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Yesterday was not an auspicious day for the cause of privatizing the country's prison system. An expanded Supreme Court panel of seven justices ordered the state to explain within 30 days why legislation adopted in 2004 to privatize some prisons shouldn't be revoked. The probability of the court again overturning a law was deemed sufficiently high by the justices themselves to warrant a special notification issued to the Knesset speaker to allow the legislature opportunity to address the court on the issue.
The court was petitioned by instructors at the Ramat Gan Academic College of Law, who demanded that plans already in the pipeline to allow private firms to construct and run correctional facilities be put on hold on the grounds that penal facilities come under the definition of "core powers," which the law forbids the state from parceling out, particularly to profit-oriented organizations.
The Supreme Court will further expand its panel to nine to rule on whether to grant the petitioners' request for an injunction against the construction of Israel's first private prison, soon to begin near Beersheba. The tender for the construction was won by the Africa-Israel Corporation and associates under Lev Leviev, which in turn hired the consulting services of Texas-based Emerald Correctional Management, which runs five prisons in the state.
This could prove a watershed case of paramount significance beyond the specific issue at hand. As the prosecution noted, court interference in the process of privatization is so rare that it is countenanced only in cases "where a 'black flag' flies above the process." Is this indeed a "black flag" case?
Private prisons exist primarily in the US, where commercial concerns construct, own and operate penal institutions and are paid by the contracting governmental agency per prisoner, per day. This full-privatization concept is the one Israel adopted, rejecting middle-of-the-road semi-private arrangements in force in parts of Europe and Britain, where some prison operational functions are subcontracted, but the state retains ultimate control.
The American model's rationale is to relieve overcrowding and save taxpayer dollars. Yet a recent Arizona state study indicates that the opposite may be true.
Some American prison facilities were entrusted to private management already in the early 1800s, generating conditions often close to slavery, especially when convict labor was "leased" to private companies. Today complaints involve poor medical care and food quality for inmates, as well as substandard training for guards, along with low pay and deliberate understaffing. Certain American private prisons also record more violence.
Given Israel's acute budgetary constraints and severe overcrowding, the notion of turning criminals over to the control of business interests seems particularly attractive. Currently prisoners here occupy an average of 3.4 square meters each, whereas in the projected new facility they would have 5.3 square meters.
But can a private concern, with all the goodwill imaginable, really devote attention to issues of deterrence and/or rehabilitation? State prisons, admittedly, do not do a sterling job, but at least we know where the buck stops.
This is no ordinary privatization geared to increase healthy competition.
The danger rather is that it's a shirking of public responsibility.
The court has brought attention to these weighty questions, but it is really the Knesset's job to sort them out. Since international experience indicates that some private prisons provide better service for less money, while others are worse on both counts, it is important that any step here in this direction be monitored carefully.
The state bears a heavy responsibility to protect the public from felons while safeguarding the civil rights even of those whom, for good reason, the state has deprived of their freedom. Financial considerations, in other words, are only part of the picture.
In theory, the state can stipulate the standards, financial and otherwise, that private prisons must meet and withdraw its contracts from those who do not fulfill them properly. In practice, only careful oversight by the government and the Knesset can ensure that the state's standards are fully upheld. In fact, only if the state can guarantee that it can and will provide sufficient oversight should this critical function be transferred to private hands.