Private Prisons & Human Rights: Examining Israel's Ban on Private Prisons in a US Context.

The United States (U.S.) policy on federal prison privatization has recently undergone a major change. In February of 2017, the Office of the Attorney General issued a memorandum which rescinded the previous administration’s order to eliminate the use of federal private prison contracts.1 The original order to eliminate federal private prisons was based on a report by the Department of Justice’s Office of the Inspector General, which found that federal privately contracted prisons compared poorly with Bureau of Prison facilities.2 The report found that these private prisons did not provide substantial cost savings, had worse safety outcomes, and offered less rehabilitative services.3 However, under the Trump administration these changes were rescinded with the issuance of a new directive that swung the pendulum of policy back in favor of using private facilities to “meet the future needs of the federal correctional system.”4 Issues of safety and rehabilitation were not addressed in this memorandum.5 Additionally, the majority (87%) of the nearly million and a half prisoners in the U.S. are held in state facilities,6 which were not covered by the original directive. Meanwhile in Israel, a 2009 Israeli Supreme Court ruling found that private prisons were a violation of human rights.7 This dismantling of private prisons in Israel will be used as a case study. The legal context and use of private prisons in Israel will be compared to that in the U.S. Due to differences in legal statutes, this analysis will be focused on U.S. state and federal prisons, and therefore will not discuss jails/county detention facilities, juvenile detention facilities, or civil detention facilities (which would include immigration detention centers and psychiatric facilities). However, the line of argument presented here can likely be adapted to the context of these facilities. This Article will begin by describing the relevance of decommodification theory to analyzing the impact of prison privatization on human rights. Next, it will provide an overview of the historical underpinnings of prison privatization in the U.S. Then, it will present the Israeli Supreme Court case which struck down prison privatization. A comparison of relevant legal statutes between the U.S. and Israel will then follow. Finally, an argument will be made which details how the Israeli case may be applied to a U.S. context. This argument explains how prison privatization serves to strip prisons of the human right to dignity by commodifying them and transferring a core power of the state to a private entity.