Privatization and the Law and Economics of Political Advocacy

Alexander Volokh - Emory Law School

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Over ninety years ago, opponents of World War I alleged that “munitions manufacturers frighten the popular mind with the fear of imaginary external enemies and inflame it with murderous patriotism.”1 According to a view attributed to Stefan Zweig, the war began only when “newspapers in the pay of the arms manufacturers began to whip up sentiment against Serbia.”2 After the war, that accusation morphed into the charge that arms makers were self-interestedly obstructing peace efforts. Today, an opponent of U.S. military policy characterizes defense contractor CACI International, Inc., whose chairman speaks publicly of the “heinous[ness],” “fanatical horror,” and “barbarism” of terrorism,3 as “one of the most unabashed corporate backers of Bush’s foreign policy and a key supporter of the military campaigns in Iraq and Afghanistan.”4 Critics also charge that private military interests affect what weapons systems we rely on and what alliances we enter into, and that, in some countries, those interests may even take over the government.

This theme—that private contractors use their influence to advocate not just more privatization but also, insidiously, changes in substantive policy—sweeps more broadly than just defense contractors. The following list gives a sense of the generality of the accusation; the last few items illustrate that the critique comes from “the right” as well as from “the left.”

  • Private prison firms are often accused of lobbying for incarceration because, like a hotel, they have “a strong economic incentive to book every available room and encourage every guest to stay as long as possible.”5
  • Business improvement districts—coalitions of business and property owners, many of which have their own private security forces—have lobbied municipalities for, among other things, aggressive panhandling ordinances.
  • A toll road developer in Colorado has lobbied for statutory changes to preempt county authority to set toll rates, and a private road construction firm has been accused of contributing to Texas Supreme Court justices’ campaign chests to influence a potential eminent domain suit related to a toll road in the state.
  • Private landfill companies have been accused of lobbying for weak environmental regulation of landfills and opposing recycling initiatives.
  • Private water-supply owners have been accused of “lobbying to weaken water quality standards . . . and pushing for [trade agreements] that hand over the U.S. water resources to foreign corporations,”6 and private water utilities have been accused of fighting conservation efforts.
  • Private redevelopment corporations, which have the power to condemn private property for purposes of “urban renewal,” have opposed reform of eminent domain laws in the wake of the Supreme Court’s decision in Kelo v. City of New London.7
  • And “private attorneys general,” for instance environmental groups that benefit from fines available under environmental citizen suit provisions, or members of the securities plaintiffs’ bar who benefit from the availability of securities fraud class actions, fight for the continued vitality or even strengthening of the statutes under which they litigate.

Private prisons are a useful case study through which we can examine this “political influence” challenge to privatization. In the prison context, there is at present no reason to credit the argument. At worst, the political influence argument is exactly backwards, by which I mean that privatization will in fact decrease prison providers’ pro-incarceration influence; at best, the argument is dubious, by which I mean that its accuracy depends on facts that proponents of the argument have not developed.

*     *     *

Why are private prisons a useful case study? First, they are a growth industry, having progressed from humble beginnings in the late seventies and early eighties to now house about one in sixteen prison inmates nationwide. Second, the opponents of private prisons commonly make the political influence argument.

For example, in a recent Duke Law Journal article, Sharon Dolovich writes that “the legitimacy of punishment” is threatened “whenever parties with a financial interest in increased incarceration are in a position to exert influence over the nature and extent of criminal sentencing. If this concern is real”—and she suggests that it may well be—prisons should not be privatized because “the state ought not to foster yet another potentially influential industry that could seek to compromise further the possibility of legitimate punishment to promote that industry’s own financial interests.”8

David Shichor, a prominent contributor to the prison privatization literature, opposes prison privatization in part because:

Through political lobbying, PACs, campaign contributions, and the provision of perks to politicians (as industrial and business corporations do), corporations are likely to continue to support and even accelerate incapacitation-oriented legislation and policies by which more people will spend longer periods of time in correctional institutions. Conversely, this trend may diminish the emphasis on alternative programs and will result in the pursuance of the “Hilton Inn mentality,” that is, trying to maintain high occupancy rates for profit purposes.9

And Brigette Sarabi and Edwin Bender’s thesis is clear from the title of their report, The Prison Payoff: The Role of Politics and Private Prisons in the Incarceration Boom, in which they argue that prison privatization should be resisted in part because private prison firms have a “vested financial interest[] in increasing rates of imprisonment.”10 This is only a small sample of the literature.

