Privatisation and punishment: a perilous partnership?

What I want to do is simply to look at some of the current developments that are coming to complicate and fragment the delivery and governance of criminal justice services. I’ll begin in a minute by outlining some developments in this field; developments that I think point toward a fairly rapidly changing criminal justice environment. I’ll then outline some of what the title of my talk suggests are the perils of these processes.

I’d like to begin with a few words of explanation about what I mean when I talk of privatization and punishment and then I want to say a few words about what I’m not going to talk about and, more particularly, what I’m not going to argue lest there be any confusion.

Introduction

Let me begin then with privatisation? What am I including under this heading? Strictly speaking privatization involves the transfer of the ownership and control of an enterprise from the public to the private sector. This may take a number of forms including: outsourcing; market testing, build-operate-transfer arrangements and so on. In addition, I will include developments such as civilianisation and those changes that result in the increasing visibility of market mechanisms in the organisation and delivery of services. At its most general level my concern is with what some criminologists have come to term the pluralisation of services within criminal justice.

So, then, to the second term: ‘punishment’. As with privatization I am also going to work on a fairly broad canvas. That is to say I want, predictably enough, to say a few words about prisons and privatisation – this, after all, is what is normally discussed under the rubric of privatised punishment. I also want to say a few words about developments in the broader field of offender management, for that is where some of the more publicly controversial developments are currently taking place within criminal justice. In addition, however, I also want to include policing. The police, of course, are the primary gatekeepers to the punishment system. They are also, via reprimands, warnings and fixed penalty notices an important source of punishment. Third, there are developments currently taking place within policing that I think are very much in parallel with – or may even go further than – some of the changes that we are aware of in relation to prisons and probation.

That’s the parameters then. Let me now say a word or two about what I’m not arguing.

This is a subject that tends to raise the emotions, to degenerate very easily into something of a slanging match, with contributors on either side of the metaphorical fence seemingly slightly talking past each other. I’m very much hoping to avoid such a situation this evening.

Now, I have no idea what opinions of privatisation members of the audience hold. But I assume that there may be divergent views and, indeed, that these may form the basis of questions and discussion when I have finished speaking. As you can tell from the title of my talk I take the view that there are some perils associated with the progressive privatisation of punishment – and I will come on in a few minutes to what I think some of those are. The very fact that I chose the phrase ‘a perilous partnership’ makes it clear that I am not a straightforward advocate of extending the reach of the private sector. However, I would not want the reverse to be automatically assumed.

Therefore, so that we are clear, what I am decidedly not going to argue is that private provision of services is intrinsically somehow worse that public provision. I am not going to suggest that there are no examples where the private sector has actually achieved things that the public sector seemed incapable of.  I am not going to argue or imply that people working in the private sector hold to moral and ethical values that are somehow less pure than people in the public sector. And, I am not going to suggest that all is well with public services and we can leave them as they are. None of these, I think, are tenable.

Moreover, private provision of punishment is not going to disappear. Indeed, private provision of punishment is very unlikely even to diminish. My very straightforward argument, therefore, will be that we need to think very carefully about how the mixed economy of punishment can operate, what its limits might be, how it can be made to operate in a way that ensures legitimacy and is consistent with ‘public interests’.

So, now let me turn to privatisation in criminal justice. I feel fairly certain if one were to undertake a content analysis of British criminological literature on this subject the majority – and possibly the vast majority – of column inches would be taken up with discussions of private prisons. Privatisation in other areas of the penal system would appear to be of much less concern. This is intriguing, on one level at least, because private providers remain a relatively minor part of penal estate. Nevertheless, privatization in this field is important because of its symbolic location at the deep end of the penal system. As one of the early promoters of private prisons at the ASI put it when we interviewed him, they were ‘thinking the unthinkable… [privatizing prisons] was attractive to promote because it seemed to most people to be very radical, and I think initially most people thought it was a joke’.

