin of hindering market forces in order to promote equality.”5 5 7 Failing to distinguish between needs and wants, the market lens of cost-benefit analysis serves to conflate ethically based notions of value on unpriced goods (i.e., life, health, safety) and quantifiable economic outcomes. As Ralph Ellis pointedly notes in his exploration of normative policy constructs, “traditional cost-benefit analysis inappropriately allows trade offs between important and superficial kinds of goods without reference to notions of distributive justice.”5 5 8 Citing the trade-off between cancer deaths and a cost-effective, albeit hazardous paper/plastic technology, his analysis raises the question of how much risk of death, disease, or injury should be tolerated for the sake of how much economic benefit.”5 5 9 In a correctional context, one can 5 5 6 Ellis, Just Results 2. 5 5 7 Rogers M. Smith, “Toward a More Perfect Union: Beyond Old Liberalism and Neo- Liberalism,” Without Justice for All, ed. Adolph Reed (Boulder: Westview Press, 1999) 331. 5 5 8 Ellis, Just Results 145. 5 5 9 Ellis, Just Results 143-44. 290 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. comparably inquire as to how much pain, injury and deprivation can be rationalized in service of a hopefully increasing profit margin? Correctional privatization additionally fails to meet the deontological moral standards established by Beauchamp and Childress; the egregious consequences of this failure cannot be overstated. While respect for a person’s autonomy, freedom and liberty are clearly difficult in any congregate setting—public or private— correctional settings present a singularly difficult set of circumstances. Correctional institutions are legally empowered to revoke assumed, a priori, liberty claims through penal segregation; it is their inherent function. Relegated to a numerical designation, inmates are additionally divested of individualizing clothing and other personal items. Privatization exacerbates these institutional “non-respect for persons” proclivities in several ways: (1) It significantly widens the potential distance between inmates and their commimities-of-origins. With placement driven by corporate utilization needs, the national scale of private corrections results in more out-of-state placements, diminishing inmates’ ability to sustain personal and/or communal ties. (2) Valued for their fiscal, as opposed to a human and/or moral dimension, commodification underscores an inmate’s sense of pervasive impotence; it diminishes his/her capacity for moral agency. Margaret Radin’s theory of market-inalienable goods offers a related deontological perspective. Within the context of a reverence for human flourishing—encompassing both principles of autonomy and beneficence—Radin posits that there are certain rights/entitlements/attributes that “may be given away but 291 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. not sold.”5 6 0 This thesis of market inalienability is based on firmly held notions regarding the “noncommodification of things important to personhood.”5 6 1 Conversely, commodification, in her view, implies that “essential attributes” may be treated as “fungible objects, deny[ing] the integrity and uniqueness of self.”5 6 2 Valued for their means (to more profit) instead of as normative subjects, inmates, for example, increasingly understand that privatized institutional arrangements perpetuate the view that they are merely products to be sold to the highest bidder. Given the racially skewed inmate demographics that inform contemporary prisons, correctional commodification has additionally toxic implications; it reinforces the racist view that persons of color are soulless beings; it facilitates an all too pervasive sense of their disposability. As William May suggests, in a different context, “If I buy the Nobel Prize, I corrupt the meaning of the Nobel Prize. If I buy an exemption from the draft, I corrupt the meaning of parenthood.5 6 3 Analogizing, one could similarly say, “If I buy an inmate, I diminish and/or corrupt the meaning of his/her punishment.” While many privatization proponents suggest that market efficiencies will ultimately serve beneficent ends, at its core privatization must be perceived as 5 6 0 Margaret Radin, “Market Inalienability.” Harvard Law Review 100 (June 1987): 1849. 5 6 1 Radin, “Market Inalienability” 1903. 5 6 2 Radin, “Market Inalienability” 1913. 5 6 3 Andrew Kimbrell, The Human Body Shop: The Engineering and Marketing of Life (San Francisco: Harper San Francisco, 1993) 35. 292 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. essentially neutral in regard to Beauchamp and Childress’s complementary mandates to nurture and not to harm; the realization of either/both is, in this view, extrinsic, not intrinsic, to privatization goals and objectives. Assuming a baseline charge to provide minimum care, the harm/nurturance ratio may fluctuate in relation to its considered impact on profit enhancement; its fundamental normative valence remains, nonetheless, an ethically empty bottom line; serendipitous goods fail to evidence normative proclivities. Arguing from a strictly deontological, duty-based, perspective, an action’s ethical properties are presumed dependent on its intent, not its consequences. Disregarding the current rather woeful state of many for-profit’s bottom line (i.e., the efficiency of the endeavor), corporate intent is largely undisputed; it is about, above all, the maximization o f profit. Nonmaleficence proscriptions are especially thorny in a penal context. Correctional life, by definition, is infused by a multiplicity of harms—the initiating “criminal” harms, the imposed harm of the prison sentence, and the harms granted tacit license within a correctional facility. Upping the harm ante, private corrections’ fundamental viability rests on an added significant injury, viz the need to profit, and thus benefit, from this registry of harms; the more harms the more benefit. Similar to beneficence, harms are thus addressed from a singularly anormative standpoint; they are primarily evaluated in relation to their impact on the institution’s economic interests. Given correctional institutions’ presumed basic task—to secure rather than succor—privatization’s blind eye can easily serve to exacerbate extant harms. Again, 293 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. if intent is crucial to moral agency, beneficence/nonmaleficence activities—valued for their prudential rather than inherent worth—are ever at risk. Viewed via Vlastos’s assertion that justice denotes regard for the rights of all impacted stakeholders, it is clear that correctional privatization fails on this basis also. Unmistakably privileging the rights of shareholders over and/or at the expense of inmate stakeholders, privatized penal practice narrows the contours of a potentially “just” correctional practice by insisting on a more circumscribed shareholder lens. Adhering to the view that prisoners have essentially forfeited their claims of consideration, proponents of this paradigm shift contend that an inmate stakeholder focus is a largely outmoded concept—essentially subversive of communal norms and/or utility. Conversely, arguing from a presumed “respect for persons” template, I would maintain that beneficence/nonmaleficence principles inform constructive penal practice. Ethically appropriate as well as socially useful, the prioritizing o f prisoners’ safety, rights, well-being and rehabilitative potential ultimately augurs for long-term societal well-being. In caring for the most despised, prisons can model concerned, ethical, behavior and thus suggest an elevated respect for all. While habituating its citizens to a more beneficent model, respectful punishment nevertheless underscores the importance of consequence. By buttressing the moral significance of punishment, respectful practice reinforces the underlying social contract. 294 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Supporting this perspective, a multiplicity of studies from varying disciplines have informed the common wisdom that high-trust, caring and beneficent societies evidence comparatively lower crime rates than more punitive cultures; more beneficent societies are healthier and manifest better social functioning across a range of indicators. These same concepts hold true within a correctional microcosm. Inmates who are not totally brutalized by their correctional confinement are less likely to re-offend; inmates who receive drug treatment and/or are allowed to enhance their educational/vocational skills will be less vulnerable to the resumption o f prior criminal pursuits. Thus, inasmuch as penal best practices suggest the likelihood of less penal practices, private corrections’ fiscal interest in buttressing their utilization rates suggests, at best, a compromised interest in prisoner well-being. While public corrections’ record in this regard is certainly less than salutary, it is of importance, nonetheless, that their public interest charge augurs a wider responsibility and accountability. Public institutions’ mission evidences community- centered, stakeholder-focused, potential; they are, as a result, institutionally mandated to treat prisoners as ends, not means. While I am not positing a self- evident, a priori, correlation between privatization and increased inmate brutalization (that is, apart from commodification’s inherent debasement), this dissertation has provided ample evidence that market-based correctional incentives have historically resulted in a socially ineffectual, deplorable, penal practice. Inasmuch as back-end solutions are typically more expensive than front-end strategies (e.g., education), the decision to use incarceration as a social remedy of 295 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. first and last resort signals a decided aversion to beneficence; it suggests a social need to punish regardless of the consequences. Privatization, the purportedly “efficient” solution, is thus linked to a reliance on exceedingly costly punitive options; as a result, excessive spending on jails generates considerable “opportunity costs,” costs that diminish the dollars available for more beneficent social strategies. Thus, despite its “efficacy” rhetoric, prison expansion is actually the least cost-effective remedy—in fiscal as well as personal and/or communal terms—to extant social ills. A per capita year in jail is more expensive, and less productive, than a per capita year in school. As noted in a recent Mother Jones Special Report, Debt to Society, the per year, average cost per inmate is $35,000 as compared to a public education average of $7,000 per child.5 6 4 Further, while dollars spent on education serve individual and social improvement, dollars spent on jail typically warehouse, at best; at worse they debase and degrade. Failing on both deontological and utilitarian grounds, privatization undermines the legitimacy of its imprimatur; by doing so, it subverts punishment’s most essential tasks—to reinforce communal norms and secure collective safety. Paradigmatically oxymoronic, the private sector is being asked to operate and manage a core, normative, institution while being morally indifferent to the ethical implications of its endeavor. The existing ethical literature has thus far focused on three major concerns: (1) concerns regarding the appropriateness of attendant corporate symbolism; 5 6 4 Jesse L. Jackson, Sr., “Liberty and Justice for Some,” Mother Jones Special Report: Debt to Society 10 July 2001, http://www.motherjones.org. 296 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. (2) concerns about the impact of the shift of an inherently public function to the private sphere; and (3) concerns about the morality of punishment commodification.5 6 5 All three issues manifest the mutuality of deontological/ consequentialist perspectives. The issue of commodification, as discussed, denotes deontological concerns, i.e., that in principle it is always wrong to treat persons merely as means and/or to profit off their pain. Nonetheless, its articulation within the context of public policy decision-making denotes a consideration of consequences. The aforementioned outcomes, diminished regard for human life, in general, and the reinforcement of racial bias are clearly damaging to the community-at-large. Similarly, speculation regarding appropriate symbolism suggests concern regarding the consequences of an adulterated communal message; utilitarian trepidation regarding the consequences of shifting an inherently public function to the private sphere carries with it manifestations of normative concern. Sharon Dolovich posits a “punishment as expression” hermeneutic as a framework for addressing these issues. In her view social activity ultimately strives to produce “consequences that reflect and promote our particular expressive norms.”5 6 6 Thus, for example, she maintains that “housing offenders in private prisons compromises the message of condemnation that state punishment is designed 5 6 5 Sharon Dolovich, “The Ethics of Private Prisons,” unpublished draft, November 1999, 7-8. 