Using Multiple Objective Analytics to Address Issues Associated with Criminal Justice Systems

Introduction

Chapter 3 addresses two of the major issues of criminal justice systems in recent years: privatization of prisons and bail reform.

Following the introduction, the second section of the chapter addresses the issue of privatization of prisons. In particular, the section focuses on the decision of whether prisons should be public or private. As part of the discussion, data on prisons and the motivation for privatization is addressed. The advantages and the disadvantages of privatization are presented, along with the positions of some prominent Democrats and Republicans on the issue. A discussion of how the two major political parties have recently addressed the issue is given. Finally, an illustrative example involving the assessment of a multiattribute value function for the scoring and ranking of proposals for privatization from private companies is presented. The function allows for (1) the representation of several quality measures for a prison, and (2) the modeling of the trade-offs between cost and quality for a prison.

The third section of the chapter discusses bail reform. In particular, the decision problem of the choice of pretrial conditions for a defendant is considered. The bail process and its associated difficulties are described, along with recent trends in bail reform. An illustrative example involving a Monte Carlo simulation model of a bail decision process is presented. The model represents various decisions which a judge could make regarding pretrial conditions for a defendant, and accounts for various costs and probabilities. The criterion used for the ranking is maximization of expected utility, with attributes of concern for both the defendant and the public.

Privatization of Prisons

Data on Prisons and the Motivation for Privatization

From 1980 to 2000, the incarceration rate in state and federal prisons in the United States more than tripled, from 139 per 100,000 population to 478 per 100,000 population (Mumford, Schanzenbach, and Nunn, 2016). This tremendous increase was the result of more strict laws/acts such as President Reagan’s Anti-Drug Abuse Act of 1986, and the Violent Crime and Law' Enforcement Act of 1994 (Clinton Crime Bill) and its Three-Strikes Provision (Violent Crime and Law Enforcement Act of 1994, 1994), among other things. Pfaff (2016) noted that this increase was due more to higher rates of admission than to longer sentences. As a result of this increase in incarceration rate, state and federal prisons became increasingly overcrowded during this period.

Many states attempted to increase their prison capacity during this period. However, even though much of the public was interested in “getting tough on crime”, the cost associated with doing so was often rejected. For example, during the 1980s voters turned down about 60% of prison bond referenda (Mumford, Schanzenbach, and Nunn, 2016).

In addition to the overcrowding, the costs of operating the prisons became exceedingly high. One attempt to reduce cost was the introduction of the concept of privatization. Even though the first private jail in the United States was at San Quentin in 1852 (Private Jails in the United States, 2017), this more recent surge in privatization was started at the state level in St. Mary, Kentucky, in 1986 at the Marion Adjustment Center. The first contract to a private company at the federal level w'as instituted in 1997 (Mumford, Schanzenbach, and Nunn, 2016).

While the focus on this section of the book is on issues associated with private companies in the building and operation of entire prisons, private entities have also been employed in providing individual services for prisons, such as food, health, transportation, and cleaning services, among others.

In 2017, private prisons (including state and federal) in the United States housed 121,718 people, about 8.2% of the total prison population. Since 2000, the number of prisoners incarcerated in private facilities has increased by 39%; however, there has been a decline in more recent years, as the private prison population reached its peak of 137,220 in 2012 (Private Prisons in the United States, 2019). Pauley (2016) provides a year-by-year history of the various events associated with the privatization of prisons.

Advantages and Disadvantages of Privatization

With respect to privatization, there are several supposed advantages and several supposed disadvantages, as well as disagreements about these advantages and disadvantages. Two of the (disputed) advantages include the following: (1) at the state level, states can have prisons built by private companies without the approval of voters through the use of bond referenda and (2) the use of private organizations for building and operating prisons can promote competition (and hopefully lower costs and improved quality). Three of the (disputed) disadvantages of privatization are: (1) there can potentially be a lack of transparency in how the prison is run, (2) cost (to the private entity) can become an overriding factor in the prison’s operation (Bryant, 2020), and (3) since typically a private company will make more profit with more prisoners, they may have a tendency to lobby for stricter laws and longer sentences.

