Prisons, Commodification, & Privatization with Jonathan Peterson

In this episode, I – together with UVA Law 3Ls Ryan Fitzgerald and Mary Talkington -- interview Jonathan Peterson, an Associate Professor of Philosophy at Loyola New Orleans, about commodification and privatization in prisons. The paper we’re discussing is forthcoming in the Routledge Handbook on Commodification, edited by Elodie Bertrand and Vida Panitch. 

Jonathan’s research specializations are in philosophy of law and political philosophy. His current research focuses on political authority, social justice, criminal law, and punishment. 

Jonathan Peterson's webpage at Loyola New Orleans: http://cas.loyno.edu/philosophy/bios/jonathan-peterson 

Transcript

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[00:00] Kim Krawiec: We've been arguing about commodification in prisons for two weeks now. Great.

[00:06] Jonathan Peterson: Well, I'm excited to hear what you all have to have come up with.

[00:11] Kim Krawiec: Basically, they've come up with, Kim is wrong.

[00:19] Jonathan Peterson: Have to prove that, I guess.

[00:22] Kim Krawiec: I know. Hey, everybody. Welcome to the Taboo Trades podcast, a show about stuff we aren't supposed to sell, but do anyway. I'm your host, Kim Krabbik.

[00:37] Kim Krawiec: In this episode, I, together with UVA Law three L's ryan Fitzgerald and Mary talking to interview Jonathan Peterson, an associate professor of philosophy at Loyola New Orleans, about commodification and privatization in prisons. The paper we're discussing is forthcoming in the Rutledge Handbook on Commodification, edited by Eldie Bertrand and Vita Panic. I also have a chapter in the handbook, so naturally it's shaping up to be a great volume.

[01:07] Kim Krawiec: Haha.

[01:08] Kim Krawiec: Jonathan's research specializations are in philosophy of law and political philosophy. His current research focuses on political authority, social justice, criminal law, and punishment. Jonathan's paper is an important read for anyone interested in prisons, in part, but not only because he distinguishes commodification concerns from privatization concerns in a way that I have not seen in the literature and that I think is very valuable. As you'll hear, I've never found theoretical objections to either commodification or privatization in the prison context persuasive, though Jonathan has persuaded me that prison labor is particularly problematic in practice. As you'll see, we largely agree on the problems with prisons, but disagree on the extent to which those problems stem from commodification, as opposed to other wrongs, as well as on the extent to which these pathologies are fixable through a better system. The students agree with him, especially my cohosts, Ryan and Mary, so I'm all alone on this one. We hope you enjoy this episode, which is part one of our discussion with Jonathan Peterson.

[02:16] Kim Krawiec: I'm here chatting with my co host for Today, mary talking to Ryan Fitzgerald in advance of our interview with Jonathan Peterson, a professor of philosophy at Oil in New Orleans, who will be talking to us later this week about private prisons. So first, guys, introduce yourselves and say hi to our listeners.

[02:34] Mary Talkington: Hey, everyone. Mary Hopkinson, and I'm a three L here at UVA Law. I actually attended UVA for undergrad as well, so I'm a proud double who.

[02:42] Ryan Fitzgerald: I'm Ryan. It's Gerald. I'm also a three L. I went to the University of Notre Dame for undergrad, and I'm from the great state of California, so I've been out of state for quite a long time, but I'm making it back to the West Coast after I graduated in May.

[02:57] Kim Krawiec: You both specifically requested to be host for this episode. Tell us what it was about, the topic that made you want to do this one. Mary, why don't we start with you? I know you're interested in criminal law. I think you plan to be a prosecutor when you're done at UVA. Is that what attracted you to it?

[03:16] Mary Talkington: Yes, exactly. I'm very interested in criminal law. The past couple of summers I've interned at the Charles Silk Omwell's attorney's office and the DOJ organized crime and gang section. I'm currently in the UVA's Prosecution Clinic and someone who aspires to be a prosecutor. And I think it's critical for someone like myself and for anyone that's interested in pursuing this work to really delve into the shortcomings of the American cursor system, to consider serious concerns like modification within prisons and just to consider the consequences and conditions that people who are prosecuted and incarcerated face.

[04:00] Kim Krawiec: Yeah, I'm glad to hear you say that. What about you, Ryan? What drew you to the topic?

[04:06] Ryan Fitzgerald: Two things. So as a first little background point, I was a political science and sociology majorminor at Notre Dame. And so a lot of the classes that I ended up taking revolve around mass incarceration in some shape or form. And so just interested in kind of the reform movement, trying to think of just alternatives to the current system that the United States has where we house the world's largest prison population by a very large margin. And then particularly with private prisons, just kind of the perverse incentives that go along with that in trying to keep all of the beds full in prisons rather than trying to get some of the nonviolent offenders off. And then the second point would be I worked for a defense attorney while I was in undergrad as an undergraduate legal intern. And so I kind of got to see the face of the criminal justice system and just some of the really ugly aspects of what that looks like, particularly for lowincome individuals. And I think that just the whole system as mayor was talking about has its flaws and the private prison system particularly, I think, is one of the most flawed institutions within the system. So I was just particularly interested for that reason.

[05:25] Kim Krawiec: And we'll talk about all of that with Jonathan. And this might be a chance where. As far as I can tell. Everybody in the class is going to disagree with me because as you guys know. I have expressed my skepticism that privatization is in fact what's wrong with which is not to say there's nothing wrong with it in practice as it exists today. But I just see so many problems with the American carceral system that whenever I delve into these debates about commodification and privatization. It sort of feels like background noise to me in the face of a system in which we imprison too many people. Most of whom are poor and minority and who we then treat inhumanely. None of this, by the way, as you know, is a criticism of Jonathan's paper. It's just sort of laying out my priors, which are different from most of you guys in the class. So I think that will make it an interesting discussion. I'm interested to hear what he has to say about this stuff. The next thing is just to find out what you guys wanted to learn from Jonathan. So, Ryan, why don't we start with you this time? What are you hoping to learn from our discussion with him?

