Aspects of Accountability. 

There is general agreement that the state cannot shed its legal liability for the administration of punishment in a private prison. Therefore, government contracting parties - the W.A. Ministry of Justice - have to be able to ensure that private corporations will be accountable for their actions. The accountability of the private operators to the government party is of a more objective and technical nature than that of the government to the public¹³ ; the former being focused on fulfilment of contractual obligations and the observance of rules and regulations. The nature of the contract, and its approach to monitoring and regulation, is thus crucial to the state's ability to deliver public accountability to citizens, and specifically to prisoners.

It is argued that the great merit of such an arrangement is that is separates out the day-to-day administration of prisons from the government agency's responsibilities for supervising them and upholding standards. While the same body performs both tasks, there is a monopoly over the potentially conflicting roles. As one British editor put it:

It is not in human nature to impose the most exacting standards on oneself. It is much more likely that the Home Office will develop into the tough regulatory body needed by British prison if is not also running them. ¹⁴

While this seems to be a reasonable conclusion, almost all critics have recognised that this problem is not necessarily improved by the use of independent monitors who regularly visit, or are stationed in, the facility; past experience shows a high level of 'co-option' of monitors into the values and goals of the bodies they are required to evaluate, so that they lose the critical eye of an outside observer. This is partly for same reason that the above quote poses; because the private provider is in effect still an agent of the public provider, with the latter responsible for the formers adherence to contractual and legislative standards, the same danger of diminished vigilance is present. 

The W.A. Ministry of Justice's contract proposal provides for the establishment of "An Office of the RegulatorÖresponsible for strategic, high level, thematic or critical incident inspections and audits". The regulator's role is not specified in further detail, so how this will occur in practice is yet to be seen. But it is stated that "the Regulator will be provided with the contractor-generated reports through the purchaser". This suggests an element of self-reporting by the private operator to the Ministry of Justice who then passes the reports to the Regulator, who may conduct his/her own inspections and audits. In addition, a Contract Manager is to reside in the Wooraloo facility, and is presumably responsible for ensuring that the contractual conditions are met. Disputes or contractual disagreements between the two parties are to be settled through the Contract Manager, with final recourse to the courts.¹⁵  This system of monitoring seems to set out a reasonable degree of checks and balances, though it is difficult to assess how it is likely to work in practice.

It is important to remember, however, that unlike the vast majority of market industries, the primary recipients of the service (the inmates) have neither input into the contractual conditions, nor any significant ability to exercise market preferences - factors considered to be fundamental to competition theory. In the case of private prisons, it is more important to satisfy the paying customers (the government) than the clients, who therefore have little or no control over their fate in the prison system. There is thus a question of who is the primary beneficiary in this arrangements - a blurring of the cui bono principle - and of whose interests should determine the nature, quality and cost of services. These factors, combined with the stigma attached to prisoners by the rest of society, leads to a very high degree of trust and dependence in their relationship with the bodies accountable to them.

Harding proposes a model of broad public accountability comprised of ten key tenets that must be satisfactorily covered to ensure an accountable system of private institutions. His requirements pose a formidable list, almost every one of which inspires in the reader doubt as to its achievability. In light of Harding's role in policy development in W.A., and his careful analysis of the issues, it is fitting to survey a few features of his model for accountability.

A major tenet of accountability that the distinction between the allocation and administration of punishment must be strictly maintained with the private sector's role being confined to administration. Harding concedes that if privatisation were to work in a way so as to enable the private sector to administer punishment, there would be a "profound and irreparable fissure in the balance of the modern democratic state and the corresponding fealty which it could expect of its citizens".¹⁶ Prison officers similarly to police; rely on direct force, amounting to a significant delegation of the state's "monopoly of legitimate use of force".¹⁷ In particular they have extensive discretionary power, the exercise of which can reflect a systematic policy or style, with profound effects on prisoners. Alongside the formal disciplinary system, there also exists an informal or 'shadow' system involving sanctions 'in the interests of good order and discipline' - segregation, confinements, withdrawal of privileges, transfers, disciplinary reports, etc. Sichor argues that this quasi-judicial role exercised by private employees clearly contradicts the principle that punishment has to be determined by courts representing the state and only administered by private entities. The use of discretion in these matters is very difficult to subject to external scrutiny in any prison, and may be merely complicated by vested interests in private facilities and the conflicts between regulators and the independent of operators.

