CAPTIVE MARKET: ACCOUNTABILITY AND STATE PRISON PRIVATIZATION, by Anna Gunderson. Oxford: Oxford University Press, 2022. 208 pp. Paper $27.95. ISBN: 9780197624142. Hardcover $99.00. ISBN: 9780197624135.
Reviewed by Heather Schoenfeld. Department of Sociology, Boston University. Email: hschoenf@bu.edu.
In CAPTIVE MARKET: ACCOUNTABILITY AND STATE PRISON PRIVATIZATION, Anna Gunderson asks a seemingly simple question: why do states use (or not use) private prisons to house people serving state prison sentences? Lay answers are easy to come by. State legislators are trying to save money. Private prison companies have good lobbyists. In some states, corrections officers’ unions have successfully fought against privatization. To this list, political scientists would add the Republican agenda to deregulate and shift state services to the private sector. Yet, because comprehensive data on private prisons doesn’t exist, the above claims have not been empirically tested. With a tremendous amount of work assembling multiple datasets, Gunderson changes social scientists’ ability to study prison privatization. CAPTIVE MARKET is a comprehensive look at trends and determinants of privatization using these new data. None of the above answers are wrong, Gunderson argues, but they are incomplete if we don’t consider how prison litigation incentivizes or disincentivizes states’ use of private prisons.
Scholars of the U.S. carceral state generally decry the disproportionate attention to private prisons. In 2022, only 8% of federal and state prisoners were serving their sentence in a private facility (The Sentencing Project 2022). More importantly, the preoccupation with private prison companies neglects the more consequential interests of U.S. public officials and agencies in maintaining high levels of incarceration (Pfaff 2017). CAPTIVE MARKET, however, is not just a book about prison privatization. Gunderson’s analysis engages in debates over the rights revolution and the role of the courts in social change, models of state policymaking, and public accountability. In addition, it is part of a growing body of scholarship that examines the determinants of state-level policy processes and outcomes (Anzia 2019). Law and society and political science students and scholars will find it a fascinating read.
To answer her research question, Gunderson assembled an impressive new database of private prisons by coding Security and Exchange Commission 10-K reports (annual reports that publicly traded companies are required to file with the SEC). These reports contain information about the location of companies’ privately operated facilities, data on state/local customers, prison design capacity, and contract length. The database includes prison facilities from 1986 to 2016 and represents 85% of the private prison market (including the two big players the GEO Group and CoreCivic). In Chapter 2, Gunderson cleverly displays the data on the growth and variation in states’ private prison use in a series of state-specific graphs shaped to represent a map of U.S. states. The maps demonstrate the diffusion of private prisons from their original locations in Tennessee, Arkansas and Texas to California, Oklahoma, Colorado, and other parts of the South and Southwest. One telling pattern Gunderson finds is that states that don’t adopt prisons by the early 2000s tend to remain free of them, while states who adopt them will increasingly use them. Helpfully interspersed in the discussion of trends are quotes from policymakers, advocates, and others that Gunderson interviewed for the book.
What accounts for the variation in the use of private prisons across states? Research on the proliferation of state prisons has found that the presence of federal court orders to remedy prison conditions are associated with state lawmakers’ decisions to build new prisons (Guetzkow and Schoon 2015). In Chapter 3, Gunderson argues that there are theoretical reasons to hypothesize that prison litigation might also impact prison privatization. Briefly, she posits that in response to the volume of prison litigation filed in the state, state officials look to shift political and legal accountability to private prisons. First, if the public tries to hold politicians responsible for poor prison conditions, politicians can blame a third party. Second, the ambiguity of private prison companies’ legal responsibilities makes it more difficult for prisoners to sue and (potentially) indemnify the state when they are successful. Merging the private prisons database with another database she assembled of federal court filings, Gunderson’s time-series analysis demonstrates that the use of private prisons in a state is positively associated with the sum of all lawsuits filed in the previous year in that state. Variables indicating alternative hypotheses are for the most part insignificant. While the relationship between the volume of lawsuits and privatization is robust (see the Appendix), the accountability-shifting theory is based on some assumptions about the policymaking process that will need to be tested. More specifically, it assumes that the public will hold politicians accountable for prison conditions. However, the “systematic failure” of prisons “to provide even minimally safe and healthy conditions of confinement” (Dolovich 2022) suggests that politicians don’t face political repercussions for ignoring awful prison conditions. The theory also assumes that politicians view prisoner lawsuits as a significant risk. However, since the 1996 Prisoner Litigation Reform Act (PLRA) decreased the prospect of successful prisoner litigation, lawmakers may not be concerned with legal liability either.