[06:31] Ryan Fitzgerald: Well, I think that one of the things I would like some I guess, clarity on that isn't necessarily brought out as much in the piece, is just the difference between the economic versus commodification arguments. I think that as a class, we were trying to grapple with that in different shapes and forms of people's questions, and just understanding a baseline of what he thinks economic is versus commodification would help kind of shine light on a lot of the different questions that I think my classmates are going to ask.

[07:02] Kim Krawiec: Yeah, I think that's a really good question, and that will help me as well. It's entirely possible, by the way, that after our discussion, jonathan will say, no, you are concerned about commodification in prisons. You've just been defining it in this overly narrow way, and when you define it in this broader way, then you're actually come into the light with the rest of us. Right, and so I'm interested in that as well. It's just sort of to get some clarity about what the different objections are and what bucket they might fall into. What about you, Mary?

[07:36] Mary Talkington: Yeah, definitely. I'm interested in everything that you guys have discussed. I'm also looking forward to asking Jonathan if he thinks that private prisons are really ever an acceptable institution, or if there's just something so inherently corrupt about them that maybe even if we pursue reform, maybe reform, it isn't worth it. I also look forward to discussing different forms of exploitation that Jonathan touches on in his paper with regard to prisoners labor while they're incarcerated. And I know it's a class we're looking forward to hearing Jonathan apply his arguments to an immigration detention context and also to consider ties between race and commodification and private prisons.

[08:32] Kim Krawiec: Yeah, I think those are all good questions, and certainly I think everybody in the class had the most concerns about prison labor. And Jonathan himself, my read of the paper anyway, is that that is what he had the most concern about as well. And it'll be interesting to again figure out how much of that is because of commodification itself versus other things.

[08:54] Jonathan Peterson: Right.

[08:54] Kim Krawiec: So, for example, you brought up exploitation. We talked about the extent to which prison labor is coerced, and to me, those are separate objections to commodification. And I'll be interested to hear what he says about your meta question, Mary, which is whether reform is possible or whether the entire attempt at privatization is one that needs to be abandoned because it's immoral. Remind me if I'm wrong about this. I think that that's the question he bracketed right at the beginning of the paper. But nonetheless, as we have seen, you guys are remarkable at getting authors to talk about stuff that they have specifically said they're not going to address in their paper. So hopefully this will be another instance where you're able to draw that out of him. Ryan, anything else that you wanted to get Jonathan to talk about while we have him?

[09:46] Ryan Fitzgerald: Yeah, I think one of the things that I'm going to ask and one of my questions is basically just how we got to this situation. He mentions it a little bit in the article, but just how did we get to a place in our society where 10% of prisons are now oh, I think it's 10% of the inmate population is incarcerated in private prisons. And I know that overpopulation of prisons is certainly a factor in that, but is it the only factor or is it a cost cutting thing or just kind of understanding the history I think helps with some of the commodification arguments and trying to sort out how we got there and where we can go from there.

[10:26] Kim Krawiec: Yeah, I really liked this question as well as some of the questions that your classmates posed about underlying history and underlying theories of incarceration. I think that getting at some of these bigger questions about how we got to this, either how we got to this state or in addition to that, what we're trying to do with this system will be relevant. It seems plausible at least, that different theories of punishment might lead us or different theories of incarceration might lead us to different answers about what is an inappropriate commodification, as well as some of these questions about how we got here might lead us certainly to some insight into whether reform is possible and or likely. What about you, Mary, anything else?

[11:13] Mary Talkington: No, I think we have pretty much touched all the major discussion topics. I think we're going to have a great conversation and I really look forward to it.

[11:23] Kim Krawiec: Yeah, me too. Anything else from you, Ryan?

[11:26] Ryan Fitzgerald: No, looking forward to it.

[11:28] Kim Krawiec: Yeah, me too. Hi Jonathan.

[11:35] Jonathan Peterson: Hello everyone.

[11:36] Kim Krawiec: Thanks for joining us.

[11:37] Jonathan Peterson: Thank you for having me. I'm excited.

[11:39] Kim Krawiec: We are too. And so first let me introduce Mary and Ryan, who are the co host for Today. They help select the questions, help try to get a theme together that we might follow in terms of the podcast and both have a particular interest in the subject matter, which is why they specifically requested to do this particular podcast. So I think one of the things we wanted to start out with was to just get you to talk a little bit about the commodification privatization distinction that you lead off within the paper. I think you're right that the discussion in this area, at least in my experience, mostly revolves around privatization and not so much around commodification, and there seems to be some overlap there, but also some differences there. And so I wondered if you could help us just understand that difference.

[12:32] Jonathan Peterson: Yeah, sure. So I think of privatization really in terms of outsourcing of government functions to private entities. So when the state contracts with a private company to build or manage a prison, for example, right, it's privatizing corrections in that case, and it's privatizing in that case. It's a function that is often thought to be a core function of the state. So for better aware, that often brings the profit motive into play. And so that of course, is one of the reasons why I think people focus on privatization in this particular realm. Commodification, on the other hand, is about offering something, I take it is about offering something for sale or exchange on a market. And so you can commodify lots of different things goods, services and so on. And so that raises this question of commodification about whether or not there are some goods or services that should remain non commodified or should be decommodified. So classic examples would be human organs or surrogacy services and things like that. So I think that the important thing to notice here is that you can have commodification without privatization. So if, for example, we take states that use inmate labor in public prisons to produce goods that are then sold, like license plates or office supplies or whatever, then it's arguable that the state is commodifying the labor of those prisoners. Even though there's no privatization going on there, they're still under the control of a public entity. And likewise, you can privatize something without commodifying it, I think. So examples of that would be volunteer fire departments, right, which provide firefighting services on a privatized basis, or nonprofit juvenile detention centers. So the idea of the existence of like, nonprofit entities that could carry out these kinds of functions could involve privatization that doesn't, or at least arguably doesn't commodify the service that's being offered.

