Orange County Voices : COMMENTARY ON PRIVATIZATION : Move Carefully Before Freeing Government From Jail Services : Companies should not bear ultimate responsibility for what is happening in a correctional facility.

The Orange County financial crisis has prompted many big-name firms and small entrepreneurs to angle for “a piece of the action.” These private entities are riding on the privatization wave that has been flooding the United States since the 1980s and are attracted by the sweet smell of profit that can be made on the provision of public services.

In many instances the provision of such services as garbage collection, various maintenance services and public transportation have been privatized and have resulted in cost reductions. Lately, especially since the county declared bankruptcy, there are increased pressures to privatize “human services” as well, including certain criminal justice functions.

In some of these areas there is already a considerable private involvement. For example, because of the large number of criminal cases involving indigent defendants, the county is using the services of private defense lawyers as well as public defenders. (A few months ago there were accusations that a law firm that had such a contract with the county was providing free limousine services and tickets for sporting events to some of the supervisors and county officials).

Currently it is being proposed that criminal justice functions, such as the electronic monitoring of probationers and the operation of county jails, should be privatized. Privatization of corrections, especially privatization of confinement facilities, is problematic and questionable despite the assertions of some privatization advocates that there are no limits to public services that can be privatized.

While in many correctional institutions educational, health, food, laundry and similar services are provided by private companies, the operation of entire correctional facilities is controversial. Punishment of people who break the law is inherently a governmental function. The government can delegate power to a private entity through a contract, but cannot contract away its ultimate responsibility for what is happening in a correctional facility.

For example, if injuries occur or there are allegations of prisoners’ rights violations, there is a strong likelihood that the county government will be the target of the lawsuit. To make sure that the contractor follows the laws and rules that bind the jail operations and the handling of inmates, government agencies have to develop effective monitoring systems, including on-site monitors. Monitoring costs have to be included when the economic benefits of privatization are evaluated.

Furthermore, private administrators do not have the legal authority to make quasi-judicial decisions that may affect the length or the conditions of confinement. Thus, disciplinary violations will have to be handled by authorized Sheriff’s Department personnel, which is another cost that has to be taken into consideration.

Another fiscal concern is related to the large number of business bankruptcies of the past few years. It is not a remote possibility that a company that gets into the “jail business” will run into serious financial problems and will declare bankruptcy. If this occurs, the county may be held responsible for the jail’s debts. Also, the county may have a problem finding an immediate replacement company, and the Sheriff’s Department will not have the capacity to step in.

The concern is that by using private contractors, government agencies will not have the backup personnel to take over facility operations in cases of bankruptcy, contract violations or substandard performance. This can also be the case if the staff of a private company decides to go on strike. This possibility is not far-fetched since private correctional workers are usually paid lower salaries and receive considerably fewer benefits than government employees do (the main reason for the promise of cheaper private services).

In the current correctional marketplace there is not an abundance of suitable companies that can move in on short notice. The county’s dependence on private companies in replacing private operators on short notice, or at contract renewal times, puts the county government at a disadvantage in bargaining, which may result in higher expenses than were expected. Replacement of contractors can also involve legal steps that would cost money, adding to the cost of privatization.

Since the size of the inmate population determines the income of the private operators, they will have a vested interest to keep the facilities full. They will oppose any measure or alternative program that may lead to a reduction of inmates and will constantly push for legislation of more and longer sentences. This will have an effect on the cost of privatization.

So far there are only a few empirical cost evaluations available of privately operated facilities, and the results are not conclusive; some show savings, others not, and there are cases in which increase in cost is not reported. It is interesting that not only organizations such as the National Sheriff’s Assn. and the American Jail Assn. are against privatization of jails and prisons, but also more neutral observers, among them the American Bar Assn. and the U.S. Government Accounting Office, are taking a position against this policy.

Before any major decision is made concerning this issue, the county would be well advised to look into the possibilities of improving and making more cost-effective the existing correctional operations.