Another of Harding's requirements is that penal policy must not be driven by those who stand to gain a profit out of it. There is clearly potential for conflict between the social interest to reduce prison populations and the financial interest of private correctional corporations to increase it. Thus there is the concern that corporate influence will work in favour of more and longer sentences. This fear is not unfounded in practice. Already in the US the private prison industry has lobbyists and funnels campaign contributions to politicians in order to buy influence like other major industries. In California, private corporations and construction companies were actively lobbying legislators (as well as correctional officers unions) to vote for the 'three strikes' laws¹⁸. The trend in these types of laws will in turn lead to a greater reliance on private construction and management companies to provide affordable facilities for increased inmate populations. In fact private corrections is doing such 'good business' that the largest company, Correctional Corporation of America (CCA) was one of the ten best performing stocks on the New York Stock Exchange in 1995.¹⁹ While from an economic perspective, this is some evidence of a successful prison business, it also amounts to a greater vested interest in securing and expanding profits. Harding reports a statement by a senior executive of CCA in 1995 to the effect that he believed the USA market would expand 'almost indefinitely'. This reflects the confidence apparent in CCA's 1994 Annual Report to its shareholders: "There are powerful market forces driving our industry, and its potential has barely been touched."²⁰ Several writers have documented the expansionist tendency and practice of private punishment throughout history. They observe that technological innovations for control and coercion, introduced by private enterprise for commercial reasons, are gradually though reluctantly embraced by public officials as they come to appreciate their cost-effectiveness.²¹ 

One must acknowledge Harding's salient point that expansionist fears seems to ignore of the fact that there have been exponential increases in prison populations for the past fifteen years in the US although private prisons only became conspicuous in the late 1980's. Similarly the fastest growth rate in Australia was in NSW²² when a conservative government was elected on a tougher 'law and order' platform; expanding prison populations, admittedly, do not depend upon profit motives. Nevertheless, Harding appears to dismiss the seriousness of these issues, stating; 
 

Private correctional companies must certainly be scrutinised so that any lobbying they attempt will be recognised and, where appropriate, stigmatised. But in a broad sense they can hardly be quarantined from participation in a debate in which everyone else seems to be participating.²³

With respect, stigmatisation of such lobbying and influence has not in the past proved itself to be a reliable or consistent remedy for profit-induced motives running counter to the public interest. Neither can it be assumed that everybody else is participating (equally) in the debate.

Although W.A. will never experience US-level prison populations or profits associated with those levels, there is no reason to believe that profitable prison industries will not dominate government policy, sometimes to the exclusion of the public interest, in the same way that logging and mining industries have often done so in this state. This concern alone ought to provide the motivation to seriously consider alternative futures for justice and penal policy.

Another related aspect of accountability, touched upon earlier, is that the activities of the private sector and their relations with government must be open and publicly accessible. Harding confirms that no accountability structure can be effective if the relevant activities are hidden from view. Yet he admits that already this standard has not been fully met, particularly in Australia and the UK.²⁴ 

Harding also emphasises in his model that custodial regimes, programs and personnel must be culturally appropriate. This is supported by recommendations by the Royal Commission into Aboriginal Deaths in Custody. Of course, such provision has been notably absent from public regimes, but is there the potential for more progress in this area in private facilities? One of the often-argued benefits of private involvement is its capacity for such flexibility and involvement. Lin Kilpatrick, architect and designer with one of the consortiums currently bidding for Wooraloo has expressed frustration at his struggle to have such innovations accepted by the UK- based multinational company making the bid, and suggests that its executives are very reluctant to move away from traditional high-control, negative-space designs which require high up-front costs but low continuing staff costs. This is in line with the anticipated labour cost-cuts linked with privatisation. It appears to be difficult to generalise about the goals and approaches of 'the private sector', which may or may not grasp the opportunity for innovation available to it.