Criminal Justice and Privatisation

Key Issues and Debates

Philip Bean, Philip Bean

• Publisher: Routledge
• Year: 2020
• ISBN:
  9780429824951
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

Over the past few years, opposition to the privatisation in public services in the United Kingdom and elsewhere has grown, especially in areas related to criminal justice. Privatisation has existed within the British criminal justice system at least since the early 1990s, but the privatisation of the Probation Service in 2014 was a significant landmark in this process and signalled a larger programme of privatisation to come.

Criminal Justice and Privatisation works to examine the impact of privatisation on the criminal justice system, and to explore the potential effects of privatising other areas including the police and the security industry. By including chapters from practitioners and academics alike, the book offers an expansive overview of the criminal justice system, as well as observations of the effect of privatisation at ground level. By also exploring the way the private companies are paid, how they operate and what private companies do, this book offers an insight into and the future of privatisation within the public sector.

Written in a clear and direct style this book will appeal to students and scholars in criminology, sociology, cultural studies, social theory and those interested in learning about the effects of privatisation.

1
CRIMINAL JUSTICE AND PRIVATISATION: INTRODUCTION

Philip Bean

Introduction

In this Introduction I want to give a brief overview of privatisation in criminal justice, generally, followed by a definition of privatisation (and outsourcing) before looking at the contents of each individual chapter.

A major aim and objective of the book is to examine the impact of privatisation on the criminal justice system, or more specifically on some features of criminal justice within the community. It would not be possible to include all forms and aspects of criminal justice within one volume so inevitably some such as the Probation Service and Electronic Monitoring are given prominence. Recent events, however, in particular the privatisation of the Probation Service, have focussed attention on that service, especially on the way privatisation was introduced, the way it affected the Probation Service as a whole and the way it affected its probation officers. Attention has also been given to the ways a newly formed privatised service related to and affected other parts of the criminal justice system including the Courts. In short it required a reevaluation of what we knew and thought we knew of privatisation. Inevitably, this has created interest and this volume goes some way to reflecting that. The aim, however, is to go beyond that and include a discussion about privatising other areas including the police and the security industry as well as looking at what is happening elsewhere. For these purposes that means in Eastern Europe, Australia, and the United States. Even so, it is recognised that privatisation has or will affect other criminal justice community-based services, such as prison escort services and forensic psychiatric services to name but two, and that no single volume can capture the reach and depth of the subject matter. What is offered here goes some way to covering and including a selected area, but it is recognised that it covers only a small part of a very wide topic.

Background to privatisation

The privatisation of the Probation Service under Transforming Rehabilitation was introduced under the Offender Rehabilitation Act 2014. It raised again questions about the role and impact of the private sector within the criminal justice system. That the result of this privatisation programme was a failure, and formerly recognised as such, does not mean that other programmes will be cancelled, or that there will be no further attempts at privatisation. Privatisation in one form or another is likely to remain, at least for the immediate future.

Privatisation in criminal justice is not new; it was very much an accepted phenomenon of the 18th and 19th centuries. Only in the latter part of the 19th century did public ownership become dominant. For example in the 18th century James et al. note that every transport fleet that set sail from England after 1788 with its cargo of convicts bound for Australia operated under contract from the British Government.¹ These ships were floating prisons but they nonetheless had detailed specifications laid down for the contractors on every aspect of the voyage, to the size of the rations and the number of lifeboats. James et al. also note, perhaps somewhat prophetically, and directly foreshadowing present-day contracts, that agents were employed by the government to keep an eye on the conditions and treatment of the convicts throughout the voyage.² In the 19th century prisons and madhouses in Britain were also part of the private sector, and remained so at least until prisons were nationalised in 1878. The Probation Service too was in private hands for most of its early years, only being fully nationalised in 1948. The criminal justice system, therefore, as a bulwark of public service is a relatively new phenomenon.