Let’s assume, for the sake of argument, that the concern underlying this critique is reasonable—that is, that economically self-interested pro-incarceration advocacy is undesirable. (I will come back to this later.) This concern, however, fails to support the argument against privatization for several reasons.

First, self-interested pro-incarceration advocacy is already common in the public sector—chiefly from public-sector corrections officers unions. For instance, the most active corrections officers union, the California Correctional Peace Officers Association, has contributed massively in support of tough-on-crime positions on voter initiatives and has given money to crime victims’ groups, and public corrections officers unions in other states have endorsed candidates for their tough-on-crime positions. Private firms would thus enter, and partly displace some of the actors in, a heavily populated field.

Second, there is little reason to believe that increasing privatization would increase the amount of self-interested pro-incarceration advocacy. In fact, it is even possible that increasing privatization would reduce such advocacy. The intuition for this perhaps surprising result comes from the economic theory of public goods and collective action.

The political benefits that flow from prison providers’ pro-incarceration advocacy are what economists call a “public good,” because any prison provider’s advocacy, to the extent it is effective, helps every other prison provider. (We call it a public good even if it is bad for the public: the relevant “public” here is the universe of prison providers.) When individual actors capture less of the benefit of their expenditures on a public good, they spend less on that good; and the “smaller” actors, who benefit less from the public good, free ride off the expenditures of the “largest” actor.

In today’s world, the largest actor—that is, the actor that profits the most from the system—tends to be the public-sector union, since the public sector still provides the lion’s share of prison services, and public-sector corrections officers benefit from wages significantly higher than their private-sector counterparts. The smaller actor is the private prison industry, which not only has a smaller proportion of the industry but also does not make particularly high profits.

By breaking up the government’s monopoly of prison provision and awarding part of the industry to private firms, therefore, privatization can reduce the industry’s advocacy by introducing a collective action problem. The public-sector unions will spend less because under privatization they experience less of the benefit of their advocacy, while the private firms will tend to free ride off the public sector’s advocacy. (My Article goes into this argument in much greater detail.) This collective action problem is fortunate for the critics of pro-incarceration advocacy—a happy, usually unintended side effect of privatization. One might even say that prison providers under privatization are led by an invisible hand to promote an end which was no part of their intention.

*     *     *

This implies, at a minimum, that some amount of privatization will decrease advocacy, for two reasons. The first reason is that, as long as the level of privatization does not exceed a certain critical threshold, the public sector will dominate the entire private sector. Therefore, the whole private sector’s advocacy would be zero. The second reason is that as privatization increases, the size of the public sector falls, and thus the aggregate benefits of service provision to the public sector likewise fall. Because the public sector is smaller than it would be without privatization, its advocacy will fall accordingly.

How far can we continue to privatize before advocacy stops falling? As privatization increases, the second step always holds—by definition, privatization shrinks the size of the public sector. The first step, however, does not always hold for large enough levels of privatization. Obviously, at a certain point, the private sector can come to dominate the public sector. Then the private sector will do all of the advocacy, with the public sector acting as a free rider. From then on privatization would increase advocacy. The level of privatization at which advocacy stops falling is a threshold that we may call an “advocacy-minimizing privatization level.”

Have we reached such a level yet? To answer this question, we must at least estimate which sector is “dominant”—which sector extracts the most benefit from prison provision. Following a long tradition in the labor economics literature, I assume that unions maximize union “rents” (i.e., the difference between the union wage and the market wage, multiplied by the number of workers). And following a well-known tradition in microeconomic theory, I assume that firms are profit-maximizers. (As I mention later, these are just approximations. Better predictions based on more realistic models would be a welcome future development.)

