Privatization and coercion: The question of legitimacy
| DOI | 10.1177/1362480617707952 |
| Date | 01 November 2018 |
| Author | Wendy Fitzgibbon,John Lea |
| Published date | 01 November 2018 |
| Subject Matter | Articles |
707952TCR0010.1177/1362480617707952Theoretical CriminologyFitzgibbon and Lea
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Theoretical Criminology
2018, Vol. 22(4) 545 –562
Privatization and coercion:
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DOI: 10.1177/1362480617707952
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Wendy Fitzgibbon
University of Leicester, UK
John Lea
University of Roehampton, UK
Abstract
This article explores issues surrounding the legitimacy of private sector provision in
criminal justice. It examines changes in ideas about legitimate coercion which have made
private sector involvement possible. It then elaborates two models of the processes
whereby private sector entities attempt to obtain and maintain the legitimacy of their
activities in the eyes of the public.
Keywords
Coercion, criminal justice, legitimacy, policing, privatization, punishment
In stable democracies powers of legitimate coercion over citizens have historically been
treated as a state monopoly. Indeed, in the European context, Max Weber’s definition of
the modern state as that institution which holds a monopoly of legitimate coercion on its
territory is generally taken as read. Recent decades have, however, seen the increased
role of the private security industry and other non-state organizations in the exercise of
coercive authority previously regarded as the natural monopoly of state criminal justice
agencies and as—to use a phrase familiar in the US literature—‘inherently governmen-
tal’ (Fairfax, 2010). Increased outsourcing to the private security industry of various
Corresponding author:
Wendy Fitzgibbon, Department of Criminology, University of Leicester, 154 Upper New Walk, Leicester,
LE1 7QA, UK.
Email: dwf5@le.ac.uk
546
Theoretical Criminology 22(4)
aspects of the work of police, prisons and probation has been accompanied by the growth
of autonomous areas of private security work—such as the guarding of various types of
private space. A further aspect has been the expansion of an ‘extended police family’ in
which a number of non-police agencies such as club owners, charities, social housing
and other organizations have been expected to develop their own systems of policing—
in close co-operation with state authorities—for the particular populations with which
they are concerned.
Such outsourcing does not, of course, directly challenge the state’s ultimate monopoly
of legitimate coercion because the state retains the role of outsourcing agent, inspector
and custodian of the legal frameworks governing private sector subcontracting.
Nevertheless, as day to day coercion and constraint are exercised by employees of pri-
vate security companies—locking inmates or suspects in cells, handing out fixed penalty
notices and requiring name and address, sanctioning offenders on probation licence for
breaches and so on—profound issues of the legitimacy of such constraint are raised.
Even if the legitimacy of such coercion is increasingly unquestioned—by public and
media—this has not been always the case. Therefore, these changes, that have occured
over a relatively short historical period need to be understood. An outline of the dynam-
ics of this change is the purpose of this article. Specifically, we ask, by what processes
has coercion by private security agencies come to be regarded as legitimate and what
steps have been taken to this end by the state on the one hand and the private security
industry on the other?
The hollowing out of state legitimacy in the penal sector
In the early 1990s, at the beginning of the debate on the privatization of parts of the
prison estate in England and Wales, criminologist Sir Leon Radzinowicz argued that:
in a democracy grounded on the rule of law and public accountability the enforcement of penal
legislation […] should be the undiluted responsibility of the state. It is one thing for private
companies to provide services for the prison system but it is an altogether different matter for
bodies whose motivation is primarily commercial to have coercive powers over prisoners.
(quoted in Shaw, 1992: 31)
While such opinions have not entirely disappeared, they have moved to the political
margins, to prison reform groups and others resisting the advance of privatization
(Fitzgibbon and Lea, 2014; Hogg, 2012; Teague, 2012). Similar developments have
occurred in policing. As recently as 2012, for example, then Chief Constable of Surrey
Lynne Owens was adamant that, notwithstanding that her force had been among those
negotiating major outsourcing of ‘back office’ police work with the private security giant
G4S: ‘[a]ny suggestion that a private sector company will patrol the streets of Surrey is
simply nonsense. It would be no more acceptable to the public than it would be to me’
(Travis and Jowit, 2012).