[14:58] Kim Krawiec: So this is always a struggle for me, and perhaps lawyers just think about these things differently. But the for profit nonprofit distinction is one that never made sense to me as any sort of moral claim. Turning on it, some nonprofits work really well and do great things, and many nonprofits behave very much like for profits, with the exception of not paying out dividends to shareholders, they just eat up all their money and salaries for their employees. The profit motive itself, if we're defining profit as being shareholders, as residual claimants, it doesn't strike me as necessarily altering their behavior in a way that would cause me to find one necessarily moral and the other necessarily immoral or problematic.

[15:50] Jonathan Peterson: I generally agree with you about that, and I don't mean to draw a distinction between for profit and nonprofit that would somehow magically kind of track the distinction between moral and immoral.

[16:05] Ryan Fitzgerald: Right?

[16:06] Jonathan Peterson: So I think that there are lots of nonprofits that do really horrible things and in the sphere of institutions where we put people in the care of or in the custody of other people, right? There's lots of cases where you see really abusive and awful things happening. So I think that much of what or that there are lots of nonprofits that we would assess as immoral whether or not they're motivated by something like the profit motive, which they well could be. But my point here was just really that somebody could be doing something that's normally thought to be a state function and doing it even say like on a volunteer basis because they think they can do it better. Like, you might imagine we got together a bunch of people and said, look, the state is doing a really horrible job incarcerating people. We can treat them humanely.

[17:14] Kim Krawiec: Imagine that. We would think that.

[17:16] Jonathan Peterson: Imagine that. We would think that. Yeah. And so we banded together to sort of like try to improve people's lot and not for profit seeking motives or whatever. Then I would take it that would be privatization, but not necessarily a kind of commodification. Or we wouldn't raise concerns fundamentally about commodification.

[17:39] Kim Krawiec: Okay, I guess before I turn it over to Mary and Ryan for questions, I want to make sure that I understand sort of where you're coming from before we get into the more specific questions. I was a bit surprised initially in the conclusion that you conclude that commodification is a great harm to prisoners. As I read the text of the paper, I didn't get the sense that you thought most of the objections were that strong. I think with the exception of prison labor, perhaps, and we're going to talk about that at some length, but am I misreading you in that or can you sort of help me understand sort of where you're coming from? I think it'll help frame the remaining questions.

[18:25] Jonathan Peterson: Yeah, absolutely. So I think you're right that there is a little bit of a lack of clarity there about what I'm really committing myself to in the paper. And so I'll try to clear that up a little bit, at least. And so to begin, maybe it would be helpful if we just kind of like say something about the different forms of commodification that I think you can identify in the prison incarceration sphere. So first you have services that are offered to the state, right? Like the sort of service of detention is commodified. And then you have potentially the inmates themselves being commodified in some form. So the commodification of persons could be a concern here. And then you have commodification of labor, right? When inmates are forced to work, then you have arguably some commodification of labor going on. And then one that I didn't really emphasize, but I think is important and will probably come up is the commodification of services that are offered to inmates. So things like commissary or mental health services or services like the communication services, the telephone and email that they use to communicate with their family members outside. So those can be commodified in ways that are pretty harmful, I think, to and actually are commodified in ways that are pretty harmful to inmates. So that's a sort of general picture of the different kinds of commodification that might arise that we could be concerned about. But I think that the starting point for the general discussion has to be that prisons in the US. Whether we're talking about public prisons or private prisons, are inhumane and unjust. I mean, we just we treat incarcerated people in horrible ways. We use incarceration to deal with social problems that we should be dealing with in a different way, things like mental health and things like that. And we disproportionately incarcerate people of color. So there's just a couple of the problems that we could raise. So I take it that your question is, is it really the case that commodification adds anything important in terms of the harms that we're dealing with here?

[20:53] Kim Krawiec: Yeah, I guess it feels like a bit of background noise to me, given all of the things you just laid out, the parade of horribles, because I completely agree with you that we imprison too many people. Those people are disproportionately poor and minority, and we treat them inhumanely. And all of that is really, really bad and doesn't seem to have that much to do with commodification to me. But I'm willing to adjust that position as we talk today.

[21:18] Jonathan Peterson: So I do think that commodification arguments tend to have the greatest purchase when we're thinking about prison labor and in particular, and we can say more about this, I do think that prison labor unfairly exploits vulnerable people, and especially in a situation where the state has itself created that vulnerability. That's probably where I would identify the commodification perspective as offering the most purchase for criticism of a particular practice in incarceration. But I also think if we can identify, if we can make sense of an idea of symbolic harm, right, of sort of this idea that certain messages that society sends about people are themselves harmful towards an individual or a group or a class, then I think that commodification in the context of prisons can send that kind of message. When you have a system that is disproportionately affecting poor people, people of color, I think it sends a message about value, equality, subordination, things like that. And I think that that in itself could constitute a serious harm. So that's also a spot where I think we may want to bring commodification into the story.

[22:43] Kim Krawiec: Okay. So I am going to rather than probe that any further, I'm going to move on because we have some specific questions that I think will bring us back to a lot of the points that you just made so that we can talk about them some more. I'm going to turn it over to Ryan now.

[22:57] Ryan Fitzgerald: Hi, Jonathan. Thanks for being on today. So I just wanted to kind of set the stage with an introductory question. It's not necessarily directed at your articles, points in particular, but just kind of the landscape of private prisons. So I just wanted to dig deeper into kind of how we arrived at this point where I think I looked up it's eight and a half, or maybe it's even 10% of prisoners are housed in privately owned facilities. And you mentioned it slightly in the article about how overcrowding is certainly a contributing factor. But are there other things at play there, or is mass incarceration and over criminalization kind of the only thing? And then I guess tangential to that is there's been we've seen so many different sentencing change laws in the last few years of things that were previously criminalized, being decriminalized or misdemeanors, not being punished with several penalties. So how do we square the increase in prison population and private prison population increasing with kind of those changes in laws? So just set the stage on the private prison?

