The US Just Ditched Its Private Prisons, So Why Is Australia Doing The Complete Opposite?

'Orange Is The New Black' wasn't supposed to be an instructional video.

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It’s news that would bring a smile to Piper Chapman’s face. After the overcrowding, abuse of power, and strikes that followed Litchfield Penitentiary’s privatisation in the third season of Orange is the New Black, the US Justice Department has decided it’s had enough — it’s going to phase out private prisons, for real.

But here in Australia, it feels like some politicians are treating OITNB like a how-to guide. NSW could be about to significantly expand its private prison network, despite the fact the US has recognised what a bad model it is. And there’s speculation that the Northern Territory — still reeling from the Don Dale abuse scandal — could be going down a similar path. So what’s prompted prison reform in the US, and is Australia about to repeat their mistakes?

Why Is The US Ditching Private Prisons?

Earlier this month the Obama administration announced it was planning on “ultimately ending” the government’s use of private prisons. The federal government is going to either not renew private prison contracts when they end, or substantially curtail their scope.

This is a big deal. Activists have called the decision “historic” and “groundbreaking”. It follows years of anti-privatisation campaigning by people like Bernie Sanders, who last year co-sponsored the Justice Is Not For Sale Act, which would have banned the use of private prisons. Hillary Clinton has more recently followed suit, opposing private prisons and refusing to accept direct donations from private prison operators.

The reasons behind the Justice Department’s call will come as no surprise to OITNB viewers and Bernie supporters. Basically, it seems like private prisons have failed to measure up to state-run facilities on almost every count.

In a letter to the Bureau of Prisons outlining the policy change, the US Deputy Attorney-General Sally Yates wrote that private prisons don’t provide a substantial saving on costs, and they provide fewer services that are essential to rehabilitation and improving public safety. She also referred to a recent report which found that private prisons had more safety and security issues than public prisons, and higher rates of contraband and assault.

It’s an issue which has been hotly debated in the US for a number of years.

What’s The Situation In Australia?

Back home, Australia is moving in the opposite direction. Although the US rightly gets a bad rap for its criminal justice system, Australia is not immune from criticism: Four Corners’ reporting on the Don Dale youth prison shows the torture-like conditions that can occur on our shores. Notably, we also have the highest rate of private incarceration per capita in the world. Throughout the country, private corporations have custody over about 20 percent of our prisoners in nine facilities.

But a recent change in NSW policy means those numbers will probably increase. Earlier this year, the NSW government decided to ‘market test’ the operation of John Morony Correctional Centre in Windsor. Private companies will have the chance to bid for the contract to operate the prison, and Corrective Services NSW, the public department that currently runs the prison, will be fighting to keep custody of it. The government is also introducing performance targets and ‘benchmarked budgets’ for NSW prisons — and if they fail to measure up, the government has suggested they’ll be market tested too.

In a rare concession of the role shock jocks and conservative press play in the formulation of criminal justice policy, Corrections Minister David Elliott told reporters that “prisons in NSW are thirsting for reform”. “You only have to pick up the newspapers, you only have to listen to talk-back radio,” he said. The government claims the plan will help it meet its commitment to reduce re-offending by 5 percent.

They’ve also been quick to point out that this isn’t strict ‘privatisation’ because Corrective Services NSW can bid as well. The term they prefer is ‘contestability’. But the Greens’ justice spokesperson David Shoebridge says ‘contestability’ is still a dangerous development. “It’s not even fair to call it privatisation by stealth,” he told Junkee. “It’s just the modern way of delivering private prisons.

“Contestability is the government saying they are neutral as to whether a core public service like a prison is delivered by public servants or is delivered by for-profit corporations. It’s the official assertion that they don’t care whether or not a prison is private or public provided it provides the cheapest outcome to the government.”

The Problems With Privatisation

The argument in favour of market testing is essentially that private companies could provide better value for money than the public sector. This is one advocated by Professor Gary Sturgess — the man overseeing the process of marking testing who previously worked ten years as executive director of Serco Group, one of the largest operator of private prisons internationally.

Earlier this year, Sturgess wrote an article for Fairfax defending the process, citing a Queensland report which found that two private prisons in that state cost about 20 percent less to operate than public prisons, with no loss in quality. But no similar research has taken place in other states. In fact, the most comprehensive recent study in Australia found that a lack of transparency makes it very difficult to work out how private prisons are performing. In short, at the moment we just don’t really know if they do any better than state-run prisons.

Expert analysis.

Market testing isn’t the only way the NSW government is introducing the private sector into our prisons either. A few months after the John Morony announcement, and as part of the same ‘Better Prisons’ reform, the government told the 138 teachers employed by Corrective Services NSW that it would reduce the number of full-time jobs to 20. The plan is to bring in private training organisations to deliver education and training in their place — and unlike the teachers currently working in prisons, those new trainers won’t need an education degree.

The Minister has said the new system will improve literacy and numeracy outcomes, again citing “value for money”. But the decision is controversial, especially since the evidence shows education in prisons reduces reoffending by a whopping 40 percent.

The NSW Teachers Federation’s Maxine Sharkey labels the plan “absolutely obscene”. “Everybody understands that it’s not an easy task to teach people in prison,” she told Junkee. “Everyone except the Minister can see that. I don’t understand how he can possibly think you don’t need to have a teaching qualification to teach people in prison.”

The teachers are campaigning to reverse the decision before they lose their jobs at the end of the year.

… Should We Just Stop Putting So Many People In Prison?

Prison privatisation tells a story about our attitude to the criminal justice system more generally. The US Justice Department says its decision was only made possible because of declining prisoner numbers. The trend is going the other way in Australia — we imprison more people than we ever have before, and NSW’s prisons are over 100 percent capacity.

The fall in numbers in federal American prisons follows the introduction of the ‘Smart on Crime Initiative’ in 2013 — the Obama administration’s attempt to tackle mass incarceration by avoiding mandatory minimum sentences and prosecuting the most serious offences, amongst other approaches.

UNSW criminologist Professor Eileen Baldry told Junkee that the NSW government is asking the wrong question when it looks for the most efficient way to manage its prisoners. Instead, she says, the right question is: “how do we reduce these huge numbers of people we are now putting through prison?”

In announcing the market-testing and benchmarking policy, Corrections Minister David Elliott said the reform would help to create a prison system that “accommodates more inmates”. It’s a move that makes sense in our current climate — but if the US are any indication, there are some important other factors to consider too.

Hannah Ryan is a freelance writer currently studying postgraduate law in the US.