5 6 6 Dolovich, “The Ethics of Private Prisons” 83. 297 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. to send and therefore undermines a central purpose of punishment.”5 6 7 Privatization should be critiqued not just for its potential subversion of justice mandates, she argues, but, most importantly, for the fact that its very existence evidences that a “particular, objectionable normative vision of the state has been proclaimed,”5 6 8 calling into question and/or undermining the bases of extant social arrangement. Disregard for the contours of penal practice too easily morphs into penal disrepute and disdain. Stressing the crucial project o f symbolism—the buttressing of state power via an enhanced ritualization of communal norms—Dolovich highlights judicial dress and the solemnity of court processes as integral manifestations of collective respect.5 6 9 Conversely, writing for the American Bar Association, Ira Robbins tackles the same issue by evidencing its symbolic counterpoint. In his evocation of a prototypic, Acme Prison Corporation, correctional facility welcoming sign,5 7 0 Robbins depicts the absurdity of its logical endpoint—punishment corporate sponsorship. Much as the shift in sports stadiums’ designations—from community team names to corporate sponsor appellations—exemplifies the loss of team, communal consistency, a symbolically corporatized correctional system typifies the demise of a moral relationship between offender and community. 5 6 7 Dolovich, “The Ethics of Private Prisons” 80. ’“ Dolovich, “The Ethics of Private Prisons” 75. 5 6 9 Dolovich, “The Ethics of Private Prisons” 93. 5 7 0 Eric Bates, “Prisons for Profit,” The Nation 12. 298 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Failing to uphold prescribed obligations, inmates manifest a disregard for imposed social boundaries by breaking established laws; in the symbolic and apparent shirking of state duties privatization mirrors a concomitant communal irresponsibility that, in a correctional context, is singularly deleterious. If reform efforts are to be given any chance of success, it is of utmost importance that the state meet, and perhaps magnify, the significance of its fundamental proscriptive burden. Modeling an anormative profit-focused lens, privatization may be seen as replacing the August scales of justice with the symbolism of the infamous Ayn Rand dollar necklace; the shift connotes and, accordingly seems to endorse, the privileging of financial pursuit over normative responsibility. As arbiter between individual and collective interests, the public sector is charged with giving shape to a collective “good”; it is responsible for addressing the needs o f the dispossessed as well as encouraging the realization of individual potential. The private purview narrows this scope. While American mythology venerates economic autonomy—and the concomitant potential for amassing wealth—economic accumulation informs, but is philosophically extrinsic to, core public tasks. Whereas equity-informed, distributive justice concerns command a public/commonweal mandate, corporate capitalism, as noted, is inherently equity aversive. In light of this distinction let us return to our attendant, initial, questions: Does privatization enhance or diminish society’s principled ideals? Does it 299 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. significantly alter the possibilities of just, proportional, punishment? How does it affect our understanding of reciprocal social/individual rights and responsibilities? A Discussion of the Good Thus far, the ethical discussion has focused on normative deontological/ consequentialist principles. This section will expand our purview. Technically, Frankena differentiates between moral and nonmoral senses of the “good,” between ideals of moral and nonmoral value. Moral values, customarily identified as virtues, inspire personal “traits of character” and “ways of being”; general judgments of normoral value involve institutions.5 7 1 Thus, broadly construed, ideals impact both personal and institutional aspirations. As conceptions of virtue, moral ideals may guide personal action; as expressions of institutional mission, ideals describe normative, social intention. Focusing on ideals of governance, this section will specifically consider whether and/or how privatization functions to attain ideal criminal justice ends. While framing a conception of an ideal punishment and/or penal “good” may admittedly be perceived as an idiosyncratic endeavor, I would, nevertheless, suggest the following components: (1) sentences that approximate the ideal of just parity, reflecting societal censure as opposed to punitive indulgence; (2) seeking to rehabilitate and restore, punishment that is concerned with the ideal of the improvement of persons; (3) evidencing a respect for community, punishment that is 5 7 lFrankena, Ethics 62-67. 300 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. informed by the dual ideals of personal redemption and communal reparation; and (4) punishment informed by the value of compassion as a socially useful bridge. Privatization does not, a priori, preclude these ideals; however, inasmuch as these ideals are simply extraneous and/or contraindicated, it does nothing to advance their realization. Virtue, as Plato advised us, is encouraged through the quest for “excellences of the soul” and by the pursuit o f an appropriate harmony among reason, spirit and appetite. Instrumental to this search is the example of the polis; evidencing as well as intensifying the virtues of the soul, the “public” arena, he believes, shapes and disciplines our ethical purview. In contrast, Aristotle perceived the good as well as the development of moral virtue in the development and lived practice of virtuous habits. Like Plato, however, he referenced the essential context of the polis/city and/or community in fostering the virtuous life. Both philosophers similarly embraced the importance of restraint, and the corrosive implications of indulgence; both theoretical visions, i.e., the pursuit of an abstract ideal and/or the development o f virtuous practice, evidenced a belief in the potential of human perfectibility and the realization of an ethical/moral vision. Switching moral lenses, Kant’s deontological proscription against treating a person merely as a means, as well as his “golden rule” admonition to endorse only that which can be appropriately universalized, additionally informs the conception of right public action. While departing from his view that, irrespective of consequences, “will” and “intent” alone determine moral properties, I would, 301 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. nevertheless, propose that institutional “intent” is a conduit through which to apprehend institutional ideals and principles. If “statecraft” is, as George Will proposes, “inevitably soulcraft,”S 7 2 if government evidences and promotes our moral narrative, public institutions, a priori, suggest and, in their ideal form, manifest “the just.” Inexorably deliberations over political ends must “include consideration[s] of whether they. . . [are] worthy. . . for the polity”—including, reprising Plato, “the improvement of persons.”5 7 3 Manifesting concerns of virtue, normoral value and obligation theories, the commonweal affords an incessant, wide-ranging, moral stimulus. Best practices “frame arrangements in order that they may, over time, become a matter of trust.”5 7 4 Best private practices frame arrangements so that they over time enhance profitability. Defining community as a “human association under the guidance of ethical conscience,” Claes Ryn specifically construes the common good in its counterpoint; it is, he insists, best understood as “the element in human interaction which transcends private advantage. . . ” and/or which functions to “bring selfishness under control.”5 7 5 Built on the supposition and veneration of private advantage, privatization may, from this perspective, be characterized as the “common good’s” 5 7 2 Will, Statecraft as Soulcraft 19. 5 7 3 Will, Statecraft as Soulcraft 94. 5 7 4 Will, Statecraft as Soulcraft 5. 5 7 5 Ryn, Democracy and the Ethical Life 83-86. 302 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. antithesis; selfish concerns drive capital accumulation. While, as John Hallowell observes, “the actual identification of moral/social restraints is possible only in an ideal state; and while actual states always fall short of this ideal, the measure of their statehood is the degree to which the ideal is realized.”5 7 6 By diminishing the potential for restraint, privatization reduces the likelihood o f realizing these social ideals; weakening state authority, private corrections’ very presence detracts from the possibility of moral governance. Comparative notions of the “ideal” are useful in helping to distinguish public/private penal proclivities. Sharon Dolovich, for example, notes that ideal forms affect everyday practice, that although state prisons have many flaws, they are nonetheless, “designed according to the values and obligation o f the state to punish. In their ideal form, in contrast, private prisons are committed to making a profit.”5 7 7 Thus, while the state has historically found ways to abuse its coercive control via its array o f mandated actors, e.g., correctional and police officers, Dolovich posits that the constraints of public institutional ends and values (ideals) have, nevertheless, served as a check on the possibilities of unimpeded, brutal license.5 7 8 5 7 6 John Hallowell, The Moral Foundation of Democracy (Chicago: The U of Chicago P, 1954) 108. 5 7 7 Dolovich, “The Ethics of Private Prisons” 111. 5 7 8 Dolovich, “The Ethics o f Private Prisons” 109-10. 303 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Using a more modem vernacular, George Will reminds us that societies should be judged and/or “defined by their admirations.”5 7 9 Thus, for example, a culture in which acquisition is singularly prized inherently coaxes a valorization of appetite and a concomitant subversion of restraint—politically and economically. Rights (that which is owed me; the right to pursue private advantage) supersede obligations (that which I owe; obligations to the commonweal) as the societal hermeneutic of choice. Inasmuch as punishment connotes a normative universe— you are punished for violating communal standards—it is morally problematic that privatized corrections seems to share and/or endorse many inmates’ self- aggrandizing perspectives; mutually informing, each group functions to reinforce the cynical, acquisitive drive of the other. Similarly, whereas punishment functions to delineate the sacred from the profane—the acceptable from the non-acceptable—its essential contours help to shape our awareness of “the good.” As previously noted, privatization’s market focus facilitates a paradigm shift. Inasmuch as an idealized mission informs intention, concerns regarding how to best sustain an ethical universe are subsumed by questions regarding how to best enhance profitability. Accordingly, from the viewpoint of a Platonic, Aristotelian, and/or Kantian perspective, profiting from punishment is problematic. It valorizes a corrosive, indulgent ideal, it habituates to 5 7 9 WiIl, Statecraft as Soulcraft 136. 304 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. indifference, and it is not what we would wish to universalize given the profit-based incentives to disparage, maltreat, and/or abuse inmates. Ethical practice connotes a willingness to assume one’s duties and/or obligations; by doing so, one evidences an Aristotelian model of practiced character development The shift from the fulfillment of obligations to the inhabiting of a moral ideal is, however, difficult; it is, nonetheless, the motivational glue that animates the commonweal enterprise. Conversely, privatization essentially opts out of this project. Indifferent to punishment’s moral significance, privatization is a business—palpably unconcerned with safeguarding what Moberly refers to as punishment’s “dramatic expression.” Its profit-focused venture is clearly unrelated to the notion that punishment was “designed to mirror not only spiritual corruption but also the grace of penitence.”5 8 0 Social commentators have long suggested, however, that a society be judged not only by that which it admires, but also by that which it despises—by how it treats the least valued members of society. Avishai Margalit further specifies that admonition by suggesting that a society’s inherent decency is dependent on how it punishes; it is, he insists, “the litmus test of the decent society.”5 8 1 If humiliation denotes “injured self-respect,”5 8 2 justice and humiliation emerge as antithetical precepts. A priori, Margalit contends “a decent society is one whose institutions do S 8 0 Moberly, The Ethics of Punishment 13. 