Criminal Law

By Charlene Chalker-Harris


Say Goodbye to Private Prisons

President Joe Biden has made a move to stop private corporations profiting from incarceration, ordering the Department of Justice not to renew its contracts with privately operated criminal detention facilities.  In time, this will end the reliance on federal private prisons, putting the country in the same position it was in at the end of the Obama administration.  In directing their respective attorneys-general not to reinstate contracts with private companies, former President Obama, and now President Biden, cited concerns that privately operated prisons have more safety and security issues than ones run by the government.  President Biden has also made this decision as part of his commitment to reducing racial inequality, which he believes is greater in private prisons.

In contrast, as former president Trump asserted his administration would be clamping down on crime, he said reinstating private prisons would be necessary to deal with the increased numbers of incarcerated people.  Relevantly, however, the Republican campaign benefited from significant donations from the major companies that run the private prisons in the United States. It is these companies with whom contracts were reinstated when former president Trump rescinded the order.

What is privatisation, and why does it matter? 

Privatisation is commonly defined as a contract process that shifts public functions and responsibilities from the public sector to the private sector.  Privatisation of prisons generally refers to the government contracting out some or all of the operation of a prison to a private enterprise.  The most common services to be contracted out by correctional facilities to private entities are medical, educational, food services, maintenance and administrative office functions, with contracts often won through a tender process.  In cases where the entire operation of the prison is contracted out, a private enterprise comes in and runs everything, including the security of the prison.

Because the government pays the private enterprise to operate the prison, the prison’s operational costs remain a public sector expense, and in theory the prison remains subject of government authority, control and revenue.  However, that is dependent on the government being aware of what is happening inside the prison, something which requires transparency and adequate reporting.

Studies show that in private prisons, there is a higher rate of violence than in public prisons and less money goes towards prisoner welfare.  This appears to be due to staffing levels (the ratio of correctional staff to prisoners), adequacy of training and reporting requirements.  For example, across various private prisons in Australia, there is no standard training period for correctional officers, with some having as short as a six-week pre-training service course.  Accordingly, they can be underequipped to deal with incidents of violence, provide first aid or ensure inmates receive necessary medical and mental health treatment.

Why do private prisons exist? 

There are a few main arguments in favour of private operations of prisons.  The first is that the competition brought about by the tender process is supposed to make private prisons better and cheaper to run.  The second is that private prisons should set new benchmarks for public prisons and act as a catalyst for reform of the entire prison system.  Finally, competition should strengthen accountability and the government should be able to monitor private enterprises better than it can monitor itself.

However, the profit motive inherently conflicts with inmates’ welfare, as private enterprises have an incentive to cut the costs at the expense of standards, as well as an incentive to make decisions that increase the length of an inmate’s stay.  There is, of course, also an argument that it is morally wrong to allow people to profit from the infliction of punishment.

How prevalent are private prisons? 

In the United States, 14,000 of the 152,000 federal inmates currently incarcerated are housed at privately managed facilities.  However, Australia’s proportion of inmates in private prisons is almost twice that of the US, at over 18 per cent, making it the highest proportion of inmates in private prisons anywhere in the world.  And of course, the issues with private prisons are not just seen in the United States.

Parklea Correctional Centre

Perhaps the most notorious of Australian private prisons is Parklea Correctional Centre in Sydney’s western suburbs.  In 2017, a video taken from a smuggled phone inside a cell in Parklea showcased a number of items used as weapons, including a makeshift knife, a ‘slasher’ blade and the drug ice.  This video went viral after it was posted to YouTube, and prompted a piece by SBS’ “The Feed”.  The man filming from inside Parklea identified correctional officers as the people responsible for letting the contraband in, sparking investigations into correctional officer corruption.

Parklea Correctional Centre contraband search

A subsequent inquiry by NSW Parliament has revealed that Parklea has a higher incidence rate of inmate-on-inmate violence and of inmates dying of unnatural causes, including high numbers of suicides.  Current and former correctional officers told the parliamentary inquiry that there is a huge problem with understaffing, with claims that at times there can be as few as three correctional officers for almost one thousand inmates.

Parklea has been plagued with other problems, aside from violence and has an unfortunately high rate of deaths in custody, mainly by suicide.  Aulich was involved in a recent coronial inquiry, following a death in custody, which shone an unfortunate light on the deficiencies in running a private prison.  In Parklea’s case, mental health services were split between private providers (psychologists and other counsellors) and public providers (psychiatrists and mental health nurses).  Astonishingly, there was little information sharing between the entities and no way for either treatment arm to regularly share information.  Further, the cost of prison upgrades, including removing hanging points from prison cells, was often touted as too expensive for private operators.  It took several suicides in Parklea over the past 10 years to lead to any substantial change.

And it is not just Parklea Correctional Centre, either.  In the Arthur Gorrie Correctional Centre in Queensland, over a period of just three years between 2013 and 2016, there was a 500 per cent increase in serious assault and a 700 per cent increase in sexual assault.  In 2016, the rate of prisoner on prisoner assault was reported to be double the rate of the next most violent prison.

Unfortunately, the financial benefit of private prisons does not appear to be substantiated either.  Associate Professor Jane Andrew from the University of Sydney Business School conducted some research and found there is a lack of transparency and accountability, stating that “If governments are going to claim that private prisons offer better and more cost effective services there needs to be evidence of that.”

It seems that on all fronts, private prisons are falling woefully short and if they are to continue, there needs to be evidence provided as to their efficacy over public prisons.  If the US – the beacon of capitalism and private enterprise – has realised that private prisons are not the solution, perhaps Australia should take note and follow in their footsteps.