We can easily perform some rough estimates to verify that the dominant industry is the public sector, not the private sector:

  • Industry share. The private sector has a smaller share of the industry. Of the 1.5 million prisoners under the jurisdiction of federal or state adult correctional authorities in 2004, 7% were held in private facilities. This includes 14% of federal prisoners and 6% of state prisoners. Among the thirty-four states with at least some privatization, the median percentage of private prisons was 8-9%. If we are interested in the private share of marginal prisoners—that is, how likely a prisoner is to go to a private prison if he is convicted today—the private share becomes larger, mainly because private firms have absorbed much of the recent growth in federal incarceration. A reasonable estimate of the private share of marginal prisoners over the period 2000-2005 yields 6% for state systems, 54% for the federal system, and 22% overall.

  • Private sector profitability. The profits of the private sector are low. If the industry were perfectly competitive—like in textbook models of perfect competition—every firm would make zero economic profit. “Economic profits” measures how profitable a company is relative to other ways of investing one’s money. Thus, “zero economic profits” does not mean that firms are not making money, but rather that all firms are doing as well as the rest of the market. In such a (hypothetical!) world, firms would not care whether their market were growing or shrinking, because they would be indifferent between running prisons and putting their money into the stock market. This is, of course, somewhat unrealistic: the prison industry is oligopolistic, not perfectly competitive, so prison firms do make some profit. But their profits are not high: 10% would be a generous estimate of prison firms’ profitability.

  • Public sector rents. Public sector corrections officers, on the other hand, benefit substantially from public provision of prisons, because their wages are quite a bit above—about 30-65% higher than—what corrections officers make in the private sector. This is a lot of money, because wages are about 60-80% of most prisons’ operating expenses.

These numbers are meant to be merely suggestive, not rigorous. Trying to put these numbers together more rigorously (but still in a very approximate way) requires a fair amount of algebra, which I provide elsewhere. But it should be intuitively plausible that our public-sector actors extract substantially more benefit from any given prison than do private firms. It is likewise clear that the public-sector unions have a greater share of the industry than do private firms.

Thus, overall, the public-sector actors enjoy a greater benefit from prison provision than the private-sector actors do, perhaps by an order of magnitude. This model predicts that the public-sector unions should be doing all of the pro-incarceration advocacy, and the private firms should be entirely free-riding.

*     *     *

One may wonder about the realism of simple, highly stylized models. Will the private sector really do zero advocacy? Whatever the general merits of such skepticism, in this particular case the simple model may be close to true.

In my Article, I document what we know about prison industry advocacy. In brief, there is a lot of hard evidence of pro-incarceration advocacy by public corrections officers unions (though a small part of union advocacy also cuts the other way). On this issue, they are opposed to most departments of corrections, which advocate in favor of alternatives to incarceration. But there is virtually no evidence of private sector pro-incarceration advocacy. This may simply mean that the private sector advocates incarceration secretly. But, in light of the theory, it may be more plausible that the private sector simply is a free rider, saving its political advocacy for policy areas where the public good aspect is less severe—pro-privatization advocacy.11

Even if one disagrees with the preceding sentence, this model need not be realistic in a literal sense. Advocacy need not be an entirely public good, and the smaller actors in the industry need not be complete free riders. The point is merely that these assumptions are plausible, perhaps even likely. Advocacy has some public-good aspects, and free riding happens to some extent in the world. If people act enough like this model, privatization will still, on balance, reduce total pro-incarceration advocacy.

This plausible scenario rebuts the simple anti-privatization claim that privatization does increase pro-incarceration advocacy. (The extended models that I discuss later on, in which the effect of privatization on advocacy is ambiguous, further rebut the simple unidirectional claim.) This scenario also points out a potential irony in the position of some incarceration opponents who, so as to avoid “reinforc[ing] the incarceration boom by introducing the profit motive into incarceration,”12 would make common cause with public corrections officers unions, who concededly are active lobbyists for incarceration.