5 8 1 Avishai Margalit. The Decent Society (Cambridge: Harvard UP, 1996) 262. ^Margalit, The Decent Society 9. 305 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. not humiliate people”5 8 3 ; it certainly does not commodify. Fostering decency through ethically-based, respectful punishment, Margalit argues for the importance of ensuring prisoners access to ongoing commonweal concerns. Inasmuch as the notion o f reparations offers a more healing and mutually (society/offender) beneficent response to perpetrated social harms, privatization’s imperviousness to community- based possibilities, and the “duty” of sustaining a communal mentoring role, suggests an ethically impaired stance. Implicitly obviating even the faintest acknowledgement o f societal/criminal complicity, privatization lets us off the hook too easily by diverting attention from a troubling uneasiness regarding communal responsibility to issues of fiscal reliability. Still, the pursuit of the ideal is not entirely a super-ego, rule-focused mission; emotions clearly facilitate the ethical quest. Hence, while Leon R. Kass has suggested that “we trust the wisdom of our repugnance,”5 8 4 Sidney Callahan has similarly argued that “the building blocks of moral thinking are imbued with emotion.”5 8 5 We know instinctively, for example, that torture is wrong, that, as William Gass recounts, it is wrong to “disinterestedly bake an obliging stranger.”5 8 6 Cases like these resist theoretical explanations because we intuitively understand 5 8 3 Margalit The Decent Society 1. S M Leon R. Kass “The Wisdom of Repugnance,” The New Republic 216 (June 2, 1997): 17. 5 8 5 Sidney Callahan, “The Role of Emotion in Ethical Decision Making,” Hastings Center Report (June-Julv 1988): 10. S 8 6 William H. Gass, Fiction and the Figures of Life (New York: Alfred A. Knopf, 1970): 225. 306 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. their moral clarity5 8 7 ; they reflect the peremptory norms, the jus cogens that informs international law. Thus, while reason and emotion have often been construed as inherently at odds, Callahan insists that they are in many ways complementary—that lack of emotion and/or reasoned detachment should not be cause for celebration but rather impetus for concern. Emotions inform our ability to empathize, she insists, and, thus, “tutor moral reasons in positive ways.”S 8 8 Thus, the fact that for-profit punishment inherently makes “one’s hair stand on end,” signifies that we innately understand the incentives for abuse that a closed, coercive, for-profit system engenders. Justice Concerns Whereas justice rests on the presumption of proportionality, punishments, L. E. Goodman maintains, are properly viewed as “constitutive symbolic systems” that “specify what is in itself immeasurable”5 8 9 ; they evoke the power of the disproportionate. Bringing to mind a world “more deeply arbitrary,. . . more darkly inscrutable,. . . and more enigmatic than the concept of justice can make it,”5 9 0 punishment reinforces the precept that, in reality, “desert is luck in disguise.”5 9 1 5 8 7 Gass, Fiction and the Figures of Life 232. 5 8 8 Callahan, “The Role o f Emotion in Ethical Decision Making” 12. 5 8 9 Goodman, On Justice 48. S 9 0 Dimock, Residues of Justice 135. 5 9 1 Dimock, Residues of Justice 106. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. While equity serves as the theoretical frame for all just endeavors (e.g., retributive justice denotes punishment equal to the crime; compensatory justice as redress equal to the loss; distributive justice as benefit equal to the desert), Dimock contends, nonetheless, that arbitrariness, as opposed to equity, most naturally abounds; it is in unvarying tension with just pursuits. Concurring, Hugo Bedeau contends “there is no non-arbitrary way” to articulate a spectrum of severity. An infinite number of different penalty schedules are equally consistent with comparable crimes; there are, he insists, “arbitrary decisions throughout.”5 9 2 Yet to acknowledge the difficulty of the endeavor is not to diminish its importance as a guiding social principle. To say it is challenging, perhaps only sporadically achieved, is not to say it is morally irrelevant The question to be asked in the context of this exploration is how correctional privatization furthers or detracts from this pursuit. The justice project, according to John Rawls, assumes an essential “fairness.” It reinforces the concept that moral relations and moral restraint require reciprocal concern. Referencing a Lockean, social contract, discourse, Anglo-American notions of justice and reciprocity actually evolved out of a perceived need to safeguard individual liberties. However, while initially conceived as a minimalist cooperative strategy, Locke’s social contract is noteworthy in this context because of its 5 9 2 Hugo Adam Bedeau, “Justice and Punishment,” The Social-Economics of Crime and Justice, ed. Brian Forst (Armonk: M. E. Sharpe, 1993) 28. 308 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. establishment of a concomitant right to judge and punish offenders.5 9 3 More recently the conceit has been reconfigured by John Rawls, among others, as a device that derives just principles and promotes social cooperation. Ostensibly moving from the paradigm of a singularly self-interested contract to one that promotes and enriches communal life, social contract theory is, nevertheless, still critiqued by some for its insufficient attention to context, and its assumption of voluntary, autonomous engagement. Mindful of these concerns, John Rawls grounds political obligation and/or legitimacy in his principles of justice; citizens’ obligations, in his view, presume institutions committed to regulating individual “social lottery” inequities through fair institutional access. Acknowledging the inaccessibility of perfect reciprocity and/or perfect justice, Rawls’ moral schema posits that social inequities and/or surplus must accrue to the benefit of the least advantaged members of society. Social institutions structured along these lines, would, he believes, promote social cooperation and accrue to the benefits of all citizens.5 9 4 Privatization, however, bears the priorities of a fragmented, new world order. An essentially economic response to political problems, its very existence suggests diminished confidence in social contract/solidarity constructs. It shares with the inmates it houses a fundamental alienation from contractarian concerns and/or 5 9 3 Michael Lessnoff, Social Contract Theory (Atlantic Highlands: Humanities Press, International, Inc., 1986) IS. 5 W John Rawls, Political Liberalism (New York: Columbia UP, 1993) 3-46. 309 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. membership. While the political “presupposes a social contract that precedes it and is greater than all particular contracts,”5 9 5 an economic framework is allowed to be politically reckless inasmuch as it reduces political questions to issues of market functionality. “No market,” as Guehenno reminds, can “establish the value of the national interest and circumscribe the scope of solidarity.”5 9 6 Interests in this new world order are accordingly “professionalized” and contested outside the frame of national concern; the reciprocal concerns intimated by remedial efforts have been eclipsed by a focus on the indulgence of accumulation excess. Given punishment’s crucial role in establishing normative boundaries, it is not surprising that a world characterized by an unboundaried anomie would establish a surfeit of prohibitions. As Jean Marie Guehenno has pointed out, the accelerated move from a public to a private context has encouraged a rules-informed functionality; a “confrontation of interests”5 9 7 has eclipsed an investment in collective concerns and/or a belief in an identifiable general good. It is not by chance, he maintains, that ever more rules of greater severity have occurred “at the very point that principles are in demise.”5 9 8 This proliferation of rules has played a dual role in the privatization venture. The spur for private corrections’ re-emergence, 5 9 5 Guehenno, The End of the Nation-State 23. 5 % Guehenno, The End of the Nation-Stale 23. 5 9 7 Guehenno, The End of the Nation-State 30-31. 5 9 S Guehenno, The End of the Nation-State 69. 310 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. rule proliferation also informs its continuing viability; for-profit corrections’ bottom- line purview requires, and thus promotes, this punitive social prescription. While no one is arguing an inherent intent to abuse, privatization’s fortunes do rest on the creation of an appetite for pain (for more prisons/for more punishment), an implicit encouragement of the disharmonious, and a will to excess implicit in the term “surplus value.” The antithesis of restraint, correctional privatization is buttressed by an essentially alienating capitalist ideology. If capitalism is, in large measure, about the creation of unnecessary need and profiting from it, correctional privatization may be perceived as sustaining the expansion and severity of penal options and accordingly benefiting from it.5 9 9 Locating criminality’s etiology in “economic deprivation and/or capitalist infused greed and selfishness,”6 0 0 privatization may be appropriately critiqued as profiting from its own bad acts—that which the market and/or corporate culture has served to perpetuate. True to our Puritan predilections, we continue to believe that generosity to the poor is “morally unsound” while, at the same time, insisting that there is “nothing wrong with profiting from the immoderation of others.”6 0 1 The equity imperatives essential to just pursuits are at variance with the disequilibria associated with notions of privatized corrections. Even allowing that a few 5 9 9 Jeffrie G. Murphy, “Marxism and Retribution,” Punishment eds., A. John Simmons, Marshall Cohen, Joshua Cohen, and Charles R. Beitz (Princeton: Princeton UP, 1995) 25-26. “ “ Willem Bonger, Criminality and Economic Conditions (Boston: Little Brown & Co., 1916) 20. “ 'Patricia O’Toole, Money and Morals in America (New York: Clarkson Potter, 1998) 14. 311 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. privatized facilities appear well managed and in keeping with correctional best- practice, the intent to create profit from pain remains problematic; diverging from a principled paradigm, the amoral precept of expediency and/or opportunism functions as prevailing leitmotif. While the formerly delineated public/private spheres of interest encouraged a designated space for normative focus, the blurring of these lines has diminished that potential; corporate corrections’ firms lobby their interests at all levels of government. As their business fortunes depend on greater numbers of inmates and increased lengths-of-stay, there is a tacit, if not explicit, confluence of interest between privatized firms and legislators who are “tough on crime.” Following corporate logic, it makes sense that sentence severity supersede just proportionality as a primary focus. Similarly, support for an ever-increasing number of social rules and/or prohibitions does portend a potentially wider pool of consumer rule-breakers. In the same way that businesses rely on predictive assessments to safeguard their profit margins, mandatory sentencing structures are accordingly valued for their prognostic assistance. While a nuanced, proportional, just focus joins context to culpability, conservative notions of an abstract free will and a universally situated responsibility sanction a more rigid, and ultimately more severe, classification schedule. Cautioning against a simplistic view of punishment as “removing some benefit unfairly enjoyed by the criminal,” Alan Goldman reminds us that inasmuch as standpoint determines value (e.g., $50 means different things to persons of disparate 312 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. economic means) a “just” penalty schedule would necessarily reflect multiple perspectives. Clearly at odds with the mandatory sentencing movement and obviously difficult to implement, Goldman nonetheless argues that a proportionately just rendering demands that benefits/burdens must be understood across a lifetime, in relation to a spectrum of variables. Arguing against an abdication to the disproportionate, he insists that violation “of specific rights of others (should). . . not entail losing all of one's rights.”6 0 2 Returning to the Rawlsian normative universe, using two aspects of his “difference principle” (universally mandating that which one would choose behind a veil of ignorance; ensuring that the greatest social benefits go to the least advantaged) as guiding, evaluatory, precepts, privatized corrections appears to fail on both counts. Arguably, one would not choose to be in an institution that gains from giving you less; the greatest benefits go to the most advantaged in a privatized universe. Extrapolating from the basic premise that inmates are, in the main, drawn from the poorest segments of society, correctional privatization’s singular intent is to exacerbate inequities by, if necessary, benefiting corporate interests at their expense. If, as Reinhold Niebuhr suggests, social justice possibilities grow more remote as the power disparity between the rich and the poor increases,6 0 3 for-profit punishment may be perceived as furthering normative disintegration. Given an M 2 Goldman, “The Paradox of Punishment” 32. 