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crime and punishment in private prisons75fact, that CCA has been building prisons on spec, with no contract to buildand no prisoners to house. 79 According to an AFSCME report, these specprisons are often sold as economic development projects for the communitiesin which they are built. 80 Under these conditions, the contract biddingprocess is constrained, and prices are often inflated. 81 In spec prisons “[t]heinmates are usually from one or more jurisdictions—often not from the hostjurisdiction. The purchasers of spec bed space are typically governments thatare desperate to relieve overcrowding. When overcrowding reaches a crisisstate, a government will often enter into a sole-source emergency contract ata high per diem rate, generating healthy profits for [the company].” 82It is important to note that crime rates and incarceration rates do not necessarilycorrelate. In other words, a decrease in crime does not necessarily meanthat incarceration rates have recently risen, or that they will decrease in thenear future. 83 Both of these rates are the result of numerous causal factors.And while incarceration rates are shaped by lawbreakers, they are also theresult of agency and legislative choices. According to the Federal Bureau ofInvestigation’s Uniform Crime Reporting Program, property crime offenseshave decreased steadily for the past five years. 84 And while violent crimeoffenses have fluctuated recently, the FBI reports that the violent crime rateshave generally remained steady for the past five years, about sixty percentlower than in the early 1990s. 85It is always a bad idea to predict future happenings from current trends,particularly in the criminal justice system. However, it seems clear from theforegoing that (1) crime rates have remained somewhat steady, and probablywill not drastically increase in the near future, and (2) incarceration rates willcontinue to grow. In this sort of environment, where demand is not lessening,it seems logical to conclude that private prison companies will continue toplay a major role within our criminal justice system. There can be no doubtthat private prison companies are in business to generate profits. It remainsto be seen whether their existence is changing our conception of criminalpunishment.III. Criminal punishment theoryThroughout history social scientists have posited numerous theorieson the underlying purpose of criminal punishment. 86 Historically, criminalpunishment has been rationalized under two general theories: utilitariantheory and retributive theory. 87 Simply put “[r]etributive rationales are essentiallybackward-looking, as they seek to justify punishment on the basisof the offender’s behavior in the past. Utilitarian rationales are essentiallyforward-looking, as they seek to justify punishment on the basis of the goodconsequences it is expected to produce in the future.” 88 These two general