*     *     *

Let me pause here to explain two features of the model that you may be wondering about. First, why am I focusing only on public-sector employees (unions) and private-sector employers (firms)? And second, what am I assuming about cooperation (or, more cynically speaking, collusion) between prison providers?

First, let me explain my choice of the relevant actors. Why am I not also examining private-sector employees (private unions) and public-sector employers (for instance, state Departments of Corrections)? In principle, one should focus on all possible players in this strategic political-influence game. In the prison context, though, we can simplify the problem.

Why no private-sector unions? Because the private prison industry generally isn’t unionized. In the absence of unionization, employees find it very difficult to act collectively. A public-sector union can extract mandatory dues from its members and use those dues to advocate political policies that will help it or its members. But individual employees generally won’t find it advantageous to do the same. They face their own collective action problem; because no employee’s political participation is mandatory, everyone rationally prefers to free-ride off his fellows’ political contributions, which reduces the amount of contributions from everyone. When private employees are unionized, we can expect the private unions to flex their political muscle (for instance, the United Mine Workers joined the coalition challenging the EPA’s air quality standards in Whitman v. American Trucking Associations13), but when they are not, we can probably usually safely ignore private workers’ political activity.

And why no public-sector employers, for instance state Departments of Corrections (DOCs)? Interestingly, while public sector corrections officers’ unions are often involved in pro-incarceration advocacy, their employers, the DOCs, are just as often involved in anti-incarceration advocacy, pleading for alternatives to incarceration, community corrections, early parole, work-release, and the like. Why is this? One possibility is that a government agency doesn’t want to get more prisoners unless it can be guaranteed a commensurate amount of funding—and in an age of tight budgets, such funding is often not forthcoming. My guess is that corrections officers and their unions, however, do not suffer (or, so far, have not suffered) from increasing prison populations, perhaps because high prison populations give them greater job security, and they have had enough power to prevent significant cuts in wages or significant deterioration in working conditions.

Second, do the individual private firms and the public sector compete, or cooperate, with each other on advocacy? The simple model that I set out above actually makes a fairly cynical assumption—that the entire private prison industry acts as a bloc, collectively determining its political advocacy strategy. Even then, the entire private prison industry tends to be much smaller than the public sector. So even this all-private-collusion assumption does not validate the assumption that privatization increases pro-incarceration political advocacy.

Suppose one believes that these firms don’t cooperate—after all, they don’t cooperate when bidding on prison contracts. In that case, the private sector’s collective action problem is even starker. Instead of having a 90% public sector and a 10% private sector, we have a 90% public sector and private firms representing, say, 5%, 2%, 1%, 1%, and 1%.

Finally, one could take the polar opposite view, and assume that everyone—the public sector and the private firms alike—is cooperating on political advocacy. If this were the case, and if the benefits to the public sector and the profits to the private sector were equal, then privatization wouldn’t change anything. The industry would be broken up into many actors, but because they would all collude on political strategy, they would still act in a unitary way. However, suppose the profits to the private sector are smaller—this is plausible, since private prison firms are not particularly profitable. Then, even if the whole industry acts together, it has less profits to maximize, so its political advocacy would plausibly be weaker.

Thus, my assumption here that the public-sector unions and the private firms are the relevant actors seems defensible. And my additional assumption that the private firms all act as a bloc is probably harmless, since other assumptions would likely lead to qualitatively similar results.

*     *     *

The simple model is, of course, a simple model. One can also tell more complicated versions in which privatization does not necessarily decrease total industry-expanding political advocacy. It is not too hard to introduce a few realistic complications to the simple model.

We can easily alter the assumption that money merely buys the passage of a pro-incarceration measure, and instead allow money to change the substance of the measure itself. We can also relax the assumption that anti-incarceration advocacy (the advocacy of the other side, for instance by the ACLU) is fixed. These complications do not change the basic result of the model.

