¶ … industrialized nation in the world has a higher percentage of its population residing in its prison than the United States (Liptak). This fact has witnessed a corresponding increase in the cost of housing and caring for the incarcerated which has correspondingly raised the public concerns for these costs. This combination has spurred conversation relative to how to address both issues and one of the methods suggested is the possible privatization of the corrections system. The advantages and disadvantages of privatization have been debated for years and many view privatization as new and unique method for managing the corrections system; however, privatization has a long history in the United States (Perrone). Private management of prisons has been attempted at several points in America's history but was actually abandoned during the early years of the twentieth century. One of the primary reasons for its being abandoned was the Convict Leasing System that was used in several Southern states during years following the Civil War (White). The Convict Leasing System involved the leasing of prisoners to serve as laborers on plantations, mines, railroads, and logging operations in order to provide inexpensive labor but also to relieve the involved states from having to care for the prisoners. Under the terms of the leasing agreements, the companies leasing the prisoners assumed the costs of housing and feeding the prisoners. The program, however, was plagued with problems throughout its entire operation which eventually led to its abolishment and contributed significantly to the abolishment of privately funded correction facilities in the United States.

During the time that the Convict Leasing System operated there were problems with prisoner escapes, high rates of mortality among prisoners, extremely poor living conditions, and, most significantly, the system was characteristically highly racist. Many critics of the system argue that it was just a method for Southern businesses and criminal justice systems to extend the slavery system that existed prior to the Civil War. With the advent of the Progressivism that occurred in the early years of the twentieth century, the use of private corrections was curtailed.

The major impetus behind the recent surge in the use of private companies to construct and operate corrections facilities throughout the United States is the cost. Those who operate prisons both on the federal and state levels have grown weary of the time and expense of building and operating new correction facilities. For a variety of reasons, some political and some financial, private correction facilities can be built more quickly and less expensively and this combination of factors has made the use of privately owned and operated correction facilities attractive. Because private firms are not bound by burdensome government regulation and compliance they are capable to construct new correction facilities much faster and they are able to obtain the necessary financing without having to wait for legislative approval or the issuing of bonds.

Advocates of correction privatization also argue that not only is it less expense and more efficient for them to construct correction facilities they also argue that they can operate such facilities less expensively once the facilities are constructed (Nicholson-Crotty). Due to the nature of how correction facilities are operated, labor costs are one of the major portions of the corrections' budget. Private firms operating correction facilities are again free from government standards in regard to hourly wages and benefits and, so far, have avoided the use on union labor. This provides private firms to lower significantly their overall cost of maintaining their correctional facilities.

A less obvious, but no less significant, advantage that private firms enjoy in the operation of correctional facilities is their ability to procure supplies and services at lower costs than governmentally operated facilities can. Government facilities are restricted by the procurement system that typifies the government purchasing process while private companies are free to make purchases wherever they can negotiate the best prices.

The same cost advantages that private firms enjoy also provide one of the primary objections to the use of private firms to build and operate corrections facilities. Unlike governments, private firms are organized for the primary purpose of generating profits. This profit factor creates a whole realm of concerns (Welch). It raises the question as to whether privatization might encourage longer sentences, increased use of incarceration, the use of improperly trained and uneducated staff, and less attention to security and generalized conditions within each facility. These are all legitimate concerns and, interestingly,...

Concerns over whether or not the pursuit of profits will cause private firms to cut corners relative to the fair treatment of prisoners are one of the major criticisms of privatization. Yet, the same concerns can be leveled against the government operated facilities as well. As costs and occupancy rates have increased, America's prisons and jails are facing widespread allegations that the quality of care has fallen below acceptable standards. Cynics might ask, "what is the truth?"
Regardless of the past problems encountered by the corrections system in regard to privately operated prisons and jails there is a current school of thought that such problems are a thing of the past. The enlightened thought is that the problems that occurred in the past with corrections privatization have been corrected and that present day, private correction officials are more benevolent and humanistic than those who exploited prisoners in the past. Additionally, proponents argue that the treat of potential lawsuits by inmates and the active participation of judges will serve to deter any malfeasance by private correction officials. Finally, competition between the various private corrections companies will not only hold down costs but will also force the same companies to properly treat inmates under their supervision.

Due to the fact that privatization is still in its infancy a valid comparison between public and private administration of correction facilities is not possible. Any such comparison would have to be based on long-term data and at the present time such data is not available. In time this problem will be alleviated and a fair comparison of the effectiveness of the two systems will be possible. In the meantime, the two systems will likely continue to exist side by side and the politicians will be left to debate the benefits and problems in both systems.

There is, however, more to the issue than a simple cost/benefit analysis. It is highly simplistic to believe that the decision to operate correction facilities could be made based solely on the basis of which system is more cost effective. In reality such determination involves far more considerations. Perhaps the most difficult of these considerations are the legal issues involved.

The first of these legal issues is whether or not it is proper public policy for the state to abrogate its responsibility to care for the criminal element. Historically, it has been the responsibility of the government to not only apprehend and convict criminal offenders but also to incarcerate such individuals for as long as is necessary to ensure the safety of the public. The determination of whether or not it should be public policy to transfer this responsibility to private concerns will require additional discussion and consideration. So far the courts have determined that such transfer can be legally done but there remain a number of additional legal issues that may eventually alter the positions of the courts.

It also remains at issue how the courts may ultimately treat any potential inmate civil rights claims (Morris). The present state of the law in prisoners' rights cases is that such actions can only be brought where there is state action. How the courts will treat any prisoners' rights cases brought as a result of incidents occurring in privately operated facilities remains to be seen but one that must ultimately be determined. Presently the courts have decided that private firms operating jails and prisons are not immune from litigation for constitutional violations. The courts, however, have not been presented with the opportunity of determining the broad legal and constitutional issues that are likely to occur if privatization continues to be more popularly adopted.

Finally, the precise powers of private firms to enforce rules and laws regarding inmate's behavior need clarification as well. For example, can such firms use deadly force to prevent escapes or impose additional restrictions on inmates who violate the facilities' rules and regulations? In the event that such actions are allowed what relationship do such actions have to any due process claims by the inmates arising out of the private firm's actions?

The issue of privatization of correctional facilities has created a great deal of interest among the public and politicians. The media and academics have joined in the discussion so there is no shortage of information and opinions on the subject. The proliferation of available information has contributed to the debate on the issue but has not served to clarify the issue. The consensus seems to be…