[24:05] Jonathan Peterson: Yeah, for sure. That's a great question. I think there are one of the sources that I've relied on a little bit here is a book by Lauren Brooke Eisen called Inside Private Prisons. And one of the things that is helpful and that she points out is that the United States actually has a long history with experiments in privatization. And, you know, so just to take one example of that, the San Quentin State Prison in California, which opened in 54, was initially run in a privatized arrangement, so the state would issue a contract to private agents who would run the prison and who could hire out the prisoners as laborers to kind of profit off of them. Private prisons are not a new thing in the United States. And we can talk about the connection to convict leasing as well here. But the thing that is interesting is that in the sort of history of these experiments, there were a lot of scandals and a lot of financial scandals, harsh treatment. The scandals were enough that the state kind of had to step in and take over the administration of a place like San Quentin. And at that point, the early 1900 warden that is a state employee is appointed to kind of run the place. And the early wardens at San Quentin following Brooke Eisen and some other sources, they were sort of following Eisen and some other sources, they actually abolished things like corporal punishment and replaced it with solitary confinement. So Flogging is out, and solitary confinement is in. But then in the 1920s and 30s, there was this sort of, like, concern that prison labor was competing with the labor of people outside of prisons in an unfair way. And so Congress actually stepped in and kind of, like, passed some laws regulating, actually banning the interstate commerce of goods made from prison labor. So we have both, like, privatization in prisons and privatization in the realm of prison labor that Congress kind of does its best to quash at that point in the name of ending the competition of prison labor against labor for firms outside of that. And in the late 70s, we start to see things change, right? Like 19, 78, 79, there are those laws get repealed, and Congress actually established the Prison Industry Enhancement Certification Program, which is still the currently existing program that facilitates the employment of prisoners by private industries. So at that point, you start to see a bit of an increase in private industries being involved in prison labor and then in the start to see the development, of course, of private prisons. The Prison Industry Enhancement Certification Program, just to be clear, that was the point at which it became legal for prisoners to earn wages at private sector jobs before that wasn't allowed. So we kind of, I think, really do see the rise of private prisons and prison labor tracking, the rise of mass incarceration over the past 50 years or so. And certainly, like, Brooke Eye thinks that overcrowding is and court mandated responses to overcrowding is the big reason that we see that happening. I think there are arguments to be made that there are other factors at play, too. And so Ruth Wilson Gilmore, who is an abolitionist and a geographer, argues that mass incarceration kind of arises as a kind of response to the use of space and populate and control options. And so it's not fundamentally overcrowding, but other kinds of things. But, I mean, if we could also just sort of speculate that a lot of this started to happen at a point in American history where deregulation and privatization were big kind of across the board, and so that may itself have some role to play too, but that's just speculation on my part.

[29:18] Kim Krawiec: Mary?

[29:19] Mary Talkington: Hi, Jonathan. Thank you so much for joining us today. My question is. Do you think that this is an area where reform might be possible so that perverse incentives and oversight concerns. Like other problems are resolved in private prisons. So that private prisons could actually be incentivized to provide welltrained staff programs to incarcerated people. And that people who are in private prisons actually have a more humane experience and better long term outcomes than those in public prisons? And if such an outcome is possible, is this reform that we want to pursue, or do we think that there's something inherently wrong with putting people in private prisons? And my initial take from our initial discussion is that maybe, like, you don't think that there's something inherently wrong with private prisons in theory, but certainly correct me if I'm wrong on that and very curious to hear your thoughts.

[30:25] Jonathan Peterson: Yeah, absolutely. So I think that from the perspective of thinking about changing the system, we need to sort of pull on all of the resources that are available. So economic analysis of whether these prisons are actually saving money is going to be important. But even when I've asked people just sort of generally like, do you think private prisons should be a thing most people's response tends to be not to be, well, if they're cheaper and, you know, do a better job. A lot of the sort of basic intuitive response that I've found tends to be, no, that's the state's job. It shouldn't be something that private agents are doing. Right? This idea that punishment is a core function of the state is pretty intuitive to a lot of people, I think. And so that sort of leads a kind of a push towards a more principled objection to privatization. And I think that, generally speaking, my own view is that one of the sort of principled reasons why we should worry about private prisons is because I think that it's wrong to put people to sort of deliver people over into the power of other people in the way that prisons do, specifically into the power of private agents.

[31:57] Ryan Fitzgerald: Right?

[31:58] Jonathan Peterson: And there are other areas, I think, of other institutions where we do that in a problematic way. I think foster care could be one of those, but or we could look at nursing homes as well. But I think that there's some worry that comes from sort of an idea of nondomination or independence that suggests that if incarceration is necessary in some cases, that there's something especially wrong about throwing somebody into the power and control of another agent that maybe isn't there when we're talking about being under the control of public agents. So that's kind of my take on it, about why there could be a principled reason to object to private prisons, but as a matter of just thinking about how to change things, I think we should appeal to all of the arguments that we can come up with. Well, I mean, as far as reform and abolition goes, I think I'm getting more and more to the abolition side of things.

[33:06] Kim Krawiec: But personally and is that because you think reform is impossible, or is that because you think that even if private prisons I guess the hypothetical I always come back to right, is let's leave aside saving money, which is sort of relevant for government services, but is not the biggest thing on most prison reformers mind. Let's suppose that they were better, that they actually treated prisoners better, that they provided services that make prisoners lives better and that help them once they get back on the outside and are actually geared towards helping them get back on the outside someday. Are we still concerned about that?

