Privatisation Of Prisons - A Comparative Analysis Of Overcrowding And Healthcare In India And The United States

Author: LawSphereX

Category: General Law

Published: 2026-08-23T20:47:18.169304+00:00

Updated: 2026-08-26T17:10:02.539+00:00

PRIVATISATION OF PRISONS: A COMPARATIVE

ANALYSIS OF OVERCROWDING AND HEALTHCARE IN

INDIA AND THE UNITED STATES

Claremont Daniella, Christ University Pune Lavasa Campus

ABSTRACT

The proposed research paper addresses the concept of prison privatisation by comparing India and the United States with regard to two important issues, specifically, healthcare and overcrowding. The study aims at answering the question whether the involvement of privacies in the running of prisons can really bring the long-standing problems to the real solution, or it would submerge human rights and responsibility of the state. The privatisation of prisons dates back to 1980s in the United States because of the rising incarceration rates and the fact that the government could not manage to handle the overcrowding of the prisons and the rising cost of the prisons. This was geared towards streamlining it and removing the financial liability through privatization. The result has been ambivalent, however.

Even though the examples of institutions that propose superior facilities and costeffectiveness exist, the problem of inadequate healthcare, inadequate living conditions, and profit motives ethics has not been addressed. In India, the state prisons have made the institutions very much controlled in Prisons Act of 1894 and other state prison manuals in which nearly all the prisons are controlled by the state. Despite the efforts by the government and the judiciary to ease the situation, the Indian prisons continue to be congested with minimal medical services, understaffing and rehabilitation initiatives. This paper argues that full privatisation in India is unlawful and unconstitutional because imprisonment is seen as a sovereign and cannot be fully privatised, a middle way by using Public-Private Partnerships (PPPs) would prove to be a more viable and ethical solution.

The government could provide security and administration, but in non-core sectors, e. g. healthcare, vocational training, sanitation, and digital management, the role of the government could be played by private organisations. The paper concludes that, in order to reform the prison system in India, financial or structural changes might not be the answer and might not be enough to reform the system without the accountability and the good of inmates. It supports more moral and ethical commitment to further values of justice, human dignity, and rehabilitation, which should be the main ingredient of any correctional reform, whether governmental or otherwise.

Keywords: Privatisation of prisons, Public Private Partnership (PPP), Healthcare and Human Rights, Prison Overcrowding and Prison Reform, Comparative Legal Analysis.

1. Introduction:

Privatisation of prisons is the act of privatizing part of the core correctional operations, such as construction, operation and maintenance of the prisons, and awarding them to a statecontracted profit-earning and profit-driven organisation. Instead of the government directly running all the correctional facilities, it contracts the services to the companies, which are then assigned with the task of accommodating and running the prisoners normally per inmate and per day basis. This model applies in modern time because mass incarceration, growing correctional spending, and systemic overpopulation have triggered many governments to find a sort of affordability at the expense.

In the meantime, the assignment of liability to the acts of private entities in respect of the process of depriving liberty which is a sovereign act of fundamental nature has raised grave legal and ethical concerns in respect of responsibility and disclosure as well as the possibility that profit-making motives will substitute human rights protection. The issue of overcrowding and healthcare has been the debate. The prisons are habitually overcrowded beyond capacity and this leads to violence, deplorable conditions that lead to diseases and complete disrespect of basic human dignity. The right to good medical attention, physical and mental, in such an environment first seems to be influenced, but it is contrary to the constitutional and international provisions. Inadequate health care confinement could be cruel, inhuman or degrading treatment and worst still, could be fatal.