6 0 3 Reinhold Niebuhr, Moral Man and Immoral Society (New York: Simon and Schuster, 1932)2. 313 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. uncertain, contractarian voice, what, in inmate terms, does it mean to pay back a decidedly questionable debt? What, from a corporate perspective does it mean to additionally profit off a bad debt? Absent reciprocity and/or benefit (from institutional arrangements), there is, as Jeffrie Murphy reminds us, “no reason to anticipate [the poors] acquiescence to rules.”6 0 4 Some persons may argue that extracting wealth from communal miscreants is appropriate social recompense. Those arguing from a contextual standpoint, however, will counter that the disjuncture between the two groups’ essential situation undermines attempts to frame correctional privati2ation as a warranted quid pro quo. Perpetuating privilege through the imposition of pain on the least advantaged, the privatization enterprise effects disproportionate pain and, hence, lacks moral credibility. Prisons are, of course, inherently non-reciprocal institutions. Part of our system of justice, they are, nonetheless, worlds apart from a trusting moral community. Institutional roles are complementary, not reciprocal. Essentially coercive, they most closely approximate a master/slave dichotomy; at the dysfunctional, humiliating extreme, they suggest a bully/victim duality. While society-at-large manifests its endorsement of citizens’ rights via its sanctioning of corresponding, societal obligations, rights-stripped prisoners are afforded only the ^Murphy, “Marxism and Retribution” 26. 314 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. barest minimum of obligatory social recompense; absent rights they lack claiming legitimacy. Asserting that “force (is) the measure of power necessary and sufficient to uphold the valid purposes both of law and politics,” John Courtney Murray contends that anything in excess of that force is violence.6 0 5 Using this lens we may appropriately ask if privatization, the creation of capital surplus value out of the quest for moral recompense, may be perceived as excessive and thus essentially violent? While there is ample evidence that most correctional facilities, both public and private, tolerate abusive behavior, does the commodification inherent in privatization inherently up the punitive ante by even further debasing the humanity of prisoners? From yet another purview, if Bentham’s precept of punishment as essentially evil, absolved only as it serves to preclude an even greater evil,6 0 6 has merit, does commodification change our assessment of relative evils? Viewed by Alan Goldman as both “required and unjustified,” punishment, he argues, must accordingly be mindful of multiplying harms—of depriving an inmate of more than he has seemingly forfeited by his actions. Viewed dispassionately, in a personal context, would a person robbed of several thousand dollars be justified in putting the perpetrator “in a locked small room for 5 to 10 years?”6 0 7 Are we essentially “serious ‘“ John Courtney Murray, We Hold These Truths (Kansas City: Sheed and Ward, 1988) 288. “ ‘Gertrude Ezorsky, The Ethics of Punishment (Albany: State U of New York P, 1972) xiii. “ ’Goldman, “The Paradox of Punishment” 37. 315 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. wrongdoers” ourselves by “multiplying violations of rights,”6 0 8 and by encouraging a forfeiture of essential humanity? Does commodification, a priori, constitute extra, disproportionate and undeserved, punishment? Accountability If as John Donohue suggests, “accountability means that government action accords with the will of the people the government represents,”6 0 9 one must accordingly ask, if privatization reflects a widely held consensus, can it be ethically challenged? On what basis, for example, can public indifference to the treatment of inmates be renounced? Does non-compliance with the public will denote morally wrong representation? Two disparate views of proper representation typically inform a discussion of these issues. The delegate view, most often associated with James Mill, posits that the representatives act as conduits for their constituents’ wishes; they are their substitute voice. The trustee view, as articulated by Edmund Burke, suggests a broader representative responsibility. Representatives must, from this perspective, direct their legislative activities towards a realization of normative political, constituent, interests as opposed to more transitory constituent desires. Legislators must, trustee proponents believe, follow their consciences as best as is possible.6 1 0 “ * 0 0 1 ( 1 1 1 1 3 1 1 , “The Paradox o f Punishment” 33. “ ’John D. Donohue, The Privatization Decision (New York: Harper Collins, 1989) 23. 6 1 0 Norman E. Bowie, Ethical Issues in Government (Philadelphia: Temple UP, 1981) 3-4. 316 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Charged with the “general duty of beneficence,”6 1 1 representatives are obliged to view often contentious issues through the lens of presumed long-range communal consequences. Since this path is frequently wrought with personal electoral peril, the greater the ability o f the individual legislator to show why her/his course of action reflects a more prudent public course, the more professionally long-lived and effective s/he will be. Within this context, it is especially important for an individual legislator to evidence why an unpopular project that s/he endorses is not personally benefiting her/him. As educator, a representative must evidence the social consequences of his/her project; s/he must attempt to influence his/her constituency without condescension. While exceedingly mindful of constituent concerns, a representative, according to Burke, should never sacrifice “his unbiased opinion, his mature judgment,. . . (and/or) his enlightened conscience.”6 1 2 Doing so ultimately undermines his service by negating his/her valued judgment. In his articulation o f the ethical life, Claes Ryn suggests that, at its most effective, constitutional government (and by implication its legislators) provide ethical discipline for society-at-large. Substituting “ethical conscience for enlightened (or not so enlightened) self-interest,”6 1 3 the public dimension serves to combat and/or exorcise the pervasive arbitrariness that informs daily life. Rejecting 6 1 'Mark H. Moore, “Realms of Obligation and Virtue,” Public Duties: The Moral Obligations of Government Officials, eds. Joel L. Fleishman, Lance Liebman, and Marie H. Moore (Cambridge: Harvard UP, 1981) 9. 6 l2Peter French, Ethics in Government (Englewood Cliffs: Prentice Hall, Inc., 1983) 67. 6 l3 Ryn, Democracy and the Ethical Life 171. 317 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. the conflation of general will with moral pursuit, Ryn argues that Rousseau’s error emanated from his inability to “face the moral conflict inside the human soul.”6 1 4 Appreciating the fact that man’s “ethical will is always in tension with the motive of selfishness,”6 1 5 the public sector’s charge, he believes, is to negotiate rather than be consumed by that conflict. Legislators may appropriately defend unpopular actions and/or legislative initiatives by transmitting the rule utilitarian precept that “the test of the moral rightness of actions is conformity to the set of rules that themselves have stood the test of the principle of utility.”6 1 6 Articulating the value of safeguarding rights, even for the most despised members o f society, as “a kind of wealth for individuals in society,”6 1 7 legislators must help constituents “accept the notion that society as a whole has a legitimate interest in guaranteeing rights, even when individuals would abandon them, and other individuals in the society would benefit from the abandonment.”6 1 8 It is their function to engage in a value clarification discourse by identifying the interests and principles at stake; a bureaucracy, Douglas Yates 6 1 4 Ryn, Democracy and the Ethical Life 95. 6 1 5 Ryn, Democracy and the Ethical Life 172. 6l6 French, Ethics in Government 28. 6 n Moore, “Realms of Obligation and Virtue” 18. 6l8 Moore, “Realms of Obligation and Virtue” 20. 318 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. contends, “assumes major responsibility for examining hard choices and justifying public decisions in normative terms.”6 1 9 Accordingly, even as the public clamors for more and greater penalties, it is incumbent on legislators of conscience to articulate an alternate vision; it is within their mission statement. Mindful of constituent safety concerns, cognizant o f the growing emotional power of the victims’ rights movement, legislators must reframe the debate within a more communitarian, public interest discourse. Mario Cuomo, for example, was elected three times as governor of New York despite his largely unpopular view against the death penalty. Nevertheless, people understood that this position emanated from deeply held personal principles; he was in large measure respected for his stance. Prison ministries, for example, need to take the lead in making it acceptable to be concerned about prisoners’ lives. Indifference to prisoners/needs undermines a deeply held “respect for persons/reverence for human life” religious perspective. Legislators can utilize this discourse to articulate their disagreement with the social/criminal justice policies that have informed the privatization movement; they can articulate the principled and consequentialist ramifications of correctional privatization. Entering the values maelstrom that informs crime and punishment issues, public advocates and officials need to tackle the image of an immovable 6 1 9 Douglas T. Yates, Jr., “Hard Choices: Justifying Bureaucratic Decisions,” Public Duties: The Moral Obligations of Government Officials, eds. Joel L. Fleishman, Lance Liebman, and Mark H. Moore (Cambridge: Harvard UP, 1981)47. 319 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. community mind-set. Using Etzioni’s principle of “interactive reciprocity,”6 2 0 they might appropriately advance the contractual notion that “the individual and the community make each other and require each other.”6 2 1 Asserting a responsibility to balance existing power inequities, he maintains that communitarians must “discern the direction a society is leaning at any one point in history and cast their weight on the other side.”6 2 2 6 2 0 Uta Gerhardt, “Community and the Moral Dimension: The Hidden Agenda of Etzioni and Parsons,” Macro Socio-Economics: From Theory to Activism, ed. David Sciulli (Armonk: M. E. Sharpe) 77. “ 'Gerhardt, “Community and the Moral Dimension” 79. 6 2 2 Amitai Etzioni, Rights and the Common Good (New York: St. Martin’s Press, 1995) 1. 320 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. CHAPTER VII CONCLUDING SUMMARY AND RECOMMENDATIONS “When free enterprise intersects with a captive market, abuses are bound to occur.”6 2 3 Summary Punishment practices, as has been stated, serve as a key social measure. Manifesting the outer limits of legitimated violence, sanctions structure our normative hierarchy; they evidence what behavior is punishable and how it is to be punished. Providing a critical interpretative hermeneutic, punishment practices signal extant values; at the same time, they function as social repository, containing and manifesting crucial areas of social conflict. It is the contention of this dissertation that correctional privatization marks a significant and deleterious paradigm shift. The amalgam of institutional coercion and profit secures a singularly a-normative incentive structure. Just as profit margin expansion appears inherently pitted against inmate safety, health, and well-being directives, the capitalist drive to expand and extend markets suggests that corporate corrections has a decided investment in an increasingly severe sentencing structure. With inmates functioning as essential “raw materials,” their commodification 6:3 E ric Schlosser, “The Prison Industrial Complex” 63. 