What,s Wrong with the Prison Industrial Complex?

Profit, Privatization, and the Circumstances of Injustice

TOMMIE SHELBY

The central concern of this chapter is with the call to dismantle the prison industrial complex. I argue that this form of prison abolition, while in many ways insightful and appealing, also has serious weaknesses as a moral cri­tique.

I focus on the work of Angela Davis, who is a leading scholar-activist in the abolitionist movement and an influential social philosopher. In books, essays, speeches, and interviews spanning nearly 50 years, she has defended a world without prisons (whether public or private) as a morally required and realistic political goal. One of Davis's core objections to incarceration is that, as generally practiced, it is an immoral fusion of ineffective state crime­control measures, the privatization of public functions, and the maximiza­tion of corporate profit. Davis seeks to abolish prisons partly because she views them as components of a vast and destructive “prison industrial com­plex.”¹ This designation, she tells us, is meant to draw attention to the fact that prison construction, prison ownership, prison administration, prison services, and inmate labor attract large amounts of private capital and that commercial profit from the practice of imprisonment is a driver of mass incarceration. Davis also views prison abolition as a necessary component of resistance to “neoliberalism” and a key demand in a democratic-socialist movement.²

Some who are otherwise sympathetic to the abolitionist cause stop short of calling for a complete ban on prisons. They allow that incarceration, whether as detention, rehabilitation, or punishment, has (or at least could have) a legitimate public function.

Philosophers have written extensively about punishment and its moral justification. They have proposed and criticized theories based on retribu­tion, deterrence, consent, forfeiture, fairness, reconciliation, rehabilitation, moral education, and other things. However, these theories typically abstract away from the concrete realities of imprisonment. They also ordinarily ab­stract away from related questions of political economy and public finance. Moreover, philosophers usually assume, in the context of their theorizing, that the society within which imprisonment occurs is just (or nearly so) and that the governing authority (usually a state) is fully legitimate. But what has to be shown (if it can be) is that imprisonment is morally permissible and cost-effective in our own unjust society and world, or at least that it could be so justified under better social conditions that we can feasibly bring about. Davis raises serious doubts about whether this kind of justification is possible.

Incarceration, Detention, and Punishment

US federal, state, and municipal prisons are often grossly unjust and in­humane, and they contain many who have been confined for far too long and many who should never have been imprisoned at all. Indeed, elsewhere I have questioned the legitimacy of the American criminal justice system.³ Yet because some prisons are better than others, in deciding whether to be a reformer or an abolitionist, we need to know what a “prison” is and not just what some existing prisons are like.

I treat “incarceration” as my general category and regard “imprison­ment” (and thus “prisons”) as a type of incarceration. Incarceration, broadly conceived, has at least five elements. It entails involuntary confinement— restriction to a limited space with no right to leave without permission from authorities. This socio-spatial site of confinement is an enclosed space with a physically secure perimeter—walls, fences, guards, and locks—to prevent escape and unauthorized entry. Incarceration is a hierarchical institutional practice defined by a set of rules, roles, and goals. It is not just a building with people locked inside. These rules and roles vary with the overall justifica­tory aims of the institution (and sometimes with the covert purposes of its officials). Those confined to carceral spaces (“inmates”) are isolated from the general public—separated from others in the outside world (and sometimes from one another) and with highly restricted (if any) rights to visitation and communication with those outside (and sometimes within) the facility. Importantly, inmates are in the custody of carceral authorities.

Incarceration, so understood, can be used for a variety of purposes. Some are legitimate. For instance, incarceration can be used to quarantine those with highly infectious and dangerous diseases or to hold enemy combatants in times of war. Some uses of incarceration are clearly illegitimate: to keep a population available for exploitation, to repress political dissent, to torture inmates, or to use them for medical experiments.

Even within the context of crime control, incarceration can have a num­ber of purposes. For example, there is pretrial detention, or what might be better called “preconviction detention.” Such detention raises a number of issues for the reform-versus-abolition of the prison industrial complex.

Let us distinguish two pretrial periods. First, there is the period directly af­ter arrest, when law enforcement agents take a suspect (perhaps against their will) into custody for questioning or to face formal charges but before formal charges are brought and before a formal plea on the part of the accused. The accused will be incarcerated during this period, which ideally should be brief (hours or days, not weeks or months, and certainly not years). Second, there is the period directly after a formal plea of “not guilty” but before a trial to determine guilt. (This is “pretrial detention,” strictly speaking.) There are two plausible justifications for detention in jail. The first is that there are strong reasons to believe that the accused will not appear for trial or (what amounts to the same) will refuse to voluntarily submit to accountability measures.

It is worth noting that to completely abolish incarceration as pretrial de­tention would mean that the public would have to rely solely on voluntary compliance with court orders and that the police would be prohibited from forcibly arresting suspects, even those accused of the most serious crimes and those known to be highly dangerous. If there are less harmful alterna­tives that would adequately ensure that the accused will submit to account­ability measures (for instance, bail or electronic monitoring), then generally these should be chosen. There may be some question about the costs of these alternatives (and who should pay for them) that would make incarceration preferable and defensible. But I will largely leave this issue aside.

