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No one is advocating that government abandon its responsibility for corrections facilities. Indeed, government cannot abandon this responsibility because it has been given this responsibility by the people. Professor Charles Logan of the University of Connecticut at Storrs and a Senior Fellow at the National Institute of Justice, makes the following argument about the legal foundations of responsibility and delegation of authority in corrections. The state does not own the right to punish, but derives its authority – as it derives all its powers and authority – solely from the consent of the governed. It follows, he contends, that this authority may, with similar consent, by delegated further to subsidiary trustees provided that they, too, are ultimately accountable to the people and subject to the same provisions of law that direct the state. It is the law, Logan argues, not the civil status of the actor, that determines whether any particular exercise of authority – including the use of physical force or other coercive measures – is legitimate. [61]
The question of a state's legal right to delegate its authority to protect and punish has already been decided. Liability still remains and liability can and is being handled through precise contract language. Moreover, no one advocates delegation to determine sentences; this is a due process issue and the state will always retain its primary responsibility to assure due process. The Michigan Sheriffs' Association has expressed concern, noted above, about the exercise of powers by a private jail contractor in matters dealing with what is actually a due process issue related to determining when a prisoner can receive "good time" off his sentence. (PSC, page 5). If there is any comfort, MSA can be assured that no private contractor has ever attempted to take this responsibility away from government. Indeed, CCA, in its standard management contract, includes language to the effect that "the County will be responsible for the computation of inmate sentences, including but not limited to computation of good time awards, discharge dates, and parole eligibility dates." [62]
Clearly, the present overcrowding crisis in Michigan's prisons and county jails demands a solution. The sums of money which will be required to solve this problem are so vast using traditional "within system" means, that it is highly likely that the public will simply refuse to pay. If and when that happens, the criminal justice system could collapse.
With what I call "outside system" means available through the private sector, it would be a mistake to accept the charge that private corrections firms are a threat to a state or local government operator of a corrections facility. In contracting out for private sector prison management, the state does not leave the field of play; it actually improves its ability to win against those who break tie law. Private firms promise greater efficiency. Greater efficiency amounts to the acquisition of increased economic resources – resources which can then be assigned directly to the street to deter crime.
In a careful contractually designed partnership with a private vendor – and absolutely every advocate of the private sector corrections industry argues strongly for careful and complete contracting which specifies all duties and responsibilities and provides for competition in both space and time – all that has been created when the talents of private jail operators is brought to bear on the problem of jail overcrowding is another layer of responsibility which adds to the solution, not abandonment of government responsibility.
Moreover – and this is frank and valid criticism of current jail conditions – conditions are now such in Michigan's jails that there is virtually no way a private vendor could do worse than is now being done. Indeed, under private contracting, government monitoring would undoubtedly be tighter than it is now. No one – especially the private contractor who must bear direct financial responsibility for poor conditions and the high operating costs generated by poor conditions – would allow conditions to become worse.
Corrections privatization contemplates a partnership from which both sides may profit. No one has proposed the total abandonment of government's corrections responsibilities. But when present estimates indicate that, nationally, prison and jail construction proceeds at a cost of some $65-70 million per week, [63] and government continues to fail behind, a refusal to consider private-public sector participation in Michigan would be nothing short of irresponsible.