How quickly private prisons have become normalised. As everyone here will know the first private prison to open in modern times was that at the Wolds in 1992 and there are now 11 private prisons in operation in England and Wales, run by four private corporations, and these institutions are responsible for around one tenth of all prisoners. Though their introduction was, to put it mildly, controversial, private prisons are now an established and largely accepted part of the penal landscape. The last decade has seen a number of interesting developments. We’ve seen:

• the compulsory market-testing of public prisons;
• the construction and management of new prisons under PFI contracts;
• public sector providers winning contracts back from the private sector and, crucially, we have also seen
• a major political party that had been deeply hostile to private prisons whilst in opposition change its position to admiration and promotion with all the fervour of a recently converted ex-smoker

What does the evidence have to say about the impact of privatisation in the prisons system?

Well, there is evidence of improved staff-prisoner relationships in some private prisons and also some evidence of higher prisoner well-being in the best performing prisons in the private sector. There are some indications that such findings may be related to the nature of the culture within these private prisons – though it is not entirely clear why. It would appear that staff are clearly more tightly controlled. However, attempting to make a direct link between the performance of the best private prisons and the impact of private sector management styles remains tricky. The NAO, although noting that the performance of PFI prisons against contract had been patchy, did conclude that the public sector prisons had benefited from experience of competition. 

There have also been some bad news stories – not least in connection with safety, drug control and the use and abuse of authority. In short, the evidence of private prisons is mixed. Alison Liebling has recently summarised the situation arguing that ‘the better private prisons seem to be better than most high performing public sector prisons, but the worst private prisons are worse than poor performing public sector prisons’.

Policing and security

We are now used to observing that the areas of policing and security can no longer be understood by reference to the police alone. Seven years ago now, in a speech to the annual ACPO conference, Ian Blair asked the question ‘Where do the police fit into policing?’ He was picking up on the fact that the landscape was changing quite rapidly, not least with the rise and rise of the private security industry and, closer to the public sphere, the introduction of the new auxiliaries such as PCSOs. Interestingly, to date policing has been relatively insulated from direct privatization. One can point to activities like prisoner escort and so on, but by and large core activities have been protected.

However, if we look more broadly at what has been happening to policing we can detect the beginnings of some rather radical changes. In this regard I would draw attention here to two developments:

• The increasing penetration of the public sector by private capital; and
• The changing governance of policing via civilianisation/ privatisation.

Some brief examples. First, private capital. Initially, PFI/PPP projects were confined primarily to buildings and infrastructure: police headquarters, custody suites, communications centres, police stations, administrative buildings and other facilities are being built by, and leased back from, the private sector. Increasingly, however, PFI contracts are for the provision of services as well as facilities. An example: a single PFI contract currently operating in one constabulary involves the private provision of:

• Reception duties
• Post-charge administration - taking of fingerprints, photographs, DNA samples and PNC checks
• Voluntary drug testing services
• Detainee care and catering
• Forensic medical services
• Interpreter services
• ID paradest
• Integrated security systems
• And the running of 24 hour helpdesks

The processes of civilianisation and privatisation are being extended into ‘core’ aspects of police work: namely the management of custody suites and the investigation of crime.

The Serious Organised Crime and Police Act 2005 has amended PACE so as to allow for the introduction of civilian custody officers in public constabularies. Arguably one of the most important roles within public policing, the 1995 Masefield Report said the custody sergeant is

‘the guarantor of the suspect’s rights and takes the important decisions whether to endorse the arrest and whether there is sufficient evidence of a particular offence to bring a charge. He also makes decisions on bail. These are important not just for the suspect but for the criminal justice system as a whole. The custody officer is a major guardian of the standards of the whole system.

This civilianisation of this core role will, in effect, create custody suites operated privately and staffed entirely by civilians and private agents. Similarly, another core function, criminal investigation, is being opened up to other providers. Initially, rather like PCSOs, the new civilian investigators were thought of, and intended, simply as support for trained police professionals. However, just as PCSO powers and duties have expanded incrementally, so full-blown civilian investigators are emerging within public policing. Even more radical experimentation is likely to be seen as a result of the creation of the SOCA itself. SOCA staff will not, generally, be sworn constables but will take constabulary powers on an ad hoc basis as dictated by the Director General. It may well abandon any form of direct rank structure and, by combining the personnel and powers of constables, customs, immigration and occasionally the security services, it contains, in effect, many of the attributes of the mixed economy of security governance within one organization.

