To Serve and Protect
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To Serve and Protect

Privatization and Community in Criminal Justice

Bruce L. Benson

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To Serve and Protect

Privatization and Community in Criminal Justice

Bruce L. Benson

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About This Book

In contrast to government's predominant role in criminal justice today, for many centuries crime control was almost entirely private and community-based. Government police forces, prosecutors, courts, and prisons are all recent historical developments–results of a political and bureaucratic social experiment which, Bruce Benson argues, neither protects the innocent nor dispenses justice.

In this comprehensive and timely book, Benson analyzes the accelerating trend toward privatization in the criminal justice system. In so doing, To Serve and Protect challenges and transcends both liberal and conservative policies that have supported government's pervasive role. With lucidity and rigor, he examines the gamut of private-sector input to criminal justice–from private-sector outsourcing of prisons and corrections, security, arbitration to full "private justice" such as business and community-imposed sanctions and citizen crime prevention. Searching for the most cost-effective methods of reducing crime and protecting civil liberties, Benson weighs the benefits and liabilities of various levels of privatization, offering correctives for the current gridlock that will make criminal justice truly accountable to the citizenry and will simultaneously result in reductions in the unchecked power of government.

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Information

Publisher
NYU Press
Year
1998
ISBN
9780814709122
Topic
Law
Subtopic
Criminal Law

1
Introduction

Questions about crime policy are almost inevitably stated in a fashion that immediately eliminates a huge number of potential options. The question typically asked is “What should the government do to solve the crime problem?” But there are other ways to solve problems. As Israel M. Kirzner (1997: 62) explains, for instance, entrepreneurial discovery of opportunities gradually and systematically pushes back the boundaries of ignorance, thereby driving down costs and prices while increasing both the quantity and quality of output. In the public sector's production of crime control, ignorance abounds, costs are high and rising, and both the quality and quantity of the effective output of the criminal justice system clearly have room for improvement. For instance, a massive National Advisory Commission on Criminal Justice Standards and Goals (NACCJSG) report explains:
Over the past 25 years, this country has become the unwilling victim of a crime epidemic. The present seriousness of the disease has outstripped even the most pessimistic prognosis. Coupled with a steadily rising numerical frequency of crimes is a savage viciousness that has rendered the American public almost immune from further shock. The ten-million-plus major felonies that annually occur have seriously debilitated the quality of life in the United States.
Citizens do not feel safe and, in fact, are not safe in their own homes or on their own streets. Businesses are rocked to bankruptcy by the high cost of crime committed by their own employees as well as by hordes of outsiders. Downtown areas at night are all but deserted. Large cities are viewed as jungles of criminality. (NACCJSG 1976: Introduction)
It certainly sounds as if there may be some advantage to turning the entrepreneurial discovery process loose on crime control, but instead the focus has been on government programs, as the NACCJSG report notes:
In a valiant but vain attempt to stem this massive tide of criminality, government officials, scholars, politicians, and a vast array of other professionals have responded with plans, programs, and projects all designed to reduce crime.
One great hope was vested in increases in the numerical strength of the criminal justice system. More police, more prosecutors, more public defenders, more judges, more corrections workers, and more probation and parole officers soon swelled city, county, State, and Federal budgets but did not cause a reduction in crime.
A second approach involved upgrading the quality of the criminal justice system personnel. College education for police, training programs for prosecutors, sentencing conferences for judges, and seminars and institutes for corrections officers served to professionally upgrade criminal justice personnel but did not result in lower crime or recidivism rates. Nor did the quality of justice noticeably improve.
Technology and applied sciences were also thrown into the fray, resulting in sophisticated police communications, computer-assisted court calendar control, and a wide variety of sociologically and psychologically oriented offender-adjusted programs.
Finally, millions of dollars were used to reshape the criminal justice system through the addition of new practices and the deletion of old processes. . . . Unfortunately, although many of these programs were improvements over outdated practices, crime, the cost of crime, the damages from crime, and the fear of crime continued to increase. (NACCJSG 1976: Introduction)
Despite the overwhelming focus on government strategies to control crime, it has been recognized for some time now that private-sector entrepreneurs can discover better ways to reduce crime.

