介绍:
Beyond any constitutional or FOIA issues that may arise, agencies should be required, as a matter of sound policy, to direct their attention to the individual rights of the parties who come under their jurisdiction when they turn to private actors, private incentive structures, or market solutions to carry out their regulatory obligations--lest such contracts and delegations dilute these protections. We distinguish between human services and other services of an impersonal or material nature, so as to avoid the inherent risk that “efficiency-based” approaches incentivize--i.e., commodifying the very people who are intended to be beneficiaries of the services. Basic human needs should not be treated as marginal costs. For example, when prisoners are transported from one private facility to another, based solely on the least- *892 cost availability of a particular bed, such decisions may result in the transfer from one part of the country to another without sufficient regard for where the prisoner’s family may be located, thereby eliminating important support structures for the individuals involved.33 The more abstract and narrowly cost conscious these decisions become, the more likely it is that the incommensurability of the values (in this example, family and profit) will be ignored in the decision-making processes involved. While fiscal prudence is, of course, a necessary factor in government decisions, even the most compelling economic justifications for “going private” do not eliminate the government’s core responsibility for the public interest--security in the broad sense. Thus, we place a high value on public participation and accountability, especially when human beings are direct stakeholders (as the object of the services in question). The processes we recommend would provide a check on what might otherwise be decision-making processes focused exclusively on the “bottom line.” From this perspective, a contract for provision of prison health care, for example, should specify a standard of care on par with that of the free population34--just as a contract for building a bridge assumes a commitment to durability and safety on par with the industry standard. It is for such reasons that we seek to differentiate what we shall call human-service contracts from those focused primarily on brick and mortar, administrative services. When direct human services are at issue, the people who are the recipients of those services should be considered stakeholders, or third-party beneficiaries. Personal dignity and the integrity of the body should be among the considerations that trigger the closer scrutiny we recommend for human-service contracts.35
Before we explore what such a framework might include and how it might operate, we first examine the types of public-private arrangements agencies routinely establish. We conceptualize agency contracting along a pyramid: At the base lie general-service contracts and procurements. Higher up along the pyramid lie the human-service contracts that are the primary focus of this Article’s statutory proposal. At the pinnacle lie those contracts that may exceed the scope of permissible delegation altogether--either because they inappropriately transfer inherently governmental power to the private sector or because they excessively jeopardize individual rights.
*893 We then turn our attention to our proposed statutory framework, outlining some recommended requirements for human-service contracts--those delegations of power traditionally reserved to government, which directly and substantially impact individual rights of human beings, their nutrition, medical care, and living conditions. With such contracts, basic dignity of the person and the fundamental integrity of the body are at stake.