In some respects, therefore, some of the most interesting developments in what I’m very loosely terming privatization are occurring in the field of policing and security. Indeed, if we had time I could talk about the emergence of the privatised military industry – something that has grown remarkably quickly in the last decade or so, and which is set to dwarf developments in the domestic security field.

Let me now say a word or two about the NOMS. In many respects I think it is the emergence of NOMS and, more particularly, the associated idea of contestability that has been the primary factor behind the resurgence of interest in the area of privatisation. There’s no need for me to go much into the background of these matters for I’m sure most of you undoubtedly know more about them than I do. In brief, however, these changes have their origins in the Carter (or Correctional Services) Review. The outcome of course is the merging of prison and probation services into a single correctional organisation: the NOMS. This fairly radical set of proposals is very much perceived to reflect the principles of the government’s modernization agenda for public services and, more particularly, is part and parcel of the search for continuous improvement. The primary mechanism through which this is to be achieved is contestability.

It is still rather difficult to know precisely what contestability means. In its mild form it may simply mean introducing a degree of tension into the system by which services are commissioned, in order to increase efficiency. At the more extreme end it might be taken to refer to the widespread introduction of market-style competition into the system of offender management; that is, government sponsored moves toward the creation of a mixed economy in service provision.

Government enthusiasm for contestability has been stimulated, in part, by the perceived successes of private sector delivery in the prison system. And, as I have already intimated, there clearly have been some successes. But what remains unclear is how contestability is going to work within NOMS. In essence, what this seems intended to be is some form of purchaser (or commissioner) - provider split. As last year’s Home Office White Paper put it:

'We intend … to encourage the private and ‘not for profit’ sectors to compete to manage more prisons and private and voluntary sector organisations to compete to manage offenders in the community.'

Some of you here tonight may have been present at a speech at the PBA a couple of weeks ago given by Digby Jones, DG of the CBI, on the subject of the business world and probation. Truly a speech of two halves, he began by outlining the ways in which the business community was failing to do its duty in providing employment for those leaving custody and reiterating his commitment to try to improve this situation. In the second half of his speech he moved on to outline his vision of how the private sector could play a greater role in the delivery of prison and community-based interventions with offenders. It was quite an insight!

Hitherto, I think it has generally been assumed that the basis of contestability rested on the introduction of some form of purchaser-provider split in what is now known as offender management. In short, the purchasers were to be the ‘offender managers’, and ROMS, the providers would be competing public, private and NGO/not for profit bodies. However, never shy to press the business case, Digby Jones proposed the introduction of contestability into offender management itself. Why not ensure efficiency, he argued, by making the purchasers compete? And you can see the logic. If the baseline assumption is correct – that competition inevitably improves efficiency and effectiveness – then why restrict it?  A radical shift indeed!

The perils of privatisation?

So how should we react to what is happening to the governance and administration of punishment? Are the changes to NOMS and to policing and security to be welcomed? Let me begin by reiterating that in outlining what I think are a few of the ‘perils’ associated with marketisation and contractualisation of criminal justice that I am not looking to suggest that all we need to do is nationalise provision and all will be well. That said, let me outline, very briefly, four perils of privatization. The first concerns the limitations of markets and contracts.

The limitations of markets and contracts

Although we are moving progressively toward the use of contracts in many areas of social and public life as the basic means for managing relationships, it is easy to overemphasise how flexible a system of governance it provides. As one example, the NAO in its 2003 report on PFI prisons concluded:

'Developing a performance measurement system which reflects the containment and rehabilitation roles of prisons is very difficult. It is relatively straightforward to have a contractual requirement which penalises contractors for failing to prevent prisoners from escaping. It is less clear how a contract can measure the extent to which a prison has contributed to reducing the likelihood of re-offending.'

A further, associated peril of contracts and markets is that they may fail to produce the competition – the contestability if you will – expected of them but rather lead to the emergence of private sector monopolies/duopolies that are not terribly dissimilar from the systems they were expected to replace. One example might the emerging ‘market’ in electronic monitoring. After the tendering process in 2003 contracts were let by the Home Office with two companies: Securicor and Premier. Securicor is now responsible for almost two thirds of all EM provision in England and Wales. As Mike Nellis has argued at the very least this looks like a case in which if there is to be anything like a ‘level playing field’ considerable effort ought to be made to support greater public sector involvement in the tendering process.

