Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
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197402ZU34
ppi 201502ZU4645
Vol.40 N° 72
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Junio
2022
Recibido el 15/10/2021 Aceptado el 26/12/2021
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
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avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
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Pe rio di cals Di rec tory, EBS CO. Se en cuen tra acre di ta da al Re gis tro de Pu bli ca cio-
nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
Di rec to ra
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OIRALITH
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Vol. 39, Nº 71 (2021), 630-655
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Criminal Policy of Iran and USA about
Private Sector’s Involvement in Prisons
DOI: https://doi.org/10.46398/cuestpol.4072.37
Seyed Reza Ehsanpour *
Majid Bahmani **
Abstract
This article uses a descriptive-analytical research method to
investigate prison privatization models and their shortcomings,
to explore the positions of the United States and Iran on the
matter and thus nd answers to the following questions: Is
the participation of the private sector in prison advisable? Is
management possible under the laws of Iran and the United
States? Is this participation consistent with the fundamental
objectives of criminal law? In which of these two countries, can
the participation of the private sector in prison management be
optimally enforced? Despite the absence of legal regulations in
Iran on the participation of the private sector in prison administration, the
private sector entered the prison administration system since 1994. It is
concluded that the studies carried out show that the participation of the
private sector in prison management occurs qualitatively and quantitatively
at a higher level in the United States than in Iran, due to the promulgation of
legal provisions that create the conditions for this purpose in that country,
among other political factors, cultural and legal.
Keywords: privatization of prisons; prison; execution of punishments;
prison management; private prison.
* Assistant Professor, Department of Law, University of Shahed, Tehran, Iran. ORCID ID: https://orcid.
org/0000-0001-9135-3968
** PhD,Criminal Department of Law, Sari branch, Islamic Azad University, Sari, Iran. ORCID ID: https://
orcid.org/0000-0002-9739-1495
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CUESTIONES POLÍTICAS
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Política criminal de Irán y Estados Unidos sobre la
participación del sector privado en las cárceles
Resumen
El presente artículo utiliza un método de investigación descriptivo-
analítico para investigar los modelos de privatización carcelaria y sus
deciencias, con el n de explorar las posturas de Estados Unidos e Irán
al respecto y así encontrar respuestas a las siguientes preguntas: ¿La
participación del sector privado en la prisión es recomendable? ¿La gestión
es posible según lo dispuesto en las leyes de Irán y Estados Unidos? ¿Es
esta participación coherente con los objetivos fundamentales del derecho
penal? ¿En cuál de estos dos países, la participación del sector privado en
la gestión penitenciaria se puede hacer cumplir de manera óptima? A pesar
de la ausencia de regulaciones legales en Irán sobre la participación del
sector privado en la administración penitenciaria, el sector privado ingresó
al sistema de administración penitenciaria desde 1994. Se concluye que los
estudios realizados demuestran que la participación del sector privado en
la gestión penitenciaria se da cualitativa y cuantitativamente en un nivel
más alto en los Estados Unidos que en Irán, debido a la promulgación de
disposiciones legales que crean las condiciones para tal n es ese país, entre
otros factores políticos, culturales y jurídicos.
Palabras clave: privatización de las prisiones; prisión; ejecución de
castigos; gestión penitenciaria; prisión privada.
Introduction
Criminal justice is the process within which the government reacts to
the criminal behaviors for supporting the society, enhancing the quality
and level of justice and punishing the criminals. This process has numerous
stages such as crime discovery, indictment and pursuit, investigation, trial
and verdict issuance, punishment determination, appeal and sentence
enforcement.
Privatization means delegation of aairs to the private sector. The
private sector’s involvement in its apparent form is a process in the course
of which the public sector’s duties and installations are transferred at every
level to the private sector but privatization, in its real sense, refers to the
cultural promulgation in all society levels by which the executive, judicature
and legislature branches and all individuals of the country believe that the
people should be assigned to their own tasks (Rahimi Borujerdi, 2006).
Criminal justice trend can be investigated and researched in two temporal
cross-sections of serving justice amongst the tribes and serving justice
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Seyed Reza Ehsanpour y Majid Bahmani
Criminal Policy of Iran and USA about Private Sector’s Involvement in Prisons
amongst the territories in macro-level in primitive communities in which
such concepts as the public expediencies, government and the other public
institutions were absent and such other concepts as crime, punishment and
justice enforcement were envisioned as completely private. In these epochs
of history, all of the stages of penal sentence enforcement were carried out
by the private sector for the fact that there were no governments. At present,
tribes (nongovernmental sector) administrate criminal justice in some of
the countries like Myanmar and even punishments like death penalty are
executed by the private sector (Sane’ei, 1983).
It was with the formation of the governments that the government
proctored the provision of security and, in fact, the provision of security,
was transformed to manifestation of the governments’ enforcement of their
rule of law and, due to the same reason, criminal justice became associated
with public order and national governance.
However, in the recent decades, the new attitude to the national
governance is interested in people’s participation in the administration of
the society more than before because elevation of the people’s participation
enables winning of their trust and brings credibility and legitimacy for
a government and eases the serving of justice and the today’s attitudes
towards such concepts as the people and the people-driven organizations,
on the one hand, and the government’s inability in dealing with various
kinds of delinquencies, especially from the executive perspectives, on
the other hand, have accentuated the role of the coherent people-driven
institutions more than ever before (Añez Castillo, 2017).
This is why the inclinations have been increased to the semi-formal or
private institutions parallel to overcoming of the shortfalls existent in the
formal systems of many of the countries as well as towards the corroboration
and organization of procedures outside the formal institutions for
suppressing crimes and/or enforcing the penal sentences.
1. Materials and Methods
Our method in conducting this research is descriptive-analytical. The
method of collecting the required information was taking notes from library
resources as well as Internet resources.
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2. Discussion
2.1. Private Sector’s Involvement in Prison Management: In
Iran’s Law
Real privatization comes about when the legislature, judicature and
executive branch and all of the society members come to the belief that the
people should be assigned to their own tasks (Rahimi Borujerdi, 2006).