321 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. advances the already too prevalent supposition that inmates are essentially disposable goods. Re-capping the historic penal manifestations of the money/punishment amalgam, we note that early English jail practices presage contemporary privatization issues. Largely dependent on user fees for compensation, English jails provided variably deplorable accommodations based on an inmate’s ability to pay. The need for greater profit caused jailers to become “creatively” corrupt; a variety of additional services were “offered” including prostitution and gambling. Some jailers even went so far as to file false charges in order to increase their occupancy rate. Early American prisons, on the other hand, largely relied on proceeds from prison labor for operating expenses. While inmate earnings approximated market value, the cost of their upkeep was deducted from their wages. At Auburn, New York, for example, inmate labor generated considerable profits; pressures to maximize return, however, resulted in pay-offs and an abusive curtailment of basic inmate services. This predisposition for exploitation in the name of enhanced profits was demonstrated most palpably by the post-Civil War convict leasing system. Shackled inmates were brutalized on privately contracted chain gangs; assured of easy replacements, inmates lived and frequently died, in deplorable, disease infested work camps. Thus, while prisons have, until fairly recently, been expected to generate their own upkeep, in large measure this was due to the absence of existing government capacity; prevailing 19th Century practice essentially demanded institutional self- 322 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. sufficiency. The few philanthropic dollars available were largely expended on the “deserving” poor, the sick, the widowed, the orphaned, and the infirm. Whatever the historical context, however, profit inducements unremittingly functioned as the antithesis to prisoner well-being. While the 20th Century public correctional experience has been noticeably undeserving of accolades, the recent track record of the newly-minted privatization corporate leaders, CCA and Wackenhut, evidences the offenses of its historical forbearers. The distinctiveness o f correctional expertise in tandem with the narrowness of the correctional corporate field has diminished the potential benefits of competitive contracting. Given huge, difficult to trim labor costs, anticipated cost- savings have, for the most part, not been realized. Safety and classification stipulations have been ignored, as the already precarious quality of the work force has been weakened. And, perhaps most importantly, the contracting process has served to attenuate crucial state-based accountability mandates. Nonetheless, despite this lamentable track record, privatization has been re introduced as communal fiscal redeemer and criminal justice remedy. The question that immediately presents itself is “Why?” In essence, this dissertation may be perceived as an attempt to answer that question by uncovering and deciphering the meanings associated with its re-emergence. Approaching the issue through a multiplicity of lens, the following conclusions appear most significant: 1. Privatization represents the ascendancy of the economic sphere over the political dimension. It reproduces the preeminent, globalized paradigm in its 323 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. resistance to politically configured boundaries and categories; it suggests the diminution of state-based legitimating clout. Replicating extant devolutionary pressures, privatization articulates seemingly intractable and overwhelming criminal justice issues in the specific and certain discourse of efficient management; it shifts institutional focus from broader, normative, governance mandates to a more specific management expertise. Offering the illusion of downsizing, privatization, in reality, serves to expand the state’s punitive reach. Increasing distances between inmates and their communities of origin, privatization reflects capitalism’s essential permeability, its total disregard of communal structures. 2. Nurtured by a media-sustained crime hysteria, the development of a prison-industrial complex has proffered prisons as an economic solution to a range of socio-political problems, including the end of the cold war, the need for rural development, and the question of what to do with economically unproductive populations. Spawned by a spiraling prisoner base, the for-profit sector’s need to enlarge its consumer base functions to sustain and extend the use of penal options; perpetuating the cycle, an expanding prison population enhances the potential for increased correctional privatization. 3. Evidencing the traditional American antipathy to public institutions, as well as an all to pervasive distrust of government “paternalism,” privatization denotes and corroborates long-standing American perceptions. Validating manifest and latent implications of a “private” sphere, privatization’s reliance on an ever- increasing inmate base fuels the emotive and the vengeful as opposed to the 324 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. considered and the just. Privatizing an already obscured, coercive, institution serves to further shield, and thus largely facilitate, penal punitive license. 4. In an age of shifting socio/eco/political structures, a pervasive, uncertain, angst and cultural fluidity has informed the call for harsher and more certain punishments. Penal expansion has thus functioned as counterpoint to a fragmented, postmodern polity. Absent a trusting, cohesive core, a diminished social beneficence suggests a receding interest in equity-enhancing social policies. Creating “surplus value” out of “surplus populations,” privatization validates and reinforces a communal endorsement of ever-greater social disparities. 5. Spurring prison-industrial growth, a Progressive detachment from the public square has ceded the normative agenda to the conservative right resulting in a spate of punitive sentencing guidelines, including mandatory, truth-in-sentencing, and three-strikes legislative stipulations. Whereas the method of punishment connotes that which is most socially valued, exceedingly long sentences suggest the American veneration of liberty. Similarly, privatization is a concrete representation of an ubiquitous commodification of all aspects of modem life. 6. Privatization represents the confluence of two, singularly American markers—Puritanism and a Social Darwinian focus on the individual. In a culture distinguished both by its exaggerated piety and its veneration for business acumen, its prohibitive, Puritan proclivities suggest an obsession with sin, and a belief in a naturally ordained, “survival of the fittest,” standard. An exacting, unremitting posture intimates that those who fall by the wayside deserve their fate. The 325 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. quintessentially American political/economic impetus to regulate, control and, ultimately, profit denotes our Puritan birthright; an ensuing class-based criminalization of drug use signals the concomitant distrust of a purely pleasurable, unfettered release. Offering prisons as a means for the regulation and control of the clearly “unfit,” privatization offers a further enticement—the sanctimonious ability for the “good people” to profit from the sins of the “un-elect.” A Normative Perspective Punishment inherently demands a normative standpoint. Mandated to delineate the sacred from the profane, an essentially a-normative, for-profit purview functions to subvert its fundamental raison d’etre. Absent a basic normative perspective, privatization mirrors and perpetuates the very social disparities that fuel the prison-industrial complex; manifesting a regulatory averse, acquisitive dynamism, private prisons suggest, and thus inherently reinforce, the a-normative, profit-at-all-costs purview of many of its inhabitants. Ostensibly designed to secure and, potentially, rehabilitate, the for-profit modeling of commodification and detachment in some measure functions to sustain sociopathic, gratuitously violent proclivities. Facilitating license in a closed coercive setting, correctional privatization, accordingly, portends greater harms than other public/private partnerships. At best, social institutions should be evaluated according to their ability to approximate an “ideal” telos, to manifest a “best” incarnation. Institutions of 326 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. punishment should, accordingly, be guided by a desire to realize and effect the “just.” Private corrections’ telos, however, appears essentially at odds with normative corrections’ mandates. The ideal corporate telos demands that tensions between profit accumulation and just practice be resolved in favor of accumulative tenets; for- profit institutions have a decided interest in lobbying for sentencing structures that will increase occupancy rates rather than realize just, proportional, punishment. While privatization’s proponents tout the effectiveness of its governance/management dichotomy, I maintain that a state-based, normatively- focused social policy is not, a priori, an inefficient one. Although equity mandates may result in some increased short-term costs, they ultimately advance long-term commonweal, justice interests. Less punitive, more socially beneficent European democracies, for example, appear to demonstrate that a greater equity emphasis may effect diminished lethal, personal violence. Viewing correctional privatization through a spectrum of ethical theories, it is apparent that privatization fails to meet basic tenets. Essentially neutral to normative mandates, beneficent, non-maleficent obligations are extrinsic to privatization goals and objectives. Valued for their fiscal, as opposed to human and/or moral dimension, inmate commodification suggests a basic lack of “respect for persons.” Assuming a Kantian lens, if moral undertaking is contingent upon moral intent, correctional privatization’s moral neutrality precludes ethical action. Viewed through a Rawlsian perspective, a system predicated on incentives to abuse would hardly be chosen from 327 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. behind his renowned “veil of ignorance”; a system that disadvantages the least advantaged fails key difference principles. Privileging shareholders at the expense of stakeholders, the insular, for-profit purview inhibits broader, commonweal concerns. Profiting from the imposition of pain, for-profit institutions’ ability to evoke broader normative goals is critically impaired. Recommendations Correctional privatization is clearly a short-term, ill-conceived attempt to dispose o f historically intractable social concerns; simplistically, it feeds off imprisonment as social policy of first and last resort. By diverting attention from complex questions regarding how to most appropriately distinguish and address communal harms to more seemingly straightforward issues concerning how to cut- costs and increase profits, privatization lets us all off the proverbial “hook.” Familial dysfunction, pervasive drug use, stranger and intimate violence, and psychic, educational, and/or pocket-book privation—the fodder that fuels incarcerative excess—all suggest alternate, more effective, and cheaper remedial options. That we, as a society, have chosen the most expensive, least effective punishment alternative insinuates that ostensible rationales mask motivations deemed unacceptable for public consumption. Thus, while privatization has been marketed as a more “efficient” solution to the correctional morass, it’s viability rests on the privileging of the emotive and the vengeful at the expense of a more considered, albeit beneficent, effectiveness. 328 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Similarly, an unconstrained American capitalist license rests on the incessant disciplining of a compliant workforce. Evidencing a rather pessimistic view of human nature, it suggests that, absent severe consequences, sloth will prevail. While globalism’s expansion of extant market authority has served to reinforce these historic, ingrained proclivities, privatization has functioned to further reposition corrections within the discourse of an internationalized, economic regime. Privileging the stick over the carrot, the traditional Puritan antipathy towards equity- promoting, beneficent entitlements, has favored elite sector interests at the expense of commonweal concerns. General disdain for the so-called “undeserving” poor has resulted in a refusal to accept more clearly effective, front-end strategies, such as guaranteed family incomes, universal mental health coverage, public jobs at livable wages, properly funded educational institutions linked to marketable vocational training, and broad- based public health initiatives that provide support for anti-violence parenting/partner programs and mandates. A re-ordering of this magnitude, would, of course, necessitate a reconsideration and re-conceptualization of our social priorities. Recognizing that problem categorization affects the selection of the remedial social resources that are brought to bear, a social re-ordering of drug use would, for example, employ health care rather than criminal justice resources; it would require a refocusing of beneficence within the discourse of a self-interested, normative efficiency. 