Checkpoint: Social Contract Theory Renders For-Profit Prisons Unethical

Andy Sacks

Time has carried an upward trend of United States governmental expansion beyond what any imagined during the American colonial era- among others, the prison system can be seen as an example of such evident expansion. The United States government is founded upon theories of the social contract, including John Locke’s beliefs regarding punishment based on natural rights which were used to legitimize the creation of laws. Where early judicial penalties were typically executed via capital punishment, Enlightenment thinkers of the late 1700s instead advocated for prolonged prison sentences of labor and societal separation with a focus on the rehabilitation of prisoners. Time, however, also shifted focus toward fiscal responsibility, and the privatization of imprisonment became a profitable venture; however, privatized imprisonment inherently wields profit incentive to undermine objectives of prisoner rehabilitation. The delegation of this responsibility to private corporations undermines the will of the imprisoned and is morally inconsistent with foundational American values.

Social Contract Theory of American Punishment

In addition to Locke, the Founding Fathers were heavily influenced by social contract theorists like Jean-Jacques Rousseau and Thomas Hobbes. Hobbes believed that humans exist in a constant state of war until a mighty “Sovereign” institutes government by force and elevates humans out of perpetual war into a “social contract” where the Sovereign makes laws and carries inherent morality. Locke, however, believed that legitimate government could only exist with the consent of the governed. He states in his Second Treatise of Government,

“No one can be put out of this estate and subjected to the political power of another without his own consent… When any number of men have so consented to make one community or government, they… make one body politic, wherein the majority have a right to act and conclude the rest… And thus… puts himself under an obligation to everyone of that society to submit to the determination of the majority, and to be concluded by it;”

For Rousseau, the state of nature is morally neutral; he believed men were inherently benevolent but were corrupted by the trappings of society. He contrasted the “general will”- actions benefiting the transcendent true best interest of the society, regardless of individual desires- with the “will of all”- actions the people have decided together to be in their best interest; however, the “will of all” may be motivated by private individual interests and operate counter to the true objective “general will.” Where Rousseau believed that these wills were to be determined by gatherings of the people at large, Locke argued that individuals grant a portion of their natural rights to government in exchange for the systematic protection of life, liberty, and property. He defined political power as, “the right to make laws—with the death penalty and consequently all lesser penalties—for regulating and preserving property, and to employ the force of the community in enforcing such laws.” It is from these “lesser penalties” that government derives its political power to remove members from the social contract who violate the rights of others or the laws of the sovereign government.

Calvinist Judicial Roots

James Madison famously stated in Federalist No. 51, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” The Founding Fathers were informed by more than a staunchly logical and political background, but by staunch piety as well. Madison was mentored by Founding Father John Witherspoon at Princeton University and absorbed “a strong dose of Calvinism” from the Scotsman; as father of the Constitution, Madison’s Calvinism was reflected in his approach to government.

Early colonial criminal law has been referred to as “a curious mix of religion, English barbarity, and pragmatism,” approaching the punishment advocated for by Locke through a Calvinist lens of original sin and total human depravity. Calvinists like Madison and Witherspoon viewed humankind as “a confluence of virtue and vice—capable of the former, inclined to the latter,” though Calvinism states that, “God’s divine providence selected, elected, and predestined certain people to restore humanity and reconcile it with its Creator.” This implies the notion that one is born in sin and is predestined to sin for life; thus, colonial judicial systems utilized punishment as localized deterrents in the form of public shaming, corporal recompense, or capital execution and would have perceived rehabilitative notions as an affront to these values.

Prison Labor

The writings of William Bradford, the second US attorney general, accompanied a political impetus toward prison reform that altered the course of American judicial punishment through Enlightenment-era analysis of a state that seeks to prevent death by delivering death. Bradford condemned the Pennsylvania legislature’s abuses of execution and advocated for the intrinsic value of human life during punishment. The Pennsylvania criminal code of 1786, aided in drafting by the Philadelphia Society for Assisting Distressed Prisoners, “instituted a strict regime of hard labor for most crimes and did away with capital punishment except for treason and premeditated murder.” It was this impetus that spurred the United States’ precedent of removing convicted criminals from society and instituting extended prison sentences with the goal of rehabilitation; however, with this movement came costs, and prolonged prisoner upkeep costs motivated cost-cutting efforts by states, prompting the privatization efforts seen today.

