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84 national lawyers guild reviewCommon sense argues that any restorative approach that does not requireincarceration would be inapposite to a business oriented approach to criminaljustice. Victim compensation creates competition. And although the inmatepopulation rate is growing in the United States, 176 it seems reasonable toconclude that the private prison industry would be careful to monitor its onlyresource, and necessarily oppose restitution and alternative sanctions.IV. ConclusionThe economic benefits of prison privatization may or may not exist. Tothe extent they do, they are fleeting. Regardless, focusing only upon thebottom line oversimplifies the subject. Social acceptance of prisons requiresmoral legitimacy within the criminal justice system. A scheme that shiftsresponsibility to the private sector necessarily raises questions regarding theimportance of criminal law and the rationales for punishment. The true valueof any criminal justice system must be measured in terms of the benefitsaccrued by society. Accordingly, when we look at private prisons we mustask if the alleged but highly disputed benefits of efficiency outweigh theburdens, dangers, and doubts that are known to accompany the privatizedprison industry.________________NOTES1. See Geoffrey F. Segal, Reason Public Policy Institute, The Extent,History, and Role of Private Companies in the Delivery of CorrectionalServices in the United States 3 (2002), available at http://reason.org/ps302.pdf (The author divides private prison services into three categories: design andconstruction; ancillary services such as food and medical care; and contract managementor ownership of prison facilities).2. Ahmed A. White, Rule of Law and the Limits of Sovereignty: The Private Prisonin Jurisprudential Perspective, 38 Am. Crim. L. Rev. 111, 121 (2001).3. Id. at 120 (“Neither the term ‘prison’ nor ‘private prison’ has a self-evident meaning.. . . At various points it has contemplated everything from facilities for detainingjuveniles and undocumented immigrants, to ‘halfway’ houses, to city and countyjails housing misdemeanants and those awaiting trial, to the quintessential ‘bighouses,’ huge self-contained edifices brimming over with hardened felons, thatcontinue to dominate the prison landscape.”).4. See James Austin & Garry Coventry, <strong>National</strong> Council on Crime andDelinquency, Department of Justice, Emerging Issues on PrivatizedPrisons 19 (2001), http://www.ncjrs.gov/pdffiles1/bja/181249.pdf (The authorsargue that the history of privatization in the criminal justice system within U.S.territory can be traced back to the early colonial period, where low-level felonswere granted amnesty in return for their indentured servitude); see also SharonDolovich, State Punishment and Private Prisons, 55 Duke L.J. 437, 450 (2005)(“In colonial America, the meting out of criminal punishment was purely a local
crime and punishment in private prisons85matter and could include any of a range of sanctions, among them fines, flogging,the stockade, banishment, and the gallows—but not imprisonment. As in eighteenth-centuryEngland, jails were merely holding chambers for debtors or for thoseindividuals awaiting trial or punishment.”).5. Austin & Coventry, supra note 4, at 19; see, e.g., Stephen Raher, ColoradoCriminal Justice Reform Coalition, Private Prisons and Public Money(2002), http://www.ccjrc.org/pdf/CostDataReport2002.pdf (“The operation of prisonsfor private gain first surfaced in the United States shortly after the Civil War,when prison populations in southern states skyrocketed and a system of ‘convictleasing’ was devised in order to relieve over crowded prisons and enrich privatemanufacturing concerns.”).6. White, supra note 2, at 124 (arguing that extra-legal punishments and labor shortageslargely prevented the establishment of formal institutions).7. See Austin & Coventry, supra note 4, at 9.8. Id.at 9.9. Id. at 10 (citing Clair Cripe, Legal Aspects of Correctional Management378 (1997)) (“Payments were extracted for special services, such as better meals orother privileges. Some money was given to the jailer (often the sheriff) for basicservices. But it was widely accepted that jailers could charge additional moneyfor virtually any type of special benefit.”).10. White, supra note 2, at 124.11. See Alex Lichtenstein, Twice the Work of Free Labor 60 (1995) (demonstratingthat the number of convicts in the Georgia Penitentiary grew from 385 in1871 to 2558 in 1909, nearly a seven-fold increase).12. Raher, supra note 5, at 4; see Dolovich, supra note 4, at 450-51 (arguing that thefirst prison labor programs were designed to be rehabilitating).13. Austin & Coventry, supra note 4, at 10; see, e.g., White, supra note 2, at 127(“Every southern state after the Civil War, except Virginia, eventually institutedthe widespread leasing of state inmates to private individuals or firms.”).14. Austin & Coventry, supra note 4, at 10-11 (“For most of the correctional historyof the United States, prison labor was expected to generate a profit for the institution.If generating a profit was not feasible, it was incumbent upon the prisoner topay the costs of incarceration and become self-supporting.”).15. White, supra note 2, at 127-30.16. Id. at 129.17. Id. at FN64.18. White, supra note 2, at 128 (“On average, leasing generated revenues several timesthe costs. At one point, for example, Alabama derived six to ten percent of its totalstate revenues from leasing—and this in contrast to the prospect of actually payingfor incarceration.”).19. Ida B. Wells & Frederick Douglass et. al., The Reason Why theColored American is not in the World’s Columbian Exposition,Chapter III (1893), available at http://digital.<strong>library</strong>.upenn.edu/women/wells/exposition/exposition.html.
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