The Privatization Challenge

Perhaps surprisingly, the preceding quotations are from a 1976 report, which also anticipates some of the suggestions made here by concluding that
One massive resource, filled with significant numbers of personnel, armed with a wide array of technology, and directed by professionals who have spent their entire adult lifetimes learning how to prevent and reduce crime, has not been tapped by governments in the fight against criminality. The private security industry, with over one million workers, sophisticated alarm systems and perimeter safeguards, armored trucks, sophisticated mini-computers, and thousands of highly skilled crime prevention experts, offers a potential for coping with crime that can not be equalled by any other remedy or approach.
The application of the resources, technology, skills, and knowledge of the private security industry presents the best hope available for protecting the citizen who has witnessed his defenses against crime shrink to a level which leaves him virtually unprotected.
Underutilized by police, all but ignored by prosecutors and the judiciary, and unknown to corrections officials, the private security professional may be the only person in this society who has the knowledge to effectively prevent crime.
Not represented on the boards or staffs of State Planning Agencies, rarely used by municipal or county planners, only infrequently consulted by elected officials, these members of a six-billion-dollar-a-year industry have crime prevention answers desperately needed by homes, schools, businesses, neighborhoods and communities. (NACCJSG 1976: Introduction)
Even though this 1976 report provides a clear recognition of the growing crime problem and the failure of government programs to stem this growth, for the most part, it had no impact on crime policy. Thus, the 1985 Hallcrest Report on private security for the National Institute of Justice (NIJ) begins in a very similar fashion, noting that government units have continued to pour ever increasing amounts of taxpayer dollars into the public-sector criminal justice system as new plans, programs, and projects are hatched by politicians and public officials, but “neither local, State, nor Federal resources had seriously affected the problem of crime” (Cunningham and Taylor 1985: 1). Furthermore, “conspicuously absent from police-based crime prevention programs . . . is the input of the private security industry. . . . There appears to be little cooperation between public law enforcement and private security” (3).
The private security industry actually is only one component of the still largely unrecognized private-sector involvement in crime control. Voluntary participation in neighborhood or tenant watches and patrols is increasingly widespread, for instance. Moreover, “growing numbers of Americans have undertaken self-help measures to protect themselves” (Cunningham and Taylor 1985: 2). This includes more than just the allocation of personal time and effort to security concerns, however. More and more citizens are buying firearms for personal protection, and burglar alarms are being installed and locks improved. Citizens are barring their windows, learning self-defense, carrying whistles and other noisemakers, and buying self-protection devices. It is more true today than it was in 1976 that “there is virtually no aspect of society that is not in one way or another affected by private security” (NACCJSG 1977: xix).
The private sector's role in criminal justice goes even beyond protection and security. Large amounts of complementary inputs from private citizens are necessary for the public sector's crime control efforts to be effective. Victims' statements are particularly important in the public sector's crime control process, for instance (McDonald 1977; Benson 1994a, 1996c). As McDonald (1977: 301) observes, a huge portion of all crimes that come to the attention of police are those reported by victims. Very few arrests for property or violent crimes result from police-initiated investigations or actions. Furthermore, without the prospect of cooperation by victims or witnesses in providing testimony, a very substantial portion of the violent and property criminals that are arrested would never be successfully prosecuted. Even when a conviction arises through plea bargaining, the threat of such testimony is a primary source of the prosecution's bargaining strength. Clearly, successful production of the commonly shared benefits of crime control such as deterrence requires that a private-sector investment be made in providing these victim and witness inputs. That is, private-citizen input is necessary to public-sector crime control, but the costs of providing that input are borne by the individual private citizens themselves, not by the government (i.e., taxpayers in general).
Private inputs to successful prosecution go even further. Prosecution cannot occur if the accused offender flees after being arrested. Some offenders are held in jail until trial, but jail space is far too limited to hold them all, and besides, constitutional protection of due process includes a requirement to allow for bail. Therefore, many must be released. The most effective way to assure their return for prosecution, compared to the alternative of supervision by the public-sector pretrial release bureaucracy, is the private bail bonding system (Monks 1986; Reynolds 1994b).
The private sector can provide more than crime prevention and inputs to successful public arrests and prosecution. If we look to history, we find that rather than the emphasis on government inputs to and dominance over crime control that we see today, the norm is complete or nearly complete private production of policing, prosecution, and punishment (Cunningham and Taylor 1985: 41; Cardenas 1986; Benson 1990: 21–30, 43–77; 1992b; 1994a; McCrie 1992; Reynolds 1994b). Public police forces did not develop until the middle of the nineteenth century in the United States and Great Britain, and crime victims served as prosecutors in England until almost the turn of the century. Publicly financed and operated prisons are also a relatively recent development, arising in England near the end of the eighteenth century and in the United States even later. Historically, privately imposed sanctions such as ostracism have provided powerful incentives to obey the law (Anderson and Hill 1979; Benson 1989a, 1989b, 1990, 1991a, 1991b, 1992b, 1994a, 1997a, 1998e; Friedman 1979; Solvason 1992, 1993; Morriss 1997).