Both India and the United States are plagued with the problems of both overcrowding and healthcare delivery in their prisons but these problems are in very different institutional contexts. The state-run prisons dominate India, and are dictated by the Prisons Act of 1894 and state prison manuals. The whole basic custodial business is carried out by the government officials and though certain non-core services (food or vocational programs) may be outsourced, India is not an all privatized prison. The United States is a comparison: the bulk of prisoners are confined in government facilities, but a significant share of those, especially in immigration imprisonment and some of state facilities, are imprisoned in privately run facilities. It presents one useful comparative field: India is a state-oriented regime with unbelievably high rates of

overcrowding, and the U. S. is the example of what happens when the carceral space is liberalized to a regime of privates. The ethical and legal argument is generally brought out as the profit versus human rights. Advocates of the privatisation idea maintain that competition and contractual drivers will help lower the costs, ease the overcrowding by providing capacity quickly, and help improve service delivery, including healthcare. Opponents counter that privately-run prison firms have a structural motivation to cut costs on staffing, training, and medical care, and to lobby legislators to keep prisons full or even raise their numbers. They also underline that punishment and coercive force are the most characteristic functions of a state that are not to be commoditized.

It is on this backdrop that the current paper is based on a balanced analysis of prison privatisation and its effect on overcrowding and healthcare in India and the United States. The two fundamental research questions it has are: what role did privatisation (or lack thereof) play in increasing prison overcrowding; what impact will privatisation have on the quality and accessibility of prison healthcare; and in both jurisdictions, what legal and ethical paradigms govern these effects1. The research questions that guide the research are: (1) Does privatisation of prisons reduce or intensify overcrowding? (2) What is its impact on the quality of medical and mental health care of the prisoners? (3) Do we have the proper regulatory and judicial mechanisms to protect the rights of prisoners in both the public and the private environment?

The paper takes a middle position: it neither supports nor opposes privatisation as such, but rather attempts to determine circumstances in which any form of prison governance, whether public, private, or hybrid, can be reconciled between administrative efficiency and the respect of basic human rights. 2

2. Background and evolution of Prison Privatisation

With the twin pressures of overcrowding and escalating correctional expenses, the privatisation of prisons began to be discussed as a major issue in the United States in the 1980s. The U.S. government started outsourcing prison operations to private corporations like the Corrections Corporation of America (currently CoreCivic) and the GEO Group, which claimed that privatization would lower the fiscal expenses and enhance efficiency3 in the prison systems

1 The Sentencing Project, Private Prisons in the United States (2024)

2 United Nations Office on Drugs & Crime (UNODC), Toolkit on Prison Health Systems

3 Sharon Dolovich, State Punishment and Private Prisons, 55 Duke L.J. 437 (2005)

that had become overcrowded with inmates as a result of policies that promoted cost-cutting and tough-on-crime sentencing. Nonetheless, a U. S Department of Justice report later stated that although private prisons seemed cheaper, they received savings by cutting staff wages, training, and also paying for lower-quality healthcare. 4 Conversely, India has not been entirely privatising its prisons because of constitutional and legal limitations. Though the limited partnerships with NGOs and private hospitals have been undertaken in the context of welfare and health activities5, the concept of complete privatisation of the prison is still incompatible with the concept of Indian Article 21 that ensures the right to life and dignity even to prisoners.

Countries all over the world have embraced Public-Private Partnership (PPP) as a golden mean, where they can involve the private in areas that are not core to their objectives, such as healthcare, vocational training, and maintenance, yet maintain state authority to discipline and justice. This model will strike a balance between efficiency and accountability, but the main question of debate on the issue is whether it is possible to privatise prisons without compromising human rights and the responsibility of the state. 6

3. Legal and Policy Framework in India and U.S.

A. India

In India, the management of the prison system is mainly regulated by the Prisons Act, 1894, which remains the main law even now, being colonial in its nature. The Act gives state governments the role of running prisons since imprisonment and other issues are considered under Entry 4 of the State List of the Seventh Schedule of the Indian Constitution7. Therefore, every state has its own corrections system, and as a consequence, there is a wide range of differences in how the corrections are managed, the infrastructure, and the welfare of the inmates in the country. The Ministry of Home Affairs released the Model Prison Manual, 2016, to modernize the old

1894 law, which gave new standards regarding inmate healthcare, rehabilitation, and discipline.

