Whose prisoners are these?

Should the state hand over the authority to hold people in jail to a financially motivated company?

prison watch tower 88 248 (photo credit: Courtesy)
prison watch tower 88 248
(photo credit: Courtesy)
Construction on Israel's first privately run prison is nearly complete, but one thing stands between the empty block of prison cells and the 800 prisoners who could be detained there: an injunction issued by the High Court of Justice. On May 18, the High Court of Justice, with an expanded nine-justice panel headed by Supreme Court President Dorit Beinisch, issued the injunction against any further progress on the private prison facility until the court's final ruling. Attorney Lila Margalit from the Association for Civil Rights in Israel argues that the state, in handing over its authority to hold people behind bars to an organization whose primary motivation is financial gain, is in effect entrusting one of its fundamental functions to a private body that does not necessarily have the public's, or the prisoners', interests at heart. Prison privatization could potentially lead to poorer prisoner discipline and thus rehabilitation, and could even lead to increased numbers of people being convicted of criminal offenses due to the profit motives for having people behind bars, according to Efy Michaely, a member of the team of lawyers from the Ramat Gan Academic College of Law, one of the bodies that petitioned the High Court of Justice against prison privatization. Supporters of privatization contend that private prisons could alleviate overcrowding in Israel's state-run facilities and provide an economical alternative to government-run prisons, though the actual amount of "savings" to the government has been disputed. Metro investigates how Israel's private prison, located in Beersheba, would operate, whether privatization would really save taxpayers' money and what human rights are at stake. There are two models of privatization: 1. Partial transfer of authority to private organizations. Management of prison facilities is contracted out, while the state remains in charge of the sentencing and punishment of prisoners. 2. Full transfer of authority to private groups, including from central authorities, with state supervision. ISRAEL INITIALLY favored the first model, which is used in France. The government was to run the prison and outsource logistical services to the private sector. A Central Tenders Committee, headed by a representative of the Finance Ministry Comptroller-General and comprising representatives of the Public Security Ministry, the Israel Prisons Service and the Finance Ministry Budgets Division, was appointed to implement the decision. The committee visited prisons in France, Scotland and England. The members discovered that a combination of private and public authority over a single prison could lead to mutual recriminations over any malfunctions, which would result in less effective management. The committee then recommended that Israel adopt the second model, which Britain and the US use with varying degrees of government supervision and control. The Israeli plan that was finally accepted is a modified version of the British one, which transfers less authority to private hands than the American model. Under the selected model, a private subcontractor will be responsible for all prison services, including the kitchen, medical and cleaning services, rehabilitation programs and psychologists, but not the right to employ force. The IPS Chief Supervisor ("comptroller") will retain authority over its operation and management via supervision. IPS Spokesman Col. Yaron Zamir says that a further 13 supervisors under the comptroller's authority will also monitor the daily activities of the concessionaire. That concessionaire, ALA Management and Operations, in which Africa Israel and Minrav have equal holdings, won the tender approximately six months after the Ramat Gan Academic College of Law - which runs a department on human rights law and offers programs in human rights, criminal law and criminology - first appealed against the Knesset's 2004 amendment of the Prisons Order (Privately Operated Prisons), in 2005. The prison is intended to hold low- to medium-level security prisoners. The IPS alone will determine which prisoners are assigned to the private facility, as it currently does with non-private prisons. The concessionaire will have no authority to interfere with IPS decisions on this matter. According to Michaely, the key issue in prison privatization is the transfer - from the government to a private facility - of the right to use force on prisoners. Michaely argues that a two-way agreement exists between citizens and the state, whereby citizens entrust the state with the right to use force on their behalf. When the state hands over that right to a private facility, it infringes on the state's sovereignty and contravenes the Basic Law on Government. The petitioners also claim that privatization could lead to potential violation of prisoners' rights, which would violate the Basic Law on Human Dignity and Liberty. Michaely argues that prison guards employed by a private facility would face conflicts of interest and that any use of force on the wardens' part would never be for the public's sake alone. There are two main reasons for that, he says: Prison guards employed by the government know they have the state's backing for their actions, just like soldiers and police, so long as their actions are demonstrably logical and reasonable. However, guards working for a private facility cannot take it for granted that the facility will stand behind them and thus might take extra consideration before exercising use of force. Extra consideration in real-time judgment might result in failure to take action when required. According to Michaely, guards who work for a private facility must worry about their job security and salary prospects more than guards