Now these non-carceral alternatives could lead to economic exploitation in commercial bail and profit from electronic monitoring technology. There are critics of the prison industrial complex who want to abolish commercial bail services. This could lead, if not to more people in jail (and for longer), to greater electronic monitoring and thus greater state surveillance, which some abolitionists, including Davis, also oppose. Some might argue that pro­hibiting commercial bail would be an unfair interference with personal lib­erty. Why shouldn't the accused (or their family or friends) be permitted to make a contract with another private actor to share the cost and risk of bail?

If bail were always set at a cost the accused could be expected to pay rely­ing solely on their own personal financial resources (cash bond), commercial bail would not be necessary. Bail might be reasonably set, though, on the assumption that friends or family will help with the costs. When such vol­untary financial assistance is forthcoming, this not only communicates that the accused has strong ties to the community (and so is unlikely to flee the jurisdiction) but also that friends or family members are confident that the accused will appear for trial (or could be brought to do so through persuasion or informal sanctions).

Yet, the fact that a person lacks friends or family with the resources or req­uisite trust does not mean the person won't show up for trial. I am inclined to think that such a person should probably be permitted to use commercial bail services, as this may be their only means to ensure the court that they will appear for trial. It is important to note, though, that a bail-bond agent would be unlikely to make such an agreement if they lacked the power of ar­rest (or at least of electronic monitoring). Otherwise, commercial bail service companies would run an unreasonably high risk of default, perhaps making the enterprise unprofitable or very likely to fail. These companies are effec­tively assuring the court that they will ensure, by force if necessary, that the accused will appear in court. They are thereby exercising the equivalent of policing powers, despite being a private organization.

The advocate for the abolition of the prison industrial complex might in­sist that the public fully cover the costs of electronic monitoring and law enforcement to ensure that the accused appears in court. This would elimi­nate the need for pretrial detention and bail (though some among the ac­cused may prefer bail to electronic monitoring), therefore limiting the finan­cial burdens on the accused and their loved ones and reducing the extent to which criminal justice is a commercial enterprise.

Indeed, the abolitionist could go further. Where the criminal justice sys­tem is fair and widely believed to be so, we should expect citizens to appear for trial when the public (through its official representatives) has accused them of committing crimes. It should be mutually understood to be their civic responsibility and moral duty. Accordingly, it could be argued that since the accused has yet to be convicted, the presumption of innocence suggests that neither jail nor bail nor electronic monitoring is warranted unless there are strong reasons to believe the accused represents a grave danger to the public and thus needs to be incapacitated.

There is still the question of flight. If the worry is that the person will leave the country, then border enforcement (assuming this is sometimes justified), extradition agreements, and electronic monitoring should be suf­ficient to deal with this risk. One might nonetheless worry about the per­son who does not leave the country but does leave the relevant jurisdiction. Should the public accept the financial costs of ensuring that such a person will appear in court through the use of electronic monitoring? Or is it fair to expect the accused to cover the costs of this assurance, and if so, should they be permitted to make use of commercial services or private loans to cover the costs? These are challenging questions, and a full assessment of the prison industrial complex would need to answer them.

I focus, however, on incarceration when its official purpose is punish­ment—a penalty for committing a crime. In fact, Davis uses the phrase “puni­tive incarceration” to differentiate it from incarceration as pretrial detention.⁵ We can call an incarceration facility whose primary purpose is rehabilitation a penitentiary. An incarceration facility that aims to treat and house those who suffer from serious psychological disorders is a psychiatric hospital. An incarceration facility that functions to impose punishment is a prison. These aims can be, and often are, combined within the same facility. Davis opposes both the penitentiary and the prison. Accordingly, I refer to both practices as “imprisonment” and to their corresponding facilities as “prisons.”

Let me say a brief word about incapacitation through incarceration. It is sometimes necessary or prudent to rely on incarceration to incapacitate dangerous individuals. There is an analytical and moral difference between incarcerating persons to physically prevent them from harming others (by restricting their movement to a guarded and enclosed space) and incarcerat­ing persons to punish them. Yet when carceral incapacitation is imposed in response to a criminal offense, it is practically indistinguishable from pun­ishment. To the incarcerated, both will naturally feel like punishment even if that is not the aim. The same can be said when carceral incapacitation is combined with moral rehabilitation or psychiatric treatment. These are all ways of using incarceration to control and respond to crime, where the hard treatment of offenders is triggered by a criminal offense. The same can­not be said of carceral incapacitation when it is used for the quarantine of those with deadly communicable diseases, the involuntary commitment of mentally ill patients who have not perpetrated crimes, or the confinement of enemy combatants in wartime. These inmates are regarded as dangerous enough to warrant incarceration, but their confinement is not punishment or even akin to punishment.