There are a number of other problems – inefficiencies or externalities if you like - with contracting and marketising but time suggests I should move on now.

Cognitive dissonance or the triumph of hope over experience

Now, one might reasonably respond that whatever the potential inefficiencies of markets and contracts, it is up to governments and regulators to ensure that such perils are avoided. And, indeed, this is a pretty reasonable argument. The second ‘peril’, however, is that one of the oft-observed elements of new public management (NPM)-inspired reform of public service cultures is cognitive dissonance – an idea associated with Leon Festinger and his wonderful book, When Prophecies Fail, published in the 1950s. It reports a participant observation study of a cult which believed that the earth was going to be destroyed by a flood, and what happened to its members — particularly the really committed ones who had given up their homes and jobs to work for the cult — when the flood did not happen. While fringe members were more inclined to recognise that they had made fools of themselves and to "put it down to experience", committed members were more likely to re-interpret the evidence to show that they were right all along.

Something very similar seems to happen in the field of public service reform. There are numerous examples of where hope triumphs over experience including the continual reintroduction of performance-related pay schemes in the face of repeated failure and the introduction of new IT schemes in the belief that they will reduce costs as well as improve performance – again in the face of what ought to be overwhelming evidence to the contrary.

Summarising such experiences, Christopher Hood and Guy Peters argue that NPM-inspired reforms have had three features that have limited their effectiveness. These are:

• The casual adoption of poorly grounded models
• The disregard of historical evidence, and
• A selective approach to evidence and indeed active resistance to learning in any meaningful sense.

And, from where I stand I think we can see evidence of all of these within NPM-inspired public service reform in CJ.

The third peril – and this is in some ways peculiar to the area of punishment – is the problem of expansionism. Crudely put, one of the core values shared by many working within the CJS and, like me perhaps, on its margins, is a desire to restrict prison growth and place reasonable limits on both the nature of, and the use of, punishment. Are such values compatible with privatisation? At the very least there are some concerns.

First, the issue of private influences on public policy-making

Here we begin to enter the field of speculation. The concern, however speculative, is that those whose business depends upon securing profit are, at best, going to resist attempts to reduce the size of the market and, at worst, are going to use whatever means they have to increase market size. That means at least the possibility that the major corporations will work at political and policy levels to promote policies that result in, say, growing numbers in prison or other forms of correctional supervision.

Related to concerns about the potential impact of corporate lobbying, there is the associated danger of general penal expansionism as a result of marketised criminal justice. The American criminologist, Frank Zimring, argues that new forms of punishment in modern Anglo-American jurisdictions tend to have their origins in proposals of private entrepreneurs. Privatisation, he argues, extends rather than limits the reach of the state. The earliest, and one of the most successful examples, he argues, was the transportation of convicts to North America and Australia which resulted in a 10 to 15-fold expansion in the numbers of offenders receiving substantial sanctions. Stated more broadly, therefore, his argument is that developments in criminal justice whose introduction is justified as a cost-effective alternative to current arrangements almost always constitute a significant extension of the reach of the CJS. When considering potential private provision he argues that we should ask not only whether it will be more efficient and whether it will be ethical, but also whether it will lead to the expansion of social control.

This leads to one final, linked point. A core part of the logic of capitalism is expansionism – please excuse the old fashioned language, but as listeners to Radio 4 will know Karl Marx was recently voted the nation’s favourite philosopher. One means of expanding is to explore new markets. Private prisons, as I’ve mentioned, are a solid but somewhat unspectacular market at the moment. By contrast, offender management and private security hold out even greater promise. The ‘peril’ here is that one product of unleashing powerful corporate interests in this area is that the insecurities typical of modern times will be exploited and, thereby increased.

Nowhere is this clearer, I think, than in the privatised military/security sector. One example will suffice to illustrate my point. This is taken from the homepage of the website of one of the major private security corporations currently working in Iraq, CusterBattles. Under the banner, “Turning Risk into Opportunity” the company describes Iraq as ‘a nation and marketplace wrought with challenges, obstacles, and malevolent actors.’ It goes on,

‘However, Iraq offers contractors, traders, entrepreneurs as well as multi-national enterprises an unprecedented market opportunity. The ability to identify, quantify, and mitigate this myriad of risks allows successful organizations to transform risk into opportunity. Terrorist, sophisticated criminal enterprises, political and tribal turmoil, and a lack of modern infrastructure present formidable challenges to companies operating in all areas of Iraq. The Custer Battles approach to risk is about seeking opportunities, and designing solutions to enable these opportunities to be exploited.