[33:52] Jonathan Peterson: I think that we still ought to be concerned about things like domination by private individuals in that case. But I think that it's possible for that concern to be outweighed by other considerations, potentially. So if it turned out, which I don't think to be, is the case that private prisons really could do a much better job in terms of rehabilitation, skills training, lowering rates of recidivism and things like that, then I think those things. Could potentially outweigh the principled concerns about privatization in this sphere.

[34:31] Kim Krawiec: Okay. It's clear to me that private prisons don't do that well, or at least I'm going to assume, I think with some justification, that private prisons don't currently do those things better. I am always puzzled by the belief that they can't do them better, or at least as well. I just don't know why. I mean, I agree with you. There are some things that are unique functions of the state, and certainly if we were to allow private companies to conduct trials and sentence people, we would be concerned about that. But the various aspects of housing prisoners itself, much of which is already privatized to an extent that I think a lot of people who are critical of private prisons don't fully appreciate, I guess I just don't know why we can't do that better. It seems clear that we're not interested in doing it better. We're not interested in doing it better in public prisons either. But as somebody who thinks in other settings about incentives, about organizational form and oversight, those just don't seem like intractable problems in this setting to me. If we really cared about it and.

[35:39] Ryan Fitzgerald: We'Re serious about it yeah, I do.

[35:42] Jonathan Peterson: Think I agree with you. I think that we don't care about it in the public prison, and we don't care about it in the private context as well. I also think I agree that we could potentially find ways to structure contracts in a way that would produce better incentives. So the example of the prison in Australia that hasn't the contract isn't focused on the number of beds that are occupied, but rather at least partly on performance.

[36:22] Kim Krawiec: Who on earth thought this was a good way to structure this type of contract? It's insane.

[36:27] Jonathan Peterson: Yeah, well, I mean, apparently Ice pays people for empty beds, so they don't even care whether there are people in them. These contracts are crazy. They're not designed to reduce the prison population, that's for sure. Right. But the problem that we see, even with the case where the contracts are restructured, is there are always going to be, I think, incentives to try to find ways to make those contracts more attractive and better at generating profit for the private industries.

[37:11] Ryan Fitzgerald: Right.

[37:13] Jonathan Peterson: And so, for example, I don't know if you know this, but there is actually an accrediting body accrediting body for private prisons in the US. And you might think, great, like an oversight body to make sure they meet certain minimum standards, but it doesn't really work that way.

[37:40] Kim Krawiec: Why don't we go first to marry the writer? As soon as they finish that discussion, you jump in with your question about going back to abolition.

[37:49] Jonathan Peterson: Got it.

[37:49] Mary Talkington: Thank you. Yeah. I do have a question about you brought up the example of the contract structure for the prison in Australia and so how it was structured in a way that made at least some more sense using performance metrics for having occupancy rates, bonuses for nonrecydivism financial penalties for bad outcomes. But you also noted that even these prisons suffer from transparency and oversight problems. And I was just wondering if you could expand on those or any other particular concerns that are still coming up with these even better structured contracts.

[38:31] Jonathan Peterson: Yeah, sure, the prison and I know the name of it, but it's completely escaping me. It's in the State of Victoria, and it's run by the Geo group. You can actually find the contract online even because it's like public procurement or whatever. But at least going by the accounts of journalists who have written about this and who have interviewed people who work in the prison and run that prison, a lot of the important information is redacted, and there isn't a lot of transparency about whether the performance metrics are being met, whether the payments are being made, regardless of whether the performance metrics are being met, and so on. So even in this kind of case where we would still need to do more, I think, to facilitate real transparency so that people could actually be confident that we've actually achieved something that's doing a better job.

[39:45] Kim Krawiec: Great. Okay.

[39:46] Jonathan Peterson: Rider yeah, so I just wanted to go back. You mentioned that you're kind of moving.

[39:52] Reidar Composano: More towards an abolitionist perspective.

[39:55] Jonathan Peterson: Now, curious, with that in mind, do.

[39:57] Reidar Composano: You think that the markets described in your chapter are really relevant markets, if.

[40:02] Jonathan Peterson: That is the end goal, or is the focus more properly applied to housing markets and job markets in different markets outside of the private present, in the present context? Do you mean in terms of concerns about commodification? Yeah. Yeah. So I think I may have mentioned at the beginning of the draft that you read that I do think that there could be some reasons that abolitionists would want to know about commodification, because they may want to take the weight of those arguments into account in terms of thinking about where to direct their efforts at abolition at the process of abolition. But, yes, I do think that if we take the abolitionist project seriously in the way that I think the abolitionists themselves understand it, which is really about changing not just prisons, but lots of other things in society. Right. So unstable people who are financially unstable because of the way that the labor markets are structured.

[41:15] Ryan Fitzgerald: Right.

[41:16] Jonathan Peterson: Communities that are torn apart because of the way that incarceration is structured, and absence of things like adequate mental health care and lots of other things. So, yeah, I do think there's going to be as much, if not more of a focus on the kind of things you mentioned if we are taking the idea of abolition seriously. Great, thanks.

[41:38] Kim Krawiec: Ryan and Meghana both had questions regarding the three different ways in which commodification can occur so that you don't duplicate your answers. I'm going to get Ryan to ask his question and you can answer. And then, Megan, if you want to, if there's something remaining there that you want to follow up on, then you can go after that.

[42:01] Ryan Fitzgerald: Ryan yeah, so, as professor has mentioned, I was wanting to ask about just the three different types of commodification you mentioned in the article.

[42:11] Kim Krawiec: You are supposed to be using first names on this. Remember, you can't call him Jonathan and me professor.

[42:22] Ryan Fitzgerald: The service of detention inmates themselves and labor inmates. And I found that to be a particularly interesting framing just in the sense that I think the general public would have different reactions to each of those three types of modification. Like, for example, I think the general public might not care that much that, say, Air Marc is providing the food out of prison, but they might care a lot more about prison labor or the perverse incentives that we just mentioned with being paid for beds and things like that. So is your thesis kind of that commodification writ large in the system is problematic, or do you think that there's a particular type of commodification of those three that is the most problematic, or are those two things kind of mutually exclusive and they can both be true at the same time?