Prison, Privatization, and Profit

One way to argue for the abolition of the prison industrial complex is to focus critical attention not so much on prisons but on capitalism. For in­stance, the critic of the prison industrial complex could argue that capitalism is an oppressive social system—say, unjust, undemocratic, dehumanizing, or exploitative—and so its basic institutions (e.g., private ownership of produc­tive assets, wage labor, markets, and private finance) should be dismantled and replaced. If one is already opposed to capitalism, it would also be natu­ral to oppose the prison industrial complex, as it necessarily relies on and is enmeshed with capitalist practices and products. In this way, there is a direct road from a critique of capitalism to the demand to abolish the prison industrial complex.

But this ground of opposition would apply to many institutions and organizations—not only prisons and the military but also schools, hospitals, banks, news organizations, communication networks, mass transportation, homes for the elderly, and even the family. The thesis that the prison indus­trial complex should be abolished would then just be a theorem derived from the more general claim that capitalism should be abolished. An institution that necessarily depends upon and operates through an inherently unjust practice could never be fully legitimate and would be morally tainted by its association with the oppressive practice. Prisons would not be special in that regard, though, and the primary critical task would be to convince skeptics that no form of capitalism is compatible with true human freedom—which, on one plausible interpretation, was Marx's aim in Capital.

Yet Davis and other abolitionists have objections to the prison industrial complex apart from their general objections to capitalism. They are also con­cerned with how prisons interact with or are shaped by capitalism, and these concerns will be my focus. To isolate these specific worries, keeping them distinct from a rejection of capitalism itself, I shall assume that capitalism is not inherently unjust. To be clear, I am not assuming that existing capital­ist practices are just. Far from it. I assume only—and here primarily for the sake of argument—that there is a realistic form of capitalism that would be compatible with a stable, just, and democratic society.

To gain further clarity about what, morally speaking, is at issue, we need to make explicit the meaning of some relevant terms. Privatization is the pro­cess by which a property or enterprise goes from being government owned to being privately owned. Privatization can involve two types of rights transfer: the transfer of ownership rights to assets (such as land, facilities, vehicles, or machinery) and the transfer of operating rights to an enterprise (say, the pre­rogative to provide certain goods or services). Sometimes a public function (for instance, law enforcement, education, transportation, or sanitation) is carried out, at least in part, by a private organization rather than by a gov­ernment agency or public-service employees. This outsourcing arrangement is facilitated by public-private contracts and need not involve the transfer of ownership rights. Public institutions also often make use of private suppliers for goods and resources needed to carry out relevant public functions but without turning over any ownership or operating rights.

Private organizations can be for-profit or nonprofit. Profit is a financial benefit that is realized when the amount of revenue gained from a business enterprise exceeds the costs (including taxes) needed to sustain the enter­prise. The primary purpose or goal of for-profit organizations is to secure profit. If we rely on capitalist principles, any profit that is gained through the enterprise belongs to the business's owners, who are free to decide what to spend it on (e.g., reinvestment in the enterprise, other stocks or bonds, per­sonal consumption, donation, and lobbying) and free to save it for future use.

A nonprofit private organization exists for purposes other than generat­ing profit, such as serving a community, advancing a cause, or benefiting the general public. Although the organization's members may be concerned with revenue, costs, debts, and efficiency, they are concerned about these financial matters only insofar as they bear on keeping the organization operating, ex­panding it, or making it operate better. Members of a nonprofit do not own stock in the organization and thus have no claim on financial benefits based on ownership rights.

Labor compensation is different from profit. Although both can serve as motives and rewards, labor compensation is a financial benefit derived from providing a service or doing some task. It is payment in exchange for actual work. Such payment can be given to a public-service employee working for a government agency or to an employee working for a private organization (profit or nonprofit). Employees are free to decide what to spend their com­pensation on (e.g., stock, consumption, gifts, lobbying) and may save it for future use. The distinction between commercial profit and labor compen­sation is meant to mark the difference between deriving a financial benefit from ownership and deriving it from work.

With these distinctions in mind, we can more readily see that objections to the prison industrial complex can take a variety of forms. I leave aside objections on grounds of cost-effectiveness and focus on moral objections. For instance, a concern could be that some private organizations are wrongly earning (or attempting to earn) profit from prisons. Or the objection might be to granting administrative power over prisoners to private organizations. Or perhaps the issue is which specific prison functions are being outsourced to the private sector. Or the concern may be over ownership rights, which is its own form of power—a type of power that, when it comes to prisons, is perhaps only legitimately held by the public.

