Chapter 6

Recommendations and Conclusion

Recommendations

The introduction of private prisons in South Africa raises many issues, challenges and opportunities. Although the first private prison has great promise for high quality service delivery, there are several recommendations which could ensure that the involvement of the private sector in the functions of Department of Correctional Services can be considered a success.

1. Shorter financing agreements with private contractors

To ensure the ‘flexibility’ that privatisation can offer government, future contracts should not be based on long-term financing arrangements as is the case with the Ikhwezi Bloemfontein Correctional Contracts (BCC) in which both the financing and management services are contracted for a full 25 years–the maximum allowed by the CSA 1998.

2. Private sector involvement in community corrections

The Correctional Services Act of 1998 forbids private contractors from becoming involved with community corrections. Prior to the current form of prison privatisation, private sector involvement has been an established and accepted component of many programs used as alternatives to incarceration. This is particularly true in the UK, where charities play a critical role in the juvenile justice system.

The South African criminal justice system should turn to the private sector for assistance. The resulting benefit would necessarily improve conditions in the prisons and assist with community corrections.

The easiest and quickest means of increasing private sector involvement in the South African prison system would be to outsource more services in the existing prisons to the private sector. The provision of food, for example, could quite easily be turned over to the private sector with considerably less controversy than the outsourcing of other core functions. The use of NGOs should be further explored, and both public and private prisons should turn to organisations such as NICRO to provide reintegration services.

3. Private prison contracts should refer to standards of care for prisoners with HIV and/or TB

The contract should include specific reference to standards of care for prisoners with HIV and/or TB. Condoms and lubrication should be made discreetly available, and Directly Observed Therapy programs should be required for the monitoring of prisoners with TB. The contract should specifically state that HIV tests be made available to prisoners on request, accompanied with the requisite counselling and education.

4. Private prison monitors should report to an independent regulatory agency

An effective monitoring agent must be independent, not a part of the same department that is being monitored. Furthermore, monitoring is a separate function from operations; DCS is not a regulatory agency but a provider of correctional services. Because of these conditions, the DCS monitor assigned to BCC is at high risk to become co-opted into the management structure. In order to avoid this, a monitor should be appointed who does not report to DCS but to a separate regulatory agency within the government. The monitoring of prison conditions and prisoner complaints is the role of the Judicial Inspectorate, both for public and private prisons. The additional monitoring required for private prison contracts is that of contract compliance, which the current position of DCS Controller is not in a position to provide. Contract compliance, for any government contract, should not be monitored by any of the departments immediately party to the contract as this compromises independence. The contract compliance officer for private prison contracts should come from the government’s existing internal audit agency, and those expected to fulfill this role should be experienced in performing operational audits of various kinds. Either rotation or sufficient reporting requirements and visits by auditors of varying seniority would also help ensure that capture does not take place.

5. Strengthen accountability to the public of the privatisation process

Given the importance of accountability in the process of privatising prisons, and in light of the constitutional rights of South African citizens and the intentions of the recently passed Act, the contracts with private prison companies should be released to the public without further delay.

6. Better costing for the building of prisons

The private prisons projects can provide information to the Department of Correctional Services on the total cost of building a modern prison. The government, if given reliable data on the amount of capital necessary, would be better equipped to make sound financing decisions. DCS could then perhaps investigate alternative arrangements that would not compromise the state’s leverage while monitoring performance of the private prison companies.

7. Investigate the impact of a prison’s size and location on the reintegration of offenders

The size and location of a prison has important implications for recidivism rates. The locations for the two private prisons were chosen because the government already owned land there, and not because they were actually within the communities from which many prisoners are drawn. The BCC prison is the largest prison in South Africa, and the largest private prison in the world. While this size will provide savings due to economies of scale, it is not clear what the impact will be on recidivism rates. The DCS should encourage studies to be undertaken on the impact of size and location of prisons on the rehabilitation of offenders. Ideally, the private prison companies could demonstrate their commitment to the goals of DCS by providing funding for such research.

Conclusion

Logan charges that "the goal of running prisons that are safe, secure, humane, efficient, and just is too important to reserve to government."1 This could also be rewritten to claim that the goal of running prisons is too important to leave open to the volatility and questionable motives of the free market. The arguments for and against privatisation are usually motivated by various forms of self-interest, and some are more concerned with a general distrust of government or a general distaste for prisons than they are with private prisons.

In the United States, criminal justice policy decisions are influenced by a variety of special interests which are not necessarily in line with the overall public interest. The introduction of private prisons probably adds another tug in an already complicated and multi-directional tug of war contest. The empirical evidence is not entirely convincing and the anecdotal evidence is not entirely reliable, but the general consensus of those who are genuinely unbiased is that private prisons are no worse or better than public prisons in the United States.

In Australia, the over-reaching power of the unions has been tempered and service delivery has been improved in the public sector through the introduction of a system of competition for management contracts. Australia has enjoyed the flexibility which is afforded by contracting for management services only. This benefit has been protected by the fact that many Australian private prisons avoided the trap of long-term public-private financing commitments. However, the anecdotal evidence from Australia leads one to believe that the private prisons there have failed to live up to their own standards. This may have more to do with the size and location of private prisons. In Victoria, where some of the major problems occurred, the public prisons were much smaller and more likely to be located in the inmates’ ‘hometown’ communities. The private prisons were as much as ten times bigger than some of the public prisons, and were in more remote isolated locations. Prison privatisation in Australia can be said to have had mixed results, but at the very least it is focusing attention on an often overlooked and ignored public service.

The United Kingdom appears to have experienced the greatest degree of success with prison privatisation. There are also reports of incidents and failure to perform but they do not exceed similar occurrences at public prisons. The South African prison privatisation programme followed the UK model, but has made the critical mistake of getting entangled in long term financing contracts. The South African programme has also followed the UK model for monitoring, which has proved a moderate success although no country has developed an entirely successful monitoring system.

The introduction of prison privatisation programmes in the US, Australia, and UK has been controversial because of conflicting interest with unions and other political factors. In some respects, it can be argued that private prisons have only been a waste of time and money because they did not prove to be the panacea as anticipated for the prison service. The debate over private prisons in South Africa comes from an entirely different perspective. The unions have not voiced opposition to prison privatisation, and the private prison consortia have not yet encountered antagonism from the public employee’s unions. The Police and Prison Officers Civil Rights Union (POPCRU) has not taken an anti-privatisation position, and interviews with both BCC and SACS revealed that employees are not prohibited from joining POPCRU or forming their own union. The advent of private prisons in South Africa has not been prompted by a desire to break down union power, an attempt to garner political capital, or a need to circumvent voter approval on capital outlays.

Rather, the development of private prisons in South Africa has come in response to the main purpose for which privatisation was intended: the government needs help. The prisons in South Africa are full of hard working and dedicated staff, but their morale is crumbling along with the buildings in which they work. The prisoners are kept in substandard conditions which violate every right which is guaranteed to them by the constitution. Nothing could be worse than the current state of the prison system, and there is not enough money to fix it. The demand for private sector involvement is real and not fabricated by any special interest lobby or prison-industrial complex. Because the problems are so real, it can only be hoped that the private sector can offer a real solution.