With regard to the background of privatization in Iran before the victory
of Islamic Revolution, numerous ideas have been expressed. Some believe
that:
Privatization process has been commenced in Iran before the revolution
during the years from 1951 to 1971 and the number of the private companies has
been increasing during these years and that many of the activities that were being
performed by the government during the past decades, have been delegated to the
private sector (Kalanfarnia’ei, 2017: 26).
Some others are of the belief that “enforcement of the privatization
programs has been initiated in Iran before the Islamic Revolution since 1961.
The delegation of shares to the workers and sharing of the factories’ interests
with them have been amongst the steps taken during that period of time as
a social correction. In this stage, the government’s economic activities that
had been expanded in the light of the rst Pahlavi government’s programs,
underwent severe reduction and the private sector’s share of economy was
intensively increased (Nobakht, 1999).
The investigation of our country’s penal regulations before the Islamic
Revolution, including the law on the general punishment passed in 1955,
the law on the principles of forming justice department passed in 1950, the
law on the principles of penal courts passed in 1951, the law on conditional
releasing of the prisoners passed in 1958, the law on the security and
instructive interventions passed in 1960, the law on the suspension of
the punishment enforcement passed in 1967, the law on the general
punishment passed in 1973 and others, indicate that the issue of the private
sector’s management of the prisons and enforcement of the imprisonment
sentences has not been predicted in the rules and regulations before the
Islamic Revolution.
In the years after the victory of the Islamic Revolution, the country’s
conditions went on so that3 the government was incumbently obliged to
shoulder the ownership and management of a major part of the country’s
industry and economy. Corresponding to the Act 44 of the constitution, as
3 It means conditions stemming from the occurrence of Iraq’s imposed war on Iran that was commenced
since 1980.
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Criminal Policy of Iran and USA about Private Sector’s Involvement in Prisons
well, the government was once again compelled to play the essential and
pivotal role in this area. In the years after the imposed war and in line with
development programs, privatization was again taken into account since
1989 in the budget program’s verdicts and regulations.
The approval of the law on the rst economic, social and cultural plan
of Islamic Republic of Iran at 02/11/1989 and the law on the method of
delegating the governmental shares belonging to the war devotees and
laborers at 08/12/1994 signify the government’s will for enforcing the
privatization programs.
After the enactment of the third and the fourth development plans,
privatization program was more seriously pursued4. In the next stage, it
was with the enactment and announcement of the general policies of the
Act 44 of the constitution that privatization was recognized as one of the
most important economic programs of the government. The law on the
enforcement of the general policies of Act 44 of the constitution that was
approved at 02/08/2008 can be realized as a comprehensive and perpetual
law about the privatization that classied and authorized all the previous
scattered regulations.
In the area of the penal law, the executive by-law of the organization
of prisons and the security and instructive interventions, passed in 2005,
constituted the rst text that explicitly pointed to the possibility of the
private sector’s involvement in some of the jail guarding services. Articles
13 and 15 of the aforementioned procedures pointed to the private sector’s
involvement in the employment and/or apprenticeship of the individuals
sentenced to imprisonment.
Although the private sector’s involvement in prison management during
the years after the Islamic Revolution has not been explicitly pointed out,
it has been implemented in practice. As the proctor of the administration
of the prison aairs, the judicature has issued the order for privatization
about two prisons and it has also signed contracts in this regard. At rst, it
was in 1974 that the order was issued for involvement in the management
of the private sector in Vakil Abad Prison in Mashhad. After that and within
nearly three years, administration of the following sections was delegated
to the private sector but the general management of the prisons was still
tenured by the government.
Prison’s hospital, prisons’ penal sentence enforcement oce, statistics
and computer information registration and recording, cultural services,
instruction and counseling of the prisoners and unarmed guarding in the
interior aairs of the prison were amongst the sections the administration
4 In the fourth development plant, emphasis has been made on the idea that the government is allowed
in line with empowering the nongovernmental sector and facilitation of the privatization process to
make use of all the possible methods.
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of which was delegated to the private sector (Shams, 2002). In the early
years of the privatization of Vakil Abad Prison, much opposition were
posited. But, the statistics signify the optimum performance of the private
sector in this area in such a way that despite the considerable reduction
in the administrative personnel and reduction in the costs, the speed and
accuracy in performing the prison aairs were increased and the statistics
of the prisoners’ violations were reduced at the same time.
The second experience of our country’s penal law was management of
the prison in Adel Abad, Shiraz, by the private sector. The contract that had
been signed for management of Adel Abad Prison was in such a way that the
major current and managerial duties of the prison’s management had to be
delegated to the private sector within a year and it had been stipulated in
the meantime that certain mechanisms were to be taken into consideration
for the government’s supervision and assessment of the private sector’s
performance (Vanaki et al., 2021).
In this contract, the computer aairs, enforcement of the penal
sentences, all of the issues related to the inmates’ rights and protection of
the prisoners inside the wards had been given to the private sector. In case
of the private sector’s success in Adel Abad Prison, the delegation of jailing
system of the whole country to the private sector was deemed likely but the
privatization plan of Adel Abad Prison was a failure and caused creation
of ambiguities and doubts regarding the successful presence of the private
sector in the jailing system.
In spite of the fact that there is no limitation for the private sector’s
management of the prisons as specied in the current rules and regulations,
it is necessary considering the benets of enforcing privatization regulations
in incarceration enforcement (including the reduction in the government’s
costs, improvement of eciency and control and reduction of the crime
perpetration statistics) for our country’s legislator to perceive this necessity
like many of the advanced countries and take serious measures in this
regard via enacting a comprehensive and specialized law so as to set the
ground for the better involvement of the private sector in the enforcement
of the penal sentences.
