Vanderbilt Law Review


Ira P. Robbins

First Page



Even as the public is demanding that more criminals be incarcerated and that their sentences be lengthened, the problems of America's prisons and jails continue to plague, if not overwhelm,us. More than two-thirds of the states are currently under court order to correct conditions that violate the United States Constitution's prohibition against cruel and unusual punishment. There are many important questions, but there are still no clear, satisfactory answers.

The last few years have thus witnessed diverse, controversial developments. Some, like the voluntary accreditation of correctional facilities by the Commission on Accreditation for Corrections, have begun to take root. Others, like a 1982 proposal in Congress to build an Arctic penitentiary for serious offenders, have been inconsequential. Yet the number of prisons and the cost of housing them still mount. Prison and jail populations have doubled in a decade, and-with preventive detention, mandatory-minimum sentences, habitual-offender statutes, and the abolition of parole in some jurisdictions-there is no relief in sight. Some states are even leasing or purchasing space in other states. And it is costing the taxpayers approximately $17 million a day to operate the facilities,with estimates ranging up to $60 a day per inmate. Several commentators have not so facetiously noted that we could finance college educations at less cost for all of the inmates in the country.

To reduce some of this stress on the system, a new concept has emerged: the privatization of corrections, occasionally known as "prisons for profit." The idea is to remove the operation (and sometimes the ownership) of an institution from the local, state, or federal government and turn it over to a private corporation.

At the outset, it should be emphasized that private prisons are different from the notion of private industries in prison--Chief Justice Burger's "factories with fences" proposal-which seeks to turn prisoners into productive members of society by having them work at a decent wage and produce products or perform services that can be sold in the marketplace. (In the process, the prisoners can also pay some of the costs of their incarceration, and, we would hope, gain some self-esteem.