329 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. The public needs to be educated about the long-term consequences of our imprisonment policy. Information such as that contained in a University of North Carolina study that “increasing imprisonment generally did not have a deterrent effect on imprisoned offenders, and in fact may have increased their chances of rearrest” needs to be widely distributed. People need to know that, as prominent criminologist Alfred Blumstein has reported, “incarceration can move the prisoner to a more serious level of criminal activity.”6 2 4 On at least one front, this refocusing is beginning to happen as a “drug war” truce looms on the horizon. While I personally would advocate drug legalization, a cessation of the criminalization of all drug use, initial steps towards the repositioning of drug use from the criminal justice to the health care/treatment sector are starting to occur. In recognition of the high costs associated with imprisoning enormous numbers of non-violent drug users, New York and California are experimenting with altemative-to-incarceration opportunities for non-violent drug offenders. In November 2000, California voters overwhelmingly passed Proposition 36 which mandates a treatment/probation option for non-violent offenders convicted of a controlled substance possession. A re-energized Left needs to prod the potential of this aperture to suggest how normative, equity mandates can effect broad-based communal improvement. Focusing on offender restoration and re-integration, initiatives such as community “ “ •Sasha Abramsky, “Breeding Violence.” Mother Jones July 10,2000, www.motheijones.com/prisons/print_violence.html 2. 330 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. restitution can be offered as alternative inducements towards responsible citizenship. It is anticipated that a less demonized offender population will be less easily transformed into commodification fodder. Initiatives that assist communities in bearing correctional costs should be infused with incentives that promote prisoner well-being and, if possible, support prisoners’ rehabilitation. The labor ramifications of prison industries that teach marketable skills and pay market wages, albeit absent benefit packages, should be investigated. In a promising strategy, some recently implemented training/ employment programs provide needed fiscal support while, at the same time, assisting in prisoner re-integration post-release. Inside Oregon Enterprises (IOE), for example, offers employers market rate employees without the cost of benefit packages. One of their most profitable projects, Prison Blues, manufactures a line of T-shirts, jackets and jeans that suggest inmate attire. Paying IOE a 6% commission on all profits, the state approximates a profit of between $.76 and $1.14 per inmate hour.6 2 5 In general, however, the contracting out of correctional facilities offers no comparable evidence of communal and/or prisoner recompense. While no one would argue that public facilities aren’t in need of a major structural and programmatic overhaul, privatization’s limited success in facilitating new start-ups has not translated into the generation of innovative and more effective models. 5 2 5 Joseph T. Hallinan, Going Up the River (New York: Random House, 2001) 144. 331 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Evaluated on its own terms, privatization has failed to produce its proponents’ much touted and anticipated savings. Creating considerable systemic disarray, functioning as a downward pressure on officer benefits and wages, the privatization solution needs to be abandoned in favor of a more committed re-structuring of extant public facilities. A repositioning of penal structures closer to communities-of-origin would encourage a greater interface between inmates, families, and their communities. An increased communal investment would underscore the possibilities of redemption; it would model reciprocal concern. Public institutions, properly managed, provide a palpable representation of normative responsibility; incentives to do so are not outside our reach. Demonstrating the import of a public accountability—for the institution, the community and the inmate—public correctional facilities optimally suggest die ethical weight and meaning of consequence. Following the adage that one is partially defined by his/her nemeses, a Prudential Securities industry report cited the following potential criminal justice policy changes as for-profit industry risk-factors: “a falling crime rate, shorter prison sentences, a move towards alternative sentences, and changes in the nation’s drug laws.”6 2 6 While public correctional employees have a similar investment in prison viability, viability needs are at a considerable distance from profitability requirements. Transposing the Prudential forecast, one understands that increased 6 2 6 Schlosser, “The Prison Industrial Complex” 65. 332 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. profits require more crime, a punitive sentencing structure, an over-reliance on the imprisonment option, and an irrational drug policy. Within the market’s morally neutral framework, social goods function as market impediments; within a correctional surplus-population universe, innovative catalysts are similarly inverted. Absent a vocal and socially-valued consumer base, positive, remedial innovation, it is feared, has little social cachet. 333 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. SELECTED BIBLIOGRAPHY Abramovitz, Mimi, and Ann Withom. “Playing by the Rules: Welfare Reform and the New Authoritarian State.” Without Justice for All. Ed. Adolph Reed, Jr. Boulder: Westview Press, 1999. Abramsky, Sasha. “Breeding Violence.” Mother Jones. July 10,2000. Adams, Guy B., and Danny L. Balfour. Unmasking Administrative Evil. Thousand Oaks: Sage Publications, 1998. Amnesty International USA. United States of America Rights for All. London: Amnesty International Publications, 1998. An-Na’im, Abdullahai A., Jerald D. Gort, Henry Jansen, and Hendrick Vroom. Human Rights and Religious Values: An Uneasy Relationship. Grand Rapids: William Erdmans Publishing Company, 1995. Arendt, Hannah. Politics. Conscience and Evil. Totowa: Rowman and Allanheld, 1983. Aristotle. The Nicomachean Ethics. Rev. by J. L. Ackrill and J. O. Urmson. New York: Oxford UP, 1980. Austin, James, and Garry Coventry. “Are We Better Off? Comparing Private and Public Prisons in the United States.” Current Issues in Criminal Justice 11.2 (November 1999). —. “Emerging Issues on Privatized Prisons.” Bureau of Justice Assistance Monograph. Washington, DC: U.S. Department of Justice, February 2001. Avineri, Shlomo, and Avener De-Shalit. Communitarianism and Individualism. New York: Oxford UP, 1992. Bailie, Gil. Violence Unveiled. New York: The Crossroad Publishing Company, 1997. 334 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Bates, Eric “Private Prisons.” The Nation. January 5, 1998. Beauchamp, Tom L., and James F. Childress. Principles of Biomedical Ethics. New York: Oxford UP, 1989. de Beaumont, Gustave, and Alexis de Tocqueville. On the Penitentiary System in the United States and Its Application in France. Carbondale: Southern Illinois Press, 1964. Bedeau, Hugo Adam. “Justice and Punishment.” The Social-Economics of Crime and Justice. Ed. Brian Forst. Armonk: M. E. Sharpe, 1993. Bell, Daniel. The Cultural Contradictions of Capitalism. Twentieth Anniversary ed. New York: Basic Books, 1996. Bellah, Robert. Habits of the Heart. New York: Harper & Row, 1985. Benjamin, Jessica. “Master and Slave: The Fantasy of Erotic Domination.” Powers of Desire: The Politics of Sexuality. Ed. Ann Snitow, et al. New York: Monthly Review Press, 1983. Benjamin, Walter. Reflections. New York: Schocken Books, 1986. Berger, Peter. The Sacred Canopy. New York: Doubleday, 1967. Bergner, Daniel. God of the Rodeo: The Quest for Redemption in Louisiana’s Angola Prison. New York: Ballantine Books, 1998. Biannual Census of Public and Private Juvenile Detention. Correctional and Shelter Facilities. Washington: United States Bureau of the Census: 1989. Block, Michael. “Supply-Side Imprisonment.” Washington: National Institute of Justice, 1997, http://www.usdoj.gov/nij. Bonger, Willem. Criminality and Economic Conditions. Boston: Little Brown & Co., 1916. Bounds, Elizabeth M. Coming Together/Coming Apart. New York: Routledge, 1997. Bowditch, Christine, and Ronald S. Everett. “Private Prisons: Problems within the Solution.” 4J.0 (1987V 335 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Bowie, Norman E. Ethical Issues in Government Philadelphia: Temple UP, 1981. Burgh, Richard. “Do the Guilty Deserve Punishment.” The Journal of Philosophy. LXXIX (April 1982). Butterfield, Fox. The Bosket Family and the American Tradition of Violence. New York: Alfred A. Knopf, 1995. —. “Privately Run Juvenile Prison in Louisiana is Attacked for Abuse of 6 Inmates.” New York Times. 16 March 2000. Calabresi, Guido, and Philip Bobbitt. Tragic Choices. New York: W. W. Norton & Co., 1978. Callahan, Sidney. “The Role of Emotion in Ethical Decision Making.” Hastings Center Report (June/July 1988). Calvin, John. John Calvin: Selections from His Writings. Ed. John Dillenberger. Anchor Books Edition. New York: Doubleday and Co., Inc., 1971. Camp, Camille Graham, and George M. Camp, eds. The Corrections Yearbook. 1999: Adult Corrections. Middleton: Criminal Justice Institute, 1999. Camus, Albert. The Rebel. New York: Vintage Books, 1956. Caulkins, Jonathan P., Peter C. Rydell, William L. Schwabe, and James Chiesa. Mandatory Minimum Drug Sentences: Throwing A wav the Kev or the Taxpayers Money? Santa Monica: RAND Drug Policy Research Center, 1997. Cherlin, Andrew J. “I’m OK, You’re Selfish.” The New York Times Magazine 17 October 1999. Christie, Nils. Crime Control as Industry: Towards Gulags Western Stvle? New York: Routledge, 1994. —. “Change in Penal Values.” Scandinavian Studies in Criminology 2. (1968). Clark, John L. “Report to the Attorney General re: Northeast Ohio, Correction Center.” Washington: Department of Justice, November 25, 1998, http://www.usdoj .gov. 336 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Clines, X. Frances. “Rooms Available in a Gated Community: $20 a day.” New York Times 10 July 2000. Clymer, Adam. “Bush and Texas Have Not Set High Priority on Health Care.” New York Times 11 April 2000. Cohen, S., and A. Scull, eds. Social Control and the State. New York: Oxford UP, 1983. Comments: “The Private Prison Experiment: A Private Sector Solution to Prison Overcrowding.” North Carolina Law Review 76 (1998). Cooper, Terry L. The Responsible Administrator. San Francisco: Jossey-Bass Publishers, 1990. The Correctional Association Position Paper on the Rockefeller Drug Law Repeal. New York: The Correctional Association, 1999. Cover, Robert. Narrative. Violence and the Law. Ann Arbor: U of Michigan P, 1995. —. “Violence and the Word: The Mystical Foundations of Authority.” Cardozo LavLEeyiew 11.919 (1990). Cox, Harvey. “The Market as God.” The Atlantic Monthly March 1999. Cressey, Donald R. “Hypothesis in the Sociology of Punishment” The Sociology of Punishment: Socio-Structural Perspectives. Ed. Dario Melossi. Brookfield: Ashgate Publishing Company, 1998. Cripe, C. A. Legal Aspects o f Correctional M anagem ent Gaithersburg: Aspen Publications, 1997. Cunningham, Dennis. “Public Strategies for Private Prisons.” Paper presented at the Private Prison Workshop held at the Institute on Criminal Justice. University of Minnesota Law School, January 29-30,1999. Currie, Elliott. Crime and Punishment in America. New York: Henry Holt and Company, 1998. Daly, Martin, and Margo Wilson. Homicide. New York: Aldine DeGruyter, 1988. Darwall, Stephen, ed. Equal Freedom. Ann Arbor: U of Michigan P, 1995. 337 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Davis, Angela. The Angela Y. Davis Reader. Ed. Joy Janies. Malden: Blackwell Publishers, 1998. Davis, Chuck, D. “Privatization: Common Themes, Similar Outcomes.” Paper presented at the Private Prison Workshop held at the Institute on Criminal Justice. University of Minnesota Law School, January 29-30,1999. Derber, Charles. “Morality and the Market.” Tikkun (Mav/June 1996). Derrida, Jacques. “Force of Law: The Mystical Foundation of Authority.” Cardozo Law Review 11.5-6 (July/August 1990). Dewey, John. The Public and its Problems. Athens: Ohio UP, 1927. Dilulio, John. “The Duty to Govern: A Critical Perspective on the Private Management of Prisons and Jails.” Private Prisons and the Public Interest. Ed. Douglas C. McDonald. New Brunswick: Rutgers UP, 1990. Dimock, Wai Chee. Residues of Justice. Berkeley: U of California P, 1996. Ditton, Paula M., and Doris James Wilson. “Truth in Sentencing in State Prisons.” Bureau of Justice Statistics Special Report. Washington: U.S. Department of Justice, January 1999. Dobelstein, Andrew W. Politics. Economics and Public Welfare. Englewood Cliffs: Prentice Hall, Inc., 1986. Dolovich, Sharon. “The Ethics of Private Prisons.” Unpublished paper, November 1999. Donahue, John. The Privatization Decision: Public Ends. Private Means. New York: Basic Books, 1989. Drucker, Peter. “Beyond the Information Revolution.” The Atlantic Monthly October 1999. “Drug Policy and the Criminal Justice System.” The Sentencing Project Briefing Fact Sheets. Washington.: The Sentencing Project, December 22,1999. DuBois, W. E. B. “The Spawn of Slavery: The Convict Lease System in the South.” The Missionary Review of the World XXIV 10 (October 1901). 