介绍:
B. HUMAN-SERVICE CONTRACTS
Higher up our conceptual pyramid lie those contracts that represent nontraditional delegations or public-private partnerships--human-service contracts, the primary focus of this Article.
Human-service contracts touch on areas traditionally reserved to government. These areas implicate incommensurables. They affect human dignity and wellbeing, and as a result, they require heightened scrutiny, contestation, and accountability. As Professors Aman and Greenhouse have suggested, “[d]irect human vulnerability mandates more direct forms of public participation than those more impersonal domains of government contracts ... in which expenses and revenues may be more definitive.”50
To formulate our concerns, we examine five categories of human-service contracts, providing illustrations for each: private prisons, schemes for homeless care, private police and paramilitary forces, for-profit immigration detention centers, and privately administered welfare programs.
1. Private Prisons
Contracts for private prison management offer a particularly apt example of the human-service contracts that most interest and concern us:51
On the one hand, [prisons] are buildings and workplaces like any other, servicing inmates as if they were clients--with clean laundry, occupations, education, and so forth. On the other hand, they are settings in which responsibility for the care of inmates--nutrition, medical care, basic life conditions--reach the level of human rights concerns. The former functions might easily be outsourced, but the latter--where the fundamental integrity of the body and the basic dignity of the person are at stake--pose more challenging questions.52
In other words, the prison contract involves not one simple delegation but a variety of complex, interwoven responsibilities that must be carried out by government or private partners.53 Some of these responsibilities seem so *897 routine, so banal even, that no one would genuinely question the legitimacy of outsourcing--for instance, no commentator would seriously argue that agencies should assume direct responsibility for janitorial services or food preparation. But the prison context involves other, more sensitive services as well: security, nutrition, medical care, disciplinary review, and punishment. To what extent can and should these responsibilities be reallocated to private partners?54 And to what extent should those partners be constrained by administrative law?
Prisoners are uniquely vulnerable “beneficiaries” of government contracts: without the protections of due process and administrative procedure, and given the trend toward least-cost outsourcing, the risk is considerable that privately housed inmates will be treated as commodities, with inadequate attention devoted to their vital and very human interests.
These questions are particularly pressing due to the increasing application of traditional outsourcing techniques to cases involving the kinds of human issues we emphasize here: personal dignity and security. While the vast majority of correctional institutions were operated by government entities at government expense during the early part of the 20th century, by the 1960s prisons were increasingly reliant on private services.55 “The first modern privately-operated prison ... opened in 1976 .... In 1987 there were 3,100 inmates in private [prisons] worldwide; in 1998 that number had risen to 132,000.”56
Why the rapid increase? Professors Aman and Greenhouse have suggested that, at the outset, before overcrowding became a serious concern, state authorities were motivated by prison-labor efficiency and self-financing opportunities.57 As prisoners earned money from their private-sector jobs, they could contribute much or most of it back to the prison as payment for their room and board. There also was, early on at least, a rehabilitative aspiration through job training for prisoners. Eventually, after privatization became a realistic alternative to traditional prison management, there was so much incarceration that states (as well as the federal government) looked for ways to lower the costs of building more prisons.58 Outsourcing to a private firm allowed the state to amortize its costs while the private provider put up *898 the necessary capital to build these new facilities in the first place--allowing the state to meet its obligations without raising taxes.59
The authorizing legislation for privatization generally, and prisons in particular, is often sparse, and the agencies responsible for establishing these contracts are primarily tasked with cutting costs and spreading scarce resources as “efficiently” (sometimes thinly) as possible.60 Some statutes set forth cost-savings rationales for privatization of services; however, “as the cost-savings requirement gets larger there is an increasing danger that private prisons would need to sacrifice prisoners’ rights to meet the standard.”61 There is recent evidence that just such sacrifices are being made in America’s private prisons today. A June 2014 expose by the New York Times discussed the deplorable conditions at the privately run East Mississippi Correctional Facility, where “[o]pen fires sometimes burn unheeded,” “[i]nmates spend months in near-total darkness,” and the walls are “caked” with “[d]irt, feces and, occasionally, blood.”62 Conditions are not much better at the Lake Erie Correction Institution, a private prison operated by Corrections Corporation of America (“CCA”). There, a 2012 audit found that inmates lacked access to *899 running water and toilets, while complaints about prison gangs and violence doubled during the year after the State of Ohio contracted out to CCA.63