There is no clear point in time at which one can say the early forms of privatisation of criminal justice in Britain disappeared, nor any point at which they reappeared. In Britain one of the earliest and most prominent examples of what we can now call the reappearance of the private sector in criminal justice, or rather the reprivatisation of aspects of criminal justice, came in 1988 with a Government Green Paper Punishment Custody and the Community. This was under a Conservative Government, and it set out various proposals for the management of community penalties. More interestingly it asked “how might the private sector contribute”? One suggestion was to set up a new organisation to introduce punishment in the community. It would not itself supervise offenders or provide facilities directly, but would contract with other services and organisations to do so.³ These were all part of a thrust towards bringing new ideas into the public sector, such as competition and management, key features of any privatisation programme.

Further, in November 1992, in his Autumn Statement, the Chancellor of the Exchequer, Norman Lamont, introduced the Private Funding Initiative (PFI). which aimed at increasing the involvement of the private sector in the provision of public services. Its centrepiece was to develop public-private partnerships. In November 1992, as a result of that initiative a number of prison-related services were market tested, including Court escort services and prison educational services. PFI which developed into PPP (a variation on the way the projects are funded) provided the framework under which privatisation could develop. The PFI initiative was aimed at encouraging all government departments to explore actively the scope for the use of private finance.⁴

The PFI initiative, alongside other aspects of privatisation were part of an ideological drive towards reducing the size of the state. This was not a party/political matter. The Labour Governments which followed in the late 1990s were as eager as the Conservative Governments before them. Even so, from the outset there was considerable opposition, seemingly heavily influenced by political consideration, those opposing coming from the left side of the political spectrum. Not entirely, but sufficiently often to see it in those terms. For example, trade union organ-isations such as the National Association of Probation Officers (NAPO) and the Prisoner Officers Association (POA) were implacably opposed to privatisation, whereas organisations such as the Adam Smith Institute traditionally has been a strong supporter.

Aside from any such political considerations there were pragmatic reasons for introducing privatisation into criminal justice. They were about introducing a more competitive spirit into the public sector, introducing new forms of management and about reducing costs. Again, it is difficult to pinpoint exactly where and when this demand arose. Some suggest the financial crises of 2008 produced the major impetus, others much earlier. Some point to the increase in crime and an increasing cost of criminal justice, mainly due to a rise in the prison population, and the demands for cost effectiveness due to the increasing costs of incarceration.

Others say it was due primarily to American influence and the cost of incarceration in America. James A et al. certainly saw it this way. They say “The most decisive consideration influencing the appeal of private sector management of prisons (in the USA) was cost.”⁵ The American situation was nothing if not dramatic, with the growth in the prison population in 1980 reaching 196% of capacity. This growth was not just propelled by rising crime rates, but also by diminishing support for rehabilitative strategies, and an accentuating demand for a more punitive approach to offenders. Certainly, America was first in the privatisation field, especially with the private prisons. These were introduced in the 1980s in a climate no longer receptive to public ownership, where a rising prison population was placing considerable strain on local finances.⁶ Australia followed in 1990, first in Queensland, later in other states. As did France, in 1992, in Belgium in 1994 and later in Germany. In Britain the first private prison, The Wolds was opened on 6 April 1992.

In Britain the prison population also climbed throughout the 1970s and 1980s, rising from 36,774 in 1973 to 49,949 in 1988. It was not just its size that caused concern but the quality of the prisons themselves, the levels of overcrowding and insanitary conditions. One report in 1986 described conditions as ‘intolerable’, another said they were ‘degrading’ and ‘insanitary’. Added to this was the powerful Prison Officers Association who had excessive influence over working conditions, staffing levels and overtime – staff costs in prisons amount to 80% of all running costs. Clearly something had to be done. Privatisation was seen as a solution, if not the complete answer then one that was thought to be worth trying.