Corruption, Wrongful Gain, and Perverse Incentives

I shall assume, with Davis, that retribution for wrongdoing is not a legitimate public function. That is, I will not rely on the premise that those who com­mit crimes deserve to suffer and that the state has a right to use incarceration to ensure they endure this suffering. But, on one influential view, and the one I favor, the official function or principal purpose of prisons (like other law enforcement institutions) is to provide security to the general public by preventing and controlling crime—that is, by keeping crime within tol­erable levels so that everyone's basic liberties and property are adequately secured. The provision of this essential public good is a fundamental state responsibility. Indeed, on some accounts, it is the primary justification for governmental authority and for the state's claim on a monopoly over the use of coercion.

Davis claims, however, that for-profit companies in the prison industry do not actually seek to provide security but only to make money for share­holders. The real or latent function of these institutions is to amass private wealth under the ideological cover of providing a necessary public good.⁶ Prison privatization is, in effect, a scam—a way to accumulate private capital using public funds (and sometimes using prison labor) and on the pretext of making an essential contribution to public safety.

This critique reaches beyond the familiar charge that capitalists are greedy and indifferent to the human costs of their enterprises. It is an objection to neoliberal governance, in particular to public-private contracts to carry out public functions. Governments make contracts with private companies in prison-related industries. Presumably, these contracts would not be renewed unless government officials were satisfied with the services provided (assum­ing there is sufficient competition for government contracts). This suggests that these officials (and perhaps the institutions of which they are a part) are corrupt, that they are colluding with businesses that profit from public revenue without providing the relevant public good. For-profit companies often engage in lobbying efforts that exacerbate the problem of corruption among public officials. They also sometimes participate in misinformation campaigns to mislead the public and thereby sway it in their favor. I have no doubt about the reality or seriousness of these problems of corruption. Yet here authorities clearly misuse carceral institutions and abuse their power to make and implement crime-control policies. Something similar happens in the arenas of education, health care, and housing.

However, a similar form of corruption can occur within a wholly public prison system. Public officials, too, can be indifferent to whether prisons help to secure public safety. Their chief concern is sometimes keeping their jobs (along with the compensation, power, and status attached to their po­sitions). And it is not just high-level public officials who have motives that could undermine public functions. Lower-level public-service employees may be similarly motivated. For instance, prison-guard unions have a finan­cial stake in keeping prisons open and full regardless of whether this would prevent crime or rehabilitate inmates. Consequently, they may be tempted to defend the need for draconian sentences. They also have an incentive to resist managerial or technological innovations that would reduce the need for correctional officers.

Unfortunately, the broader public often fails to check these abuses. Cit­izens might not hold these officials and public employees accountable for their poor performance and unethical conduct because of limited collective efficacy, or because they do not know about the corruption, or because they are insufficiently concerned about the problem, perhaps because they lack sympathy for those convicted of felonies.

The vice of being indifferent to whether a public good is adequately pro­vided can afflict public institutions and private organizations. Whenever it is possible to continue acquiring benefits no matter the quality of the goods or services provided, we should not be surprised if some fail to carry out these responsibilities in a conscientious way. Private organizations hardly have a monopoly on institutional corruption. Such corruption should be exposed and ended, which requires being vigilant in both the public and the private sector.

But let us suppose the relevant private organizations actually provide ade­quate services and products in a cost-effective way. Would the fact that profit is their motive and reward be sufficient reason to prohibit the practice of privatizing prisons? Davis thinks so, and for two reasons. She objects to the source of these profits—namely, the intentional deprivation of freedom and imposition of hardships on inmates and their families. She also thinks that the profit-motive undermines the effective provision of public goods (in this case, security) and is a strong incentive to maintain horrid prison conditions (as a cost-cutting measure to maximize profit).

The first concern—the unsavory source of profit—suggests that the rel­evant principle is that no one should gain financially from the suffering caused by imprisonment. Yet even if prisons were constructed, maintained, and admin­istered solely by public-service employees, these employees' labor would be (and should be) compensated and so they would gain financially from the suffering of inmates and their loved ones.

Perhaps the objection is not to fair compensation for necessary work but rather to profiting from ownership of prison-industry firms. The distinction between profit and labor compensation does not appear to help, though, because at least some financial gain from property rights would appear to be permissible in this domain. For example, prisons need supplies and resources—food, clothes, bedding, medical supplies, equipment, technol­ogy, toiletries, fuel, and so on—that, in a capitalist society, will be provided, at least partially, by for-profit organizations. The owners or shareholders of these companies will therefore profit from prisoners' suffering and curtailed freedom. Indeed, incarceration makes capital gains possible for at least some employees of public prisons, for they (at least the more highly paid among them) can use a portion of their pay to buy shares in companies and this ownership may yield financial benefits. Although somewhat indirect, this too would be profiting from the suffering caused by incarceration.

A slightly different underlying principle is this: no one should profit from the harmful wrongdoing of others (in this case, from the serious crimes of prison­ers). Again, this is overly broad and for the same reasons. Medical personnel and hospitals do no wrong when they expect to be paid for treating victims of serious crimes. And a private company reasonably expects to turn a profit from the sale of its goods and services used in such medical treatment.

