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- 1. POWERPOINT TO PODCAST POLICY TOPIC TRANSCRIPT PAD 771 Advised by Adam Scott Wandt Presented By Richard P. Martinez John Jay College MPA Program Recruitment & Retention Multi-Generational Workforce
- 2. ABOUT ME R. Martinez, MPA Program John Jay College
- 10. R. Martinez, MPA Program John Jay College Questions are the creative acts of intelligence — Dr. Frank Kingdon-Ward
Notes de l'éditeur
- Introduce self
- Professor Paul R. Verkuil Born: December 4, 1939 (age 71) Staten Island, New York Professor Verkuil is co-author of Administrative Law and Process; He also authored Regulation and Deregulation; and Outsourcing Sovereignty. He is a leading scholar of law and regulation and has published more than 60 articles in this field. Also, he served as the President of William and Mary school of law between 1985 – 1992. In 2009, Professor Verkuil was nominated by President Barack Obama to head the Administrative Conference of the United States . The Senate confirmed his nomination on March 3, 2010. In his most recent book entitles Outsourcing Sovereignty, Verkuil w rites about how privatization of Government functions threatens democracy.
- that delegating inherent government functions raises profound constitutional concerns and affects our politics and economics. "I wrote this book to explore some of the intended social costs of the privatization movement that undermine the separation of powers and jeopardize our political arrangements Policymaking is reserved through the political branches of government through the Separation of Powers
- As a result of my research, my views have transformed from staunch disapproval of outsourcing and its component privatization to a more liberal approach in terms of regulated contracts which can, in practice, employ more American citizens.
- Political Opponents to private corrections speculate that the criminal justice system may use the experience of private prisons to increase its importance in society. Prison-business interest groups may lobby for longer sentences, stronger penalties, stringent parole standards, or they may attempt to redirect social policy so as to gain from higher inmate numbers. This may result in a questionable relationship between a politician who promises to "get tough on crime" and the private prison provider. Opponents argue that prison expansion programs resemble supply side economic policies in that as long as there are beds to fill, the criminal justice system can fill them. Another concern is that the private sector building and operating of prisons circumvents the voters when bond referenda or tax levies fail. This translates into less democratic control and a less accountable governing body. Administrative Opponents to privatization are concerned that the public would lose access to prisons and prison records due to the closed nature of private industry. A second concern is whether the cost effectiveness of prison privatization is a form of union busting and exploitation of labor with lower wages, lower pensions, and fewer employee benefits. There is a resistance from government employee groups as they believe that private operators hire fewer people, decrease employee forces, and reduce training. A third concern is whether the private contractor would engage in uncontrolled cost-cutting activities, design shortcuts, a reduction in safety standards, and an increase in corner-cutting methods. The fear is that the private corporation would jeopardize the quality of service delivered to prison inmates and government in an effort to operate at a profit. Another administrative issue is whether private prisons would only contract to house only the low-security, problemfree inmates, leaving the higher cost hard-core criminals for government to house. Final administrative concerns deal with establishing contingency plans in the unlikely event of a strike, bankruptcy, or an emergency situation. Legal/Constitutional There is a concern that the delegation of incarceration to a private company may be unconstitutional. Crime is clearly the domain of the government in modern society. A criminal becomes a criminal only when he or she is so defined by agents of the state through the enforcement and adjudication process. Second, is the realization that the government cannot contract away all of its liability. And finally, can the use of restraining and deadly force be legally employed by a private contractor? Inmate Rights Does the state cause a deprivation of a right (secured by constitution or by statute) because prisoners housed in a private correctional facility might lack a legal means of attacking any substandard prison conditions? Quality The overall interests of business and prison are basically different. Therefore, there is a concern that the inmate's quality of life might be sacrificed for profit. Is there sufficient evidence to support the claims that private prisons deliver a higher quality product than public prisons? Costs and Finances Are private prisons really more efficient than their public counterpart? Each of these issues presents a possible obstacle to the privatization of Oregon prisons. But it will be apparent that each topic can be addressed in the resulting contract between the state and the private contractor, and these will no longer be barriers to the privatization process. If the measurable output of the corrections system is indeed equal between the private provider and the ODOC prison, then the cheaper alternative should be awarded the business. ODOC's