4 U.S. Dep’t of Justice, Office of the Inspector Gen., Review of the Federal Bureau of Prisons’ Monitoring of Contract Prisons (2016).

5 The Prisons Act, No. 9 of 1894, § 3, India Code (1894).

6 Richard Harding, Private Prisons and Public Accountability (2d ed. 2018).

7 INDIA CONST. Seventh Schedule, List II, Entry 4.

The manual focuses on reformative justice and humane treatment, which is within Article 21 of the Constitution, which grants that every person, including prisoners, should have the right to life and to dignity. The judicial intervention has been important in the determination of the jurisprudence of prisons in India. In Sunil Batra v. Delhi Administration, the Supreme Court decided that inmates did not renounce their fundamental rights when they are imprisoned, and any inhuman or degrading treatment was a breach of Article 21. Equally, in the case of People's Union of Democratic Rights v. Union of India8, the Court confirmed that, though states may outsource their functions, in this case, the State still has the duty of ensuring compliance with fundamental rights.

The National Human Rights Commission (NHRC) also adds to this framework by inspecting prisons and acting upon the violation of human rights. This strong legal framework notwithstanding, the Indian prisons are still struggling with huge challenges. According to the India Justice Report (2025), the national occupancy rate was found to be on average 131, with a few states having a higher occupancy rate of over 200 percent9. The number of doctors available per 775 inmates amounts to one, meaning that there are significant shortfalls in healthcare, especially in mental health10. It was also reported by UNODC (2024) that Indian prisons do not have mental health infrastructure and specialized medical personnel. 11

B. United States

The United States, on the other hand, has a dual system of federal and state prisons, with both being controlled by the constitutional and statutory systems. The Eighth Amendment includes the prohibition of cruel and unusual punishment, and it has been defined that prison conditions should not violate human dignity12. The Fourteenth Amendment guarantees equal protection and due process, which provides the prisoners with constitutional protection.13 The main federal legislation consists of the Prison Rape Elimination Act (2003)14, which

8 People’s Union for Democratic Rights v. Union of India, (1982) 3 S.C.C. 235 (India).

9 India Justice Report (2025)

10 Vajiram & Ravi, India’s Prison Crisis: Overcrowding and Lack of Healthcare Services (2024)

11 United Nations Office on Drugs & Crime (UNODC), Toolkit on Prison Health Systems (2024)

12 U.S. CONST. amend. VIII.

13 U.S. CONST. amend. XIV.

14 Prison Rape Elimination Act of 2003, 42 U.S.C. §§ 15601–15609 (2003)

requires zero tolerance for sexual abuse, and the First Step Act (2018)15, which centers around rehabilitation, early release rebates, and healthcare advances. The Department of Justice (DOJ), through the Federal Bureau of Prisons (BOP), manages the federal correctional facilities and the government contracts prisons, which are run by entities that provide services to about 8 percent of the entire population of inmates in the country. 16 The U. S. prison rights have been greatly characterized by judicial precedents. In Estelle v. Gamble17, the Supreme Court came to the realization that denial of medical care was a contravention of the Eighth Amendment (Gamble). In Farmer v. Brennan18, this principle was extended by Brennan, who believed that the prison officials were at fault due to deliberate indifference towards the safety of the inmates. In Brown v.

Plata19, the Court ordered California to decrease the number of inmates in its prisons as a result of extreme overcrowding, which was found to be unconstitutional by the Court.

C. Comparison

The parliamentary system of India puts the control of prisons in the hands of the state governments that prioritize human dignity by having the judicial authority over it, whereas in the U.S, with a presidential federal system, the state and federal governments have divided prison control. In India, complete privatisation of prisons is illegal as the country considers incarceration as a sovereign activity, whereas in the U.S., prisons can be run by private bodies under controlled government contracts. Although the two systems are characterized by different structures, they both have challenges with overcrowding, issues related to healthcare, and accountability in managing correctional systems.