Kantian Ethics

German philosopher Immanuel Kant famously stated, “act that you use humanity, whether in your own person or in the person of any other, always at the same time as an end, never merely as a means.” Like the prison reformists of the Enlightenment era, Kant considered the intrinsic value of the rational individual. Human rationality alone warrants that each individual be considered an end in and of themselves; to use another human as a mere means would be entirely unethical in the view of Kant’s “categorical imperative.” However, when considering the privatization of the prison system, we see that humans immediately become means to ends motivated by profit incentives. Public imprisonment advocates rehabilitation for its prisoners, and its non-profit operation allows the prisoners the opportunity to reform; however, we see when legislative eyes turn toward cost-cutting, politicians will sparsely advocate for the rights of prisoners and allow corporations to unethically utilize its prisoners as capital.

Recidivism

The fundamental ethical priorities of modern judicial punishment are “retribution, deterrence, incapacitation, and rehabilitation.” Retribution and deterrence for criminal acts, according to Locke, was essential as otherwise laws that went unenforced would “be in vain.” Incapacitation implies that individuals are removed from society while they rehabilitate. Government has a vested interest in ensuring that prison sentences serve to effectively rehabilitate and prevent recidivism, thus reducing financial burdens on the states. However, those priorities become irrelevant when imprisonment is contracted out to private interests- profit becomes the motivating factor. Private prisons are funded by government contracts with payment “based on the size of the prison, based on a monthly or yearly set amount, or in most cases, it is paid based on the number of inmates that the prison houses.” Private prison corporations make their money by housing incarcerated individuals and are incentivized by profit to incarcerate further. Low rates of recidivism would render such corporations bankrupt; therefore, motivations to undermine rehabilitative goals of modern incarceration ethically require that imprisonment remain a duty delegated to the public sector.

Unethical Investments

A study by the Department of Justice found that “50% of incarcerated people return to prison within three years of being released.” Further, a 2016 study “found that incarcerating people in prisons operated by private companies… increases the likelihood of those people recidivating.” CoreCivic, formerly the Corrections Corporation of America, donated a reported combined $896,560 in 2020 political contributions; along with its competitors, GEO Group and Management & Training Corp, private prison corporations donated a reported over $150,000 in 2021 and a record $1.6 million during the 2016 election cycle. Such lobbying influence of legislation undermines the political consent of the imprisoned, as individuals thus removed from the social contract by function of that contract may not have their freedoms abridged by individual interests within that social contract.

As it stands currently, private interests responsible for upholding individuals’ removal from the social contract actively influence legislation to keep them there and increase profit. This is especially true when “children living in poverty are more than three times as likely to have experienced the incarceration of a parent as children in families with incomes at least twice the poverty level.” Studies have shown that “poverty and low income level” have positive correlations with crime; therefore, the correlation between recidivating parents and the probability their children will be incarcerated is to be unethically considered an investment opportunity by private prisons corporations. Publicly traded corporations are backed by investors who implicitly expect a return on monetary investment. A privatized system that naturally derives its value from its size or number of inmates must therefore operate by considering inmates themselves as investments, as well as the aforementioned lobbying expenditures aimed at increasing the rate of incarcerated inmates. Further still, operating procedures that promote recidivation in private incarcerated populations may all function as long-term investments in an unethical system of human capital.

Conclusion

The United States accounts for twenty-five percent of the world’s imprisoned population. Where foundational American political theory provides for the imprisonment of those who fail to uphold the law, the profit incentivization of imprisonment unethically renders humans as capital and treats them as mere means to individual ends. Public incarceration, while endowed with slews of ethical problems in itself, carries an institutional need to lower recidivation for cost management. Private prisons, in contrast, undermine goals of rehabilitation and contribute to higher rates of recidivism, thus benefiting their own profit incentives. Further, a government based on the consent of the people cannot transfer that consent to another body. The authority to remove individuals from the social contract is one granted to the government, but when private interests seek to keep individuals removed from society to serve profit motives, it undermines any cost-cutting efforts. If the public sector cannot afford to house prisoners, it should do more to undermine the social forces which engender crime and fully rehabilitate those already incarcerated; when imprisonment is contracted to the private sector, it undermines the very theoretical basis of American ideology.