Subsidiarity and Abolition:
On the Privatization of Prisons and the Demands of Justice
In October 2019, California Governor Gavin Newsom signed a bill meant to ban the use of for-profit, private detention facilities, phasing out existing detention facilities entirely by 2028. Already contested by means of a complaint filed by GEO Group, a private prison management corporation, and a lawsuit filed by the Trump administration, the new law prevents the California Department of Corrections and Rehabilitation (CDCR) from entering into or renewing a contract with a private company to run a state prison after January 1, 2020.
The law provides an exception to this ban on an “as-needed” basis in order to meet court-ordered inmate housing limits or provide “educational, vocational, medical, or other ancillary services to an inmate in the custody of, and under the direct supervision of, the Department of Corrections and Rehabilitation or a county sheriff or other law enforcement agency.” Such “vocational training” includes unpaid and underpaid labor of various kinds ― for instance, Conservation (Fire) Camps train imprisoned people as firefighters and then deploy them to fight increasingly deadly and dangerous fires across California. Tethering such “programming” to cages expands the scope of the carceral state by masking the violence, inefficacy, and lucrative promise of violating fundamental human rights and offering instead a pantomime of justice. And since 2017, when former Attorney General Jeff Sessions withdrew an Obama-era directive to phase out private prison contracting by the Department of Justice, private prison companies and contractors have also been profiting from meeting the “needs” of federal agencies committed to immigrant detention.
California’s new law represents a small effort to stem the tide of private prisons, such as those run by CoreCivic, GEO Group, VisionQuest, and Management & Training Corporation (MTC), which all have long records of documented abuses. Other states including Washington are poised to follow California by enacting their own ban on private prisons. Legislators in Washington state have joined a powerful coalition of immigrant rights organizations, criminal justice reform activists, and tribal leaders to research and draft legislation that could withstand a legal challenge like the one currently facing California.
Yet as Mia Armstrong of the Marshall Project argues, focusing exclusively on the abolition of private prisons furnishes attention and resources almost exclusively on a relatively small proportion of the imprisoned population in the United States. Furthermore, this focus obscures the privatization of “public” prisons within the broader context of what sociologist and historian Margaret Somers calls “market-driven governance.” As anthropologist Vincanne Adams explains:
Emerging out of a half-century commitment to neoliberal policies that favor and advance market-based solutions for our most pressing economic and social problems, we see now a steady transformation of public-sector institutions into market-based consortia wherein fiscal, for-profit transactions become the means by which access to federal resources, even for things like disaster relief, is determined.1 Vincanne Adams, Markets of Sorrow, Labors of Faith: New Orleans in the Wake of Katrina (Durham, NC: Duke University Press, 2013), 5.
Such governance points to the complicit nature of ostensibly public institutions with private enterprise through lobbying and various forms of political corruption. Private contractors in the correctional food-service industry (such as Trinity and Aramark) or the prison technology services market (such as GTL and Securus) have been able to engage in negligent and abusive business practices with little to no oversight from complicit lawmakers. All the while, these lawmakers continue to expand the scope and intensity of punishment as the only solution to poverty and other social problems.
Such legal and political developments invite theological and ethical scrutiny. In recent times, few if any politicians have made principled appeals to the ethic of subsidiarity in Catholic Social Teaching (CST). Trumpism, practicing a Dominionist corporatist pragmatism, seems to have replaced the attempts at justification of social policies among a majority of white Catholics and evangelicals, in particular. In contrast to the blatant drive to commoditize all domains of human life under the guise of “virtue,” an ethic of subsidiarity proposes a check to such administrative power exercised from afar upon local communities. The ethic of subsidiarity, reduced to a bare federalism by former Speaker of the House Paul Ryan, was first described in the encyclical Quadragesimo Anno (1931):
Just as it is gravely wrong to take from individuals what they can accomplish by their own initiative and industry and give it to the community, so also it is an injustice and at the same time a grave evil and disturbance of right order to assign to a greater and higher association what lesser and subordinate organizations can do. For every social activity ought of its very nature to furnish help to the members of the body social, and never destroy and absorb them (§79).