4. Comparative analysis: Overcrowding and Healthcare.

Overcrowding Overcrowding in India and in the United States is a structural problem that is severe, which directly impacts the health and well-being of prisoners. Research carried out outside the US reveals a distinct correlation between overcrowding and adverse health consequences: in a

15 First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018)

16 The Sentencing Project, Private Prisons in the United States (2024)

17 Estelle v. Gamble, 429 U.S. 97 (1976)

18 Farmer v. Brennan, 511 U.S. 825 (1994)

19 Brown v. Plata, 563 U.S. 493 (2011)

global scoping review of 34 studies, prison overcrowding was positively related to increased incest rate of infectious disease, self-harm, depression, violence-related injuries, and mortality20. Such consequences result in the fact that high population density reduces access to simple hygienic amenities, gives an opportunity to airborne illnesses such as tuberculosis and COVID-19 to spread more easily, and creates factors that strain mental health. Overcrowding is an issue that has plagued India. Recent government statistics indicate that substantial shares of prisons are functioning far above capacity, with quite a few of them being occupied to or in excess of 130 percent, and over 70 percent of their inmates being classified as undertrials (people awaiting trial as opposed to serving a sentence)21.

Overcrowding causes overstraining of sanitation, more fighting among prisoners, and deteriorates access to fundamental services such as medical attention, recreation, and legal assistance that are central to humane imprisonment. The occupancy rate of the national prisons in the United States is also less than the average rate in India, but still high, with a high level in some states22. Part of the overall response to the problem of overpopulated prisons is the presence of private prisons, with an estimated 90,873 inmates or approximately 8 per cent of the total prisoners in 2022. But even the facilities that are known to the masses, such as the state system in California, were ruled against by the U. S. 23 The Supreme Court in Brown v. Plata held that the prisons were so congested that the breaches of health and safety standards were cruel and unusual punishment.

Healthcare The quality of healthcare being offered in overcrowded prisons is always portrayed as impaired. Studies have shown that in India, there is a significant issue of inadequate healthcare staffing and infrastructure, and as a consequence, prisoners are a medically vulnerable group with unmet health needs largely because of poor primary care and mental health services24. These gaps are addressed by the 2024 Toolkit on Prison Health Systems by UNODC, which states that the system will require systemic changes, such as telemedicine and standard 20 M. Aon et al. , The Association Between Health and Prison Overcrowding: A Scoping Review, 25 BMC Pub. Health 23340-9 (2025)

21 Privatisation of Prisons in India: Possibilities and Challenges (ResearchGate 2025)

22 World Prison Brief, United States of America: Country Profile (2024) (U.S. occupancy data)

23 The Sentencing Project, Private Prisons in the United States (2024)

24 S. Bhaumik, “Using the ‘Prison Window’ to Reach Disadvantaged Groups” (discussing healthcare

shortcomings among Indian prisoners)

treatment protocols. The U. S. has constitutional rights that provide prisoners with proper medical care. In Estelle v. Gamble, the Supreme Court believed that intentional neglect of adequate medical care infringes the Eighth Amendment on cruel and unusual punishment. Regardless of this, evidence-based research on outsourcing prison health care suggests that privatized systems fail to boost the overall health or safety outcomes for the population, and in most cases, they do not align with basic healthcare standards, especially in cost-cutting settings where corporations get fixed perinmate charges. 25 Analytical finding: The comparative evidence indicates that although privatization can be brought in with the aim of reducing overcrowding and enhancing efficiency, unless heavily regulated and monitored will worsen the health and welfare conditions.

The issue of overcrowding and substandard healthcare is not entirely addressed through changing the management models but represents a more systemic problem with the correctional policy, infrastructure, and protection of human rights in both jurisdictions.

5. Research Gaps Identified:

Additionally, despite all the research that has been done on the administration of prisons, human rights, and penal reformation, there are still many gaps in comparative and empirical knowledge of the effects of privatisation on prison overcrowding and healthcare results, especially between developing countries such as India and developed ones such as the United States. There is a trend in most literature on prison privatisation focusing on the West. Investigations like the one by Dolovich in State Punishment and Private Prisons focus on ethical and constitutional issues in the United States26, yet few studies look into ways in which these arguments can be replicated in other legal systems, like in India, where the role of imprisonment is still a sovereign state as defined in the Prisons Act of 1894.