The two largest private prison companies are CoreCivic (formerly Corrections Corp) and GEO Group (formerly Wackenhut Corrections Corporation). These companies are aware of some of the poor perceptions associated with them in both state and federal governments. Hence, their websites (https://www.corecivic.com/ for CoreCivic and https://www.geogroup.com/ for GEO Group, both accessed on May 1, 2020) address the importance of community engagement, noninvolvement in government decision making with respect to criminal justice, quality programs, and policies to reduce recidivism. A portion of the Geo Group web page addresses the importance of not engaging in political activity in criminal justice:

GEO does not take a position on or advocate for or against criminal justice and immigration policy related to criminalizing certain behaviors, determining the length of criminal sentences, or immigration enforcement policies. (https://www.geogroup.com/Political -Engagement, accessed on May 1, 2020)

This policy as noted in the above quote tends to contradict some of the past actions by these private companies. For example, CoreCivic and GEO Group have both opposed several bills in the past similar to the 2005 bill sponsored by Senator Ted Strickland involving the requirement that private prisons holding federal prisoners comply with the Freedom of Information Act (Pauley, 2016).

Democrats vs. Republicans with Respect to Privatization

There is certainly much disagreement between Democrats and Republicans with respect to private prisons. Much of the disagreement stems from the evaluation on the quality side of the issue, with respect to medical care, and most specifically with respect to medical care at immigration detention centers. For example, during the campaign for the 2016 Democratic presidential nomination, Bernie Sanders pledged to ban contracts to private entities for the operation of all federal, state, and local prisons. Hillary Clinton pledged to do something similar for immigration detention centers (Hing, 2016). It should also be noted here that in addition to the immigration detention centers, a large percentage of the incarcerated held in private prisons in general are undocumented immigrants (Gaes, 2019).

During the campaign for the 2020 Democratic presidential nomination, Elizabeth Warren proposed the elimination of the use of private companies at the federal level, while several of her competitors proposed restrictions on private companies. On the other hand, during the first two and one-half years of Donald Trump’s presidency, the United States Immigration and Customs Enforcement (ICE) awarded $480 million and $331 million, respectively, to the two private companies mentioned above for the operation of immigration detention centers (Layne, 2019).

The Literature on Private vs. Public Prisons

Articles from the literature comparing public prisons and private prisons provide an overall picture that is inconclusive. The comparisons are often difficult because (1) private prisons often have restrictions on who they accept as inmates, (2) operational aspects of private prisons are often not transparent, (3) studies often do not control for factors such as capacity and age of the facility (Perrone and Pratt, 2003), and (4) prisoners can often spend time in both public and private facilities (Spivak and Sharp, 2008) during their incarceration.

Each of these published articles could be placed into one of three categories: studies involving the comparison of public and private prisons, reviews of these studies, and reviews of the reviews. For example, with respect to the second category (reviews), there are the articles by Pratt and Maahs (1999), Segal and Moore (2002), Volokh (2002), Perrone and Pratt (2003), Volokh (2013), and Pratt (2019).

A recent study of El Sayed et al (2020) concluded that there was little difference between the rates of misconduct in public and private prisons in Texas, except for the fact that prisoners in private facilities were 10% less likely to engage in severe violence as compared to those in public facilities.

In a study done in the state of Florida, Lanza-Kaduce et al (1999) determined that private prisons had lower rates of recidivism than public prisons.

Pratt and Maahs (1999) analyzed 33 cost-effectiveness evaluations of public and private prisons from 24 independent studies. They determined that there was not much difference in cost-effectiveness between public and private prisons, and that facility characteristics such as age, economy of scale, and security level were the strongest predictors of a prison’s cost.

Segal and Moore (2002) reviewed 28 studies, including many of the same ones as Perrone and Pratt (2003). They determined that 22 of the 28 studies concluded that there were significant cost savings associated with private prisons; these private prisons were judged to be 3.5%-17% less costly than public prisons. They also concluded that private prisons provide at least the same level of quality as public prisons. As noted by Perrone and Pratt the analysis on the quality side of performance by Segal and Moore was not as rigorous as that on the cost side.