The historical reality of crime policy is that public provision of criminal justice is a recent social experiment that has not worked as predicted. The increasing role of private-security that we see today is actually a return to historical practices rather than something new, although private-sector institutions and technologies have changed dramatically as entrepreneurs have discovered new ways to deliver the desired protection. Furthermore, “private justice” in the form of sanctions imposed by businesses (e.g., job reassignment, restitution agreements, firing employees who steal from the firm) and neighborhoods (e.g., social ostracism) is once again being substituted for public-sector criminal prosecution. One survey indicates that nearly half of all business security managers investigate and resolve employee thefts within the business organization without ever reporting the crime (see, e.g, Cunningham and Taylor 1985: 11).
The suggestion made above that public officials have continued to ignore the potential benefits of increased private-sector involvement in criminal justice is a bit strong. Many police departments now encourage citizen crime prevention programs that they disparaged as vigilantism not too many years ago: by 1985 more than 90 percent of the nation's police and sheriff departments had formal relationships with citizens' groups such as Crime Watch (Cunningham and Taylor 1985: 2). In Chicago, for instance, the police department is implementing a massive change in its policing strategy, abandoning the traditional model of policing that relies on random automobile patrols, rapid response, forensic technology in after-the-crime investigations rather than citizen information, and a focus on arrest and incarceration. The new Chicago Alternative Policing Strategy (CAPS) emphasizes the need for community involvement in a proactive effort to prevent crime (Chicago Police Department 1993). The program is relatively new, but the intentions are to actively encourage and support the development of localized citizen and business groups that can cooperate in watching to prevent crime, and to take public police out of their patrol cars and rapid response system in order to put them back on the beat, in large part to establish cooperative relationships with the people in local neighborhoods throughout the community.
Some police are even recognizing the vital role of the private security industry. Following the publication of the Hallcrest Report (Cunningham and Taylor 1985) and a “concomitant national law enforcement summit meeting held between the leadership of law enforcement and counterparts from private security,” a number of visible efforts were made to establish liaisons between the two groups (Shanahan 1992: 178). In New York, for example, the Area Police/Private Security Liaison (APPL) program was started in 1986 in order to create a better working relationship between public and private security, to share information, to identify and discuss crime trends, and to facilitate cooperation between the public and the private sector in order to control crime. Over nine hundred private security organizations are now interacting with the New York City Police Department through monthly meetings and through a network of telephone and fax communications, with computer networking on the horizon.1 Both public police officials, led by the New York Police chief, and private security are finding the arrangement to be increasingly desirable. Numerous other examples of developing public-private cooperation can also be cited (see chapters 2, 7, and 11), even though the process continues to be slow in the face of various laws that limit private alternatives as well as strong political resistance, particularly from police officers and their unions. Shanahan (1992: 178) suggests, for instance, that by 1992 there were “only pockets of effective public- and private-sector operational interface” between police and private security, most notably in Detroit and Washington state.
Public-private interface is actually more widespread than might be suspected, however, because government units are also beginning to return many criminal justice functions to the private sector through contracting out. Halfway houses, drug treatment facilities, and other community-based intermediate sanction programs have been provided by private entities under contract for some time. The provision of secure prisons by private firms, developed and run under contract with federal, state, and local governments, is clearly a growth industry, although the private sector still provides only a small portion of the nation's adult prisons. Governments are also contracting with private security firms to do everything from airport security to guarding government facilities to providing entire police forces, but this government-supported “privatization” process in policing is also modest compared to its potential.
The point is that when questions about crime policy are asked, they should be framed more broadly: “What is the most cost-effective way to reduce crime?” I contend that the answer to this question has to include a significant increase in private-sector input to crime control. As Cunningham and Taylor conclude, “Law enforcement can ill afford to continue its traditional policy of isolating and even ignoring the activities of private security. Indeed, law enforcement and government officials must be willing to experiment with some nontraditional approaches. . . . The creative use of private security personnel and technology may be the one viable option left to control crime in our communities” (1985: 72). The same argument holds for other measures that encourage greater private-sector involvement in criminal justice. Witnesses and victims must be encouraged to report crimes and cooperate in prosecution. Business and residential neighbors must be encouraged to cooperate with one another in either producing or purchasing crime prevention efforts. And so on. In some cases greater privatization requires eliminating artificial legal barriers preventing private citizens and entrepreneurs from performing functions that they would voluntarily carry out if they had not been reserved for publicsector entities. In other cases it will have to involve changes in the institutionalized incentives of public employees and private citizens.