mission statement is "to reduce the risk of criminal conduct... with a continuum of community supervision, incarceration... to manage offender behavior... using the least restrictive method... consistent with public safety." It is possible for a private provider to accomplish the same goals as ODOC facilities. With this mission in mind, this report plans to address each of the issues to help identify the goals of ODOC, to help redefine an ODOC that includes private providers, and to help identify the obstacles that Oregon needs to overcome before it can legally, ethically, and economically contract out for the private incarceration of prisoners. THE POLITICAL ANSWER The length of a prison sentence should not be a function of economics, except in recognizing that it is cheaper to incarcerate a criminal than allow him or her to continue being a criminal. (In support of this, John J. Dilulio Jr. and Anne Morrison Piehl make a conservative conclusion in 1991 that, while it costs on average $25,000 per year to incarcerate the average criminal, the average criminal would have cost society $46,072 in criminal activity had he or she not been imprisoned. The above-average criminal costs society $369,000 each year).(7) Nor will the length of a prison sentence be a function of politics. It would require the mobilization of the general public to seek longer sentences for criminals. Private providers of corrections are no more likely to gain the political power to lengthen prison sentences than day care providers lobbying to restrict birth control and abortion. Privatization is not meant to replace Oregon's provision of corrections, but to provide an alternative source with additional and improved capacity. Private operators do not have control over the sentence length of prisoners. In almost all cases - whether for furlough, probation, or permanent discharge - decisions are made by the appropriate governmental body. Most jurisdictions handle all "good behavior" decisions. For those that do not, standard procedures are used and closely monitored. Opponents assume that private operators will be desperate for inmates to fill their cells. Even though the day when there is a shortage of prisoners is a long way off, the private operator has tremendous flexibility to adjust to changes in the prison population. The private provider can cut back on staff and eliminate certain unnecessary services and programs that the state prison may not be able to do because of employee union contracts. The Oregon courts use a sentencing guideline grid to determine the length of the sentence for felons. This table is reviewed and revised periodically to adjust to new laws or other conditions. Sentencing is a function of many variables, including severity of the crime, and the history of the convicted felon. But it is also a function of the availability of prison space. As Oregon has roughly 6,500 prison beds available, the more serious crimes take precedence over the less serious crimes, and in effect we end up with a revolving door policy where convicted felons are released before they have served their sentence. As a result, as space becomes less available, the courts must change the sentencing guidelines usually causing a reduction in the sentence of a convicted felon. This is an example of the supplyside argument that many opponents to privatization fear, only with the opposite effect. What should be most disturbing to taxpayers and public service employees is the fact that Oregon taxpayers, at this point, have spent hundreds of thousands of dollars and hours to convict the felon, but because of a lack of space, and an increase in the number of more serious crimes, the felon cannot serve out the full sentence. THE ADMINISTRATIVE ANSWER The administrative issue centers on a general mistrust of business. Apparently, governments and individuals in government are not reputed to engage in unethical and unprofessional acts. Government and government officials are no more beyond corruption than the private sector. Governments and government officials are, however, empowered with certain legislative authority with which they can provide services, or take them away. Private industry, in general, seems more open than public industry. Supporting this is the difficulty in finding the actual costs of incarcerating a criminal. It is much simpler to make sense of the services and related costs of a private provider than those of a public provider. The data is usually easily located, and because of the profit motive, costs and operating efficiencies are easily determined. Though it is not the goal of a public agency to make a profit, it ought to be Oregon's duty to provide the most effective and most efficient services available, and be able to document this effect. The private provider must operate under a contract between itself and the state which can require that certain conditions be maintained. Therefore, the state has a vehicle with which it can access any and all records it requires for proper monitoring and maintenance. In nearly all prison contracts awarded to date, the private provider and facility are required to receive accreditation by the American Corrections Association (ACA), which audits the policies and procedures of all prisons, both public and private. ACA accreditation helps insure that cost-cutting measures will not be to the detriment of inmates, and a contract can be used to limit the ability of private employees to strike, or for the company to go bankrupt. Accreditation can be as much a requirement of the contract