[43:10] Jonathan Peterson: Yeah, great question. I think that my view is probably more like more of the view that there are certain forms of commodification that are really problematic. And I do agree that it's probably less of a concern when you have food service provided by Era Mark or Sodexo. It's more of a concern that prison officials have power to give people job assignments and that they can do that in arbitrary and even racially biased ways. It's more problematic that prison officials have disciplinary powers right. That they can determine that an infraction of the rules has occurred where that determination will have an impact on a person's eligibility for parole and the length of their sentence and things like that.

[44:06] Ryan Fitzgerald: Right.

[44:06] Jonathan Peterson: I worry more about that, I guess, and those kinds of powers than I do about where the food comes from. That being said, I do feel this I mean, at my university, Sodexo is the food service provider for our students. And I do feel weird about it because Sodexo also works in prisons and runs prisons in France and other places. So there's a residual kind of concern there, even though I do think it's less problematic.

[44:43] Kim Krawiec: Meghana, do you have something that you want to follow up on that not really?

[44:47] Meghana Puchalapalli: I think it's kind of my question was going to be about which of the three means of commodification do you find most problematic? But I think you kind of answered that where the privatization of services is slightly less of an issue.

[45:01] Jonathan Peterson: I do think you put it in terms of which is the biggest threat to inmates well being, at least in the questions that I got. And I think that's an important question too, because I think probably all of them are in the current state. If we're talking about provision of health care services, if we're talking about provision of food or hygiene products and things like that, I don't think prisoners are getting what they need there and their basic needs aren't met. If we're talking about labor, yes, same thing. Lack of job training, absence of the normal legal protections that people are entitled to against workplace injury and things like that. Right. So there are harms just all over the place and I don't know for sure. To me, in some ways, it kind of all adds up to just a really big pot of badness.

[46:07] Kim Krawiec: We have to use that. A big pot of badness.

[46:10] Jonathan Peterson: Not my most solicitous phrase, but okay, I like it.

[46:14] Kim Krawiec: I'm going to run with actually, the next question is from Megana anyway, and I have a set of questions from Megana and McKenna. I thought they were both interesting and kind of like Ryan's meta question that we led off with just caused me to wonder whether the purpose of incarceration to begin with has any bearing on the questions about what types of commodification might be troubling to us. So I think maybe we should ask these together and then let Jonathan respond to them both together. So Megan and then McKenna and then we'll get Jonathan's response.

[46:47] Meghana Puchalapalli: All right, so my question was about the purpose of prison or what you think the purpose of prison should be. I know that a lot of people will say rehabilitation. Earlier in our history, it was penitent and deterrence and could the true purpose of prison guidance in finding a solution to the commodification and exploitation of admates? 

Mackenna Cherry: Yeah, my question is a bit more specific. On page seven, right. Under part two, you mentioned that a couple of courts have not ruled that prison labor is a market activity because it is a punishment. And that seems to me to center around the idea that prison has to be punishment. But you also pointed out under the rehabilitative framework, it could still possibly be justified. But I just wanted to know if punishment has to be a justification or purpose for this system and this specific factor, or can rehabilitation also be considered?

[47:47] Jonathan Peterson: Great, thanks. Great questions. So I think we should probably distinguish here initially between the purpose of prison and the purpose of punishment because obviously punishment as a practice doesn't necessarily need to involve incarceration. And I think the other distinction I would want to make is the distinction between the purpose that prisons actually serve in a society like ours and the purpose that they would ideally serve if they were justifiable in a fully just society or something like that. And I think, you know, I mentioned Reese Wilson Gilmore before in her book Golden Gulag and other work that she's done. I think the point that she's one of the points that she makes is that the expansion of prisons is just part of the general expansion of social power over individuals in the past 50 years, right? And so there's like, expansion of policing, expansion of surveillance, expansion of lots of different ways that the state exercises power over us, and that prisons function, at least in part, is to do that, to contribute to the expansion of state power. So that is the sort of like that's how they work in the nonideal world that we actually live in, I take it, or something like that. But in thinking about the purpose of punishment, we can ask whether prisons could serve that purpose, right? And that purpose could be rehabilitation, it could be deterrence, it could be retributive, or it could be some combination of all of those. And so I think my own sort of intuitions are that if punishment is justified, then it has to have, at least tentatively, I think it has to do a couple of things. One is that it has to vindicate the status of the victims, right? Something has happened to a victim and punishment, if it can do something to vindicate that, that would be an important thing for it to do. Also, I'm attracted to the idea that punishment needs to communicate the social condemnation of something that a person has done that's wrong, right? That we as a society don't tolerate this, that we condemn it as morally wrong or something like that. And I think it needs to offer the wrongdoer a real opportunity to become a better person, right? And I mean that in terms of, like, a better person, in terms of their moral character, as well as their opportunities for just living among us peacefully or something like that. So I don't think the prisons in the United States really do any of those things at this point. But I do think that the question of whether or not incarceration is justified is going to turn on something like the question of whether they can really achieve whether we can design a system that would really achieve the goals that we take punishment to have. In terms of McKenna's question, I tend to think of rehabilitation itself as a kind of justification for punishment, because if we were to think of rehabilitation as a kind of a nonpunitive goal, then it really looks to me like we should look for something other than incarceration to achieve it, because it's hard to do it with incarceration. And so if we can find other kinds of social programs to invest in that would actually do better at achieving that goal, then that's what we should be focused on.

