The Ethics of Privatizing Prison Services:                                                September 2005
Point/Counter-Point

In July's Ethics Moment, David Rosenbloom (DHRosenbloom@Verizon.net) described three cases in which for-profit private providers of prison services failed to prevent serious harm to individuals in their custody. Is saving money through privatization more important than saving lives? Are those who prescribe or advocate privatization as the key to more cost-effective government ethically responsible when their prescriptions and advocacy cause serious harm?

Disturbed by Rosenbloom's assertions, Hank Abrams (ABRAMS@BOSTONEMS.ORG) asks:

1. Was there a problem with deaths from inadequate medical care in the
state's prisons prior to contracting with PMHS?  If no, then there is a
check against continuation of the contract with PMHS.  If yes, was care
provided by another contractor or public employees?  If yes and public
employees were used to deliver medical care, then privatization is not the
problem.  If yes and another private contractor, then privatization may be
the problem.

2.What has been the experience with other private providers of prison health
services?  Do private providers, on average, perform the same, better, or
worse than public provision with respect to quality, cost, etc.?  With PMHS'
"mixed track record", what might account for variation across states (more
money per prisoner, clear performance standards, etc.)

3.More generally, one is always ethically bound to exercise due diligence in
developing and assessing options for providing various public services.  One
would be remiss if one were to ignore evidence about the adverse impact of
privatization of a particular service. However, one would also be remiss if
one were to ignore evidence about the adverse impact of not privatizing a
particular service.  For example, in New York, the famous scandal of
Willowbrook developmental center shows what sometimes can happen even under
a civil service system;  in that particular instance, a private nonprofit
was used to provide smaller more humane facilities on the campus grounds. I
am not sure but I believe that using nonprofit entities was part of the
court order vs. the State Office of Mental Retardation and Developmental
Disabilities.

4.Some services, in principle, are more feasible candidates for some form of
privatization than others.  One of the factors is the ease with which
performance can be measured and assessed (either by public agency doing the
contracting or , if relevant, the direct consumer of the service).
Residential refuse collection probably is relatively easy to assess while
prison health services is probably relatively difficult.  Often, one
considers the use of private nonprofit agencies as an alternative to
profit-making firms. 

5.Related to point 4, I get uneasy about blanket statements about either
public provision or privatization for various public services.
Privatization may not be reasonable for prison health services but may well
be reasonable to consider for other services.  I guess I take a pragmatist's
perspective.  Keep many options open and exercise due diligence in assessing
what makes sense to do considering goals of key stakeholders, theory,
experiences elsewhere, and the specific situation confronted by the
jurisdiction in question.

David Rosenbloom replies:

Dr. Abrams raises a number of important points. I agree that cost-effectiveness comparisons between governmental and non-governmental provision of services are relevant. These should factor in the value of constitutional rights and administrative law requirements, such as due process and freedom of information, that typically pertain to government agencies but not to non-governmental organizations. Moreover, "due diligence" should go at least one step further by considering whether privatization will just improve matters on the margin or bring a service, such as health care in prisons, up to an adequate level.
In West v. Atkins (487 U.S. 42, 55 [1988]) the Supreme Court held that "Contracting out prison medical care does not relieve the State of its constitutional duty to provide adequate medical treatment to those in its custody. . . ." Another federal court reasoned that "[i]nadequate resources can never be an adequate justification for the state's depriving any person of his constitutional rights. If the state cannot obtain the resources to detain persons awaiting trial in accordance with minimum constitutional standards, then the state simply will not be permitted to detain such persons" (Hamilton v. Love, 328 F. Supp. 1182, 1194 [1971]). 

Public administrative ethics based on constitutional contractarian "zero tolerance" may seem impractical. However, such contractarianism guards against "a pragmatist's perspective" that might too readily sacrifice the interests of some for gains--be they marginal, short term, or substantial and lasting--by others. In "Privatization and Deadly Health Care in Prisons," the mother of the baby who died after being born in a prison toilet said, "I can't find a reason why a baby had to die." Responding that more babies would have died under such circumstances if prison health care had not been privatized is ethically untenable.