As an example, out country’s legislator stipulates in article 176 of the
law on the criminal trial procedures, passed in 2013, that “the judicature
can delegate the delivery of the judicial writs to the private sectors”. But,
such explicitness is not seen regarding the private sector’s involvement in
prison management. Furthermore, the imprisonment alternatives (subject
of article 64 and its subsequent articles in the Islamic Penal Code of Law)
are somehow indicative of hiring of the private sector in the jailing system.
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Criminal Policy of Iran and USA about Private Sector’s Involvement in Prisons
2.2. In the Law of the US
The subject of the private sector’s involvement in the management of
prisons in the USA has been more outstanding than any other topic. Thus,
the issue is investigated in two separate paragraphs. The rst paragraph
deals with pre-Punitiveness period and the second paragraph is pertinent
to post-Punitiveness period.
2.3. Pre-Punitiveness Period
The term “Punitiveness” means tendencies towards the punishment
and penalty. Literally, it means the criminal policy’s inclination towards
the revitalization of punishing and enforcement of punishment. Some of
the jurists believe that: “Punitiveness has become prevalent in some of
the countries including USA since 1960s and 1970s” (Mahmoudi Janaki &
Moradi Hasan, 2011).
The severe and serious increase in the crimes and atrocities in the 1960s
and 1970s drew the attention of the US government towards crime and its
control (Wollan, 1986). Due to the same reason, it has to be stated that the
US government has concentrated on the Punitiveness policy and exercising
strictness towards crime perpetration since 1980 (Ronald Reagan’s
presidency period in the USA).
The present paragraph aims at investigating the evolutions in the
private sector’s involvement in prison management in the US in the period
before Punitiveness, i.e. until before 1980. Earning income via enforcing
punishment in the US is not a newly emergent phenomenon in such
a way that the vast presence of the private sector in the enforcement of
imprisonment punishment can be witnessed in the 18th and 19th centuries.
The major reasons of privatization in that period pertain to the
insucient capacity of the public prisons and, more importantly, the
commercial interests of the private sector for using the workforce of the
inmates. As an example, amongst the southern states, Texas delegated the
administration of all its prisons to the private sector based on the convicts’
employment system since mid-1800s till early 1900s. At the same time,
prisoners were given on rent to the private camps for extraction of coal and
phosphorus in Florida. In 1884, the coal and iron company of Tennessee
State recruited all the prisoners of this state as miners (Thomas, 2006).
These contracts that had been predominantly signed within the format
of the convicts’ employment were cancelled in 1923 and the endorsement of
contract with private sector for the use of their workforce lost its commercial
potential due to the violation of the prisoners’ rights and, eventually, it was
completely eradicated in 1940. But, the presence of the private sector in
the area of oering services parallel to the correction and treatment of the
adolescents continued its activities (Yijia, 2010).
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The most major activities by the private sector in the US’s prisons
in the pre-Punitiveness era pertained to the adolescent wards of the
prisons. In 1976, a contract was signed in Pennsylvania for private sector’s
administrating of a safe treatment unit for violent crimes by the juvenile
delinquents. (Thomas, 2006).
2.4. Post-Punitiveness Period
One of the major challenges with which the US’ criminal justice system
faced during the recent decades, particularly after 1980, is the subject of the
excessive increase in the number of prisoners (criminals’ ination) in the
state prisons. The doubled increase in the number of the adult criminals
who had been sentenced to imprisonment by the state courts was per se
a testimony to this issue. Safeguarding the security and accommodation
of the large number of the prisoners caused an increase in the costs and
responsibilities of federal, state and local authorities.
Since 1980s, USA witnessed the frustration of the public thoughts due
to the failure of the criminal justice system in the implementation of the
criminals’ rehabilitation. In the meanwhile, the government’s reluctance
for supplying more budgets to the corrective institutions and the increase
in the need for prison space intensied the crisis. It was under such
conditions that the prisons’ privatization and endorsement of overall or
partial contracts with private sector for administrating the prison aairs
were posited as solutions for overcoming the crisis and it was welcomed in
practice (Austin & Coventry, 2001).
The major part of the contracts between the government and the
private sector for administrating the aairs of the US’ prisons since 1980
on was endorsed subject to the eect of two powerful factors: the rst
one is president Reagan’s announcement in the rst speech after election
that the government has encountered a problem and that the solution is
concentration on the private sector; the second one is that the USA had
placed very strict confrontation with the criminals atop of its agenda with
its emphasis on Punitiveness policy and this had caused this country to
have the highest rate of the prisons worldwide (Selman & Leighton, 2010).
The contracts signed between the government and the private sector
gradually became popular and the major part of the services inside the
prison was delegated to the private sector within several years after the
onset of privatization (Yijia, 2010).
During the years from 1980 to 1990, the prisons in the USA underwent
a large increase. At the same time with these changes, this general belief
was formed that if the private sector’s contractors can perform their
duties appropriately, the government’s cost in the jailing system would
be intensively reduced and, in the meanwhile, the service-oering quality
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Seyed Reza Ehsanpour y Majid Bahmani
Criminal Policy of Iran and USA about Private Sector’s Involvement in Prisons
would not suer. It was after this that many of the states publicized their
tendencies for getting the private sector involved in the enforcement of the
imprisonment punishments (Dolovich, 2005).
One of the most important reasons for agreement to the private sector’s
involvement in the enforcement of incarceration sentences pertains to the
reduction of the government costs. However, the preliminary privatization
business in 1980 did not arm such a claim. In 1990, Charles H. Logan, a
jurist and the author of the book “the penal law in the US”, asserted that
the prisons administrated by the private sector are not necessarily less
costly than the state-managed prisons. But, the results of the polls in 1990s
signied that the government’s costs have been reduced on average by
about 20% after the enforcement of the incarceration punishment (Thomas,
2006).
In 1987, the number of the state and federal prisoners reached 581.609
persons and this number was increased by about 76% in contrast to 1980;
however, the capacity of the prisons had not undergone any increase in
comparison to 1980. This caused the state and federal prisons to admit
prisoners between 105% and 120% and between 37% and 73% above their
maximum capacities in 1987 and 120000 state inmates were kept in local
custodies due to the shortage of detention places. The reason for this issue
was the lack of prison construction on the right time and the newness of
the private sector’s intervention in the enforcement of prison punishment
(Logan, 1990).
