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Makoto Tadaki

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Public-private Partnership in Penal Institutions

Makoto Tadaki
Professor of Criminal Law and Procedure, Faculty of Law, Chuo University and Chuo Law School

General

"75,000 persons multiplied by 400 yen equal 30 million yen." This is the total daily costs of side dishes for inmates in penal institutions (inmates under sentence, including those in pre-sentencing detention). Even in simple calculation, the cost of side dishes becomes 900 million yen per month and exceeds 10 billion yen annually. Needless to say, it is a fraction of expenses necessary to run penal institutions, whereby the significant amount of budget is allocated to on many items of expenses, including construction, maintenance, and repair expenses for facilities, utility fees, and the labor cost of personnel, which is far larger than others. During the process of compiling the national budget, it is often criticized that huge amount of tax money is spent on public projects. To tell the truth, it is the custom that not negligible amount of money is spent for the management of penal facilities. When discussing criminal justice, we cannot avoid the calculation of these expenses.

Entry of PFI into penal institutions: Birth of PFI prisons

As many of you may know, since 2007 Japan has seen the birth of a new type of penal institutions called "Rehabilitation Program Centers," namely prisons, and the start of their operation in four locations nationwide-in Mine City, Yamaguchi prefecture (Mine Rehabilitation Program Center); in Sakura City, Tochigi Prefecture (Kitsuregawa Rehabilitation Program Center); in Kakogawa City, Hyogo Prefecture (Harima Rehabilitation Program Center); and Hamada City, Shimane Prefecture (Shimane Asahi Rehabilitation Program Center). These centers are public-private partnership penal institutions (PFI prisons, or PFT penal institutions), which are put into practice thanks to the launch of the so-called "PFI business promotion policy."

The PFI business, which is built on the concept that the mission of public projects is to offer public services, is a new type of public projects, whereby private funds, technologies and knowhow, and labor are deployed in stages from the planning and designing of facilities to the management of facilities, so that enhanced efficiency, cost reduction, etc. can be realized in total. Since the enactment of the so-called "Act on Promotion of PFI" in 1999, PFI has been adopted mainly in cultural and educational institutions and social welfare facilities. Meanwhile, it was decided that this new initiative shall be incorporated into the field of administration of punishment under the policy of "no exception." Behind this movement lie the challenges of eliminating excess capacity in existing prisons and reducing the burden of staff, as well as the promotion of administrative reforms in this field. In PFI penal institutions, the public sector has ultimate responsibility, even if institutions are operated by the private sector. The basic concept is that the exercise of public power concerning criminal justice, the quintessential part of penal institutions, shall be maintained by "the public sector." Under this basic concept, it was decided that tasks that can be outsourced to the private sector without legal authorization, such as guard duty outside facilities, cleaning jobs, reception, and the driving of vehicles, are commissioned to the private sector. The above-mentioned four centers are pilot projects, and the management of these four centers is said to be satisfactory in general. It can be said that the centers achieve a measure of legitimacy in terms of the alleviation of staff's burden, contribution to countermeasures against repeat offences, job guidance, coexistence with local communities, and the guarantee of transparency of penal institution management required by the Committee on Reform of Penal Administration, which was set up after the Nagoya Prison Incident.

Also, after the revision of the Administrative Reform Promotion Act, whereby the achievement of better and cheaper public services is aimed by reflecting the creativity and innovation of the private sector into public services in a appropriate way, it becomes possible, thanks to the removal of the limitation of designated structural reform districts, that the outsourcing of tasks to the private sector, which is exceptionally allowed only for PFI penal institutions so far, can be implemented technically in all the penal institutions nationwide.

More specifically, it is officially acknowledged that the range of tasks that can be outsourced to the private section may be expanded from the above-mentioned tasks to work such as inspection of personal belongings, guard duty targeting inmates, the implementation of job trainings, and the maintenance of retained articles. Although the latter has a nuance of public power, it is considered that preparation jobs for criminal justice and the legitimate actions that are part of criminal justice can be outsourced to the private section as long as the requirements, procedures, and supervision methods of these jobs are clear and obvious. As a result, existing prisons such as Shizuoka Prison began to outsource part of tasks to the private section or allow the private section to get involved in the management of prisons from 2010. It is expected that other penal institutions will follow suit in the future.

For future of PFI prisons business

From recent trends shown above, it is expected that the introduction of PFI to penal institutions, or the concept of public-private partnership in penal institutions, will take root and go to the direction of expansion in the future.

As for this new penal institution management initiative, however, it is pointed out problems, as well as advantages. One of problems hinges on the question whether the concept of PFI, which regards correctional treatment as "public services," can be compatible with the established view of penal institutions, in which the implementation of strict punishment has been ensured under the control of "the public sector," and the question whether the "commercialization" of correctional treatment, though partially, is acceptable. Concerning these questions, some critics have voiced doubt from the start, and dispute has yet to be settled. In relation to these questions, the concern that the introduction of the new initiative may change the quality of correctional treatment can be also pointed out. It is not necessary case that a definite conclusion can be reached over the question whether the expansion of penal institutions will lead to the fundamental solution to prison overload. Furthermore, other critics argue that when promoting the entry of the private section into penal institutions, the government should have had the option of deploying nonprofit private entities, organizations, etc. for the first place. Meanwhile, concern over change in a sense of responsibility of staff and warders working in penal institutions is also voiced.

Nonetheless, under the new current of penal institutions management that has already started off, the efficiency of public-private partnership can be ensured when, despite these problems, the conscious collaboration and cooperation of the public and private sectors is established. This very collaboration, therefore, is considered to be the key of solutions to the above-mentioned problems. The management of penal institutions under public-private partnership is still in its infancy. It is our duty to carefully observe the growth of this new initiative with the eyes of parents and critics.

