In this article, the former Director-General of Israel's Ministry of Public Security debunks the case against the proposed privatization of prisons in Israel. In his opinion, operating a prison under private management is an experiment that can actually improve prison conditions and support prisoners' rights.
The process of gaining legal approval to establish a prison under private management began with a series of discussions in the offices of Ministers of Public Security, in response to a shortage of prison space and to prison conditions themselves. It continued with discussions in the office of then-Attorney-General Elyakim Rubinstein, today a Supreme Court justice. In a meeting on March 3, 2003, a Ministry team that had visited prisons in England, Scotland, and France presented its impressions to Rubinstein. That same month, an additional meeting took place at which the basic principles for a pilot project were agreed upon.
At the Attorney-General's request, the Ministry of Public Security—in conjunction with an interministerial team from the Ministries of Finance and Justice and the Prison Service—spearheaded the process of drawing up the legislation. The bill was submitted by Tzahi Hanegbi, then-Minister of Public Security, and voted into law by the Knesset (Israeli parliament) on March 24, 2004 as the Law Amending the Prisons Ordinance (no. 28) 5764-2004 (hereafter: the Law).
The main points of the Law are as follows:
- A prison under private management is subject to the same law as public prisons, with respect to the rights of prisoners, etc.
- The concessionaire will appoint a director for a privately run prison with the approval of the Minister of Public Security and upon the recommendation of the Israel Prison Service (IPS) Commissioner. His powers will be those of a head warden as set forth in the Prisons Ordinance, with the exception of certain powers enumerated in the Law. In addition, he will be obligated to report to the Chief Superintendent of the Prison Service.
- The concessionaire will appoint prison employees and service providers with the approval of the Commissioner or a party designated by him.
- The Chief Superintendent, who serves as a senior warden in the Prison Service, will be responsible for oversight of the prison. Additional wardens will also be appointed as supervisors.
- A mechanism has been established by which the state can take authority for managing the prison, under circumstances stipulated in the Law.
- An advisory committee will be appointed, whose purpose it will be to advise the Prison Service Commissioner and submit recommendations regarding the privately run prison.
Myths, Claims, and Relevant Facts
Along the road to implementation of the pilot program, which has been agreed upon and anchored in primary legislation, stand various parties making assorted claims, some of which are largely baseless and some of which simply ignore the reality of the improved conditions afforded by the Law to prisoners in the planned facility.
A sampling of the claims and the facts in each case:
Moral and ethical argument against the transfer of government powers to civilians—It is important to emphasize that we are not speaking of a full transfer of powers to civilians. The Israeli model provides for a partial transfer of powers. In contrast to the American model (full transfer of powers), in the case of Israel the state does not relinquish its concern for the health and wellbeing of prisoners. The concessionaire does not enjoy discretion regarding the benefits to which the prisoner is entitled.
The state has abandoned its authority—False. This is only an experiment, in which the state remains (by law) the supreme authority throughout—from the granting of the license, with all its conditions, to the possibility of replacing the concessionaire in the event of a grave violation of the provisions.
Privatization of the prisons will lead to the dismissal of employees—False. At present, the Prison Service is responsible for 28 correctional facilities. The anticipated need for additional facilities is clear. Not only will the experiment—which will take place in only one prison—not lead to the firing of employees, it will require an addition of at least 18 staff members of varying ranks to run the system and provide oversight in the privately run prison.
A privately run prison is not cost-effective—False. The projected savings during the period of the concession are estimated at $320 million. Academic research has addressed the extent of the savings. I am unaware of any study that proves that it costs more to run a private prison than a public one. From the information available to date, the level of savings runs between 1% and 50%. The working assumption of the Israeli government is a savings of 15%-20%.
As a result of long-term agreements, the need for prison beds will be reduced—False. For the foreseeable future, the rise in the number of prisoners is expected to be greater than the number of beds available. At present, the shortage of places stands at thousands of beds. However, if additional places will not be needed, the state will be able to close down correctional facilities such as Damon and Shata prisons and others, which it is utilizing in the absence of an alternative.
Operation of the facility by a private body whose objective is to maximize profits will lead to inferior personnel, poor living conditions, and a low level of care for the prisoner—False. The operating conditions of the private facility are spelled out in an agreement that covers all topics related to sound management, measurable on an ongoing basis. The agreement between the state and the concessionaire establishes the criteria for employment and suitability of personnel to their positions (in terms of personality and professional experience). A system of penalties and rewards has been put in place, with the concessionaire subject to fines for any violation. In the case of a severe violation, the state has the right to step in. Such a move gives the state an immediate and effective course of action, and allows it to exercise its authority in the event of a deviation from the terms of the license.
The state will not have a suitable oversight mechanism for the private prison, leading to faulty supervision that will harm the prisoners—False. The Law dictates a number of forms of oversight that reduce to zero the likelihood of substandard supervision of the privately managed prison. The system of checks is as follows:
- The running of the prison is subject to the provisions of the Prisons Ordinance.
- Essential powers remain in the hands of the IPS.
- Training and certification of personnel is under IPS supervision.
- An IPS oversight team physically supervises the facility from within, 24 hours a day.
- The concessionaire is obligated to meet dozens of review criteria; violations, if any, will result in fines.
- A mechanism for prisoner appeals (submitted free of charge) will enable oversight by the courts
- There will be oversight by the Knesset via an advisory committee headed by a retired judge.
In my opinion, operating a prison under private management, on an experimental basis, unquestionably fills the need to examine ways of improving prison conditions. Not only would this not cause any harm whatsoever to the prisoners and their wellbeing, but it would be an experiment that, in my view, would lead to large-scale changes in concepts of management, systems, and processes, for the benefit of the country's prisons.
The claims that the state has abandoned its authority; that living conditions in a private prison will be substandard; that the concessionaire's earnings will be tied to the number of prisoners; that the state will exercise poor oversight and review, etc. have been shown to be false and misleading arguments that lack any factual basis. For this reason, it is important to permit this experiment as soon as possible, precisely out of concern for prisoners' rights.
Shmuel Hershkovitz is a former Director-General of Israel's Ministry of Public Security.