The presence and the intervention of the private sector in the US’
prisons were increased on a daily basis in such a way that 158 private
prisons were working in this country until 1998 according to the statistics.
Out of the foresaid number, 30 prisons were in Puerto Rico and the District
of Columbia, 43 prisons were in Texas, 24 prisons were in California, 10
prisons were in Florida and 9 prisons were in Colorado. The majority of
the private prisons were concentrated in the southern and western states
(Austin & Coventry, 2001). Based on the declared statistics, Texas and
California were amongst the pioneering states in the area of jailing system’s
privatization.
In 2013, at least 11 countries of the world had accepted and were
exercising the private sector’s involvement in the enforcement of the
imprisonment punishment. In this year, USA was keeping the largest
number of inmates in its private jails (Jacovetti, 2016). In 2016, 128.063
individuals were being kept in the private prisons of the USA. This number
was equivalent to 5.8% of the total number of state and federal prisoners
in this country. In addition, the comparison of the statistics from 2000 to
2016 signies a growth by 47% in the number of the prisoners in the private
prisons of the USA (Fact sheet, 2018).
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3. Prison Privatization Models and the Stances of Iran and the
USA’ Laws
3.1. American-English Model
Privatization process refers to a contract within which the responsibilities
and capital assets are generally or partially transferred from the public sector
to the private sector (Jacovetti, 2016). American-English privatization
model or the full privatization model points to the situation in which the
government delegates all its authorities to the private sector. This occurs
when the public sector has no advantage over the private sector; on the
other hand, there is no way other than perfect delegation for improving the
eciency.
In the full privatization model, the criminal justice management
is transferred in all of the stages from the initial investigations to the
enforcement of the sentences thoroughly to the private sector and the
government only reserves the right of supervising the private sector for
itself (Yijia, 2010).
Prison privatization based on American-English Model means complete
delegation of all the sentence enforcement authorities to the private
sector. For example, in the discussion on the prison privatization, all of
the government’s authorities even those related to the management and
security of the prisons are delegated to the private sector. Of course, this
does not mean the deprivation of the government of its right for supervising
the private sector rather the government still reserves the right to supervise
the performance of the private sector.
USA, England, Australia and New Zealand are amongst the countries
taking advantage of the full prison privatization method (Matheus & Francis,
2002). According to the fact that the government’s right of supervising
the private sector still persists in this model, some jurists believe that this
privatization model cannot be considered as full privatization (Lippke,
1997). But, it has to be stated in response to this belief that the privatization
model from which the government’s supervision is completely removed
does not essentially exist. full privatization or the American-English Model
includes three methods in all of which management and security aairs are
delegated to the private sector. These three methods are the followings:
extensive prison privatization, prisoner export and special prisons.
In the extensive privatization method, as it is understood from the
name, the private sector is granted the most and the highest authorities for
managing the prisons. The prisoner export method or bed renting method
is applied in states that are not permitted to enforce extensive privatization
regulations and they can only send their prisoners to states wherein the
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Seyed Reza Ehsanpour y Majid Bahmani
Criminal Policy of Iran and USA about Private Sector’s Involvement in Prisons
extensive privatization is being implemented based on this method. This
type of privatization was declared forbidden after a while due to the double
pain (deprivation of visitation right and being away from the living place) it
imposes to the prisoners (McDonald & Patten, 2004).
In Spec private prison, the private sector seminally constructs prisons
and they are owned by the private sector. Then, the management, security
and generally all prison-related aairs’ delegation contract is signed
between the private sector and the government (Hording, 2001).
3.2. The French Model
Unlike the American-English Model, the French privatization model
does not mean perfect delegation of all the authorities to the private sector
rather, in this model, prison management is still owned by the government
but the logistics and non-managerial aairs, including the intra-prison
services, can be delegated to the private sector.
The plan for creation of private prisons has been taken into account
since 1986 in France. The law passed on 23rd of June, 1987, allows the
government to assign the private sector to designing, map drawing and
construction of the prisons. But, issues like convicts’ punishment right and
penalty enforcement are still exclusively in possession of the government.
The public thoughts also conrm the inherent nature of the government’s
right for determining and enforcing punishment and consider it consistent
with the principles governing a political society. In fact, the government
guarantees the establishment of justice to the name and on behalf of all the
people from a country. Based on this mindset, there is a very strong and
unbreakable relationship between the government and the punishment
enforcement. Thus, the reactions to the criminal behavior that have been
specied outside the predetermined framework by the government cannot
be accepted as the punishment enforcement (Mehra & Yekrangi, 2012).
In the French privatization model, the managerial duties of the
government cannot be delegated to the private sector. After the enactment
and operationalization of the law that had been passed on 23rd of June,
1987, it was stipulated that 21 new prisons should be constructed in various
geographical regions in France and that administration of some parts inside
the prison should be given to the private sector.
The aforesaid law had issued the permission for delegation of only 40%
of the jobs and positions in the prisons to the private sector. The jobs and
positions that could be delegated were secretary, kitchen, cleaning and
education duties. Considering the fact that the duty of safeguarding the
security of prison and taking care of the inmates was still to be shouldered
by the government, the prisons that were administrated in this style could
be termed “semi-private prisons” (Bullock, 2012).
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Corresponding to the paragraph 12 of the rule 54 in the minimum
standard regulations of the European Council regarding the method of
treating the prisoners, the prison’s sta members should be regularly and
permanently installed under the title of professional employees and they
should be under the employment of the government.
The term “regularly” implies that the nongovernmental employees
can be members of the prison sta only exceptionally. This exception can
include delegation of the management of all the prisons to the private
sector. But, hiring the private sector for the service area’s aairs is devoid of
fault. Thus, the French privatization model is in accordance to the human
right regulations (Matheus & Francis, 2002).