It could be maintained that one is permitted to profit from others' harm­ful wrongdoing but only if in so doing, one also contributes to repairing the harm, redressing the wrong, or preventingfurther such wrongdoing. This might explain the moral acceptability of the medical case. But a private prison that con­tains convicted serious offenders will usually satisfy this condition as well.

A sounder principle would be something like this: one should not seek to profit from suffering caused by injustices one has perpetrated. In other words, it is wrong to act so as to profit from one's own harmful wrongdoing. One might inadvertently profit from a wrong one has committed, but one may not act wrongly so as to profit from the wrong. This is widely and rightly regarded as impermissible. I believe Davis is on firm ground here.⁷ To the extent that a corporation is blameworthy for creating or perpetuating crime, it should not turn this wrongdoing to its advantage by profiting from prisons. I will return to this point.

Davis's second concern with profit from prisons is that it creates perverse incentives—namely, practical reasons to lock up people and to impose long sentences even when it won't prevent crime.⁸ It is a morally unacceptable situation when there exist operative reasons to impose unnecessary suffer­ing. In response to this legitimate worry, reformers could insist that arrests, indictments, verdicts, sentencing, parole, and release decisions be made only by those without a financial stake in the outcome of those decisions (and perhaps who cannot be hired or fired by someone with such a stake). They might also maintain that government officials who regulate or oversee the prison industry should be prevented from having a financial stake in that industry. These reform efforts would be directed toward reducing conflicts of interest between actors in prison-related firms and the aim of fair and humane crime prevention. No reasonable and honest defender of prison privatization believes that the corrections industry should be free to operate without public oversight and government regulations.

This response, however, is not entirely adequate, as the problem runs deeper. There is in fact a second perverse incentive: to keep the costs of prison administration as low as possible so as to increase profits. This in­centive can lead to limiting or cutting educational, vocational, health care, psychiatric, or rehabilitation services. It can lead to unsanitary environmen­tal conditions, low-quality or unhealthy food, and inmate overcrowding. It can lead to reducing correctional staff to dangerously low levels or to hiring the cheapest workers available without due regard for their competence and commitment to doing the job well.

The cost-cutting problem can negatively affect the administration of pub­lic prisons, too. Public revenue is limited. Budgetary considerations (includ­ing public debt and deficits) can lead to the elimination of important prison programs and the hiring of inadequate staff. And the public, given its usual contempt for prisoners and embrace of retributive attitudes, may not sup­port greater spending or higher taxes to improve the lives and safety of pris­oners, thus placing a democratic constraint on what public officials may do to improve prisons. So the incentive to keep costs down (whether to increase profit margins or to stay within budgetary constraints) is powerful and pres­ent for public and private organizations.

However, the incentive to cut costs, even for vital goods and services, is inherent in for-profit enterprises. There is no way to eliminate it. The public can only try through government oversight and regulation to prevent cor­porations from acting on the incentive in ways that compromise the provi­sion of adequate public goods and services. By contrast, the public could be convinced—on grounds of justice, human rights, or public safety—to spend more money on prisons and prison services. This is one reason to prefer pub­lic prisons over privatized for-profit prisons.

And there is another. Not only do for-profit private prisons have no incen­tive to rehabilitate prisoners or to reduce recidivism. They have an incentive to promote crime and criminality. Creating prison conditions that make pris­oners more likely to reoffend once released or more likely to violate prison rules that extend their prison stay is actually good for business. Insofar as they exacerbate the crime problem in this way, they profit from suffering caused by their own unjust actions. (Recall our earlier principle: one should not seek to profit from suffering caused by injustices one has perpetrated.) The injustices at issue are encouraging criminal activity and complicity in any subsequent crime. The temptation to engage in such wrongdoing might be so strong and the resulting harms so enormous that it would be better not to run the risk of using for-profit private prisons. The general public is not subject to such temptation. It seeks cost-effective ways to limit crime. Efficient crime con­trol means not only greater public safety but also more public resources for things like schools, hospitals, and parks.

It could be argued that the problem is not so much profiting from prison ownership or prison administration as it is profiting from prison labor. Pri­vate companies do sometimes contract with the state to gain access to cheap prison labor (whether in a public or private prison). Yet where inmates can refuse to work for private companies without incurring penalty, the fact that a private company profits from prison labor is not in itself unjust—unless cap­italism is unjust. Many nonincarcerated persons, to meet their material needs, seek employment from for-profit companies that pay low wages.

Perhaps Marx was right that wage labor under capitalism is a form of slavery—dehumanizing servitude under despotic rule. But if so, prison labor that benefits private firms would be an instance of a much more widespread unjust practice that occurs inside and outside prison walls, not a distinctive form of oppression. And, again, our call should therefore be for the abolition of capitalism, not the abolition of prisons. In any case, profit can be secured from prisons without extracting it directly from the labor of prisoners.⁹ Thus, ending prison labor or raising prisoner wages, though perhaps welcome on other grounds, will not abolish the prison industrial complex.

