Legitimacy, accountability and private prisons
| Author | Elaine Genders |
| DOI | 10.1177/146247402400426752 |
| Published date | 01 July 2002 |
| Date | 01 July 2002 |
| Subject Matter | Articles |
Copyright © SAGE Publications
London, Thousand Oaks, CA
and New Delhi.
Vol 4(3): 285–303
[1462-4745(200207)4:3;285–303; 024114]
PUNISHMENT
& SOCIETY
Legitimacy,
accountability and
private prisons
ELAINE GENDERS
University College London, UK
Abstract
HMP Dovegate, which opened in 2001, is one of the latest in what is fast becoming a
long line of privately managed prisons. But Dovegate is no ordinary prison: within its
walls it accommodates a therapeutic community for 200 prisoners. This development
calls for a critical appraisal of the predominant view that privatization seals the demise
of the rehabilitative ideal (Beyens and Snacken, 1994), and a re-examination of the
argument that it constitutes a means of breathing life back into the doctrine (Taylor
and Pease, 1989). In a liberal democracy, the potential for the private sector to deliver
rehabilitative regimes depends on its ability to demonstrate that it can do so effectively
and efficiently while meeting the requirements of openness, accountability and legiti-
macy. Although much headway has been made in assuaging concerns about issues
relating to accountability and legitimacy in the context of the private management of
prisons generally (see Institute for Public Policy Research, 2001) these matters take on
a special significance in the specific context of the private administration of a thera-
peutic community prison. Some of the problems raised in this article exist only because
of certain idiosyncratic features of the organization and operation of the therapeutic
community model of treatment. However, other difficulties are more generally appli-
cable and need to be addressed in relation to any privately managed prison that has the
declared aim of rehabilitation. The article begins with a brief description of the growth
of prison privatization and of how it has flourished in the wake of a return to a ‘just
deserts’ philosophy and an expansionist penal policy. This is followed by a discussion
of the ideological objections concerning the legitimacy and accountability of prison
privatization; how these matters have been addressed, in practice, by the state; and what
residual problems remain for the private contracting of a therapeutic community prison
like Dovegate in particular, and for the private management of a rehabilitative system
more generally.
Key Words
accountability • legitimacy • prison • privatization
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PUNISHMENT AND SOCIETY 4(3)
THE GROWTH OF PRISON PRIVATIZATION
The current trend in prison privatization must be understood as part of a much wider
ideological shift that has taken place in the governance of several leading western democ-
racies over the last two decades. This has seen the rolling back of the state in many
spheres of public life and the redesignation of its responsibilities to the regulation rather
than provision of certain services. Since the Thatcher government’s flotation on the
Stock Exchange of a number of public utilities in the early 1980s, there has been a con-
tinuing political commitment by successive British governments to privatization as a
means of reducing public spending. A clear example of this commitment was the Private
Finance Initiative (PFI) launched in November 1992 to encourage each government
department to explore actively the scope for private finance in future planning.
The specific inclusion of prisons within the privatization programme may also be seen
as part of the dispersal of responsibility for crime control as a result of the failure of the
modernist project of scientific correctionalism and the absence of any reduction in crime
(Garland, 2001). Yet, at a pragmatic level, it has been argued that private prisons would
almost certainly not have been introduced when and how they were without the very
specific catalyst of the problems surrounding the remand population in England and
Wales which grew by a massive 76 percent (from 6629 to 11,667) between 1979 and
1988 (Home Office, 1989; James and Bottomley, 1998). Since then the prison popu-
lation (both sentenced and remand) has continued to grow apace. For example, at the
end of June 1993, the number in prison was 44,246; while by the end of June 2001 it
had risen to a record 66,736. Consequently, at the end of May 2001, 20 prisons were
overcrowded by 20 percent.
