Page Text: School of Law,University of Warwick
Jon.Yorke@warwick.ac.uk
1. Introduction
Capitalist Punishment: Prison Privatization and Human Rights is a response to the hegemonic practices, which have led to human rights violations caused by the prison privatisation industry. Indeed, this volume offers a timely circumspect dialogue on the debates surrounding the privatisation of prisons around the world. Currently the privatisation prison industry is under the spotlight, and after the events of 11 September 2001, the world is watching to see how effectively the industry will play its part in the incarceration of criminals in the 'war against terrorism'.
Capitalist Punishment is an introduction to the issues of how the industry infringes upon prisoners' human rights par excellence, and offers an inter-disciplinary overview of the issues. The aim of the book is to highlight not only a socio-political discourse on prison privatisation, but a legal one too. Hence, all people involved within the prison industry, both academically, and professionally, will benefit from the information presented.
Turning the pages, readers may be shocked by the pernicious human rights violations, which occur within privatised prisons. Shocked, perhaps, because most violations are not brought to the public's attention by the media; as they are shrouded within the confines of the panoptical prison. Furthermore, the reader will notice a limited number of privatisation companies cited by the different authors. This is because there are only a limited number of key corporations, which advance the industry. A reader will quickly become familiar with the two world leaders in prison privatisation - Corrections Corporations of America, and Wakenhut Corrections.
In essence, this book is about the dwindling of the state's monopoly on incarceration, and the effects of the subjugation of prisoners, under the watch of corporations. The corporations advise the governments that privatisation is the only viable option under a burgeoning prison population. But is privatisation the only rhetoric to be considered, with the incarceration of a prison populace? Coyle et al think not.
2. The Growth of the Privatisation of Prisons
The modern phenomenon of prison privatisation derives from the United States, and the first three chapters of the book reflect this. The proceeding chapters detail specific violations of human (and People's) rights within privatised prisons, both in the US and selected countries around the world. The United States is a melting-pot for the advancement of the privatization prisons ideology, and so the book primarily focuses on the situation in the US.
In the 1980s, and continuing today, the US criminal justice system adopted a hard-lined view with the sentencing of offenders. This 'get tough on crime approach' has led to zero-tolerance, 'three strikes legislation' and mandatory minimum sentences, which have overwhelmed the prison services. Such practices were instigated through neoliberal policies formulated by the Reagan Presidency, and to a certain extent, within the United Kingdom. What results is a politically 'claimed' fiscal deficiency, which leads the governments to look to the private industry to solve the problems of the burgeoning prison population.
In the first three chapters of the book this scene is set, with the authors describing the resultant, 'prison industrial complex'. The prison industrial complex is an industry created by severe sentencing policies and a sustained prison populace, which is then governed by private corporations. The public sector is removed by the neoliberal ideology of the free market. Hence economics determine prison governance, which is antipathetically set against the protection of prisoners' human rights. How is this allowed to happen? Chapters Four to 17, detail the reasons for this egregious praxis.
3. Human 1 Rights Violations
This volume illustrates that the denial of human rights is endemic within privatised prisons. An intractable amount of deaths have occurred in private prisons, so too have rapes and other physical and mental torture. Medical care is restricted by the corporations, and inmates have died as a result of the guards refusing to allow the prisoners to see medical staff. Minorities are marginalised; racism is systemic; women are subjugated in many private prisons; and juveniles do not receive effective rehabilitation, resulting in a high recidivism rate. The human rights violations caused by the privatised industry is alarming.
Even with a growing body of legal decisions, condemning the practices of the privatised industry in the US, UK and Australia, privatised corporations still obtain contracts to govern prisons. The political and legal mechanism, which allows this status quo, is achieved by a practical immunity from democratic accountability. Katherine van Wormer illuminates in Chapter Nine:
…private prisons tend to distract public officials from responsibility for the way private prisons are run. Under privatization, the internal mechanisms of punishment are cloaked in a veil of secrecy. When a scandal occurs, journalists and other observers will focus on the performance, efficiency, and services of the private prison, rather than on public officials for allowing the conditions to persist. Accordingly, the government is conveniently let off the hook 2 .
The authors argue that the corporate structure of the prison industrial complex, allows politicians to separate themselves from responsibility when a private prison does not ensure the observance of human rights. Furthermore, the corporations themselves have enjoyed a substantial amount of immunity. In the landmark US Supreme Court decision in Correctional Services Corporation v Malesko, 122 SC 515 (2001) it was held that in the area of offering health care provisions, private corporations who run 'prisons under contract with the federal government are protected from suit for their constitutional violations 3 . Hence, there is a hegemonic rhetoric created, which drastically diminishes the accountability of the prison industrial complex for human rights violations.
Racial issues are at the forefront when considering the human rights violations. Chapter Eight deals with the arrested development of African Americans. Monique Morris talks about the 'legalized apartheid (segregation)' 4 within the history of American law, and she discusses the wider, social, ramifications and issues surrounding racism; firstly within society, then within the judicial sentencing structure and prison populations. In Chapter 10, Frank Smith discusses the engendered issues resulting in the violations of the human and cultural rights of the Native Americans. He offers a short, enlightened, discourse on the historical perspective of slavery and the repugnant US Supreme Court decision in Plessy v Fergeson, 163 US 537 (1896), which introduced the egregious 'separate but equal' doctrine. Plessy was overruled in the two Brown v Board of Education cases 5 .