as it is of the liability insurers of the private providers. Many public and private institutions in the United States have undergone accreditation and subsequent review by the ACA. Oddly enough, none of the facilities in Oregon have requested accreditation. Opponents warn that contractors will cut costs by reducing key personnel and lowering employees' compensation. But this has not been the case. In fact some private providers have added staff, recognizing the need for, more employees to control the increasing number of inmates and to reduce overtime. While.private firms are not under the same pressures and demands from unionized civil service workers that the government is, private employees' wages as a rule remain competitive with governments. For example, Buckingham Security's employees received higher wages than their previous government workers, as currently do most of Correction Corporation of America's (CCA) employees. (8) Contractors generally achieve their greatest savings by eliminating unnecessary overtime and reducing inflated benefits, such as sick leave and retirement contributions. The August 14th, 1994 edition of the New York Times reported that CCA saves money two ways. The largest gains come from changing the "unhealthy environment found in so many prisons." The second savings gains come from having non-unionized prisons. CCA pays the prevailing wage in the states where it operates, and the company offers its 2,300 employees a stock option program, but it does not have a pension plan. In Oregon, pension plans add up to over 15% of compensation (23% including Social Ssecurity), as they do in other states where private prisons operate. There are, of course, certain benefits realized when the employees have a financial stake in the success of the company. The goal of privatization is for the private sector to utilize its efficiencies and transfer the savings to taxpayers. If union organizations are disrupted, then it is the unfortunate economic result of becoming efficient and saving taxpayers' dollars. If private employees' benefits tend to be lower than government's, how is it that there exists a pool of qualified labor from which the private sector can hire? Private managers are able to find experienced and qualified employees because working conditions tend to be much more favorable. Many are attracted to the opportunities for promotion virtually non-existent under government operations, and for more generous pay raises. One company, for example, bases compensation on job performance, typically rewarding deserving staff with an eight percent wage increase.(9) In response to the threat of strikes, bankruptcy, or emergency situations, much of this can be dealt with on a contract basis. Admittedly, the best way to deal with a situation where the private sector suddenly cannot meet its contractual obligation is not to dismantle the entire public prison infrastructure. This is one of the reasons that certain facilities should remain under public management. But certain contingency plans can be addressed in the RFP and final contract, as well as in the close monitoring of the private provider. As it turns out, all the administrative issues can be addressed in both the RFP and the final contract. THE LEGAL AND CONSTITUTIONAL ANSWERS (10) The legal questions that arise from the privatization of corrections are numerous and complex. Any attempt to summarize the dozens of legal arguments surrounding the nuances and subtleties of privatization in a short paper is destined to fail. However a summarization of the basic legal issues is in order. Correctional facilities may not have been privatized in Oregon, but a number of other states have overcome the legal obstacles with a great deal of success. It is from their experience that we are able to make comparisons and draw conclusions. The legal and constitutional issues are a state matter as defined by the Tenth Amendment. The most basic legal question for us to answer is, "Does the state have the authority to delegate its responsibility to house prisoners to a private party?" Are there any constitutional, federal or state regulations barring or administrative rules prohibiting or even impairing the privatization of correctional facilities in Oregon? In a December 2, 1992 session of the Oregon House Judiciary Committee, Jack Landau of the Department of justice noted that the legislature may not delegate government powers to private entities and that the courts have held that the legislature cannot set up a system where a private entity can negotiate minimum prices and the governor is required to approve those minimum prices. The legislature cannot give this authority away to a private entity. But Landau does conclude by saying the legislature could set up a process by which one could delegate certain management functions without running afoul of the delegation doctrine. It can be argued that when the state contracts out for the incarceration of a criminal, it may not be delegating government powers. The criminal justice system is in fact putting the individual behind bars under the authority granted to them by the legislature. The private provider is just an extension of ODOC. Contractual agreements will provide for full and complete state access to the facilities and inmates at all times a's specified in a contract. Remember that the state is still providing for the incarceration of the criminal, still exercising its full authority to do so. Contracting to actually perform the service does not remove or undermine that authority.