Gunderson’s second theoretical proposition is that successful prison litigation has the opposite effect on privatization than the total volume of court filings. She argues that court orders to improve prison conditions render the use of private prisons for accountability unnecessary because “the state is held accountable for poor prison conditions within the corrections system” (p. 71). In particular, the active involvement of judges and special masters “meant the state could not shirk from its responsibilities” (p. 73), and the creation of more professionalized and bureaucratized corrections agencies safeguard compliance. Gunderson tests this hypothesis using a third database she constructed with information from the Civil Rights Litigation Clearinghouse. While the analysis does not find a statistically significant relationship between successful lawsuits in a state and the use of private prisons, it is in the hypothesized direction. The lack of statistical significance is not surprising: translating court orders into penal policy is a complex process that can occur both before and after a court order and is therefore not easily captured in a causal model (Schlanger 2009). Furthermore, the inclusion of both pre- and post-PLRA orders may muddy the analysis because post-PLRA court orders are more narrow and less likely to address prison overcrowding than pre-PLRA orders. It would have been helpful to read about a case where successful litigation led state leaders to opt-out of privatization. However, the court orders Gunderson uses to illustrate her point were all issued prior to the advent of private prison companies when state leaders didn’t have a choice to privatize (see pp. 71-73). To bolster the claim that states will reduce their use of private prisons in response to a court order, Gunderson presents the results of a third innovative analysis that shows that the announcement of a court order in a state with private prisons decreases the stock prices of private prison companies. It is a fascinating finding that could be due to investors’ understanding that a court order will be bad for the private prison business.
While I would like to see more evidence to confirm the proposed mechanisms at play, I am convinced that prisoner lawsuits are part of the reason states use (or do not use) private prisons. Another hypothesis is that prison litigation is working indirectly through the politics of financing new prisons. Unable to meet its prison bed needs with what state lawmakers were willing to finance, officials in states that already had private prisons could increase their contracts with prison companies to solve (or appear to solve) prison problems. As Gunderson notes, states under federal court order had additional leverage to convince lawmakers and the public to fund public prisons and/or prison improvements. As a result, they did not have to contract with private prison companies at the lowest possible cost. Furthermore, it is likely the interests of multiple parties converged on the decision to contract out imprisonment. Some officials, such as state attorney generals, undoubtedly thought about the state’s legal liability, while others were motivated by an ideological commitment to privatization. Gunderson’s impressive new dataset is available at dataverse.harvard.edu (Gunderson 2020), which will allow researchers to further investigate the complexities of prison litigation, politics, and “carceral capacity” – whatever form it takes (Schoenfeld 2018).
In the Conclusion of CAPTIVE MARKET, Gunderson returns to the normative motivation for her research. Private prison companies profit from and exacerbate human suffering. New knowledge about why some states elect to use private prisons can help reduce the use of privatization. Yet as Gunderson recognizes, privatization of punishment is here to stay, whether it takes the form of prisons, probation services, electronic monitoring, or something yet to be invented. As such, she argues that we need to recognize that the government is ultimately responsible for corrections policy. I would add that the real imperative is reducing state demand for punishment in all forms.
REFERENCES:
Anzia, Sarah F. 2019. “Looking for Influence in All the Wrong Places: How Studying Subnational Policy Can Revive Research on Interest Groups.” THE JOURNAL OF POLITICS 81 (1): 343–51.
Dolovich, Sharon. 2022. “The Failed Regulation and Oversight of American Prisons.” ANNUAL REVIEW OF CRIMINOLOGY 5 (1): 153–77.
Guetzkow, Joshua, and Eric Schoon. 2015. “If You Build It, They Will Fill It: The Consequences of Prison Overcrowding Litigation.” LAW & SOCIETY REVIEW 49 (2): 401–32.
Gunderson, Anna. 2020. "Replication Data for: “Why Do States Privatize their Prisons? The Unintended Consequences of Inmate Litigation,” https://doi.org/10.7910/DVN/WRHPXL, Harvard Dataverse, V2.
Pfaff, John. 2017. LOCKED IN: THE TRUE CAUSES OF MASS INCARCERATION-AND HOW TO ACHIEVE REAL REFORM. Basic Books.
Schlanger, Margo. 2009. “Plata v. Brown and Realignment: Jails, Prisons, Courts, and Politics.” HARVARD CIVIL RIGHTS-CIVIL LIBERTIES LAW REVIEW 48 (1): 165–215.
Schoenfeld, Heather. 2018. BUILDING THE PRISON STATE: RACE AND THE POLITICS OF MASS INCARCERATION. University of Chicago Press.
The Sentencing Project. 2022. “Private Prisons in the United States.” Washington D.C.: The Sentencing Project. https://www.sentencingproject.org/app/uploads/2022/10/Private-Prisons-in-the-United-States-2.pdf.
© Copyright 2023 by author, Heather Schoenfeld.
