NCJ Number
110056
Journal
Yale Law Journal Volume: 96 Issue: 4 Dated: (March 1987) Pages: 815-837
Date Published
1987
Length
23 pages
Annotation
Privatization of prison operations will require not only strict contractual standards but also greater judicial willingness to review prison practices and to guarantee the rights of prisoners.
Abstract
State officials who have been faced with overcrowding, union bargaining difficulties, and funding difficulties have grown sympathetic to the argument that private enterprise can operate correctional institutions better and more cheaply than government. However, the courts have been reluctant to scrutinize the discretionary practices and decisions of prison officials. Nevertheless, courts have shown a longstanding hostility toward the standardless delegations of discretionary power to private, profitmaking entities. Continued deference is incompatible with this hostility. Thus, if government abandons the day-to-day control of core discretionary functions related to prisons, it must establish strict contractual guidelines and change the current deferential standard of judicial review to prevent unreviewed and unremedied abuse. These reforms may eliminate the economic advantages that have led to the privatization campaign. However, cost concerns cannot be allowed to override the State's duty to provide for those whom it has felt necessary to remove from society. 111 footnotes.