One motive for the privatization of a public function is to weaken orga­nized labor, which keeps wages low. This is an objectionable way to reduce public expenses, for it leaves workers vulnerable to exploitation and wrongly reduces the value of their basic liberties. It is clear that government can save money by relying on private companies partly because these companies unfairly squeeze labor (including prohibiting or undermining unions). But reform seems possible here, too. Government could get some of the advan­tages of agreements with private companies (for example, efficiency due to specialization and economies of scale) while only contracting the services of vendors with fair labor practices, including respecting the right of workers to organize and strike.

Now, Davis opposes public prisons that rely on for-profit companies for any goods and services.¹⁰ And she extends her critique to domains beyond law enforcement. She argues that there are certain vital public goods—security, education, shelter, and health care—that should be available to everyone on the basis of need alone and that providing these goods should not depend on whether doing so would also turn a profit. Private for-profit companies should play no role in the provision of these public goods, on her account. Therefore, these public services, she argues, must be moved entirely to the public sector.

I find this idea appealing, yet it is difficult to see how a nonsocialist gov­ernment could ensure universal access to education, health care, and housing without extensive reliance on for-profit companies. Some of the personnel, supplies, technology, vehicles, and facilities needed to provide these goods and services would have to come from the for-profit private sector. Just con­sider what it takes to build and maintain a single high school—one or more buildings, hundreds of books, computers, desks, chairs, electricity, food, clean water, sporting equipment, art supplies, cleaning supplies, maintenance equipment, medical supplies, and so on. To avoid reliance on for-profit com­panies completely, government would have to take over almost the entire economy just to ensure that all children have access to a decent school. At the very least, government would have to enable, support, and rely exclusively on nonprofit worker cooperatives. However, this would make Davis's opposition to privatization—whether of prisons or anything else—just a consequence of her opposition to capitalism. It would not have to do with prisons per se.

Nonprofit Prison Privatization?

The critique of the prison industrial complex—again, when not simply an expression of anti-capitalism—is best regarded as principled opposition to structural injustice. That is, it is concerned not about privatization of car- ceral functions as such, but about privatization in the context of a wide range of serious social injustices, from economic and racial injustice to gender in­justice and undemocratic practices. Under current unjust social conditions, a scheme of cooperation between the public penal system and the corporate world is deeply worrisome, even frightening. Such a collaboration has many perils that are difficult, if not impossible, to contain adequately through gov­ernment regulation and public accountability measures. Moreover, continu­ing reliance on for-profit private prisons would likely further erode public trust in the criminal justice system, which needs to be widely accepted as legitimate if it is to be effective at crime control. To maintain or regain po­litical legitimacy, criminal justice must not only be done but must be seen to be done. Transparency and accountability are crucial here, and commercial mechanisms and the profit-motive can inhibit these democratic ends.

Notice, however, that the choice is not limited to either publicly owned, fully government-operated prisons or private for-profit prisons. There is also the possibility of a nonprofit private organization administering and perhaps owning a prison facility.¹¹ Prison privatization without profit could be a viable option under certain special, though not uncommon, circumstances.

Such an unusual proposal immediately raises three questions. First, how, practically speaking, would such an arrangement work? Second, why think this arrangement would be better, from a moral point of view, than the alternatives—public prisons, private for-profit prisons, or no prisons at all? And third, under what circumstances would this public-nonprofit arrange­ment be justified?

A well-funded private organization concerned with protecting the inter­ests of a vulnerable population or promoting the public good could make a contract with a government (local, state, or federal) to take over some core carceral functions. Among these functions are ensuring prisoner safety (from others' aggression and self-harm), health care (including mental-health care), nutrition and physical fitness, maintenance and sanitation, inmate supervi­sion and perimeter security, discipline for prison-rule violations, facilitating in-person and remote interaction between prisoners and their families and friends, and educational and vocational services.

A nonprofit private incarceration facility could also be used to hold those charged with crimes but not yet convicted. Again, pretrial detention is over­used, and bail is sometimes set too high and often unnecessary. But to the extent that such measures are needed to ensure accountability or incapacita­tion, private jails could be used when bail is denied, cannot be raised, or is re­fused by the accused. The private organization could be held responsible for custodial care and for ensuring that inmates appear for trial. This would be functionally equivalent to holding a private party financially liable (through forfeiting their bond payment) for when the accused fails to appear in court.

Some might object to permitting private agents to use coercion or violence against prisoners, insisting that the use of force should never be delegated from the public to a private actor. Let us assume this position is sound. It would not rule out nonprofit, private prison administration and services. The enforcement of a prison's perimeter (to prevent escape and unauthorized en­try) and the use of force to ensure safety, order, and discipline could remain exclusively in the hands of state agents—that is, public employees trained and officially authorized to play this role. The remaining functions would be in the hands of a private organization and its employees and volunteers, subject of course to public rules and accountability. This would be similar to other private organizations (e.g., private universities and hospitals) that rely on the police for certain purposes or under certain circumstances.