An Overview of What Follows

This book examines each of the categories of private-sector inputs into criminal justice alluded to above. Brief descriptions of the level and scope of various aspects of privatization appear in chapters 2, 5, and 6. Much more detailed descriptions of the actual levels of privatization are available elsewhere (e.g., Cunningham and Taylor 1985; Logan 1990), so a primary focus here will be on the cost and benefits of privatization (see chapters 3, 7, 8, and parts of 4) and the factors that tend to influence the level of private-sector involvement (see chapters 4, 6, 9, 10, 11, and 12).
All of the privately provided criminal justice services obviously involve different costs and benefits. But one potential problem facing those who may wish to use or provide private services in criminal justice appears to be almost universal. Political resistance to private actions in criminal justice is widespread, and no matter what particular service is being provided by a private entrepreneur, many of the same basic criticisms are raised by its opponents. Some of the most pervasive claims made by critics of privatization are economic in nature. For instance, it is often contended that for-profit firms will cut corners and reduce quality (e.g., relative to a public agency producing the same service or relative to that which purchasers expect and pay for), in order to increase profits. In other words, there is supposedly a tradeoff between profits and costs, and private entrepreneurs providing any aspects of criminal justice will opt for lower costs: to the degree that costs are low with private provision of a service, it reflects a reduction in quality. A primary purpose of this presentation is to explore the validity (or invalidity) of such economically based criticisms.
Such criticisms of private actions in the criminal justice arena can be challenged by those inside the relevant industries and organizations, of course, because they are intimately familiar with their own incentives, including the relationships between cost and quality. Their arguments, however, are easily dismissed by critics as “self-serving.” Another way to address them is for an “outsider” (someone—such as I—who has never worked for a firm that provides any sort of criminal justice services) to confront them from the perspective of microeconomic theory. A potential disadvantage of such a perspective is that an intimate knowledge of administrative and production processes in these various industries is lacking. But such an intimate knowledge is not necessary for addressing the question of whether the profit-quality tradeoff applies in the universal way that critics contend; the same is true of a number of other economically based criticisms. In fact, intimate knowledge of one of these markets does not provide sufficient arguments to address general criticisms leveled at the large variety of privat...

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