This entails a loophole in the comparative constitutional analysis, namely, how the emerging democracies

25 P. Holahan, Exploring the Side Effects of Privatized Correctional Health (2023)

26 Sharon Dolovich, State Punishment and Private Prisons, 55 Duke L.J. 437 (2005)

will balance the accountability to the masses with possible private involvement in the correctional systems. 27 The evidence of empirical studies conducted in the United States regarding the impact of privatizing prisons has been mixed on whether this approach lowers the inmate population or enhances their welfare. As Harding (2018) and Holahan (2023) concluded, privatisation may allow saving money in the short term, but it tends to undermine the standards of healthcare and the situation of employees28. Nonetheless, little data has been conducted to evaluate long term effects of recidivism, mental health, or post release rehabilitation.

In a similar fashion, the studies carried out in India have broadly concentrated on the issue of administrative inefficiencies instead of systematically estimating the effects of the small-scale outsourcing or collaboration with the NGO in the health care and education sectors. 29 Furthermore, there is an enormous gap in research in healthcare and human rights assessment frameworks. Although some studies, like the one by Aon et al. (2025) Scoping Review on Overcrowding and Health, have shown a definite causal relationship between overcapacity and unfavourable medical results, there is a lack of research emphasizing the effects of various governance models (public vs private) on prisons as well as health care accessibility and standards.

In India, annual data is presented by the National Crime Records Bureau (NCRB), and the NHRC, but due to the absence of disaggregated statistics on mental health, the prevalence of the disease, and the quality of treatment, meaningful evaluation of the policy is impossible. In the U. S. constitutional jurisprudence, specifically Estelle v. Gamble and Brown v. Plata, which make healthcare a right under the law, empirical data on the adherence of the same in privately run facilities is sparse and unpredictable. Moreover, economic studies usually disregard ethical externalities. Numerous cost-benefit analyses view prisons as entities of administration and not in terms of rehabilitation and social justice. The industrial-complex of treatment explained by Asif (2025) makes the issue of commercializing punishment without proper moral responsibility very dangerous.

Interdisciplinary research that combines law, economics, and public health is still urgently 27 M. Aon et al. , The Association Between Health and Prison Overcrowding: A Scoping Review, 25 BMC Pub. Health 23340-9 (2025).

28 Richard Harding, Private Prisons and Public Accountability 15–20 (2d ed. 2018)

29 P. Holahan, Exploring the Side Effects of Privatized Correctional Health (2023)

needed to assess the results of the privatisation of prisons comprehensively.30 In general, existing literature does not include cross-jurisdictional, empirical, and ethically combined research on the effectiveness of privatisation on prison health, overcrowding, and human rights. To close such gaps will necessitate comparative methodologies that would fuse quantitative prison data and qualitative legal inquiry, providing a middle ground of whether privatisation can go hand in hand with justice, dignity, and state accountability.

6. Policy Recommendations and Way Forward

The comparative analysis of India and the United States reveals that while both jurisdictions differ structurally, they share similar challenges of overcrowding, inadequate healthcare, and limited accountability. Hence, reforms must integrate legal oversight, administrative modernization, and human rights safeguards. The following recommendations propose a balanced approach that prioritizes both efficiency and ethics in correctional management.

6.1. Strengthen Legal Oversight and Transparency

Prisons, whether publicly or privately operated, have to be closely supervised by the government to ensure that they are not abused and neglected. In India, the National Human Rights Commission (NHRC) must be given a legal authority to inspect on a quarterly basis, release the results, and impose an action on adhering to the Model Prison Manual, 2016. Equally, in the U. S, the Department of Justice (DOJ) and the Office of the Inspector General (OIG) ought to publish their audit reports of the federal and privately owned facilities to hold them accountable31. Transparency laws, such as the Private Prison Information Act (proposed) would emphasize the information gaps as they would impose the Freedom of Information Act (FOIA) accountability on the privately owned prisons.