Catholic public intellectual and political philosopher Stephen Schneck argues that subsidiarity, an orientation that considers the proper allocation of obligations and rights to parts of society, ought to be considered in relation to two other terms: solidarity and the common good. Whereas subsidiarity focuses on the distribution of power among constituent parts, solidarity considers what is owed to the whole social body. Both aspects of the ethical engagement towards the common good function together since subsidiarity is, according to Schneck, the organizing of solidarity. Schneck writes that subsidiarity refers to the “appropriate balancing of responsibilities and functions among the parts of a social order.” As Schenck observes, the principle of subsidiarity is deeply rooted in the “Catholic understanding of community, which perceives a community not as so many individuals connected by contracts, but as a corporate whole ― a moral and cultural body that, like any body, is comprised of limbs and parts the differences of which contribute to the good of the whole.” Subsidiarity as a political principle can be found in the Treaty on European Union, but it runs counter to notions of supremacy of federal law in the United States Constitution.
At first glance, it might seem as though the demands of justice within an ethic of subsidiarity require that states’ rights take precedence over federal jurisdiction. Considering the matter in only these terms, however, fails to reckon with how corporations exert their own governance. A robust and critical analysis of economic, political, and social dimensions of belonging must account for the forms of citizenship engendered by politically powerful corporations. These corporations regulate ways of being while actively undermining protections for workers and consumers. They regularly lobby for deregulation at the level of the state and federal government in order to operate with impunity to maximize profit margins. Thus, when considering institutions ― or to use theological language powers and principalities ― it is important to distinguish between the levels of federal, state, and corporate governance exercised by corporations while at the same time recognizing how boundary work between the “public” and the “private” occludes the privatization and corporatization of the public sphere.
Returning to the issue of justice, punishment, and profit, we can now ask the following questions: Who is best suited for building cages, separating families, and violating fundamental human rights for the sake of profit? Should it be the federal government, state and local government, private corporations, or privatized government? Perhaps posing the question in this way allows us to rethink the implicit assumptions about justice, punishment, and restitution that unduly constrain how we think about what justice means and who is accountable when a system is irredeemably unjust. The privatization of public functions is an urgent problem across all imaginable sectors. Clearly stated, arguing against the sovereignty of the local community in matters of justice means saying that people have a right to profit off a nominal justice system that fails to stem the tide of harm.
Perhaps there is another way: CST, at its best, recognizes the need for structural competency when determining how economic and political institutions regulate, constrain, and enable human dignity, freedom, and flourishing. A weak state, anxious to placate powerful corporations through deregulation, allows for rapacious corporations to exercise unchecked power, surveillance, and control in the name of unlimited profit. A state that instead exercises a regulatory role (in accordance with democratic accountability and an ethic of subsidiarity) functions to ensure solidarity. As a result, even the most vulnerable citizens can provide for their own basic needs.
A radical ethic of subsidiarity consistent with the highest of aspirations of CST would not make the case for outsourcing virtue. Making decisions within the community about how to redress specific harms requires the work of knowing all of our neighbors, whether housed or unhoused. It means administering small-scale cooperative ventures to support local economies. It means refusing to fit harms into a preset collection of categories and instead affirming an ethical obligation towards others that is lived out in everyday commitments. A local justice, mediated by a community that refuses the violence of anonymity and case exemplars, would mean rejecting cops, cameras, and cages as solutions to social and economic problems.
A principled ethic of subsidiarity, balanced by a ethic of solidarity in service of the common good, would lead to a robust abolitionist democracy capable of pushing back against the privatization and corporatization of incarceration, a function in principle undertaken by the state as an agent of the will of the people. Having learned the lessons of the past — and namely those of a nominal or merely legal abolition of slavery — abolitionists today organize not only to dismantle systems of oppression but also to change popular discourse and build institutions and forms of local sovereignty. Abolitionist praxis is what justice looks like when we remove the mask from the racist, exploitative, and violent system we have today.
Mauricio Najarro is a PhD Candidate in the Joint UC Berkeley-UCSF Medical Anthropology program with a Designated Emphasis in Science & Technology Studies and holds a PhD in Theological and Religious Studies with an Emphasis in Christian Spirituality from the Graduate Theological Union. His current research is on de-addiction and recovery during a global pandemic in the borderlands of Indian Punjab.