[51:37] Kim Krawiec: So, Jonathan, one reason that I liked these sets of questions from Megana and McKenna is it just seemed to me that it might be particularly relevant to the commodification of labor question, right? And in particular, it would just go to the issue of if we could make prison labor better so that it was voluntary, so that it wasn't unsafe, so that it wasn't exploitative, so that it taught people perhaps a skill, it provided them with resources that may be useful. Again, looking to a time when they're not in prison anymore, then the commodification, if that were the case and at least part of our goal is rehabilitation and not just punishment, then that strikes me as having some bearing on whether that type of commodification is wrongful. Right. Again, assuming that we did it in a way that actually furthered that goal of rehabilitation.

[52:31] Jonathan Peterson: Yeah. I think the reason why I think that prison labor is problematic well, I think there are two reasons, obviously. One is that the involuntariness and the coercion kind of aspect of it. But the other one, the other reason to worry about it for me is the exploitation concern. And so if we were depending on how we think about punishment, we may get different answers about whether or not it's okay to make people work involuntarily. If we do think it's okay to make people work involuntarily, or if we think, well, let's just make it voluntary, then I think we would need to structure it in a way that would allay the concerns about exploitation. And if that were the case, then I think it's probably true that labor in prison would offer some very important goods to people. Even just I'm leaving aside training and development of skills and things like that. I think that one problem of enforced idleness is just that it undermines dignity and gives and people sense of worth and so on. Right. So I think people would probably choose to be able to engage in meaningful work if that option is available to them in this kind of context.

[54:06] Kim Krawiec: Right? Yeah. Okay, great. Actually, Mary has a question that is right on point here, which is also about prisoners labor.

[54:14] Mary Talkington: Yes, I have a question about on this topic, commodification of prisoners labor and the different types of exploitation that you noted in your draft. I was wondering if you could expand a bit more on these types of exploitation. Harmful exploitation, usually beneficial exploitation, I guess it seems to me I guess I'm kind of having a hard time telling the difference in the case of prisoners labor that because prison wages are so low, it isn't likely that we would count prison labor as mutually beneficial exploitation, but it would make a difference if the wages were higher. Since you are still as united, you're depriving someone of a basic need, like sort of already creating this vulnerability and then forcing them to work to fulfill that need. Like, a particularly visceral example for me is when being deployed to camp on pads and then it's either work or you're forced to sit and bloody clothes. So if you could talk a bit.

[55:20] Jonathan Peterson: More about that exploitation yeah, so good. This is a good question. So if we think I'll say a little bit about how I think about exploitation, which I don't take to be different than the sort of prevailing kind of philosophical way of thinking about it. But it's just the sort of idea that exploitation is taking on fair advantage of someone and then that's like transactional. But there could be ways that institutions take on fair advantage and sort of structural ways right, as well. So doing that is going to involve one person benefiting at somebody else's expense and that benefit being unfair in lots of uncontroversial cases of exploitation, that does make the person who's exploited worse off. And so it's harmful exploitation. But there are some sort of cases, and you'll have to forgive me for using sort of philosophers examples here, but there are some kinds of cases where you can make the case that a person is exploiting another person even though they're actually better off than they would have been if there were no transaction between them. So just a silly example. Suppose that you are out in your rowboat and it's sinking in the ocean and I come along in my yacht and I offer to save you on the condition that you give me $100,000. So if you had $100,000, take me up on that offer because the alternative is sinking into the sea and drowning. But it still seems like I'm exploiting you in that situation. I'm taking unfair advantage of the vulnerability that you happen to be in that circumstance. So those kind of rescue cases, it's unfair to kind of extort money from people in return for doing something that actually does make them better off. So I think given that there is lots of prison labor that isn't paid at all, that's not compensated, that's clearly, to me harmful exploitation, I think, in most cases. But there are when we think about the cases where a person receives some wages that allow them to purchase well enough hygiene products to meet their needs or better ones than what is offered to them for free, that may be a way that they are made better off but are nevertheless exploited. But the other thing that's really important to keep in mind here is it depends on the baseline that we're looking at. So if we're looking at the baseline being no transactions at all or no work at all, so you're just sitting there and not laboring versus your laboring for a dollar a day, then it looks mutually beneficial because it makes you better off. The prison exploits you, but it does make you better off than you would be if you didn't have the dollar a day.

[58:34] Ryan Fitzgerald: Right?

[58:34] Jonathan Peterson: But the other way of sort of thinking about the baseline is that the baseline should be something like what a fair interaction would be, right. And if you one way of thinking about what a fair interaction would be is that fair interactions are ones that allow people to meet their basic needs, right. And so I think if that's the right baseline. And I tend to think that it is. Then of course all exploitation. Even if it makes an inmate so all prison labor. Even if it makes an inmate better off. That the prison labor that we actually see is not getting them to the point where they can meet their basic needs. Meet the needs of their families. Things like that. Right? So it's unfair. It's going to look like harmful exploitation in that sense. So I think you're absolutely right to push on that because it really depends on whether we're talking about a baseline where there's no interaction or no work versus work or a baseline like you have work that isn't even giving you what you need for subsistence versus you get what you need to meet your basic needs.

[59:45] Kim Krawiec: Jonathan this just isn't to me a commodification problem or a labor problem. To me the problem is in the initial setup, which is that we're not allowing prisoners to meet basic needs. I keep coming back to saying I don't find the commodification objections particularly persuasive, but in part it's because I agree with you about what the problems are. But I'm not sure I agree that commodification is the problem there. The problem here is the initial status quo in which prisoners basic needs aren't being met. They shouldn't have to work to get basic food, basic hygiene products. Those things should be provided for them in a humane world. And the labor stuff just sort of seems I don't know. Again, it seems like a side issue to me.

[01:00:31] Jonathan Peterson: So I get why you think that. Let me try to say why I think the commodification concern here might still be important. So there's the initial vulnerability and inability to meet your basic needs. That's the sort of condition of being in prison. There's the sort of coercion aspect that you're there involuntarily and then there's the exploitation sort of thing that's going on specifically through the use of or the use of either unpaid or poorly paid labor. But I take it that at least in some cases I mean, I think I would want to say that at least in some cases.