Other complications are more fundamental, and make the effect of privatization ambiguous—increasing private-sector advocacy but also decreasing public-sector advocacy. For instance, we could relax the assumption that the effectiveness of advocacy only depends on the total amount of money spent, instead allowing the private sector’s money and the public sector’s money to have separate effects. Also, we could relax the assumption that the introduction of privatization into a state is exogenous. (My Article goes into these complications in greater detail.) If those extensions of the model are closer to the truth, then total advocacy may rise—but it may also fall, depending on which effect dominates. We cannot determine the net effect a priori.

There is thus no reason to believe an argument against prison privatization based on the possibility of self-interested pro-incarceration advocacy—unless the argument takes a position on how lobbying, political contributions, and advocacy work, and why (for instance) any increase in private-sector advocacy would outweigh the decrease in public-sector advocacy. Either this argument against prison privatization is clearly false, or it is only true under certain conditions that the critics of privatization have not shown exist.

*     *     *

So far I have assumed, with the critics of prison privatization, that self-interested pro-incarceration advocacy is undesirable. Even with this assumption, I have concluded that the case against prison privatization based on the specter of increased pro-incarceration advocacy is weak. But philosophically, this assumption itself is highly questionable.

For one thing, members of an industry, whether public or private, who advocate a policy that benefits them are not necessarily motivated by self-interest, even unconsciously. When Don Novey, the president of CCPOA, says he just wants to lock up scumbags,14 perhaps we should take him at his word. The same goes when a DOJ official speaks of the need to fight “the scourge of child pornography,”15 when CACI says terrorism is “heinous,” when a leading environmental citizen-suit litigator argues against weakening the environmental laws whose monetary penalties fund its operations, or when doctors who perform abortions oppose abortion restrictions.

People who advocate a policy that benefits them or their industry may be acting out of naked self-interest; they may be deluded into believing their particular interest is the general interest; their participation in an industry may lead them to rightly appreciate their industry’s contribution to the public interest; they may have joined the industry because they were sympathetic to its interests; or maybe they just coincidentally believe that the policy is right.

Nor is even nakedly self-interested advocacy an obvious evil, even when prison policy is at stake. Some argue that optimal criminal law should reflect all interests, including the benefit to the criminal of committing the crime; and if this is right, prison providers’ self-interest is also relevant. Some see lobbying as a means by which groups provide their views to decisionmakers and the public and thus enrich democratic debate. Others may find it illegitimate, on democratic grounds, to even consider the substance of people’s future political advocacy in deciding whether to privatize.

And if, as still others believe, criminal policy should be judged by a substantive external standard—for instance, whether sentences are too long in an objective sense—one cannot specifically object to the effect of pro-incarceration advocacy on criminal law without first establishing that the effect would be substantively undesirable.

Nonetheless, if one believes that the effect of privatization on pro-incarceration advocacy is relevant, this model shows some inadequacies in the current formulation of the political influence challenge to privatization. Privatization may not worsen any political influence problem, and might even alleviate it. The public goods model seems to describe many situations of political advocacy fairly well. The assumption of the principal model—that the probability of getting a policy change only depends on the total amount spent—likewise seems to be a good approximation for many situations, like initiative or election campaigns.

There is always room for more realistic theories. For instance, my analysis of what motivated public-sector unions, while based on assumptions common in the labor economics literature, was highly simplified. In assuming that private prison firms were profit-maximizing, I suppressed any analysis of agency costs within the firm. And my back-of-the-envelope estimate of the benefit of incarceration to the different sectors was just that—an estimate. Nor have I entertained the possibility that, when privatization is on the agenda, prison system actors spend more resources fighting over that, which might crowd out pro-incarceration advocacy. So my specific conclusions here are tentative. This article is meant to stimulate and discipline further debate, not end it.

But what is not tentative is that this sort of analysis is necessary if one is to make the political influence argument properly, whether in the prison context or more generally. General assumptions will not do. As Mancur Olson (somewhat hyperbolically) observed, “the customary view that groups of individuals with common interests tend to further those common interests appears to have little if any merit.”16 Critics of privatization who have charged that privatization has increased (or will increase, or runs a substantial risk of increasing) industry-expanding advocacy have not explained what it is about the lobbying world that would make this happen. Either they are unambiguously wrong, or they are only right under a particular set of empirical assumptions that they must spell out.