employed by the government. This can cause ulterior motives to come into play when exercising force, other than the sole "justifiable" concern of "What's good for the public as a whole?" Another key issue in prison privatization is that private facilities can save money on staff salaries and social services, like pensions. Michaely says that the government currently offers guards the option of retiring at a comparatively young age while receiving a pension for the rest of their lives. But a private company would not be expected to offer these employment terms. "We want guards in our prisons who know that being a guard is their role from now until the end of their life. Nothing should interfere with their work: no concern for future job security in a private company and no personal interests," says Michaely. Margalit of the ACRI contends that lower salaries lead to a lower quality of personnel and a higher staff turnover. As a result, instead of having the same people running the prison over a long period of time, developing a certain level of expertise, private prisons are at risk of having a constant inflow of new and inexperienced employees. THE PUBLIC Security Ministry acknowledges the concern that the quality of service to prisoners might suffer from a private company's desire to maximize profits - for example, by the company recruiting low-grade staff and spending the minimal amount on living conditions and prisoner care - and offers three layers of supervision and control to avoid this: legislation, external oversight bodies from the IPS, and internal audit. This would include the State Comptroller's right to examine any aspect of the concessionaire's operation of the prison, with the exception of its commercial activities; an external advisory committee would be set up to monitor prisoners' rehabilitation, health and welfare; a special inspection team set up by the IPS would be permanently stationed in the private facility; and the IPS would retain oversight over the training and certification of prison officers in the privately-run facility. In addition, the ministry says that "a judicial supervisory mechanism will remain in place whereby prisoners have the right to appeal to the courts (at no cost) if they feel their rights have been violated." Michaely counters that inspection committees are not as effective as having trained, professional guards when it comes to ensuring guards' behavior when exercising real-time judgment, because oversight is only conducted in retrospect. Michaely says that the number of people convicted in criminal offenses in the US has risen since the country first introduced private prisons, and asserts that this is not wholly to do with actual increased crime rates, but rather with an increase in the amount of criminal prohibitions. That is, that people are more readily sent to jail now, owing to the link between number of prisoners and money earned by the prison. In the recent "kids-for-cash" scandal, reported in the New York Times, two US judges pleaded guilty to tax evasion and wire fraud in a scheme that involved sending thousands of juveniles to two private detention centers in exchange for $2.6 million in kickbacks. According to CNN, one of those juveniles was 14-year-old Phillip Swartley, who was caught stealing change from unlocked vehicles one night to buy chips and soft drinks. Swartley's mother said there was no need for a lawyer because she thought that at worst the judge would give him a fine or community service. Instead, Swartley was sent to a youth detention center, followed by nine months in a boarding school for troubled teenagers. Another teen in a similar situation was 15-year-old Hillary Transue. According to a report by Times Online, Transue published a spoof article on the MySpace social networking Web site mocking the assistant principal at her high school. The teacher complained, Transue was charged with harassment and after a brief court hearing was sentenced to three months in juvenile detention. Michaely charges that in the US there is a strong lobby to send more people to jail, because "in the US they pay per head. So the more prisoners in the facility, the more money [the prisons] receive." 'G,' a senior government-appointed official who spoke to Metro on condition of anonymity, pointed out four reasons why a private prison in Israel would not pose similar problems: 1) The concessionaire is not affected by the number of prisoners it detains, since it would receive a fixed payment from the state for the amount of available incarceration space and not for the number of prisoners. Whether the prison stood at full or partial occupancy, the profit would be identical; 2) The concessionaire will profit from efficient planning, establishment and operation - for which it receives a fixed payment. The company would receive additional bonuses for parameters that are important to the state, including prisoner rehabilitation and education; 3) The concessionaire would have no say or influence on which prisoners were held in the facility or on early release of prisoners. According to the Public Security Ministry, the state would retain the exclusive power to determine a prisoner's sentence, the facility in which the sentence is served, and any administrative release or reduction of the duration of his imprisonment; 4) There is no intention to privatize the entire IPS, rather just one or two prisons. The Public Security Ministry and the Israel Prisons Service have promised the government that there will be no more private prisons established until they have analyzed the results of this one. BUT CAN one private prison alleviate the overcrowding and bad conditions in the country's existing facilities? Is it really a cost-effective alternative? Some numbers show that the establishment and operation of a prison is 20-25% cheaper in the private sector, but these numbers may be optimistic. According to G., this prison will hold 40% of its