Why Do States Privatize their Prisons? The Unintended Consequences of Inmate Litigation Open Access
Gunderson, Anna (Summer 2019)
Published
Abstract
The United States has witnessed privatization of a variety of government functions over the last three decades. Media and politicians often attribute the decision to privatize to ideological commitments to small government and fiscal pressure. These claims are particularly notable in the context of prison privatization, where states and the federal government have employed private companies to operate and manage private correctional facilities. I argue state prison privatization is not a function of simple ideological or economic considerations. Rather, prison privatization has been an unintended consequence of the administrative and legal costs associated with litigation brought by prisoners. I assemble an original database of prison privatization in the US and demonstrate that the privatization of prisons is best predicted by the legal pressure on state corrections systems and desire to avoid legal and political accountability, rather than the ideological orientation of a state government.
Table of Contents
1 Introduction: Politics and Private Prisons 1
1.1 The Growth of the Carceral State and Carceral Governance 2
1.2 Private Prisons 5
1.2.1 Continuing Controversies 8
1.3 Inmate Litigation and the Growth of Carceral Privatization13
1.4 Overview of Dissertation 15
2 The Failure of Simple Stories to Explain Prison Privatization 18
2.1 Privatization and Government Service Provision 20
2.2 The Decision to Privatize Prisons 23
2.3 Private Prisons: The Data 31
2.3.1 What is Missing? 32
2.3.2 An Original Dataset 34
2.3.3 What Does the Data Look Like? 36
2.4 What Determines States’ Use of Private Prisons? 49
2.4.1 Private Prison Adoption 49
2.4.2 Private Prison Levels 54
2.4.3 Different Dependent Variables 57
2.4.4 Campaign Contributions 58
2.4.5 Alternative Operationalizations of Ideology and Union Membership 61
2.5 Implications 62
3 The Rights Revolution and Prison Privatization 63
3.1 The Judiciary’s “Hands-Off” Attitude and Slaves of the State 65
3.2 Incarceration, Lawsuits, and State Responses 76
3.2.1 The Rise of Mass Incarceration 76
3.2.2 Prisoners, Lawyers, and Judges in an Era of Mass Incarceration 78
3.2.3 States’ Responses to Changing Nature of Prisoner Legal Strategies 83
3.3 Prison Privatization and Inmate Lawsuits 88
3.3.1 More Inmate Lawsuits 89
3.3.2 Successful Lawsuits 97
3.4 Discussion and Conclusion 106
4 Do Lawsuits Affect Prison Privatization? An Empirical Analysis 108
4.1 Data: Private Prisons and Inmate Litigation 110
4.2 Estimating the Effect of Inmate Litigation on Private Prisons 120
4.3 Estimating the Effect of Successful Litigation on Private Prisons 131
4.4 Robustness Checks 142
4.5 Discussion and Conclusion 144
5 Do Private Prison Firms Respond to Successful Prison Litigation? 146
5.1 The Obama DOJ and Private Prisons 148
5.2 Investors, Stocks, and Company Performance 151
5.3 Politics, Stocks ,and Private Prison Firms 155
5.3.1 Stock Market Volatility 158
5.3.2 Political Events 162
5.4 Methodology 165
5.5 Results 167
5.5.1 Average CARs and Lawsuits 167
5.5.2 CARs in States with Private Facilities and Lawsuits 169
5.5.3 Robustness Checks 171
5.6 Discussion and Conclusion 172
6 Revisiting Privatization and the Rights of Vulnerable Populations 175
6.1 Accountability and Private Prisons 177
6.2 Implication sand Next Steps 180
A Appendix 185
A.1 Appendix to Chapter 2 185
A.1.1 Data Collection Description 185
A.1.2 Different Dependent Variables 189
A.1.3 Campaign Contributions 192
A.1.4 Alternative Operationalizations of Ideology and Union Membership 193
A.2 Appendix to Chapter 4 196
A.2.1 Graphs of Absolute Values of Private Prison Data 196
A.2.2 Comparing Litigation Theory and Privatization Theories: Hypothesis 1 197
A.2.3 Comparing Litigation Theory and Privatization Theories: Hypothesis 2 206
A.2.4 Alternative Dependent Variables for Hypothesis 1: Proportion Inmates that are Private, Sum State Private Facilities, Sum All Private Facilities (State, Local, and Federal) 211
A.2.5 Alternative Operationalizations and Description of Hypothesis 1 Instrumental Variable: Weighted Cases per Judge Serving 213
A.2.6 Alternative Independent Variable for Hypothesis 1: Logged Sum of All Lawsuits 218
A.2.7 Distribution of Hypothesis 2 Instrumental Variable: Proportion Judges who were Prior Prosecutors 220
A.2.8 Alternative Dependent Variables for Hypothesis 2: Proportion Inmates that are Private, Sum State Private Facilities, Sum All Private Facilities (State, Local, and Federal) 222
A.2.9 Robustness Checks: Adding Population as a Control to Hypotheses 1 and 2 224
A.2.10 Weighting the Dependent Variables for Hypotheses 1 and 2 228
A.3 Appendix to Chapter 5 231
A.3.1 Different CAR Windows in OLS Regression 231
A.3.2 Reconceptualizing the Independent Variable: Any Private Prisons 234
A.3.3 Adding Year Fixed Effects 235
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