Readers of this blog are familiar with my writing on public-sector prison guard unions. In Privatization and the Law and Economics of Political Advocacy, my article in the Stanford Law Review, I discussed the often-heard critique of prison privatization that charges that privatization will distort criminal law because private prison firms will have an incentive to lobby for greater criminal penalties. But, I argued, this charge ignores the massive role already played by public-sector prison guard unions like the California Correctional Peace Officers Association, which has been very active in pro-incarceration lobbying. Take the CCPOA and similar unions into account, and it’s not clear that prison privatization will make matters worse: in fact, I argued, it might make matters better, since privatizing the industry can create a collective-action problem that will make prison firms more likely to free-ride on their public and private competitors’ lobbying efforts.

In this light, it’s interesting to read a recent City Journal article by Charles Lane, Baltimore Behind Bars. This article is about how the efforts of the Maryland correctional officers’ union (they’re represented by AFSCME, the major public employees union) resulted in the passage of the Correctional Officers Bill of Rights, which made it much harder to discipline bad correctional officers — thus reducing C.O.s’ accountability and facilitating brutality and corruption scandals. Here’s how the article begins:

Crime and corruption are nothing new in Baltimore, as any viewer of The Wire can attest. But even for Maryland’s largest city, the April 2013 federal indictment charging 25 people with drug dealing, prostitution, and violence was a shocker: all of the alleged crimes occurred inside the city’s biggest jail. Worse, 13 of the accused were guards, who conspired with a violent prison gang to smuggle in contraband, ranging from cell phones to prescription pain pills. Female correctional officers took payoffs to have sex with gang members, including the gang leader, Tavon White, who fathered children with four guards. “This is my jail,” White declared in a January 2013 call, secretly recorded by the FBI. “I am dead serious. I make every final call . . . and nothing go past me, everything come to me.”
The lurid details drew national attention, embarrassing Governor Martin O’Malley, a Democrat with presidential ambitions, and causing a shakeup in the state correctional bureaucracy. Yet within Maryland, what really provoked an uproar was the federal authorities’ assertion that a three-year-old state law known as the Correctional Officers Bill of Rights (COBR) was partly to blame for the scandal. According to the indictment, the law’s procedural protections for guards facing administrative discipline tied supervisors’ hands so tightly that punishment was only a “very remote” possibility. An accompanying FBI affidavit noted that “the internal review process set up by COBR” was “ineffective as a deterrent to [correctional officers] smuggling contraband or getting sexually involved with . . . gang members.”
O’Malley, lawmakers of both parties, and the correctional officers’ union—the American Federation of State, County and Municipal Employees (AFSCME)—had all backed COBR. In the wake of the scandal, all insisted that federal authorities’ harsh view of the law was unfounded. But the story of the law is, if anything, more damning than the feds could say directly.


Nor is the Maryland Correctional Officers Bill of Rights the most restrictive such set of regulations in the United States. That distinction probably belongs to the rules that the California Correctional Peace Officers Association has imposed, via collective bargaining and legislative lobbying, in the Golden State. In California, C.O. witnesses in disciplinary cases have the right to union representation during questioning—a “right” they decline to exercise only at the risk of finding themselves labeled “rats” by their union brothers, according to sociologist Joshua Page’s 2011 book about prisons and the correctional officers’ union in California, The Toughest Beat. The same union rep may attend interrogations of both witnesses and the accused, an obvious risk to the integrity of an investigation.
In essence, though, Maryland’s COBR and the California rules do the same thing: they give correctional officers’ unions extra influence over employee discipline, a process in which the unions have a special interest. They do this in deference to union political power—and despite the public’s interest in a process that is as impartial as possible. Public institutions function best with clear lines of authority. That goes double for inherently hierarchical ones like prisons and jails. Yet by their very nature, laws like COBR blur lines of authority.

The line on blurring lines of authority is interesting in the prison context — one of the critiques of private prisons is that the contractual structure blurs lines of authority. For instance, correctional officers answer both to their employer (CCA or some other prison firm) and to the government that their employer contracts with; or private prison executives answer both to the governments their contract with and to their own shareholders. But the same can be true of public prisons, so levying this critique without considering the incentives at work in public prisons is illegitimately asymmetrical. (For a more philosophical argument in favor of public-prison symmetry in thinking about prisons, see my UC Davis Law Review article, Privatization and the Elusive Employee-Contractor Distinction.)

You can read the whole Charles Lane article here.