[01:01:25] Reidar Composano: Part of the.

[01:01:26] Jonathan Peterson: Reason that the exploitation is troubling is because it involves commodifying people's labor, right? That's the form of the exploitation. So it's not selling you food at an exorbitant rate because there's not enough food and you need it. Right? That's a different form of exploitation. But this case, it's the commodification of labor that is the exploitation. And so that's why I think it's still worth talking about commodification here.

[01:01:55] Kim Krawiec: I guess I just feel like in the absence of prison labor, I still wouldn't think that this is a better state of affairs where people don't have enough food to eat and don't have basic hygiene product. But anyway, we shall move on.

[01:02:08] Reidar Composano: Rider you talk about different arguments against.

[01:02:11] Jonathan Peterson: Codification prison systems, including economic legal and moral arguments. You talked about these disciplines alongside one another but I'm curious if you found anyone more persuasive than the others or do you think that it's necessary to.

[01:02:25] Reidar Composano: Talk about them in concert?

[01:02:26] Jonathan Peterson: So I think a couple of points. One is that the economic arguments are very prominent in the literature. There's a huge literature about the costs and benefits of privatized corrections. One of the objections that people raise, and I think it's compelling is that the most sort of basic or underlying reason why we object to some of these things isn't really fundamentally about the economics but it's more about some moral problems that we have with privatization in this sphere or commodification in this sphere. But of course, economists are going to come back and say well, look, if we could really make it work better then why would you object to it? And I get the power of that response. But for me, I think that the moral arguments and this may just be because I'm a philosopher who works in political philosophy and ethics those are the ones where I really find the interesting work to be done. That's where I spend most of my time thinking about it. And for me, as I mentioned before because I come to this from a point of view of thinking about ways in which relationships can subject people to dominating power that tends to be a lens that I use to kind of like, think through this.

[01:03:55] Kim Krawiec: Our final big picture meta type questions is from Brian.

[01:03:59] Bryan Blaylock: Good afternoon, Jonathan. I guess I'll just preface this by saying that this is mostly, I guess, for some of the listeners that maybe don't have criminology background or not in academia as far as understanding how we've gone about incarcerating people.

[01:04:14] Jonathan Peterson: Because I like to look at it.

[01:04:16] Bryan Blaylock: And I've said this for a couple of years I very much believe that the US. Whether it's between law enforcement or incarceration we're kind of very much in the experimental phase still of trying to figure out how to do and how to do it well. We didn't have the first state run penitentiary till 1790. You didn't have your first organized police force till 1838 in Boston since you had the expansion of the state run penitentiary. The prison system since then has seen several different evolutions of the model in which we incarcerate and in a sense trying to rehabilitate people that we throw in prison. And some of those methods I think we've talked about. But listeners can go and look into the Pennsylvania system or the Auburn system or what is the rehabilitation model or what was the medical model or what the US calls now the balance model which is when you get into these arguments there's four or five series of punishment and what the US does to do it. And so you saw I do think that it's good to highlight that there is progress being made even though we're not fundamentally where we'd like to think.

[01:05:26] Jonathan Peterson: That we could be. Right.

[01:05:27] Bryan Blaylock: In 2009 saw the alltime high prison population of two, 3 million. I think that number was reduced down to just under 1.5 million people in 2017, and it dropped a little bit further in 2019. And you see these different actions taken by the government that sometimes have these unexplained effects. When you have 30 crimes that are punishable by death and you reduce that down to two or three, what are you going to do with all those people that were charged with those other 27 crimes that could have ended in their death? Right. So I think you turn to incarcerate, and that's where you start to see a huge explosion in the population in prisons, most of the time run by the public.

[01:06:12] Jonathan Peterson: Right.

[01:06:12] Bryan Blaylock: And as you had mentioned, we didn't really get into, I guess why. That was an interesting comment you made about San Quentin, because most people think that your first foray into private, private prisons in the United States, you know, 83 with Reagan, and you start to see like, more widespread use. But since then, we have started to see a decline, whether it's, I think, President Obama, I think, was the first sitting president to actually visit a federal penitentiary. And it was under his administration that you saw them come up with the Fair Sentencing Act.

[01:06:46] Ryan Fitzgerald: Right.

[01:06:46] Bryan Blaylock: So judges have they're not held to these strict guidelines and necessary sentence enhancements. And then in the last administration, you have the First Step Act. So you're starting to see a shift down. But I guess the point here is that we've had commodification of prisoners in public or in prisons systems, and they don't exactly have the best track records themselves in terms of successful rehabilitation. So do you think if we did transition back into more of the public run, is this really more of a form over substance situation in which the employer of the overseer changes, but the end result is that the government does know better in terms of the process of rehabilitation or dealing with the commodification issues surrounding labor that you discussed in this chapter.

[01:07:34] Jonathan Peterson: So, yeah, that's a really helpful kind of overview of some of the history. And I think you're also right to remind us that things can change for the better in certain kinds of ways. And I think the reduction in prison population is a really heartening kind of thing. I think a lot more will probably need to happen. But that is important. One reason why it's important, I think, is because it reminds us that activism and struggles for change can actually have an effect and how we approach these issues can make a difference in terms of would things get better if we phased out the privatized aspects of and moved back to a sort of model where public agents and public employees were running prisons exclusively? Partly, I wonder if. The one sort of benefit that that would have would be opening up what happens to greater scrutiny by media, by activists and things like that. Right? And I don't know enough about the law to know whether that's true, but just the fact that private prison contracts are typically kept out of it, nobody can get a hold of them, really see what they are. Is that a reason why we can't hold these it makes it harder to hold these institutions accountable. But as a matter of just like what would happen, I'm not optimistic that people would be better off, you know, than with the status quo, because public prisons are pretty terrible too.

[01:09:35] Kim Krawiec: If you've enjoyed this week's discussion with Jonathan Peterson, tune in next week for part two. You.