prison privatisation in south africa issues, challenges and ...

towards the warehousing of criminals.
While valid and reliable standards for measuring prison performance have not been developed
for either public or private facilities, the advent of prison privatisation has resulted in increasing
discussion about the need for such standards. Perhaps one contribution of private prison
contractors will be that they have served as a catalyst for further research in the area of public
sector performance measurement.
Assuming that appropriate standards could be developed to measure prison performance, the
enforcement of those standards also poses unique challenges. Most private prison contracts
include the implementation of a monitoring mechanism, usually in the form of a representative of
the state who is responsible for ensuring compliance with performance standards. A common
problem in any regulatory situation is the incidence of ‘capture’, in which the regulator becomes
more concerned with serving the interests of the industry than the more abstract public interest.
Capture occurs when the person responsible for monitoring the actions of an organisation
becomes co-opted into sympathising with the organisation and thus relinquishes his or her
authority as a overseer. An example is an inspector of gas pipelines who notices a small repair
which must be done according to the guidelines of the regulating authority which he or she
represents. However, performing this repair would require the pipeline to be shut down and the
inspector, having worked with the company on routine inspections in the past, knows that
shutting down the pipeline for even a half day results in significant loss of revenue to the
company. The inspector most likely has a background in oil pipeline management and
sympathises with the business. This understanding combined with the constant contact he or
she has with the employees of the company results in a greater degree of sympathy for the
interests of the company than the safety requirements of a distant and faceless regulatory
agency.
There are several factors which can predispose a regulator to capture. Often the person
appointed to regulate an industry will have a professional background in that industry. The
regulatory agency may be dealing with personnel shortages and a lack of resources, as is
characteristic of the operations of many government departments. For the already overworked
regulator, citing a company for a violation will result in additional work as the necessary
paperwork and follow-up must be completed. On the other hand, if a regulator has only a few
locations or companies which he or she monitors on frequent visits, it is more likely that a less
formal and more familiar relationship will develop. Rather than write up a report and citation for a
violation, the regulator may simply verbally inform the management of the problem and ask that
it be fixed at some point. This leads to sloppiness and weakened authority, which erodes the
state’s power and ability to protect the public.
In the case of private prisons, the additional challenge for monitors is that they represent the
prison system, which is not a regulatory body but an agency which is performing the same
function as the private company. A failure by the contractor becomes a reflection of the entire
department, and so it is in the interest of both regulator and contractor to ensure that mistakes
and incidents are not reported. Also, the work of a regulating agency is very different from one
which operates in that industry and so the prison service often finds that its personnel are
neither trained nor experienced in the importance of independence for those appointed as
monitors. In many cases, both the monitor and the prison company ultimately report to the same
management hierarchy within the government agency responsible for prison administration. This
arrangement is much more likely to lead to collusion and informal or inconsistent application of
standards than if the prison were monitored by an external agent.