One further note: If one opposes self-interested pro-incarceration advocacy, one may object at this point that this economic analysis does not exonerate private prisons. Rather, perhaps I have only shown that the entire system is corrupt, and perhaps I have unwittingly demonstrated that the only way out of this mess is to reject the “interest group model of politics”17 entirely as it applies to criminal justice policy.

Fair enough. If self-interested pro-incarceration lobbying is indeed undesirable, then perhaps the system is corrupt. But how does this translate into an argument against prison privatization? It is not enough to show that private prisons are part of the problem: removing one problem is not guaranteed to make things better when there are other problems around. As the models above have suggested, even if all this political advocacy is illegitimate, the existence of the private sector can reduce public-sector advocacy and may reduce total advocacy; eliminating the private sector may thus exacerbate the problem.

Nor is it only economists who oppose making the best the enemy of the good: as Rawls (no economist he) teaches, the analyst who makes specific policy recommendations in our fallen world—not in the idealized world of “strict compliance” with the principles of justice that characterizes a “well-ordered society”18—is acting in the realm of “nonideal theory,” which asks how the “long-term goal” dictated by ideal theory “might be achieved, or worked toward, usually in gradual steps. It looks for policies and courses of action that are morally permissible and politically possible as well as likely to be effective.”19

Because non-ideal theory requires that we ask about the real-world effectiveness of any reform, merely observing undesirable lobbying by the private sector will not support an argument against prison privatization unless, say, privatization actually (not speculatively) increases “the danger of . . . corrupting influence” or “compromise[s] further the possibility of legitimate punishment.”20

If it turns out that privatization actually reduces pro-incarceration lobbying—if, with privatization, prisoners’ sentences are less influenced by improper factors than they otherwise would be—it is unclear that there is any “tension between the state’s use of private prisons and the demands of” liberal legitimacy.21 If “private prisons are by no means unique,”22 and if any prison provider, public or private, can lobby for incarceration, any “tension” has nothing to do with private prisons and everything to do with the crooked timber of humanity.

*     *     *

The same sort of analysis that I have conducted here on the prison industry can also be used to evaluate the claim that, say, buying weapons from defense contractors (rather than having the military make them in-house) will exacerbate pro-war lobbying. Since governmental providers of defense services—i.e., the military leadership—have, on some accounts, been notorious pro-war lobbyists throughout history, such a claim is not credible unless one can tell a plausible story about why any defense contractor lobbying will not crowd out some lobbying by the military itself; and doing this requires taking a position on what motivates the people at the Pentagon. The same goes for private attorneys general, private redevelopment corporations, private landfill operators, and the like. The result will not always be the same, and the political influence argument may turn out to be correct in some of these cases and incorrect in others. But this should be the structure of the argument.

The surprising moral of this story should not be that surprising. Indeed, the central insight here was also an important argument in favor of the antitrust laws. Discussing the conditions that preceded the enactment of those laws, William Howard Taft wrote that “business methods and plans . . . directed to . . . suppressing competition . . . had resulted in the building of great and powerful corporations which had, many of them, intervened in politics and through use of corrupt machines and bosses threatened us with a plutocracy.”23 The argument is plausible, and it is likewise plausible that privatization, by fragmenting an industry into at least two chunks (and more if private firms do not cooperate on advocacy), may similarly reduce that industry’s political power.

In a roundabout way, then, privatization is a form of antitrust, and antitrust is a form of campaign finance regulation. It may not be worthwhile to privatize industries—or break up large corporations—merely to reduce their political advocacy, but at the very least this may count as an unintended—and possibly happy—side effect of privatization that, if real, should be taken into account in future analysis.dingbat

Acknowledgments:

Copyright © 2009 Stanford Law Review.

Alexander Volokh is Visiting Assistant Professor, University of Houston Law Center; Assistant Professor-Designate, Emory Law School.