prisoners in two-man cells and 60% in four-man cells, with an average of 5.28 square meters of living space per prisoner, instead of the current IPS average of 3.4 square meters. G. said that the private prison would offer better education programs and more vocational training hours than those currently offered by the IPS. In addition, it will have computers available for the prisoners' usage. As such, says G., not only will the facility be cheaper to run, it will offer better value for money. However, an internal IPS document states that the cost to the government of operating the private prison will be 20% more than the cost of a public facility, which contradicts initial estimates of a 15% savings. The results of the IPS study were presented to the Knesset in a letter from MKs Shelly Yacimovich (Labor) and Arie Bibi (Kadima) dated May 13, 2009. Michaely noted that the initial estimates of privatization costs were inaccurate, largely due to a failure to include the costs of external supervision of the private facility. G. argues that the cost of supervision accounts for 10% of the total savings and is almost immaterial compared to the greater benefits of a private prison. As such, G. maintains, the initial omission of the supervision costs should not affect whether or not the government goes ahead with the privatization. The total savings were initially estimated at NIS 350 million over 25 years for the one 800-prisoner facility. After that time, the prison would be transferred to IPS management. This calculation was made immediately after ALA won the tender and is a guaranteed price that has been indexed. "It refers to a direct saving that does not take into account the influence on IPS, which is hard to quantify," said G. There have been no updated calculations, despite possible omissions. Michaely stated that the cost of incarceration in an IPS facility has declined since initial cost comparisons were conducted, but G. denies hearing about any such decreases, saying that the main cost of prison operation lies in its staff. And G. is not aware of any decreases in salaries since 2006, nor any radical changes in the operation or building standards since the time of the initial estimate. Operation costs are not the only area in which the private prison is expected to save money. According to G., it has saved money and time in the building stage. Michaely responds that the state has less expertise in building and infrastructure than a private company, and that research shows that when the government puts out tenders it receives offers at least 20% higher than the market prices. "A private company negotiates with and has existing business relationships with suppliers and thus attains lower prices," he said. The commissionaire in this case fulfilled its side of the contract three months before it was obliged to do so, whereas most public sector projects are delayed, said G., who also points to worldwide statistics which show that in 70-75% of cases, the public sector spends more than the private sector and deviates from timetables. Because of this, "Even if the price [of privatization] was the same or even higher in terms of money, [privatization would still be a better alternative]," said G. Nevertheless, Michaely points out, "We do not [fully] oppose privatization, end of story. We are [against] total privatization. Partial privatization - like the French model - is possible and perhaps correct. [We are asking the government to] take the plans it has made until now and make one central change: make the prison guards in the private prison employees of the government, not of the commissionaire. Leave all the other things as they are," said Michaely. This change would make the privatization "reasonable," he said. "On one hand, it improves the conditions for the prisoners, makes the rehabilitation potentially more successful, and on the other hand allows decision-making regarding exerting physical strength to remain a consideration of the state," he added. But the Public Security Ministry and the Israel Prisons Service say the French model would be complicated to operate, "given the need to arrive at collaborative management and administrative arrangements, to define the performance standards expected from the entrepreneur without any mechanism to ensure that they are met, and to divide authority and responsibility between the IPS and the private operator, especially in security matters," a ministry document on prison privatization stated. THE ISSUE of prison privatization is particularly controversial because it raises a constitutional problem regarding the Basic Law. "As early as 2006, when Justice Aharon Barak was at the head of the court panel, it was clear that there was a serious problem at hand and that an injunction was required in order to clarify this legal question," said Michaely. That was before the concessionaire began construction. "Then the state came and requested that the injunction not be passed, so that they could begin construction in the meantime and that before they begin to operate it they would notify the courts, at which stage it would be relevant to impose an injunction. The court told the state that they would lose money. But the state said they wanted to go ahead [with construction] and assumed the court would not reject the law [allowing privatization, which was passed in 2004]. Now that the prison is about to be opened, the court [finally] had to impose the injunction," said Michaely. "We were really angry that the court didn't impose an injunction then, when it knew it would impose one [down the track]," said Michaely. The commissionaire's contract already outlines compensation mechanisms in case the High Court rejects the law. This includes compensations for expenses incurred and loss of profit. "Now more than ever the [High Court] is investigating the [issue]. There's pressure on the court to [form a decision]. Everyone's waiting for a verdict," said Michaely.