3.3. Intermediate Model
The intermediate prison privatization model is a combination of the two
previously mentioned models, i.e. American-English Privatization Model
and French Model. It was explained in the rst and second paragraphs
that the private sector is assigned to prison management or security and
consequently all the intra-prison services in American-English or full
privatization models.
French privatization model recounted as partial prison privatization
indicates a state wherein the aairs related to management are performed
by the government but the intra-prison services can be delegated to the
private sector. The intermediate model is a mixture of the two foresaid
models in such a way that the management aairs are conducted by the
private sector and the government shoulders safeguarding of the prison’s
security. In other words, in the intermediate or combined model, the entire
prison aairs (except the preservation of security that is shouldered by the
government and the governmental institutions) can be transferred to the
private sector.
3.4. Prison Privatization Model in the Law of Iran and the USA
This chapter explores the privatization model accepted in the law of Iran
and the USA. As an undeniable truth, it has to be stated that establishment
of prison and detention centers for keeping the culprits and convicts
happened earlier than the specication of law in the US and it dates back to
about a century ago.
But, regarding the private sector’s intervention in the enforcement of
the imprisonment sentences and jailing system, although Iran’s judicature
and legislature have not overlooked the issue, it has to be asserted that the
privatization history in the US is reective of the idea that this country has
valuable and practical experiences about the private sector’s participation in
jailing system but Iran’s legal system is in the beginning of the privatization
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path. Thus, the study of the experiences by the US’s legal system can be a
good guide for our country’s jurists in selecting the most appropriate model
for allowing the private sector’s involvement in the enforcement of the
penal sentences, particularly prison punishment.
3.5. In the Law of the US
In the US, the private sector began its activities from the juvenile wards.
According to the census in 1974 in the USA, 41% of the adolescent population
of this country, i.e. 37749 youths, was kept in 1300 private institutions
as criminals. In the interval between 1975 and 1989, the private sector’s
intervention in keeping the juvenile delinquents underwent an increase by
70% (McDonald, 1992). The new round of the private sector’s intervention
in the jailing system of the adults was started from 1980.
Some American jurists believed that the USA has not implemented a
full prison privatization model and that the government is involved in the
control of jailing system. But, the fact of the matter is that like what has
happened in the US’ area of economy, the US’ legal system has accepted the
full privatization (American-English) pattern from the very beginning and
delegated the management and security of its prisons to the private sector
and it has only reserved the supervision right for itself (Lippke, 1997).
The rst wave of privatization in the USA was started since 1825 in the
form of the traditional privatization of the prisons (convicts’ renting). In
this system, the private sector exploited the prisoners but the government
disagreed to the personal use of the convicts’ workforce. Following the
extensive protests by the general public and the political groups, the
convicts’ renting system was annulled in 1923.
The second wave of the prisons’ privatization in the US began since
1980. In this period, the majority of the contractors in executing the prison
privatization plan were non-for-prot companies. But, at the same time,
various levels of the government, as well, attended this commercial market.
In federal level, privatization was commenced with the opening of Huston’s
rehabilitation center by Corrections Corporation of America (CCA) (Yijia,
2010). Modern private prisons largely dier from their traditional samples.
In 1984, a contract was signed between the private sector and the
government based on which the private sector was assigned to the intra-
prison services (French or semi-private model) but the full administration
of the prison’s aairs was delegated later on to the private sector in the
majority of the contrasts signed between it and the government (full
privatization or American-English Model).
In 1990s, the private sector’s intervention in the US’s prison underwent
a considerable increase. In the interval between 1995 and 2000, about
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three fourth of the USA’s prisons had become privatized. During these
years, the private sector shouldered various duties, including supply of the
nancial resources and construction and exploitation of the prison (Spec
Privatization model which is a subcategory of the full privatization pattern).
The privatization experience in the USA indicates that the private
sector has been confronted with some problems in a few cases. In 2009,
the prisoners instigated a riot in the private prison of Reeves District in
Texas’s center and destroyed parts of the prison; one person was killed and
the prisoners announced their dissatisfaction about the healthcare status
(Selman & Leighton, 2010).
Riot in a prison that was managed by private sector based on a full
privatization contract convinced the USA’s state ocials that they should
exert a higher and more exact supervision on the performance of the private
sector.
3.6. In Iran’s Law
Private sector’s involvement in the enforcement of imprisonment
punishment in Iran can be found in a case-specic manner and for a few
cases, as for the history and evolutions of prisons during the recent century
in Iran, it has to be stated that: “The formation charter of the prisons
and detention centers and the duties of their agents and employees” was
enacted in 1928 by the board of ministers and Qasr Prison was established
in 1929 as the rst Iranian prison. This prison was the only prison existent
in Tehran till 1960s (before the construction of Evin). Before the victory of
Islamic Revolution in Iran, the prisons’ administration was in the hands of
the general police oce.
After the victory of Islamic Revolution in 1979, the administration of
the prisons was given to the ministry of justice. In 1985, the organization
of prisons was substituted for the prisons’ proctorship council. Finally,
since 1993, the organization of prisons was transferred to the head of the
judicature.
The study in the historical trend of delegating the prisons’ administration
between the aforementioned institutions is important in that it shows that
the prisons’ administration can be even delegated to the private sector
in Iran. Two decades after the victory of Islamic Revolution, the increase
in the number of prisons and reduction in the service levels, shortage of
free space in the prisons and the number of the agents and the facilities’
shortfalls made Iran’s judicial ocials become inclined towards the prison
privatization.
The rst privatization experience occurred in 1994 in Iran. In this
year, parts of Mashhad’s Vakil Abad prison were delegated to the private
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sector for three years. The administration of the prison’s hospital,
judicial sentences’ enforcement oce, kitchen, recording of the statistics
and computer information, cultural services, prisoners’ instruction,
psychological counseling services and healthcare and unarmed guarding
services within the interior shells of the prison were amongst the aairs the
tenures of which were delegated to the private sector in Vakil Abad Prison
(Shams, 2002).