Katherine van Wormer argues that women are treated unfairly and that there is a 'backlash against …women's creeping equality' 6 . Wormer states that the law is anti-feminist. Also, that through the 'war on drugs', women are singled-out because many will be given up by their junkie husbands. Furthermore, up to 40 percent of incarcerated women were for drug offences 7 . Indeed, Wormer acutely emphasis the plight of many incarcerated women. In Chapter 17 8 , Amanda George reveals the harrowing experiences many women face within the Australian Metropolitan Women's Correctional Center.
In Chapter Seven, Mark Erik Hecht and Donna Habsha outline the privatisation of juvenile prisons, and the monitoring of juvenile prisons through international law 9 . The authors include a case study on Canada and the United Kingdom. It is argued that within the UK, juvenile crime rates have decreased, but the juvenile prison population has increased. A reason is suggested:
… numerous highly publicised acts of violence have distorted the reality of youth involved in crime and have led to intense public debate on the matter. Politicians have been driven to introduce harsher sentencing policies and legislation as a result of public pressure to 'get tough on crime' 10 .
The authors also highlight the failure of the Canadian adoption of the UN Convention on the Rights of the Child, stating that the juvenile human rights paradigm is thwarted by the practices of the privatisation industry.
4. Selling the US 'Prison Industrial Complex' to the world
One area that is briefly touched upon by this volume (and possibly should/could have been developed further), is the 'threat' of the US prison industrial complex being imposed on other countries. This is a serious point which Stephen Nathan investigates in Chapter 16 11 . He begins his chapter with a letter penning an earnest worldwide plea by Mr C L Siimane, the Director General of the Lesotho Prison Service. Mr Siimane wrote an open letter to the international criminal justice community asking for help, he begins his letter, 'We wish to inform you that we are under terrible pressure to have the entire Lesotho Prison Service privatized by Group 4 from the UK …' and he goes on to say, '… do anything in your power and means to frustrate the wishes and efforts of Group 4 and its proponents' 12 .
Why such a desperate plea? The subject matter and detailed examples of this volume make it clear. Many human rights violations are caused by the privatised prison industry, and each government should beware of adopting such a repugnant capitalist model. Certainly, the US privatisation companies are of the view that they can 'make a significant impact on the global corrections market' 13 . Julie Berg, in Chapter 15, highlights the concerns with the development of the privatisation of prisons within South Africa. She is of the opinion that the modernised 'prison industrial complex' will not satisfactorily cope with the intricate cultural distinctions that exist the South Africa, and hence, Africa as a whole.
It also cannot be stated with any authority that the US model has worked in the UK, and the authors seem to suggest that this is why the industry is moving away from the developed world and focusing their claws on the emerging economies, as stated in chapter sixteen. Disturbingly, when the UK considered how to deal with its burgeoning prison population, the government only considered the rhetorical 'spin' from the US, and did not consider other country's models; such as the French, semi-private model. Hence the US corporations gained contracts within the UK, and brought with them their egregious practices. The author's collective message to the global criminal justice systems is 'stay public'.
5. Conclusion
The authors of the articles within Capitalist Punishment: Prison Privatization and Human Rights have produced a sound discourse urging governments to monitor and condemn the illegal practices of the prison privatisation industry, and also a sound portfolio warning prospective governments against blindly handing over their prisons to the corporations. The words of the corporations appear to bring bright futures, but governments should wait to hear both sides of the story. This volume brings the hitherto untold story of those who have suffered behind the panoptical protection of the privately owned prison walls.
Endnotes
1 . Within the specific African, and other indigenous human rights rhetoric, 'people's' and 'cultural' rights are recognised. This volume details and argues such 'people's' and 'cultural' rights. See, Chapter Eight: Prison Privatization: The Arrested Development of African Americans, by Monique Morris; Chapter 10: Incarceration of Native Americans and Private Prisons, by Frank Smith; Chapter 11: The Use of Privatized Detention Centers for Asylum Seekers in Australia and the UK, by Bente Molenaar and Rodney Neufeld; Chapter 15: Prison Privatization Development in South Africa, by Julie Berg; and Chapter 16: Private Prisons: Emerging and Transformative Economies, by Stephen Nathan.
2 . Chapter Nine: Prison Privatization and Women, by Katherine van Wormer, p 108.
3 . Chapter Six: Private Prisons and Health Care: The HMO From Hell, by Alexander, E, p 67.
4 .Chapter Eight, supra, note 1, p 87.
5 .Brown v Board of Education 347 US 483 (1954) Brown 1, the Constitutional ruling; Brown v Board of Education 349 US 294 (1955) Brown 2, the implementation decision. These cases abolished segregation within schools.
6 . Chapter Nine, supra, note 2, p 103.
7 . As a legal intern for the Oklahoma Indigent Defense System, in 1996, I visited an Oklahoman women's correctional facility to interview the wife of an inmate on death row in Oklahoma. The woman was handed over to the police by her husband, for drug offences.
8 . Chapter 17: Women Prisoners as Customers: Counting the Costs of the Privately Managed Metropolitan Women's Correctional Center: Australia, by Amanda George.
9 . Chapter Seven: International Law and the Privatization of Juvenile Justice, by Mark Erik Hecht and Donna Habsha.
10 . ibid, p 81.
11 . Chapter 16: Private Prisons: Emerging and Transformative Economies, by Stephen Nathan.
12 . ibid, p 189.
13 . ibid, p 190.
This is a book review published on 20 January 2004.
Citation: Yorke, J, 'Capitalist Punishment: Prison Privatization adn Human Rights' edited by Andrew Coyle, Allison Campbell and Rodney Neufeld, Book Review, Law, Social Justice & Global Development Journal (LGD) 2003 (2)
. New citation as at 1/1/04: <
http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2003_2/yorke/>