Whatever the origins of privatisation generally, and in criminal justice in particular its growth and reach over such a short period has been impressive. This is especially so in the United States. In spite of a dearth of aggregated data on the size of the markets in criminal justice, since the advent of the first privatised prison in 1983, private correctional facilities have become commonplace. There, in 2015 over 8% of the total prison population of 1.53 million were housed in private-run facilities. In the UK 14 prisons in England and Wales and a further 2 in Scotland are currently run by 3 private companies – large international companies which were involved in the privatisation of probation. These resulted in 19% of the prison population in the UK being in privately run jails.⁷ Add to these the Community Rehabilitation Companies (CRCs) who were responsible for the supervision of a large proportion of offenders on probation and this gives some idea of the impact of privatisation in recent years. Still further are the companies providing outsourcing facilities; for example all of the electronic monitoring provisions are privately operated.

Interest and the growth of privatisation within criminal justice has been added to by the privatisation of the Probation Service in 2014.⁸ The initial proposals, and the subsequent privatisation programme received a storm of protest, the most forceful being that privatisation was ethically wrong, and that the programme itself was ill conceived. Supporters, such as there were, saw the privatisation of probation as a way of bringing down costs, introducing private sector–style management, and introducing new ideas to an otherwise inflexible public service. Certainly, the cost of the Probation Service was being seen as excessive; it increased from £186.8m in 1985/6 to £286.7m in 1990/1 yet the average caseload per officer dropped from 22.5 to 15.6 during this period and the average number of reports completed by main grade officers also dropped from 69.1 to 50.9.⁹ The government’s solution was to increase the role of the private sector as the way of reducing expenditure.

This privatisation strategy has brought a new and wide range of market disciplines to the public sector. In so doing it has also introduced a similarly wide range of quasi-markets into that sector hitherto free of the demands of market forces. Concepts such as ‘purchaser/provider’ were introduced with consideration given to obligations to satisfy ‘customers’, and for providers to provide services at the lowest cost. Opponents argued that such an approach was unacceptable and inappropriate. They say the public sector especially that of criminal justice does not produce markets but provides a statutory service.

Privatisation has brought forth a fierce debate on the merits and demerits of introducing private sector demands into the public sector. This is especially so when introduced into the criminal justice system whereby criminal justice is seen to have extenuating features not found elsewhere. The debate is complex, and raises basic questions about accountability of the private sector within a public service, and questions about whose interests the private sector serves, or indeed whether the private sector meets public sector goals.¹⁰ Supporters of privatisation talk of its benefits to the criminal justice system in that it introduces improvements to an erstwhile sclerotic system. Critics say this is not just destabilising but conceptually and ideologically upsetting.¹¹ They say markets cannot be transposed onto a public sector which has different aims and objectives. The point is made by Sarah Vine when she says “The public are not customers. They are citizens.”¹²

Accusations are made against supporters of privatisation that the pursuit of profit has no place within criminal justice. This was a constant form of attack over privatisation of the Probation Service. For example, Alan Bennett the playwright states profit should not come into probation. He said the satisfactions of the Probation Service are not financial ones nor should they be, they are the rewards of dedication and service.¹³ Yet the point made by Charles Logan is instructive here. He says the profit motive is no more insidious than any other economic motive, nor is it confined to organisations that formally define themselves as profit seeking. He asks is it wrong for state employees to have a financial stake in say, the prison system? “The notion that any activity carried out for profit is thereby tainted is simply an expression of prejudice. Both are economic motivations.”¹⁴ And in a similar vein Don Hutto says the proposition that profiting from people’s misery is immoral conveniently ignores the fact that profit centres around all human endeavour and criminal justice is no exception. Following from Charles Logan, Don Hutto asks “What of those who make their careers as prison officers, judges, police officers, probation officers and governors? Do they do so without remuneration? Is it a prerequisite that all who participate in the criminal justice system must do so without monetary gain?”¹⁵

The debate has of course been given new impetus by the privatisation of probation. Opponents said it confirmed their worst fears; that privatisation was a cost...