In fact, legislation enabling Chief Constables to delegate certain police powers to
non-police agencies has existed in England and Wales since the Police Reform Act of
Fitzgibbon and Lea
547
2002 created the Police Community Support Officer (PCSO)—employed by the police
but not a warranted police officer—holding a subset of police powers including the
power to issue PNDs (Penalty Notices for Disorder under the 2001 Criminal Justice and
Police Act) covering various types of anti-social behaviour. PCSOs have limited powers
of search and may detain a suspect for a short time pending the arrival of a police officer.
This legislation also provided for the delegation of similar powers to employees of pri-
vate security companies as accredited Community Safety Protection Officers patrolling
public space. In 2014 the Police and Crime Commissioner for Dorset was welcoming the
patrolling of public space by the latter as uncontroversial, as ‘an extra pair of eyes and
ears’, ‘an extra tool in the toolbox’ (Frampton, 2014).
It is not our purpose here to provide a detailed account of the gradual penetration of
the private sector into penal or policing domains. Rather, we simply note the changes in
ideas about legitimate coercion which have accompanied such developments. The core
change is a process of ‘hollowing out’ or ‘thinning’ of state legitimacy that enables coer-
cive tasks to be delegated to non-state actors without compromising the state as the
ultimate repository of legitimate coercion. Most clearly illustrated in the penal system,
this delegation involves a growing distinction between the original coercive decision and
its enactment and administration.
While it is only the state, in the form of the courts, that has the power to sentence
people to imprisonment, this power ‘does not necessarily depend on the State owning the
means of force or employing the individuals who use it’ (Ryan and Ward, 1989: 69).
Some commentators identify a distinction between the determination and allocation of
punishment (Genders, 2002; Moyle, 2001) whereby the initial (legitimate) decisions by
state officials—police arrest and court sentence, initial probation assessment—justify
subsequent coercive activities by non-state persons. This works as long as the latter are
agents of the state through processes of subcontracting and outsourcing.
This distinction is easily contestable by reference to the fact that the management of
sentenced populations involves independent coercive decisions—by prison staff and
governors or probation officers—which may result in variations of harshness of condi-
tions, length of sentence, breach of licence and so on. The power to make these decisions
cannot, therefore, really be conceived simply as the allocation and management of the
original sentence (Moyle, 1995, 2001; South, 1997). The issue is not restricted to the
private sector because ‘public prisons too can be sites of unchecked discretion exercised
by individuals with their own personal interests and agendas’ (Dolovich, 2005: 546). The
fact that many such individuals are employed by profit-seeking private security compa-
nies creates a pressure for independent variation of the original sentence in the interests
of economy in the deployment of resources. Indeed, as exemplified by the recent privati-
zation of the English probation service, the interests of profitability may tempt private
contractors into all sorts of ‘innovations’ which alter the actual conditions of supervision
experienced by the offender (see Fitzgibbon, 2016; Fitzgibbon and Lea, 2014).
Policing is more complex. Policing private space such as gated communities, shop-
ping centres, politically contentious building sites (see South, 1997) and, more contro-
versially, the expanding domain of Privately Owned Public Space (Garrett, 2015a;
Minton, 2006) deploys traditional notions of the authority of the property owner. This
will not be considered here for reasons of space.
548
Theoretical Criminology 22(4)
The private policing of public space raises different but equally complex questions.
Partly, the waters are muddied by common law traditions such as the power of citizen
arrest which can be deployed by private security agents (South, 1988). On the other
hand, policing in a democratic society depends on discretion: when to intervene and how,
regulated by sensitivities based on police appreciation of community norms (Bronitt and
Stenning, 2011; Lea and Young, 1984; Reiner, 2010). The exercise of discretion requires
the authority inherent in the status of police officer as public official, a...
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