The response to this growth has been a continued and increasing reliance on private
sector provision and the extension of that provision to cater for the sentenced as well as
the remand population, children as well as adults. The first four private prisons were
contracted out on a management only basis, the duration of the contracts being five
years. HMP Wolds, managed by Group 4, opened on 6 April 1992; Blakenhurst,
operated by UKDS, opened in April 1993; Doncaster, contracted out to Premier Prisons,
opened in June 1994; and Buckley Hall, managed by Group 4, opened in December
1994. However, since 1994 all new contracts for private prisons have been issued under
the DCMF scheme. DCMF, an abbreviation for design, construct, manage and finance,
means that the private contractor undertakes the whole range of activities that go into
turning an empty site into an operational prison. This includes architectural planning,
building, furbishing, raising capital and prison operations. In legal terms, ownership of
the land on which the prison stands remains with the Government and the contractor
receives a lease of the land and buildings for the duration of the contract, which is
currently set at 25 years. The first DCMF prisons opened in 1997: HMP Altcourse,
designed, built and operated by Group 4/Tarmac, and HMP Parc by a consortium con-
sisting of Securicor/Seifert/WS Atkins with Costain and Skanska. Further contracts for
Lowdham Grange, Ashfield and Dovegate have since been awarded to Premier Prison
Services Ltd in association with Kvaerner Construction Ltd; for Forrest Bank to UKDS
(an offshoot of Corrections Corporation of America together with the Sodexho Alliance
but now owned solely by Sodexho SA of France) and for Rye Hill to Group 4/Carillon.
Two of these prisons have since returned to public sector management. Group 4 failed
to retain the contract for Buckley Hall after retendering in 1999 and UKDS lost its
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GENDERS
Legitimacy, accountability and private prisons
contract for Blakenhurst after retendering in 2000. But this does not augur for the
demise of private sector involvement in the prison industry. In an interview reported in
the Financial Times (2 October 2001) Martin Narey praised the effects of competition
from the private sector on the Prison Service but noted that private companies had
become ‘a bit complacent’ in running prisons. Conversely, he admitted that while the
public sector was pretty good at running a prison service, it was not so good at con-
tracting and design. On 5 November 2001, he announced the award of contracts for
the finance, design, building and management of two further prisons: to UKDS for a
new women’s prison at Ashford and to Premier Custodial Group Ltd for a men and
women’s facility at Peterborough (Prison Reform Trust, 2001a). There can be no doubt
that the state now operates according to a neo-liberal agenda that promotes a mixed
economy of security provision and crime control.
THE PENAL POLICY CONTEXT OF PRISON PRIVATIZATION
It is of some significance and probably no accident that the growth in the private pro-
vision of prisons followed on the heels of a return to a ‘just deserts’ penal policy which
was granted formal recognition in the 1991 Criminal Justice Act; and it coincided with
an expansionist prisons policy fuelled by the unprecedented and curious public
announcement at the 1993 Conservative Party Conference by the then Home Secretary,
Michael Howard, that ‘prison works’. The new ‘prison works’ rhetoric was backed by a
substantial increase in spending on prisons, with a total of £620.3 million being assigned
to prison building for 1994–7 (quoted in James et al., 1997: 164); and was granted
practical application in the last Conservative government’s 1997 Crime (Sentences) Act.
Informed by the principles of deterrence and incapacitation, the Act provided a legal
framework for the extension and expansion of mandatory life sentences and compulsory
minimum custodial sentences.
The ‘prison works’ philosophy marked a radical departure in official thinking about
penal policy, which hitherto (up to and including the 1991 Act) had rested upon the
received wisdom that prison was a necessary repository for an irreducible minimum of
cases but was used too much and should be used less (Stern, 1998). Yet despite a change
of government there has been no significant change of direction. Successive Labour
Home Secretaries, Jack Straw and David Blunkett, have striven to outpace Howard in
their campaign to establish New Labour as the party of law and order. As Faulkner
(2001) has noted, it is surprising that a government so committed to strategic and
joined-up planning should exempt from that commitment a programme of expenditure
which costs about £2 billion a year, and in effect substitute a policy of ‘predict and
provide’ which has been discredited and abandoned in all other areas of government
expenditure. In July 2000 the Government’s announcement of the results of the Com-
prehensive Spending Review included provision to increase the capacity of prisons by a
further 2660 places. One year later, we have the proposal,...
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