Now let us assume that some coercive functions can be legitimately out­sourced or privatized. (After all, physical force is sometimes used in private psychiatric hospitals and schools.) To the extent that private security is re­lied on, such personnel could be required to receive specialized and publicly approved training and to go through psychological evaluation and back­ground checks. Perhaps all correctional officers in the private organization should be required to pass certain tests and to secure a license to serve in this capacity. This is already true of medical personnel who work in prisons (public or private).

To reduce reliance on coercion and violence in the facility, it might be wise to permit only nonviolent offenders to be admitted to a private prison. Or in­mates convicted of violent offenses could be permitted, but only if (given an objective risk assessment) they are appropriate for a minimum- or medium­security prison. All prisoners who, for reasons of custodial care or security, are best held in a maximum-security facility could be excluded from private prisons.

If the major administrative and service roles within the prison were under­taken by the nonprofit organization and the prison itself was owned either by the organization or the public, this would effectively eliminate the prob­lems of wrongful financial profit and profit as a perverse incentive. The orga­nization would not be in violation of the principle that no one should seek to profit from suffering caused by their own unjust acts, because it would not be seeking to profit from the enterprise at all. Neither those who own nor those who run the prison would have a right or duty to maximize profit or shareholder gains. Unlike the for-profit prison industry, nonprofit prisons would have no financial incentive to increase crime rates, recidivism, or soci­etal punitiveness. They could concern themselves with money matters only insofar as this was necessary to ensure the continuance of the prison. They could carry out the entire operation at cost, folding any budget surplus into improving prison conditions, services, and administration.

To reduce the risk of impropriety and corruption, the private organiza­tion could have an all-volunteer board with no members who have a stake in prison-related industries. Paid staff could be kept to a minimum. Participa­tion from affected communities could be encouraged or even required. Of course, it might be difficult for a nonprofit organization (or even a group of such organizations) to raise sufficient funds to build a prison facility or to buy or rent the land on which a prison would sit. However, the public could own the land and facilities and the prison could be operated (in whole or in part) by a private organization. The public-private arrangement would con­cern prison administration and services on public property, not prison con­struction or the renting of private property. This, too, should reduce concerns about intrusions from corporate actors and the corrupting influence of the profit-motive.

A nonprofit private prison would secure part of its funding from the pub­lic and so would be subject to public accountability measures. But it would also secure some of its funding from private donations. This would allow concerned members of the community to help shape the leadership, goals, and operation of the institution, rather than relying exclusively on state bu­reaucracy and business interests. These private donors could, for example, aim to satisfy higher standards for custodial care than public prisons are re­quired to. They could offer more or better services to prisoners, including educational, vocational, medical, drug treatment, and reentry services.

For those deeply concerned about the plight of disadvantaged Black, Latinx, and Indigenous peoples in the United States (social groups who are disproportionately incarcerated) but skeptical that existing governments can be trusted to secure adequate custodial care for prisoners from these populations, this public-private arrangement could be an avenue for com­munity control over central elements of law enforcement. It could also be a way to address unacceptable prison conditions. If this is correct, then some outsourcing of penal functions could be beneficial to the oppressed.

Those who call for affected communities to play a significant role in crime control, including civilian oversight of the police, cannot consistently main­tain that law enforcement functions, to be legitimate, must be carried out entirely by public-service employees. If unjustly disadvantaged communities are to be truly empowered in the arena of criminal justice, then they must possess effective private organizations that can counteract abuses of state power and reduce institutional corruption. A nonprofit, justice-promoting organization that could win a bid to run a jail or prison could play this role.

In suggesting a role for private nonprofit prisons, I am not claiming that a just society would permit these public functions to be moved to the private sector. This is a tentative proposal for nonideal conditions—for the circum­stances of injustice. When social conditions are grossly unjust and the state lacks legitimacy in the eyes of the most disadvantaged, private interventions are sometimes justified, even required. Systemic state failure can necessitate aggressive actions from civil society. The argument that punishment, to be legitimate, must be imposed through the collective agency of the public and in name of the public and so administered solely by public-sector employees democratically authorized to play this role is not applicable under condi­tions of intolerable injustice.¹² Given that the state operates with a serious deficit of legitimacy, the question under these conditions is what practical measures of crime control, whether public or private, can be justified to those affected by them, particularly those among the oppressed.

An example of a related and necessary civil society intervention into law enforcement under unjust conditions is the use of bail-fund organizations. These organizations raise money from private donors to bail out low-income inmates who cannot afford to pay their bail costs. Sometimes disadvantaged persons are charged with minor crimes but cannot raise the money for bail. Stuck injail until trial, they risk losing theirjobs, they are unable to care for dependents, and they are needlessly separated from their families and friends. Support from a nonprofit bail-fund makes such persons less likely to be exploited by for-profit bail-bond companies.