Volokh (2002) concluded that private prisons outperformed public prisons on both cost and quality dimensions. In a later publication, discussed below, Volokh (2013) modified his conclusion on the quality dimension.

Perrone and Pratt (2003) reviewed nine studies on seven different performance measures or domains, for a total of 63 combinations. They determined that private prisons surpassed public prisons on 17 of the comparisons, public prisons surpassed private prisons on 6 of the comparisons, while the remaining 40 comparisons were inconclusive with respect to producing a winner. It is difficult to make an evaluation here because, obviously, some of the 63 combinations would be more important than others.

Volokh (2013) determined that there was no strong evidence to determine that either side, private or public, performed better than the other with respect to the quality measure. One of the important features of Volokh’s work was a detailed breakdown of the various sub-measures of quality; another important attribute of Volokh’s paper was a discussion of how a private organization could manipulate (or game) some of these sub-measures so that their prisons would appear to perform better than they actually did. For example, a prison can have prisoners released in areas where policing is weak, thereby resulting in better measures of recidivism.

Pratt (2019) reviewed the literature on cost-benefit analysis with respect to privatized corrections. He noted the limited role that this type of analysis has on policy discussions.

One of the most comprehensive reviews of the literature in the comparison of public and private prisons is provided by Gaes (2019). Some of his major conclusions include the following: (1) the costs and quality of privately operated prisons are about equal to that for publicly operated prisons, although evidence for this conclusion is not strong, owing at least in part to the lack of good studies in the area; (2) private facilities seem to have a record worse than public facilities when it comes to recidivism; (3) there is no corroboration that privatization of prisons was a cause for the growth in incarceration in general that crested in 2009; and (4) the relevant jurisdiction needs to closely monitor private prisons, especially for those actions, programs, and policies corresponding to the quality of the service provided. The types of services that should be monitored include health care, safety/security, food services, educational services, and rehabilitation programs.

Gaes focused on two primary dimensions in his work: cost and quality. For the primary justification for the first conclusion listed in the previous paragraph, he studied five reviews from the literature. In three of these reviews, the authors concluded that there were no basic differences in either cost or quality between public and private prisons, while in two of the reviews, the authors concluded that private prisons operate at a much lower cost, but at similar quality as public prisons.

Although it was thought at one time that the advent of competition from privatization of the prison industry would result in lower costs in the public sector, there is little evidence of this actually occurring (Burkhardt, 2017 and Blumstein, Cohen, and

Seth, 2007). This lack of competition is indicated by the fact that most prisoners incarcerated in private prisons are incarcerated in prisons operated by one of only two companies mentioned earlier: CoreCivic and the Geo Group.

The evidence so far suggests that private prisons are not appreciably better or worse than public prisons. Moreover, valid studies of the subject area are difficult to accomplish for several reasons:

• • Controlling for type of prisoner is extremely difficult, especially since prisoners can be moved from one facility to another, and private prisons can often decide whether to accept certain types of prisoners,
• • Whereas cost is difficult to measure in and of itself, the measurement of quality is even more so because of its various dimensions, many of which are subjective in nature; in fact, Volokh (2013) notes that “good quality measures are rarely used” in the study of prisons. In addition, to provide an overall rating to a prison, one must consider the trade-offs between cost and quality.
• • Many studies do not address recidivism since it occurs after the fact of imprisonment. Recidivism could easily be thought of as the most important measure of “quality”; however, it should be thought of as an output measure. Instead, the various studies would tend to measure inputs for quality, such as the number of prisoners to be involved in rehabilitation programs.

For additional literature involving the comparison of public and private prisons, see Lombardo (2014) and Lundahl et al (2009).

In the following illustrative example we address the second issue discussed above, the difficult nature of the measurement of quality and the trade-offs between cost and quality through the hypothetical assessment of a multiattribute value function over attributes which represent the various measures of cost and quality.

Such a multiattribute value function could be employed in either or both of at least two ways:

(1) in the evaluation of proposals submitted by private companies, such as CoreCivic and the GEO group, for the development and operation of federal or state prisons or (2) in the comparison of private and public prisons. An example of the type of information that would be required from a private company from a state such as Florida is given in Florida State Bill 238 (FL S.B. 238, 2012).