Considering the aforesaid explanations, Vakil Abad Prison was delegated
based on semi-private (French) model. In the contract, the private sector was
assigned to logistic services and the government reserved the management
and safeguarding the security of the prison for itself. The privatization
program of this prison was implemented successfully. Oering of the
services in this prison was improved and the prisoners’ welfare level was
elevated. In addition, the number of the oce workers was considerably
reduced in the sentence enforcement section but simultaneously the speed
and accuracy of the nished tasks were improved.
The second privatization experience occurred in 2005 in our country.
In this year, a major part of Adel Abad Prison in Shiraz was delegated to
private sector. This prison’s privatization was conducted based on full
privatization (American-English) model.
Unlike the rst privatization experience, the privatization contract of
Adel Abad Prison encountered failure due to the study weaknesses and non-
performance of comprehensive research. Of course, it has to be noted that
the successful privatization experience based on French Model (Vakil Abad
Prison in Mashhad) and/or unsuccessful experience of the privatization
program based on American-English Model or even intermediate model
(Adel Abad Prison in Shiraz) does not mean the ineciency of the two
aforementioned privatization model rather the experiences by the other
countries bring testimony to the idea that even American-English or
intermediate models can be successful and have positive outcomes. In other
words, the success or failure of each of these three privatization model in
any country depends on the expediencies of its domestic law.
Thus, it is necessary to perform precise studies regarding the structure
of the domestic law and their expediencies before entering contract with
the private sector so that trial and error and contingent unsuccessful
experiences can be prevented in future.
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4. Shortcomings of the Prison Privatization in the Penal
Sentences Enforcement
4.1. The Fundamental Goal Dierences between the Private and
State Prisons
Amongst the objections put forth by the opponents of private sector’s
involvement in jailing system, the fundamental goal dierences between
the private and state prisons can be pointed out. The opponents of the
privatization believe that the private sector is essentially seeking for prot
and interest and the punishment enforcement is only a means of achieving
such a goal as earning money.
The opponents of privatization state that the acquisition of prot is the
most important priority of the private sector and this causes the negligence
of the government’s programs that are set with social and political goals
(Ta’ati, 1992). Some others believe that privatization of incarceration
enforcement is an ineective strategy contradicting the public expediencies
and interests and opposite to the strategic principles of the penal law and
against the essential rights of every member of the society (Naja Abrand
Abadi & Zare’e Mehrjerdi, 1992).
In other words, the private sector’s goal is summarized in economic
interests but the government’s goal of enforcing punishment is a lot more
dierent than that of the private sector for it incorporates issues like
punishing, correcting and treating, restoration of the social order and so
forth.
The opponents of the private sector’s involvement in the incarceration
enforcement believe that many of the private companies in the USA use the
prisoners’ workforce for acquiring economic prot. These companies claim
that the use of the prisoners’ workforce serves instructing occupations to
them but the abundant nancial interests that can be obtained from the use
of prisoners’ workforce in the private sector proves the opposite of this claim
(Ntsobi, 2005). On the other hand, the evidence signies that prisoners are
forced to labor and receive no wage in some states, including Texas.
In the other states, as well, the wages are very trivial and less than the
minimum work wage in the US. About 25% of the federal convicts are sent
to factories that pay them a wage ranging between 23 cents and 1.5 dollars
per hour. This wage is a lot lower than the minimum wage in the US (Rasuli,
2005).
Criticism to the fundamental goal dierences between the private
and state prisons has also caused concerns in Iran’s penal code of law. It
is evident that judicature is meant by government in the criminal justice
section and crime trial process. According to the contents of Islamic
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Republic of Iran’s constitution, the judicature performs its actions through
the justice department’s courts that should be formed in adherence to the
Islamic regulations and they are responsible for resolving the lawsuits and
preserving the public’s rights and expanding and enforcing justice and
protecting the divine limits5.
They are also responsible for actualizing the following goals: trial
and issuance of sentences about the lawsuits, abuses and complaints,
revitalization of the public rights and expansion of justice and legitimate
freedoms, supervision on the proper enforcement of regulations, crime
discovery and pursuit and punishment and Ta’azir retribution of the
criminals and protection of the limits and enforcement of the codied
Islamic regulations and taking proper measures for preventing the crime
perpetration by the criminals and correction of them6.
The nature of the judicial action regarding the correspondence of the general
regulations and the overall law with the special case of a lawsuit requires the judge
to issue a sentence in adherence to the law, judicial procedures, sentences by the
law scholars and legal and interpretation principles willingly or unwillingly. So,
the justice system’s intervention features the value of an independent and special
action and cannot be enumerated amongst the outcomes of the executive branch’s
measures or simple executive interventions. Additionally, it has to be stated that
the result of the judgement is sometimes the headline of the executive actions
(Qazi Shari’at Panahi, 2005: 39).
Based thereon, the opponents of punishment enforcement privatization,
especially prison privatization, believe that the private sector’s intervention
in the incarceration enforcement is not justiable. The opponents are of
the belief that the private sector is more thinking about acquiring nancial
interests and prots from punishment enforcement than seeking for the
actualization of the fundamental objectives stipulated in the constitution
and the other domestic penal regulations.
4.2. The Inherent Duty of the Government in Incarceration
Enforcement
Another objection posited by the opponents of the private sector’s
involvement in jailing system is the inherent nature of the government’s
duty of incarceration enforcement meaning that the government’s role
in enforcing punishment is an essential not accessory issue, i.e. no other
person has the right to specify and enforce punishment.
In the USA, some of the organizations and institutions are of the belief
that private sector is not permitted to enforce incarceration. They believe
5 Consult Act 61 of Islamic Republic of Iran’s Constitution.
6 Consult Act 156 of Islamic Republic of Iran’s Constitution.
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that the enforcement of incarceration is the government’s exclusive right
for it is considered as an example of governance and cannot be delegated
to others (private sector) (Van R, 1990). The opponents of incarceration
enforcement privatization in the US believe that the delegation of the
government’s exclusive right of punishment enforcement to the private
sector would cause reductions in the government’s authority.
