State monopoly of ‘permitted violation of human rights’: The decision of the Supreme Court of Israel prohibiting the private operation and management of prisons

AuthorRichard Harding
DOI10.1177/1462474511434429
Publication Date01 Apr 2012
SubjectArticles
Punishment & Society
14(2) 131–146
!The Author(s) 2012
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DOI: 10.1177/1462474511434429
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Article
State monopoly of
‘permitted violation
of human rights’: The
decision of the Supreme
Court of Israel
prohibiting the private
operation and
management of prisons
Richard Harding
University of Western Australia, Australia
Abstract
The emergence of private sector management of state prisons over the last 30 years has
been controversial. It has been strongly argued that the administration of prisons is a
core state function that, morally, should not be delegated. Proponents of this view
contend that the State should directly manage its prisons even if it could be demon-
strated that the privately managed prisons are superior to publicly managed prisons in
achieving positive correctional outcomes or having less repressive regimes or being
more sensitive to human rights. Hitherto, this strongly argued moral position has not
been directly tested by litigation. In the case described in this article, a challenge to the
proposed privatization of an Israel prison was challenged in the Israel Supreme Court.
The challenge hinged on the meaning of the Basic Law of Israel which, it was argued,
created a super-legislative constitutional right for prisoners to serve their sentences
under the direct management of the State. The Supreme Court upheld this argument, in
effect accepting that imprisonment is a core state function. It stated that all imprison-
ment per se contravenes Basic Law provisions relating to life, personal liberty and
human dignity. To serve a sentence in a privately managed prison would be a further
contravention of the Basic Law. Accordingly, the State should have a monopoly of
‘permitted violation of human rights’.
Corresponding author:
Richard Harding, Crime Research Centre, University of Western Australia, Perth, Australia.
Email: richard.harding@uwa.edu.au
The article discusses the implications of this decision both within the domestic con-
text of Israel’s imprisonment standards and from the point of view of whether the
decision has wider significance for the growth of private management of prisons in
other jurisdictions.
Keywords
human rights, Israel constitution, prisons, privatization
Prologue: The re-emergence of prison privatization
In post- Civil War USA, prison privatization involved the sale of prisoners’ labour
to entrepreneurs, who then would sell on their labour and/or charge their families
for their subsistence. Accountability was non-existent, and standards inhuman and
degrading. The practice was a blight upon penal policy and an abrogation of state
responsibility for its citizens. The notion that privatization was an acceptable way
of managing imprisonment became discredited.
It was a little surprising, therefore, that it re-emerged so strongly in the early
1980s. The broad political context was the dominant philosophy that the State was
a wasteful service provider in comparison to the private sector. This view was
encapsulated in the enormously inf‌luential and widely cited book Re-inventing
Government (Osborne and Gaebler, 1992). The specif‌ic trigger was the dif‌f‌iculty
that the US government was experiencing in dealing with immigration detention.
Once privatization of custodial services commenced, however, standard imprison-
ment became the target of the companies involved. The motivation of the parties –
governments and companies – was complex. These motivating factors included:
exponential increases in incarcerated populations; overcrowding which in turn
led to federal court orders against prison authorities; political and legal bar-
riers against capital expenditure by states, inhibiting their ability to commit addi-
tional funds to prison infrastructure; concern about the recurrent costs; growing
frustration with the perceived obstructionism of unionized labour; and some
desire for regime improvement and better correctional outcomes (Harding, 2001:
269–273).
Privatization soon spread from the USA to other common law countries, parti-
cularly Australia and the United Kingdom. However, it was a far dif‌ferent model
from the post-Civil War version of the ‘sale of prisoner labour’. It involved the
delegation of service delivery, not the wholesale abandonment of state responsibil-
ity. This was exemplif‌ied by the fact that, in Australia and the United Kingdom, the
regulatory environment created by the State was rigorous. However, regulatory
oversight was much looser in the USA.
While the motives for privatization were complex and multi-layered, it is true to
say that they involved among other things a desire to improve upon public sector
systems that had sometimes become introverted and demoralized, and were focused
132 Punishment & Society 14(2)

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