Many in unjustly disadvantaged and racially stigmatized communities need protection against wrongful aggression and violence—murder, rape, and aggravated assault. Some of the perpetrators of these wrongful harms are, tragically, themselves members of such communities. So, although mem­bers of these communities want these crimes prevented and highly danger­ous persons incapacitated, many (including some victims) are reluctant to hand over (some) criminal offenders to a state responsible for racialized mass incarceration and inhumane prison facilities. In the right hands, nonprofit private prison administration and services could be a viable, if temporary, alternative.

Conclusion

I do not know whether the public-nonprofit arrangement I have described is economically feasible. That is, it may be unrealistic to expect private actors, though trustworthy and genuinely concerned with the plight of prisoners, to be able to raise the necessary funds to operate a prison on a nonprofit basis. Perhaps such nonprofit organizations would always be outbid by for-profit firms. The arrangement could also be politically unfeasible, in the sense that there may be no practical path to wrestling prison administration away from the state or from public correctional officers' unions. Or perhaps there is no regulatory regime that can effectively monitor a private prison, whether for- profit or nonprofit. My aim here has been merely to establish the principle that the temporary, nonprofit privatization of central prison functions is morally defensible and indeed could advance the ends of justice and reduce the burdens on the oppressed under nonideal conditions.

I also contend that acceptance of this principle is compatible with the abolitionist critique of the prison industrial complex, at least insofar as that critique does not rely on the premise that capitalism is inherently unjust. In addition, the principle is consistent with resistance to neoliberal governance, at least insofar as such resistance is primarily to public contracts with for- profit companies and not to all public-private partnerships. Moreover, lim­ited private nonprofit prison administration is, in principle, consistent with the fundamental aims of prison abolitionists. Few, if any, would insist that all prisoners should be immediately released and that, henceforth, there must be no new prisoners regardless of the risks or costs. A world without prisons would have to be a long-term goal, which will require broad structural trans­formation before prisons are truly obsolete. In the meantime, some limited use of prisons is, regrettably, a necessary evil. Yet abolitionists do not trust the state to incarcerate in a way that is humane and safe and that treats pris­oners with dignity. Nor do they trust the corporate world to fill the gap. A nonprofit private entity could be the best option and is in keeping with the spirit of experimentalism that is at the heart of the abolitionist ethos.

Notes

For comments on previous drafts of this chapter, I thank the editors and the participants in the Political Economy and Justice Workshops at Harvard. I'm also grateful to Lidal Dror, Breond Durr, Carol Gould, Wendy Salkin, Lucas Stanczyk, Brandon Terry, Iakovos Vasiliou, and the students in my Punishment and Incarceration seminar. A version of the chapter was delivered as the Marx Wartofsky Memorial Lecture at the CUNY Graduate Center. I thank the audience for their feedback. Generous support for this research was funded by the Andrew Carnegie Foundation.

1. Angela Y. Davis, Are Prisons Obsolete? (New York: Seven Stories Press, 2003), chap. 5; Angela Y. Davis, The Meaning of Freedom (San Francisco: City Lights Books, 2012), chap. 2; Angela Y. Davis, Freedom Is a Constant Struggle: Ferguson, Palestine, and the Foundations of a Movement (Chicago: Haymarket Books, 2016), chap. 4.

2. Davis, Freedom Is a Constant Struggle, 7.

3. See Tommie Shelby, Dark Ghettos: Injustice, Dissent, and Reform (Cambridge, MA: Belknap Press, 2016), chaps. 7-8.

4. The small-occupancy cell (one to two persons) is not essential to incarcera­tion. The cell does, however, lessen the need for supervisory personnel and so may save money. It can also reduce the need for constant surveillance (to prevent harm or escape) and so could also provide some privacy for inmates.

5. Davis, Are Prisons Obsolete, 41-43.

6. Davis, Freedom Is a Constant Struggle, 5-6.

7. Davis, Freedom Is a Constant Struggle, 65, 107.

8. Davis, Are Prisons Obsolete, 36-37. Also see Davis, Freedom Is a Constant Struggle, 24.

9. See Ruth Wilson Gilmore, Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California (Berkeley: University of California Press, 2007).

10. Davis, Are Prisons Obsolete, 90-91, 98-100.

11. For a defense of the nonprofit alternative, with a focus on its possible contri­bution to prisoner rehabilitation, see Daniel L. Low, “Nonprofit Private Pris­ons: The Next Generation of Prison Management.” New EnglandJournal on Criminal and Civil Confinement 29 (2003): 1. Also see Richard Moran, "A Third Option: Nonprofit Prisons,” New York Times, August 23, 1997, sec. 1, p. 23.

12. Compare Avihay Dorfman and Alon Harel, "The Case against Privatization,” Philosophy and Public Affairs 41, no. 1 (2013): 67-102. Also see Chiara Cordelli, "Privatization without Profit,” in Privatization: NOMOS LX, vol. 29 (New York: NYU Press, 2018).

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