This Editorial was based on the full-length Article: Alexander Volokh, Privatization and the Law and Economics of Political Advocacy, 60 STAN. L. REV. 1197 (2008).
Click Here for the Full Article

  1. In re Billings, 298 P. 1071, 1094 (Cal. 1930).
  2. Andrew Cockburn, The Great War, WASH. MONTHLY, Jan./Feb. 2000, at 51.
  3. Dr. J.P. (Jack) London, Chairman, President, and Chief Executive Officer, CACI Int’l Inc., Association of the United States Army John W. Dixon Medal Acceptance Speech (Oct. 8, 2003), http://www.caci.com/speeches/jpl_AUSA_ 10-8-03_speech.shtml.
  4. Tim Shorrock, CACI and Its Friends, NATION, June 21, 2004, at 6.
  5. Eric Schlosser, The Prison-Industrial Complex, ATLANTIC MONTHLY, Dec. 1998, at 51, 64.
  6. Public Citizen, Water Privatization Overview, http://www.citizen.org/cmep/Water/general.
  7. 545 U.S. 469 (2005).
  8. Sharon Dolovich, State Punishment and Private Prisons, 55 DUKE L.J. 437, 523-29, 542-43 (2005).
  9. DAVID SHICHOR, PUNISHMENT FOR PROFIT: PRIVATE PRISONS/PUBLIC CONCERNS 236 (1995).
  10. BRIGETTE SARABI & EDWIN BENDER, W. STATES CTR., THE PRISON PAYOFF: THE ROLE OF POLITICS AND PRIVATE PRISONS IN THE INCARCERATION BOOM, at vii, 21 (2000).
  11. Since my Article was published, it was revealed that two Pennsylvania state judges received kickbacks to send teenagers to two privately run youth detention centers. Ian Urbina & Sean D. Hamill, Judges Plead Guilty in Scheme to Jail Youths for Profit, N.Y. TIMES, Feb. 12, 2009, at A22. At last, a solid example of private industry pro-incarceration advocacy, to set against the copious evidence of advocacy from the public sector. (In my Article, I use the term “advocacy” broadly to include any use of political influence, licit or illicit, including endorsements, political contributions, lobbying, and bribes.) But this example, reprehensible though it is, stands out for being so extraordinary. Even though private industry may have an advantage over the public sector when it comes to corruption, outright judicial corruption, at least in the United States, is not a major problem. But see Oliver Hart, Andrei Shleifer & Robert W. Vishny, The Proper Scope of Government: Theory and an Application to Prisons, 112 Q.J. ECON. 1127, 1144-47 (1997) (finding private provision less likely to be optimal when corruption is a major problem). Thus, to the extent one may want to use a sector’s pro-incarceration advocacy as a strike against it in considering whether to have that sector provide prison services, it makes more sense, in the United States today, to focus on the more usual pathways of influence-endorsements, political contributions, and lobbying.
  12. SARABI & BENDER, supra note 10, at 21.
  13. 531 U.S. 457 (2001).
  14. See Dan Morain, California’s Profusion of Prisons, L.A. TIMES, Oct. 16, 1994, at A1.
  15. Child Pornography and Abduction Prevention: Hearing on H.R. 1161 and H.R. 1104 Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary, 108th Cong. (2003) (statement of Daniel P. Collins, Associate Deputy Att’y Gen.), 2003 WL 1079511.
  16. MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS 2 (1965).
  17. Dolovich, supra note 8, at 543.
  18. JOHN RAWLS, A THEORY OF JUSTICE 8 (1971); see also Sharon Dolovich, Legitimate Punishment in Liberal Democracy, 7 BUFF. CRIM. L. REV. 307, 324 (2004) (discussing “partial compliance”).
  19. JOHN RAWLS, THE LAW OF PEOPLES 89-90 (1999).
  20. Dolovich, supra note 8, at 532, 542-43.
  21. Id. at 529.
  22. Id. at 530.
  23. WILLIAM HOWARD TAFT, THE ANTI-TRUST ACT AND THE SUPREME COURT 4 (photo. reprint 1993) (1914).

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