338 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Duke, Steven B. American’s Longest War: Rethinking Our Tragic Crusade A gainst Drugs. New York: Putnam, 1993. Dunham, Douglas W. “Inmates Rights and the Privatization of Prisons.” Columbia Law Review 158 (1986). Durham, A. M. III. “Origins of Interest in the Privatization of Punishment: The Nineteenth and Twentieth Century American Experience.” Criminology 27 (1989). Durkheim, Emile. The Division of Labor in Society. Trans. George Simpson. Glencoe: Free Press, 1993. —. “Two Laws of Penal Evolution.” Originally published in 4 Annee Sociologique, 65-95, 1900. Reprinted in Cincinnati Law Review 38 (1969). Dye, Thomas R. Understanding Public Policy. Upper Saddle River: Prentice Hall, Inc., 1998. Dyer, Joel. The Perpetual Prisoner Machine: How America Profits from Crime. Boulder: Westview Press, 2000. Eakin, Emily. “Le Provocateur.” The New York Times M agazine 10 September 2000. Elias, NorberL On Civilization. Power and Knowledge. Chicago: The U of Chicago P, 1998. —. The Norfaert Elias Reader. Eds. Johan Goudsblom and Stephen Mennell. Malden: Blackwell Publishers, 1998. Ellis, Ralph D. Just Results: Ethical Foundations For Policy Analysis. Washington: Georgetown UP, 1998. Erickson, Victoria Lee. Where Silence Speaks. Minneapolis: Fortress Press, 1993. Etzioni, Amitai, ed. The Essential Communitarian Reader. Lanham: Rowman & Littlefield Publishers, Inc., 1998 —. Rights and the Common Good. New York: St. Martin’s Press, 1995. e-Watch, ken@flpba.org, May 1,2001, April 30,2000, June 30,2001, May 16,2000, June 28,2001, November 16,2000, November 20, 2000. 339 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Ezorsky, Gertrude. Philosophical Perspectives on Punishment. Albany: State U of New York P, 1972. Fay, Brian. Social Theory and Political Practice. London: Allen and Unwin, 1975. Feeley, Malcolm M. “The Privatization of Prisons in Historical Perspective.” The Philosophy and Practice of Corrections. Eds. Marilyn McShane and Frank P. Williams. New York: Garland Publishing Company, 1997. Feeley, Malcolm M., and Jonathan Simon. “The New Penology: Notes on the Emerging Stage of Corrections.” Criminology 4.4 (1992). Feinberg, Joel. Doing and Deserving. Princeton: Princeton UP, 1970. Firestone, David. “U.S. Figures Show Prison Population is Now Stabilizing.” New York Times 9 June 2001. Fitzgerald, Lehn. “Inmate Transfer to Out-of-State Private Prisons.” Special Report on Wisconsin Inmates in Out-of-State Prisons. Office of Senator Gwendolynne S. Moore, August 3,2000. Forst, Brian, ed. The Social -Economics of Crime and Justice. Armonk: M. E. Sharpe, 1993. Frederickson, H. George. The Spirit of Public Administration. San Francisco: Jossey-Bass Publishers, 1997. French, Peter. Ethics in Government. Englewood Cliffs: Prentice Hall, Inc., 1983. Foucault, Michel. Discipline and Punish. Trans. Alan Sheridan. New York: Vintage Books, 1978. Frankena, William. Ethics. Englewood Cliffs: Prentice Hall, 1973. Freud, Sigmund. Civilization and Its Discontents. Trans, and ed. James Strachey. New York: W. W. Norton and Company, Inc., 1961. Friedman, Lawrence. Crime and Punishment in American History. New York: Harper Collins, 1993. Fukuyama, Francis. Trust. New York: The Free Press, 1995. 340 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. —. “The Great Disruptions: Human Nature and the Reconstruction of the Social Order.” Atlantic Monthly May 1999. “Full-Employment Prisons.” New York Times 23 August 2001. Galbraith, John Kenneth. The New Industrial State. Boston: Houghton Mifflin Company, 1967. Garland, David. Punishment and Modem Society. Chicago: U of Chicago P, 1990. Gass, William H. Fiction and the Figures of Life. New York: Alfred A. Knopf, 1970. Gaylin, Willard. “Feeling Good and Doing Better.” Feeling Good and Doing Better: Ethics and Nontherapeutic Drug Use. Eds. Thomas H. Murray, Willard Gaylin, and Ruth Macklin. Clifton: Human Press, 1984. Geis, Gilbert, Alan Mobley, and David Shichor. “Private Prisons, Criminological Research and Conflict of Interest: A Case Study.” Crime and Delinquency 45.4 (July 1999). Gerhardt, Uta. “Community and the Moral Dimension: The Hidden Agenda of Etzioni and Parsons.” Macro Socio-Economics: From Theory to Activism. Ed. David Sciulli. Armonk: M. E. Sharpe, 1996. Giddens, Anthony. The Nation-State and Violence. Berkeley: U of California P, 1987. —. Capitalism and Modem Social Theory. London: Cambridge UP, 1971. Gilmore, Ruth Wilson. “Globilisation and U.S. Prison Growth: From Military Keynesianism to Post-Keynesian Militarism.” Race and Class 40 (1998/99). Gitlin, Todd. The Twilight of Common Dreams. New York: Henry Holt and Company, 1995. Glendon, Mary Ann. Rights Talk: The Impoverishment of Political Discourse. New York: The Free Press, 1991. Goffinan, Erving. Asylums. New York: Doubleday, 1961. 341 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Golding, Martin P. “Justice and Rights: A Study in Relationship.” Justice and Health Care. Ed. Earl E. Shelp. Boston: D. Reidel Publishing Company, 1981. Goldman, Alan H. “The Paradox of Punishment.” Punishment. Eds. A. John Simmons, Marshall Cohen, Joshua Cohen, and Charles R. Beitz. Princeton: Princeton UP, 1995. Goodin, Robert E. Protecting the Vulnerable. Chicago: U of Chicago P, 1985. Goodman, L. E. On Justice. New Haven: Yale UP, 1991. Greenberg, David, ed. Crime and Capitalism. Philadelphia: Temple UP, 1993. Greene, Judith A. “Privatization of Correctional Services: Critical Issues for State Policy Makers.” Paper presented at a RAND Conference: Balancing Investments in Prison, Police, and Prevention. Santa Monica: RAND, 1999. —. “Comparing Private and Public Prison Services and Programs in Minnesota: Findings from Prisoner Interviews.” Current Issues in Criminal Justice 11.2 ( November 1999). —. “Bailing Out Private Jails.” The Prospect 12.16 (September 10,2001). —. “Will the Federal Government Rescue the Private Prison Industry?” Paper presented at a meeting of the Congressional Progressive Caucus. Washington, DC, January 2001. Greene, Judith A., Steven R. Belenko, Chuck Davis, Michael Jacobson, and David Schultz. A Study of Private Prison. Minnesota: Institute of Criminal Justice, 1999. Greenhouse, Linda. “Three Strikes’ Challenge Fails, But Others Are Invited.” New York Times 20 January 1999. Gruley, Bryan. “Wanted: Criminals, Why Did Mississippi Agree to Pay for Cells for ‘Ghost1 Inmates?” Wall Street Journal 6 September 2001. Guehenno, Jean Marie. The End of the Nation-State. Minneapolis: U of Minneapolis P, 1995. Guthrow, John. “New York Times Letters to the Editor.” New York Times 28 May 2000. 342 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Guttman, Amy, and Dennis Thompson. Democracy and Disagreement. Cambridge: Belknap Press of Harvard UP, 1996. Hallman, Joseph T. Going up the River: Travels in a Prison Nation. New York: Random House, 2001. Hallowell, John. The Moral Foundation of Democracy. Chicago: The U of Chicago P, 1954. Hancock, Barry W., and Paul M. Sharp. Criminal Justice in America: Theory. Practice and Policy. Upper Saddle River: Prentice Hall, 1996. Haney, Craig. “Psychology and the Limits to Prison Pain: Confronting the Coming Crisis in Eight Amendment Law.” Psychology. Public Policy and Law 3.4 (1997). Haney, Craig, and Philip Zimbardo. “The Past and Future of U.S. Prison Policy: Twenty-Five Years After the Stanford Prison Experiment.” American Psychologist (July 1998). Harding, Richard. “Prison Privatisation: The Debate Starts to Mature.” Current Issues in Criminal Justice 11.2 (November, 1999). Harding, R. W. Private Prisons and Public Accountability. United Kingdom: Open UP, 1997. Hart, H. L. A. Punishment and Responsibility. New York: Oxford UP, 1968. —. The Morality o f the Criminal Law. Two lectures given at the Hebrew University of Jerusalem, 1964. London: Oxford UP, 1965. Harvey, David. The Conditions of Postmodemitv. Malden: Blackwell Press, 1990. Hauerwas, Stanley. A Community of Character. U of Notre Dame P, 1981. Henriquez, Diana B. The Machinery of Greed. Lexington: Lexington Books, 1986. Herbert, Bob. “A Nation Loosening Its Bonds.” New York Times 26 August 1999. —. “In America Bush Goes Green.” New York Times 6 April 2000. Hirschman, A. O. Shifting Involvements: Private Interest and Public Action. Princeton: Princeton UP, 1982. 343 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Howe, Adrian. Punish and Critique: Towards a Feminist Analysis of Penalty. New York: Routledge, 1994. Huling, Tracy. “Prisoners of the Census.” Mother Jones 10 May 2000. Hume, David. “An Inquiry Concerning the Principles of Morals. Masterpieces of World Philosophy. Ed. Frank N. Magill. New York: Harper Collins, 1990. Ignatieff, Michael. A Just Measure of Pain: The Penitentiary in the Industrial Revolution: 1750-1850. New York: Columbia UP, 1978. Jackson, Jessie L., Sr. “Liberty and Justice for Some.” Mother Jones Special Report: Debt to Society 10 July 2001. Johnson, Paul. “The Capitalism and Morality Debate.” First Things (March 1990). Johnston, David Cay. “Gap Between Rich and Poor Found Substantially Wider.” New York Times 5 September 1999. Jones, Donald G. Private and Public Ethics. New York: Edwin Mellen Press, 1978. “Judge Retains U.S. Oversight of Texas Prisons.” New York Times 2 March 1999. Kadish, Sanford H., and Stephen J. Schulhofer. Criminal Law and Its Processes. Boston: Little Brown and Company, 1989. Karger, Howard Jacob, and David Stoesz. American Social Welfare Policy. New York: Addison-Wesley Longman, Inc., 1998. Kass, Leon R. “The Wisdom of Repugnance.” The New Republic 216.2 (1997). Kateb, George. Hannah Arendt: Politics. Conscience, and Evil. Totowa: Rowman & Allanheld, 1984. Kimbrell, Andrew. The Human Body Shop: The Engineering and Marketing of Life. San Francisco: Harper San Francisco, 1993. King, Cheryl Simrell, and Camilla Stivers. Government is Us: Public Administration in an Anti-Government Era. Thousand Oaks: Sage Publications, 1998. Kingdon, John W. Agendas. Alternatives and Public Policies. New York: Harper Collins, 1995. 344 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Lamott, K. Chronicles of San Quentin: the Biography of a Prison. New York: David McKay Company, 1961. Lasch, Christopher. The Culture of Narcissism. New York: W. W. Norton and Company, 1979. Lemann, Nicholas. “The New American Consensus.” The New York Times Magazine 1 November 1998. Lessnoff, Michael. Social Contract Theory. Atlantic Highlands: Humanities Press, International, 1986. Lewis, Anthony. “No Second Chance.” New York Times 18 February 2000. Lewis, O. F. The Development of American Prisons and Prison Customs. 1776- 1845. Montclair: Patterson Smith, 1967. Lewis, W. D. From Newgale to Dannemora. Ithaca: Cornell UP, 1965. Lindblom, Charles E. Politics and Markets. New York: Basic Books, Inc., 1977. Logan, Charles. Private Prisons: Cons and Pros. New York: Oxford UP, 1990. Lovejoy, Arthur. Reflections on Human Nature. Baltimore: Johns Hopkins UP, 1961. Luttwak, Edward. Turbo Capitalism: Winners and Losers in the Global Economy. New York: Harper Collins, 1999. Lyons, David. “Rights Claimants and Beneficiaries.” Rights. Ed. David Lyons. Belmont: Wadsworth Publishing Company, Inc., 1979. —. “Human Rights and the General Welfare.” Rights. Ed. David Lyons. Belmont: Wadsworth Publishing Company, Inc., 1979. Magill, Frank N., ed. Masterpieces of World Philosophy. New York: Harper Collins, 1990. Males, Mike, Dan MacAllair, and Khaled Tagi-Eddin. “Striking Out-The Failure of California’s Three Strikes and You’re Out Law.” San Francisco: The Justice Policy Institute, 1999. 345 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Mancini, Matthew J. One Dies. Get Another: Convict Leasing in the American South. 