Are Private Prisons to Blame for Mass Incarceration and its Evils? Prison Conditions, Neoliberalism, and Public Choice

One of the frequently criticized aspects of American mass incarceration, privatized incarceration, is frequently considered worse, by definition, than public incarceration for both philosophical ethical reasons and because its for-profit structure creates a disincentive to invest in improving prison conditions. Relying on literature about the neoliberal state and on insights from public choice economics, this Article sets out to challenge the distinction between public and private incarceration, making two main arguments: piecemeal privatization of functions, utilities, and services within state prisons make them operate more like private facilities, and public actors respond to the cost/benefit pressures of the market just like private ones. This Article illustrates these arguments with several examples of correctional response to the conditions caused by the Great Recession, showing how public and private actors alike adopt a cost-minimizing, financially prudent approach, sometimes at the expense of prison conditions and inmate human rights. This Article ends by suggesting that, in a neoliberal capitalist environment, prohibitions and litigation alone cannot improve prison conditions, and that policymakers need to consider proper market incentives regulating both private and public prisons.