Moreover, the administration of the prisons’ aairs and safeguarding
of the prisoners’ welfare and health are amongst the governments’ duties
that cannot be transferred to the private sector. The opponents of the
privatization believe that the prerequisite for requiring the government to
remain accountable about the issues related to the incarceration punishment
is the protection of the government’s responsibility and control over the
administration of the prison aairs. When the government delegates its
governance right (enforcement of incarceration) to the private sector, the
question can be raised as to how the government can be made committed
to the control over the prison’s order and security.
The order preservation should be also naturally excluded from the
government’s area of duties in case that its governance power is decreased
in administrating the prisons’ aairs. Furthermore, the opponents of the
privatization believe that the delegation of the government’s exclusive right
in enforcing incarceration to the private sector provides the managers,
agents and sta members of the private sector with vast judicial authorities
and enforce their own ideas regarding the length of incarceration and the
method and quality of the prisoners’ enjoyment of the legal privileges and
advantages (Wecnt, 1987).
4.3. Ambiguity in Eciency Elevation
Another objection proposed by the opponents of the private sector’s
intervention in the enforcement of the incarceration is the ambiguity
in eciency elevation after the private sector’s involvement in prison
management. The opponents of the privatization believe that the
enforcement of the privatization regulations in the process of penal
sentences’ enforcement, particularly incarceration, not only would lead to
no increase in eciency but it would also result in reduction in the quality
of the services oered by the private sector due to its eorts in line with cost
reduction.
The legislators of the countries, jurists and general public take into
consideration the utilitarian and non-utilitarian issues altogether in
regard of the private sector’s involvement in the punishment enforcement
and expect the private sector’s involvement in these areas to lead to the
elevation of eciency through cost reduction and, in the meanwhile, quality
enhancement. Undoubtedly, the increase in the eciency and quality of
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service oering after the private sector’s intervention is one of the most
important wants of the public wants. The governments have endorsed
contracts with the private sector by making promises for actualizing this
want (Carceral, 2006). But, the mere entering of a contract with the private
sector for intervening in the process of incarceration enforcement cannot
guarantee the eciency elevation in the privatized section.
One of the goals of privatization is creation of competition. Naturally, this
competition leads to the reduction in the costs. Assuming the nonexistence
of competition and motivation for acquiring prot, the governmental
services would be always constrained by bureaucratic actions and the
general public’s interests will not be supplied.
Unlike what has been proposed by the opponents of privatization, the
proponents of privatization believe that the creation of governmental
monopoly in oering public services would eventually cause the reduction
in the eciency and quality of service-providing due to the absence of
eective motivation. On the contrary, the market’s dynamicity brings about
an increase in the eciency and quality (Selman & Leighton, 2010).
The opponents of the privatization believe that even if it is accepted
that the private sector’s involvement in penal sentences enforcement
causes reduction in the government’s costs, these cost reductions would
not be necessarily accompanied by eciency increase. One of the concerns
proposed in this regard is the reduction in the quantity and quality of the
foodstu provided to the detainees of the private prisons and oering of
lower than standard services and instructions to them (Logan, 1990).
The opponents of the private sector’s involvement in penal sentences
enforcement process are of the belief that the governments are mostly
concentrated on the cost reduction in their discussions on privatization
and eciency elevation has been always neglected. The opponents of
privatization believe that the private sector reduces the number of social
workers in the prisons for acquiring higher prot and this causes the
occurrence of the following crises: increase in the number of escapes, riot,
nervous weakness and cardiac attacks in the detainees (Ntsobi, 2005).
In response to this criticism and objection and considering all the
reasoning by the opponents of privatization regarding the ambiguity in
eciency elevation after the private sector’s involvement in incarceration
enforcement, it can be asserted that the private sector’s eort for reducing
the costs would not always lead to the reduction in eciency and increase
in the quality of oered services.
Increase or reduction in eciency following privatization has nothing
to do with the privatization itself rather it is a function of the nature of the
contract concluded between the government and the private sector as well
as the government’s management and supervision of the aairs.
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If the governments solely seek cost reduction and go to extremes in this
regard, no elevation of eciency and decline in the quality of the services
oered by the private sector would be likely. Thus, the governments should
adopt the moderation and middle-way in signing contracts with the private
sector in such a way that the eciency and quality elevation of the oered
services should not be sacriced for the cost reductions.
In other words, although the reduction in the governmental costs is an
important issue, it should not be accompanied by consequences and costs
to the size of the eciency and quality reduction. One of the strategies
suggested in this regard is that the investigation of the private sector’s
contractors should be based on simultaneous consideration of both these
items, i.e. cost and interests. It is evident that the contracts signed with the
private sector solely based on the costs would not be deemed favorable.
On the other hand, the undeniable reality is that the state sector usually
does not show much of a motility and motivation in creating changes for
increasing the quality of services oered in the prisons. Conversely, the
private sector is more motivated to bring about changes for increasing the
quality and eciency. Unlike the government, the private sector has higher
output and eciency because it does not need administrative formalities
and formal agreements for putting its decisions into practice.
There are various solutions considered for guaranteeing the elevation of
eciency and qualitative development of the services oered by the private
sector in the private prisons. The followings are but some of these solutions:
1. preservation of competition and possibility of substituting the
service oering.
2. determination of clear-cut standards for ensuring the quality of
service oering.
3. investigation of the activities by the private sector and the personnel
busy cooperating with them through independent supervisors
(Benedict et al., 2009). “American Correctional Association (ACA)”
has enacted guidelines that enable the supervision and evaluation
of the quality indices for the private sector’s performance in
administrating the prisons.
One of the other important indices proposed in the USA for the
investigation and evaluation of the private sector’s performance in prison
administration is inquiring suggestions and criticisms from the individuals
detained in the private prisons (Yijia, 2010).