1866-1928. Columbia: U of South Carolina P, 1966. Margalit, Avisahai. The Decent Society. Cambridge: Harvard UP, 1996. Marx, Karl, and Frederich Engels, trans. and eds. Karl Marx and Frederick Engels: Selected Works. Moscow: Marx-Engels-Lenin Institute, 1951. Matthews, David. “The Public in Theory and Practice.” Eds. H. G. Frederickson and R. C. Chandler. Public Administration Review (March 1984). Mauer, Marc. The Race to Incarcerate. New York: The New Press, 1999. —. “Intended and Unintended Consequences: State Racial Disparities in Imprisonment.” The Sentencing Project Policy Reports. Washington: The Sentencing Project, 1997. McConville, Sean. “The Victoria Prison: England 1865-1965.” The Oxford History of the Prison. Eds. Norval Morris and David J. Rothman. New York: Oxford UP, 1995. McDonald, Douglas C. Private Prisons in the United States: An Assessment of Current Practice. Cambridge: Abt Associates, Inc., 1998. —. “When Government Fails: Going Private as a Last Resort.” Private Prisons and the Public Interest. Ed. Douglas C. McDonald. New Brunswick: Rutgers UP, 1990. —. “Public Imprisonment by Private Means.” Prisons in Context. Oxford: Clarendon Press, 1994. McNair, James. “Wackenhut Prisons Mired in Abuse Scandals.” The Miami Herald 16 April 2000, http://www.miamiherald.com. McShane, Marilyn, and Frank P. Williams, eds. The Philosophy and Practice of Corrections. New York: Garland Publishing, Inc., 1997. Medina, Vincente. Social Contract Theories: Political Obligation or Anarchy? Lanham: Rowman and Littlefield Publishers, Inc., 1990. Meier, Kenneth J. The Politics of Sin. Armonk: M. E. Sharpe, 1994. 346 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Melossi, Dario. “Gazette of Morality and Social Whip: Punishment, Hegemony and the Case o f the USA 1970-92.” Social and Legal Studies 2 (1993). Miller, Alice. “Against Spanking.” Tikkun 15.2 (March-April 2000). Miller, David, and Michael Walzer. Pluralism. Justice and Fqualitv. Oxford: Oxford UP, 1995. Miller, Roger LeRoy, Daniel K. Benjamin, and Douglass C. North, eds. The Economics o f Public Issues. Reading: Addison-Wesley, 1999. Moberly, Sir Walter. The Ethics of Punishment. Hamden: Archon Books, 1968. Mobley, Alan, and Gilbert Geis. “The Corrections Corporation of America, AKA the Prison Realty Trust, Inc.” Unpublished manuscript, U of California, Irvine, Department of Criminology, Law and Society, 1999. Moore, Mark H. “The Legitimation of Criminal Justice Policies and Practices.” Perspectives on Crime and Justice 1996-7 Lecture Series. Washington: National Institute of Justice, 1997. —. “Realms of Obligation and Virtue.” Public Duties: The Moral Obligations of Government Officials. Eds. Joel L. Fleishman, Lance Liebman, and Mark H. Moore. Cambridge: Harvard UP, 1981. Morris, Norval. “The Contemporary Prison: 1965-Present.” The Oxford History of the Prison. Eds. Norval Morris and David J. Rothman. New York: Oxford UP, 1998. Moyle, Paul. “Separating the Allocation of Punishment from its Administration: Theoretical and Empirical Observations.” Current Issues in Criminal Justice 11.2 (November 1999). Murphy, Jeffrie G. “Marxism and Retribution.” Punishment. Eds. A. John Simmons, Marshall Cohen, Joshua Cohen, Charles R. Beitz. Princeton: Princeton UP, 1995. Murray, John Courtney. We Hold These Truths. Kansas City: Sheed and Ward, 1988. Nadelman, Ethan A. “Drug Prohibition in the United States: Costs, Consequences and Alternatives.” Notre Dame Journal of Law. Ethics and Public Policy (Fall 1991). 347 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Nagel, Thomas. E q u a l i t y and Partiality. New York: Oxford UP, 1991. Neier, Aryeh. “Confining Dissent: The Political Prison.” The Oxford History of the Prison. Eds. Norval Morris and David J. Rothman. New York: Oxford UP, 1998. —. War Crimes. New York: Random House, 1998. “The New Puritanism.” Special Issue of Salmagundi. Skidmore College (Winter/Spring 1994). Niebuhr, Reinhold. Moral Man and Immoral Society. New York: Simon & Schuster, 1932. Nietzsche, Freidrich. The Birth of Tragedy and The Genealogy of Morals. Trans. Francis Golffing. New York: Anchor Book Edition, Doubleday and Co., Inc., 1956. Okin, Susan Moller. Justice. Gender and the Family. New York: Basic Books, 1989. Oshinksy, David. Worse than Slavery: Parchman Farm and the Ordeal of Jim Crow Justice. New York: The Free Press, 1996. Ostrowski, James. “The Moral and Practical Case for Drug Legalization.” Hofstra Law Review 18 (1990). O’Toole, Patricia. Money and Morals in America. New York: Clarkson Potter, 1998. Palmer, P. J. The Company o f Strangers. Athens: Ohio UP, 1927. Pateman, Carole. The Disorder of Women. Stanford: Stanford UP, 1989. Patterson, Orlando. “Life, Liberty and Excessive Force.” New York Times 28 February 2000. Petchesky, Rosalind. “At Hard Labor: Penal Confinement and Production in Nineteenth-Centuiy American.” Crime and Capitalism. Ed. David Greenberg. Philadelphia: Temple UP, 1993. Peters, Edward M. “Prison Before the Prison: The Ancient and Medieval Worlds.” The Oxford History of the Prison. Eds. Norval Morris and David J. Rothman. New York: Oxford UP, 1995. 348 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Plaskow, Judith. Sex. Sin and Grace: Women’s Experience and the Theologies of Reinhold Niebuhr and Paul Tillich. Lanham: UP of America, 1980. Press, Aric. “The Good, the Bad, and the Ugly,: Private Prisons in the 1980’s.” Private Prisons and the Public Interest. Ed. Douglas McDonald. New Brunswick: Rutgers UP, 1990. Radin, Margaret Jane. “Market Inalienability.” Harvard Law Review 100.8 (June 1987). Rawls, John. Political Liberalism. New York: Columbia UP, 1993. Reed, Adolph, Jr. Without Justice for All. Boulder: Westview Press, 1999. Response of the United States to the Court’s Order of 11/6/98 Concerning the Jean Juvenile Justice Center, February 22,2000. Washington: United States Department of Justice, 2000. Reuter, Peter, Mathea Falco, and Robert MacCoun. “Comparing Western European and North American Drug Policies: An International Conference Report.” Rand Drug Policy Research Center Report. Santa Monica: RAND, 1993. Rich, Frank. “Who Doesn’t Want to be a Millionaire?” New York Times 20 November 1999. Rieff, David. “The False Dawn of Civil Society.” The Nation 22 February 1999. Robbins, Ira. “The Legal Dimensions of Private Incarceration.” The American Bar Association Report. Washington: The American Bar Association, 1988. Rorty, Richard. Achieving Our Country. Cambridge: Harvard UP, 1998. Rosenau, Pauline Marie. Post-Modernism and the Social Sciences. Princeton: Princeton UP, 1992. Rothman, David J. Conscience and Convenience: The Asylum and Its Alternatives in Progressive American. Boston: Little, Brown Publishers, 1980. —. The Discovery of the Asvlum: Social Order and Disorder in the New Republic. Boston: Little Brown Publishers, 1990. 349 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. —. “Perfecting the Prison: United States 1789-1865.” The Oxford History of the Prison. Eds. Norval Morris and David J. Rothman. New York: Oxford UP, 1995. Rotman, Edgardo. “The Failure of Reform: United States 1865-1965.” The Oxford History of the Prison. Eds. Norval Morris and David J. Rothman. New York: Oxford UP, 1998. Rubenstein, Richard. The Age of Triage: Fear and Hope in an Overcrowded World. Boston: Beacon Press, 1983. Rusche, G., and O. Kirchheimer. Punishment and Social Structure. New York: Russell and Russell, 1968,1939. Ryn, Claes G. Democracy and the Ethical Life. Washington: The Catholic UP, 1990. Sarabi, Brigette, and Edwin Bender. The Prison Pavoff: The Role of Politics and Private Prisons in the Incarceration Boom. Portland: Western Prison Project, November 2000. Sassen, Saskia. Globalization and Its Discontents. New York: The New Press, 1998. Schlosser, Eric. “The Prison Industrial Complex.” The Atlantic Monthly December 1998. Sclar, Elliott, D. You Don’t Always Get What You Pav For. Ithaca: Cornell UP, 2000. Scott, James C. Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed. New Haven: Yale UP, 1998. Sennett, Richard. The Fall of the Public Man: The Social Psychology of Capitalism. New York: Random House, 1978. —. Authority. London: Seeker and Warburg, 1980. Shichor, David. Punishment for Profit. Thousand Oaks: Sage Publications, 19951 Sidel, Ruth. Keeping Women and Children Last. New York: Penguin Books, 1996. 350 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Simmons, John A., Marshall Cohen, Joshua Cohen, and Charles R. Beitz, eds. Punishment: A Philosophy and Public Affairs Reader. Princeton: Princeton UP, 1995. Smith, Joan, and William Freid. The Uses of the American Prison. Lexington: Lexington Books, D. C. Heath and Company, 1974. Smith, Rogers M. “Toward a More Perfect Union: Beyond Old Liberalism and Neo- Liberalism.” Without Justice for All. Ed. Adolph Reed, Jr. Boulder: Westview Press, 1999. Sommer, Robert. The End of Imprisonment. New York: Oxford UP, 1976. Soros, George. The Crisis of Global Capitalism. New York: Public Affairs, 1998. Spierenburg, Peter. “The Body and the State: Early Modem Europe.” The Oxford History of the Prison. Eds. Norval Morris and David J. Rothman. New York: Oxford UP, 1998. Strange, Carolyn. Qualities of Mercy: Justice. Punishment and Discretion. Ed. Carolyn Strange. Vancouver: UBC Press, 1996. Sullivan, John. “New York State Earns Top Dollar from Collect Calls by Its Inmates.” New York Times 30 November 1999. —. “State and Cities Removing Prisons from Courts’ Grip.” New York Times 30 January 2000. Sullivan, William M. “The Politics of Meaning as a Challenge to Neo-Capitalism.” Tikkun (May/June 1996). Susman, Jackwell, ed. Crime and Justice 1972: An AMS Anthology. New York: AMS Press, 1974. Tawney, R. H. Religion and the Rise of Capitalism. New York: Harcourt Brace & World, Inc., 1926. “Texas Judge Declines to Cut 5-Year Term in Sports Case.” New York Times 1 1 March 2000. Thoreau, Henry David. Walden and Civil Disobedience. Ed. Owen Thomas. New York: Norton Publishers, 1966. 351 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. de Tocqueville, Alexis. Democracy in America. New York: Penguin Books reprint, 1956. Tong, Rosemarie. Ethics in Policy Analysis. Englewood Cliffs: Prentice Hall, Inc., 1986. Trattner, Walter I. From Poor Law to Welfare State. New York: The Free Press, 1999. Vailance, Theodore, R. Prohibition’s Second Failure: The Quest for a Rational and Humane Drug Policy. Westport: Praeger, 1993. Ventriss, C. “The Publicness of Administrative Ethics.” Handbook of Administrative Ethics. Ed. T. L. Cooper. New York: Marcel Dekker, 1993. Waldron, Jeremy. “Money and Complex Equality.” Pluralism. Justice and Equality. Eds. David Miller and Michael Walzer. New York: Oxford UP, 1995. Walker, Nigel. Whv Punish? New York: Oxford UP, 1991. Walzer, Michael. Spheres of Justice: A Defense of Pluralism and Equality. New York: Basic Books, 1983. —. What it Means to be an American. New York: Marsilio, 1992. Weber, Max. The Protestant Ethic and the Spirit of Capitalism. Ed. S. N. Eisenstadt. Los Angeles: Roxbury Publishing Company Edition, 1996. (Originally published in New York: Charles Scribner’s Sons, 1930). Wiebe, Robert H. The Search for Order: 1877-1920. New York: Farrar, Straus, and Giroux, 1967. Will, George. Statecraft as Soulcraft: What Government Does. New York: Simon and Schuster, 1983. Willis, Ellen. “Beyond Good and Evil: Crime and Cultural Politics.” Tikkun (May/June 1994). Wills, Garry. A Necessary Evil: A History of American Distrust of Government. New York: Simon & Schuster, 1999. —. Under God: Religion and American Politics. New York: Simon and Schuster, 2000. 352 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Wilson, Edward O. “Back from Chaos.” Atlantic Monthly March 1998. —. Consilience. New York: Random House, 1999. Wilson, James Q. The Moral Sense. New York: Simon and Schuster, 1993. Wolgast, Elizabeth. The Grammar of Justice. Ithaca: Cornell UP, 1987. Yates, Douglas T., Jr. “Hard Choices: Justifying Bureaucratic Decisions.” Public Duties: The Moral Obligations of Government Officials. Eds. Joel L. Fleishman, Lance Liebman, and Mark H. Moore. Cambridge: Harvard UP, 1981. Yeoman, Barry. “SteelTown, Lockdown.” Mother Jones (May/June 2000). Young, Warren, and Mark Brown. “Cross-national Comparisons of Imprisonment.” Crime and Justice: A Review of Research. Ed. Michael Tonry. Chicago: U of Chicago P, 1993. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.

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Creator Cecire, Ruth (author)

Core Title Capital and punishment: The privatization of prisons in America

School Graduate School

Degree Doctor of Philosophy

Degree Program Religion

Publisher University of Southern California (original), University of Southern California. Libraries (digital)

Tag OAI-PMH Harvest,Philosophy,sociology, criminology and penology,sociology, social structure and development

Language English

Contributor Digitized by ProQuest (provenance)

Advisor Miller, Donald (committee chair), [illegible] (committee member), Crossley, John O. (committee member)

Permanent Link (DOI) https://doi.org/10.25549/usctheses-c16-214071

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Identifier 3073757.pdf (filename),usctheses-c16-214071 (legacy record id)

Legacy Identifier 3073757.pdf

Dmrecord 214071

Document Type Dissertation

Rights Cecire, Ruth

Type texts

Source University of Southern California (contributing entity), University of Southern California Dissertations and Theses (collection)

Access Conditions The author retains rights to his/her dissertation, thesis or other graduate work according to U.S. copyright law. Electronic access is being provided by the USC Libraries in agreement with the au...

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