Anyone following the fortunes of, say, Halliburton in recent years can see how risk and insecurity can be exploited for profit.

Finally, much of what is currently happening within criminal justice – from private prisons, to reform of policing and probation – is the result of a fairly broad assault on the efficiency and effectiveness of public services. Crudely, those on the ‘new right’ began by attacking public sector monopolies and restrictive working practices. The ‘new left’ or ‘third way’ critics have focused their attention more on changing the nature by which services are perceived and used by citizens. Citizens in this model are perceived to be passive clients rather than active consumers; they expect to be protected by the state rather than acting as enterprising and prudential individuals. One of the most interesting analyses of some of these changes is offered by my colleague Julian Le Grand in his recent book on motivation and agency in public policy. The full title of his book is From Knight to Knave and from Pawn to Queen. In this book he uses these metaphors to explore the changing motivations of welfare providers and the changing nature of the roles of welfare recipients. The two axes can be represented in the following way].

Crudely put, and of necessity I’m simplifying his argument, Le Grand suggests that traditional social democratic governments/regimes have produced systems that favour knightly providers and pawn-like citizens. This encourages inefficiency. Much government policy is now focused on attempts to responsibilise citizens: to offer greater choice; to turn them from clients into consumers from pawns into queens.

Leaving aside the difficult questions raised by trying to turn us citizens into queens, one of the most significant dangers it seems to me of the current predilection for market mechanisms for managing systems and for encouraging ideas like choice as if it were a self-evidently good and a practical objective is that the knightly ethos of public service provision will progressively be undermined and replaced with a form of entrepreneurial knavishness. Put in different terms the concern I’m raising is that the reforms currently being proposed within criminal justice run the risk of emptying out values from the system. The creation of NOMS, for example, has a certain underlying rationale – providing a seamless service across custodial and community-based sentences. What seems less obvious currently is what its overarching vision is, beyond a commitment to competition and reductions in offending.

At the very least, therefore, what I think all this raises is the central importance of ethics and values. Now, we can argue – and, indeed, we should argue about what the core public values should be. These should then form the basis by which all purchasers and all providers are governed. This is a matter for government. As the economist John Kay has put it, ‘capitalism can have a human face, but governments and political processes need to ensure that it does’! He goes on to argue that ‘markets work, but not always and not perfectly. Pluralist market structures may promote innovation, and competitive markets meet many consumer needs, but there is no general reason to believe that market outcomes are efficient’. Moreover, there are good reasons to think that there are some services where markets have only a very limited role at best to play: and punishment is almost certainly one of those.

The increasing role of the market has occurred simultaneously with a number of other developments in our contemporary culture of control: a culture in which has emerged a set of arrangements for dealing with criminality that pay precious little regard to root causes, and have little interest in punishment beyond its utility as a means of reducing threats and managing risks. This is not something about which we should feel sanguine. The way we manage our system of punishment tells us much about ourselves. Nowhere was this better expressed than in Churchill’s observation that ‘The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country’. 

This remark is of course often cited – particularly now that the mood and temper so often seems so illiberal. Less often quoted are the sentences that followed this most famous of observations. I want to conclude with them as it is they perhaps that best capture what we should be looking for when thinking about the core values that should underpin our criminal justice and penal systems. Churchill went on to say:

'A calm and dispassionate recognition of the rights of the accused against the State, and even of convicted criminals against the State, a constant heart-searching by all charged with the duty of punishment, a desire and eagerness to rehabilitate in the world of industry all those who have paid their dues in the hard coinage of punishment, tireless efforts towards the discovery of curative and regenerating processes, and an unfaltering faith that there is a treasure, if you can only find it, in the heart of every man – these are the symbols which in the treatment of crime and criminals mark and measure the stored-up strength of a nation, and are the sign and proof of the living virtue in it.'