Letter to the Editor: The case against private prisons

Mass incarceration is one of the great moral challenges of our time. With merely 4.4 percent of the world's population, the United States holds almost one quarter of the world’s prisoners, far more than any other country. Nearly nine times as high as Germany’s, our incarceration rate is the highest on the planet (save for that of tiny Seychelles). While the destructive impact of mass incarceration is being felt across all poor communities, the racial dimension stands out: one in three black men can expect to go to prison at some point in his life, a fact of devastating consequence for the African-American family.

On the brighter side, over-incarceration is now widely recognized as a major crisis. From Bernie Sanders and Hillary Clinton to Newt Gingrich and the Koch brothers, cries for change are being heard all across the political spectrum. Should Princeton lend its voice to the rising chorus of indignation? To be sure, the University should foster a climate of engagement, but it is not its institutional mission to tackle social issues. It is its duty to honor its core values, however. For this reason, the University must send a clear message that investing in the incarceration industry is wrong. A pledge not to invest would resonate far and wide; as President Eisgruber ’83 recently indicated, it would also be costless. Columbia has taken such a pledge, and the University of California has proceeded to divest. More will follow. Princeton should lead by example and offer a proactive model of ethical conduct “in the nation’s service.”

If I am right that for-profit imprisonment is immoral, then the crisis of mass incarceration makes it a matter of utmost urgency. But am I right? Isn’t it merely an empirical question? Let the social scientists sort out the pros and cons of privatization so we can settle the issue rationally and be spared annoying opinion pieces such as this one. That was the Obama administration’s model when it announced the government’s plan to phase out its use of private prisons in light of their poor performance. Empirical evidence, of course, can be contested; and sure enough, right on cue, Trump reversed Obama’s decision. It hurts for a computer scientist to say it but, in this case, fact-finding is, as it were, a laudable quest to find the right answer to the wrong question.

The case against private prisons is not instrumental, but rather categorical. Just as slavery would still be wrong if all masters were angels, private prisons would still be immoral if they delivered a superior product — as they might well do in some places such as Australia. Private prisons are immoral because they are premised on a violation of human dignity. This position formed the basis of the 2009 Israeli Supreme Court decision to ban the practice and has been argued at length by prominent scholars. It is, in my view, an indication of how assiduously we have learned to ignore the normative implications of liberal democracy that the case has seemed unable to speak for itself.

So let me speak for it. Liberal societies abide by the classic Weberian idea that the State should have the monopoly of force. We do not allow private judges or for-profit courts of law. Likewise, there is wide consensus that the decision to deprive someone of liberty is so grave and solemn that it should be the sole prerogative of entities institutionally representative of us, the People. Which is not to say that all prison business ought to be public. Some of it is outsourced out of necessity (e.g., electronic equipment); some of it for efficiency (e.g., dining, maintenance). But then, some will ask, why not go all the way and allow prisons to be administered for profit? If hospitals can be, why not penitentiaries? The answer rests on the unique moral status of criminal punishment in modern liberal democracies. Caring for people is categorically different from locking them up.

Public shaming is no longer part of the sentencing arsenal. At least in principle, state-sanctioned punishment seeks to respect human dignity. The reason is that a criminal sentence is not an act of vengeance but a leaf out of the social contract binding the individual and the State. To ascribe guilt is to acknowledge both the agency and the autonomy of the offender who, in return, recognizes the legitimacy of the State to inflict punishment. The identity of the punisher is thus key to its legitimacy: to punish is the exclusive authority of the State and may not be delegated, for to do so would sever the moral cord between the offender and the community.

If that idea strikes you as a tad too subtle for its own good, ask yourself why impracticality is not the reason we deny victims the right to execute the court’s judgments. At least, one could argue, a victim has a participatory claim to see justice done. Yet to deny the victim that right seems to all of us (I hope) the proper thing to do. But then how can we turn around and grant that same right to a for-profit entity whose interests typically run counter to the public good? A private prison firm has a fiduciary duty to its shareholders but only contractual obligations to the State. Whereas society would love nothing more than the end of crime, hence the emptying of all prisons, carceral corporations can only seek more crime, more prisoners, and longer sentences — not because they are bad but because they are loyal to their owners.

This is no idle speculation: The private incarceration industry has spent millions of dollars lobbying for stricter criminal laws. Try to read without cringing this passage from the 2005 Annual Report of CCA, the nation’s largest private-prison firm: “The demand for our facilities and services could be adversely affected by the relaxation of enforcement efforts, leniency in conviction and sentencing practices or through the decriminalization of certain activities that are currently proscribed by our criminal laws.” Some will counter that the private sector faces similar misalignments of incentives (e.g., health providers, insurers, tobacco firms) but that there is no conflict that the right mix of regulations and free-market magic can’t put right. The comparison is a category error (the philosophical term for “not even wrong”) because incarceration is sui generis.

The 13th Amendment reminds us that our society rejects slavery and involuntary servitude but does not put a blanket ban on them, reserving the right to use them as legal punishment. This is not to equate incarceration with slavery, but to suggest what Wittgenstein called a “family resemblance,” a troubling likeness that should inspire extreme caution. To imprison somebody is always to walk along the edge of a moral cliff. As Abu Ghraib reminds us, a wrong step easily takes us into the abyss. To lobby for longer prison sentences just to make a buck is to dive headlong into that abyss. Princeton must take a public stand against such moral dreck.

Bernard Chazelle is the Eugene Higgins Professor of Computer Science at Princeton University. He can be reached at chazelle@cs.princeton.edu.