Countermeasures against excess capacity in penal institutions

By the way, Japan has seen an upward trend in the number of inmates in penal institutions since the late1990's because of a rise in the number of inmates in pre-sentencing detention, first-time inmates, etc. As mentioned before, one of major reasons why the PFI business was introduced to penal institutions was to find a solution to excess capacity. It is considered that behind this surge of inmates in pre-sentencing detention and first-time inmates lay growing social concern caused by recession and stagnation, which gained momentum after the collapse of the bubble economy, rising jobless rates, etc. Also, concern over various events and incidents around the world that may threat our peaceful social life has been closed up through the media. It seems that people are haunted by worry that this imaginary threat may come true, with anxiety overwhelming even our society. Under these circumstances, people probably have first-hand experience of change in, or more correctly, the deterioration of the so-called "sense of public security." It seems that one of solutions people counted on to prevent the deterioration of this sense of public security was the legislation of criminal law and procedure. This is obvious from the fact that a variety of criminal laws have been enacted recently, the phenomenon that can be expressed as the "invigoration" of criminal law legislation. In accordance with this movement, new trends can be witnessed in actual criminal administration, as if it is backed by the deterioration of the sense of public security, whereby statutory penalties and sentences become severer, and the rates of parole, particularly parole at the early stage of sentence, become lower constantly. If these trends persist in the future, it is concerned that the so-called vicious cycle will continue to make progress: "An increase in criminals results in prison overload, which, in turn, causes change in or the deterioration of the quality of correctional treatment because of shortage of staff. Change in correctional treatment then leads to an increase in repeat offences, which, in turn, augments social anxiety."

Given this perspective, it can be said that the new installation of penal institutions shall not be considered single panacea for the problems of prison overload and rising crime. In addition to this kind of physical solution, it is also important to objectively explore what causes contribute to an increase in the number of inmates in penal institutions and to take countermeasures against repeat offences at the same time. If wisdom and creativity, equal to or more than those employed for solutions to prison overload, are deployed for fundamental crime prevention measures-in other words, if attention is paid both to the current situation of prison overload and to its background factors, and countermeasures are taken in a synergic manner-, the effect of approaches to "curb" the number of criminals and to "prevent" people from imprisonment will hold promise. In addition, it can also be said that treatment in penal institutions further seeks for initiatives to "encourage" inmates to leave penal institutions.

Conclusion

It may sound a little bid vulgar, but "crime" can be recognized as long as "law" exits, as if law is a mirror that reflects crime. According to the so-called "social threat and social anxiety theory," whereby contemporary world is considered to be full of danger and threats to peaceful social life, it is highly probable that, as mentioned before, the legislation of criminal law and procedure will gain more momentum. More legislation and the tightening of regulations and control, however, mean the narrowing of low enforcement barrier, which may lead to an increase in the number of criminals. We shall be aware of this mechanism. At the same time, we shall renew our understanding that if a penal institution is packed to capacity or near capacity, it becomes difficult to expect high-quality correctional treatment that can prevent inmates from committing repeat offences.

Currently, the management of penal institutions is in the process of taking the new direction of public-private partnership. This movement will be promoted further in the future. It can be said that penal institution management of a new era can no more work without public-private partnership. As PFI penal institutions are appropriately named "(social) Rehabilitation Program Center," it is strongly desired that they will fully assume the responsibility as rehabilitation institutions that "encourage" inmates to "rejoin society." This is the best approach to the prevention of repeat offences and the effective countermeasure against prison overload. The understanding that an increase in the number of prison inmates leads to a rise in expenses, and that low-cost treatment does not contribute to the prevention of repeat offences and thus result in, ironically, a surge in costs, shall be also shared by ordinary citizens (Incidentally, it is advisable to refer to my paper titled Public-private Partnership in Penal Institutions in Journal "Crime and Punishment," Volume 48-2 (Mar 2011), pp5-).

Makoto Tadaki
Professor of Criminal Law and Procedure, Faculty of Law, Chuo University and Chuo Law School
Born in Aizu region, Fukushima Prefecture, in 1956. Completing undergraduate and graduate study in the Faculty of Law and Graduate School of Law, Chuo University, respectively, he entered the doctoral course in the Graduate School of Law of Chuo University but left the course at maturation. He is awarded Doctor of Law (from Chuo University). After working in a series as an instructor, assistant professor, and professor in the Faculty of Law of Dokkyo University, he has assumed the post of a professor in the Faculty of Law, Chuo University since 2002 and concurrently assumed the post of a professor in the Chuo Law School since 2004. Since November 2008, he has been assigned to the head of the Institutie of Comparative Law in Japan. Outside Chuo University, he is also a member of the Committee on Correction Policy of the Correction Bureau, the Tender Oversight Committee, and the Committee on Comprehensive Evaluation at the Ministry of Justice, an expert committee member of the Central Council for Education at the Ministry of Education, Culture, Sports, Science and Technology, a member of Scoring Committee for New Bar Examination, an associated member of the Science Council of Japan, and the head director of the Criminal Law Society of Japan.
His field of specialization is criminal law and procedure. Centering around theories on the interpretation of criminal law, he studies challenges in bioethics, penal policies, etc.
Research on Theories of Number of Crimes (Revised and enlarged edition) (2009, published by Seibundoh) and Contemporary Challenges in Study of Criminal Law and Procedure (2009, published by Chuo University Press) number among his major research works.