In Iran’s penal law, as well, in order for guaranteeing the eciency
and bringing about quality elevation in the services oered by the private
sector, the government should rstly concentrate on the endorsement of
comprehensive contracts with the private sector and explicitly specify the
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Criminal Policy of Iran and USA about Private Sector’s Involvement in Prisons
private sector’s requirements in line with elevating eciency and quality
so as to block the road to any excuse and justication for the private sector
and, secondly, it has to predict the required supervisory instruments for
having full appraisal of the private sector’s performance and prevent the
contingent violations of the contract signed between it and the private
sector.
4.4. Negligence of the Employees’ Rights
Another objection posited by the opponents of the private sector’s
involvement in the prison management pertains to the negligence of the
employees’ rights by the private sector. The opponents of the privatization
believe that the observance of the privatization regulations in the process
of penal sentences’ enforcement, especially incarceration, would cause
reductions in the salaries and benets of the private sector’s employees
even assuming the success in the performance of the assigned duties.
This may also be followed by other disadvantages, as well, because the
lack of motivation in the private sector’s workforce causes an increase in
the rates of intentions to leave and the private sector would be incumbently
forced to substitute its employees with new workforce that would
accordingly need more time to get adapted to the workplace conditions and
job descriptions of the assigned duties due to being naïve and this may bring
about declines in the performance of the private sector in the long run.
In the USA, the results of the investigation of the private prisons are
suggestive of the reality that the quality of the administration of such
prisons has undergone a tangible decline. One of the most important
reasons proposed for such a decrease is that the employees recruited by
the private sector receive lower salaries and benets as compared to the
government-employed sta. The reception of lower salaries and benets
has caused the reduction in the motivation of the workforce working in the
private sector and their refrainment from oering proper services.
The private sector has also become coerced to replace its unsatised
workforce with the new sta members who are predominantly inexperienced
and this intensies the reduction in the quality of the oered services
(Ntsobi, 2005). The low rate of the salaries and benets of the private
sector’s employees in the USA is natural.
In 2000, the average income of employees from private sector was
17 thousand dollars a year whereas their counterparts received about 23
thousand dollars per year, on average, under similar conditions in the state
sector.
By paying low salaries and benets to the employees, the private sector
was faced with another crisis called the increase in the rate of displacement
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that caused reduction in the workforce’s experience in the performance of
the assigned duties.
The statistics are suggestive of the considerable dierence in the
displacement rates of the employees in the private sector in contrast to the
state sector. The employees’ displacement rates in the private and state
sectors are 52% and 16%, respectively. It was declared in the course of the
researches performed in 2005 that the private prisons’ employees have less
than one year of work experience on average. These statistics were indicative
of work experiences below three months in the personnel responsible for
the security of the prisons.
It is evident that the constant dislocation of the employees recruited by
the private sector causes an increase in the coecient of the employees’
mistakes. This issue would be followed by the convicts’ dissatisfaction of
the punishment enforcement. For instance, this might result in riot and
disobedience of the prisoners in the private prisons (Coyle & Campbell,
2003).
Conclusions
The investigation of the evolutions in the private sector’s involvement
in prison management in the laws of US and Iran shows that the private
sector’s intervention in prison management is not so much old in the rules
and regulations of Iran as well as in the statutory provisions before the
Islamic Revolution. But, the possibility of the private sector’s participation
in some of the jailing services has been pointed out in the rules and
regulations after the Islamic Revolution, in the rules of procedures of the
prisons’ organization and the regulations on the security and instructive
measures passed in 2005.
Of course, years before the enactment of this procedure, the private
sector has been practically allowed to take part in the administration of
Vakil Abad Prison in Mashhad. Therefore, the intervention by the private
sector in the enforcement of the incarceration punishment has not been
prohibited in Iran’s penal code of law or, better said, it has been actually
undertaken. In the US law following Punitiveness, i.e. since 1980 on, the
criminal ination stemming from the extreme increase in the number of
the inmates caused the permitting of the private sector to enter the state
prisons of the USA.
In this period, the private sector obtained permission for constructing
new prisons, as well, and the majority of the states passed regulations related
to privatization. It was with the development in this trend that the private
sector’s involvement in the legal system of the USA is no longer restricted to
the incarceration enforcement and post-jail cares are also covered.
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By holding rehabilitation and socialization courses for the prisoners
after being released from the prison as well as via providing them with the
grounds of employment and acquiring income, the private sector plays
an eective role in preventing recidivism and the reentry into the prison
environment.
The investigations show that the private sector’s involvement in the
incarceration enforcement is not contradictory to the fundamental goals of
penal law but it does not mean the unconditional and absolute delegation
of the jailing aairs to the private sector rather the delegation should be
carried out case-specically and after exact and specialized studies.
In the USA’s penal law, there is not much of a problem for delegating
the prisons’ aairs to the private sector because the Federal government
and each of the states have approved special regulations for doing so and
set the proper grounds for the appropriate enforcement of the privatization
regulations. But, in Iran, due to the existence of the explicit legal orders
indicating the prison delegation to the private sector, some ambiguities
have come about in this regard.
Of course, the implementation of two cases of privatization in Vakil Abad
Prison of Mashhad and Adel Abad Prison of Shiraz caused the ambiguities
to be reduced a little and showed that the reasoning by the proponents of
the privatization regarding the possibility of private sector’s involvement in
the enforcement of the penal sentences has been correct.
It should be stated in conrming this idea that unlike the aairs related
to trial and discrepancy resolution are enumerated amongst the purely
judicial matters (inherent judicial aairs or specically judicial aairs) and
cannot be delegated to the private sector; prison delegation to the private
sector as an issue related to the organizations aliated with the judicature
and with the government and the judicature’s participation and tenure of
them not being necessary and essential seems to be devoid of any problem.
Bibliographic References
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¿Hacia la Transformación del Sistema Carcelario?” In: Cuestiones
Políticas. Vol. 32, No. 57, pp. 96-116.
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