The availability of inspection data to the community will discourage the violation of the rights and enhance confidence in the governance of the correctional system.

6.2. Improve Healthcare and Sanitation

In prisons, healthcare should be a fundamental human right following Article 21 of the Indian 30 Saif Asif, Profits and Rehabilitation: A Critical Look at Private Prisons and the Treatment Industrial Complex in the U.S. (2025) 31 U.S. Dep’t of Just., Office of the Inspector Gen., Review of the Federal Bureau of Prisons’ Monitoring of Contract Prisons (2016)

Constitution and the Eighth Amendment of the U.S32. India must solve the acute problem related to the lack of medical staff, enlisting professional prison doctors, telemedicine, and connecting prisons to the local district hospitals. The 2024 Toolkit on Prison Health Systems by the UNODC offers a flexible approach to maintaining minimum health standards, such as nutrition, sanitation, and mental health care provided by the private medical providers instead of savings. In the U.S., the DOJ needs to enforce performance-based healthcare contracts, in which the private medical providers would be rewarded based on improved outcomes of the inmates rather than cost savings. The practice can be supervised by the regular audits of independent public health bodies that would guarantee the cost-cutting does not compromise the welfare of inmates.33

6.3. Reduce Overcrowding Through Judicial and Policy Reform

To alleviate congestion, there is a need to have judicial and legislative changes in unison. Legal reforms towards bail and speedy trial and alternative to incarceration, particularly in cases of non-violent and undertrial prisoners, have long been pushed by the Law Commission and the Supreme Court in India34. In the U.S., states ought to increase early release and parole programs by the First Step Act of 201835, providing incentives based on early release on the condition of enrolling in rehabilitation and vocational programs. These would minimize congestion and enhance reintegration success.

6.4. Encourage Rehabilitation and Skill Development

The contemporary correctional policy should be based on rehabilitation. Both nations should stop concentrating on punishing inmates and instead reform them through the inclusion of education, vocational skills, and psychological counselling services in prisons through partnerships between the state and non-governmental organizations, universities, and social enterprises. Effective rehabilitation will minimize recidivism, and this will be beneficial to the social order and the economy36. The National Prison Information Portal (India)37 and the

32 U.S. CONST. amend. VIII.

33 United Nations Office on Drugs & Crime (UNODC), Toolkit on Prison Health Systems (2024)

34 Law Comm’n of India, 268th Report on Bail Reform (2017)

35 First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018)

36 Andrew Coyle, A Human Rights Approach to Prison Management 22–24 (2d ed. Int’l Ctr. for Prison Studies

37 National Prison Information Portal, Ministry of Home Affairs, Government of India, 2023

Federal Re-entry Programs (U.S.)38 may also cooperate to exchange best practices and elaborate on the cross-national rehabilitation patterns.

6.5. Adopt a Balanced Public–Private Partnership (PPP) Model

Instead of complete privatisation, the two countries can opt to revamp the Model Prison Manual, 2016, and incorporate a PPP system with stringent government oversight and performance-based responsibility39. In the U.S, contracts are to have clearly defined limits on profit margins, payments conditional on inmate welfare measures, and the cost and quality data have to be disclosed. This model will guarantee that the model is innovative and efficient without compromising on transparency and protection of rights. 40

6.6. Enhance Data Collection and Research

Lastly, the two systems need to have complete and standardized health outcomes, recidivism, and prison infrastructure data. In India, NCRB and NHRC are advised to partner with universities in the longitudinal studies that would inform about the effectiveness of prison reforms.41 In America, such institutions as the Bureau of Justice Statistics (BJS) will be encouraged to incorporate quality-of-life indicators in their yearly surveys of prisons to improve the assessment of human rights compliance.42

7. Conclusion

The comparative analysis of India and the United States shows that both nations have common issues in their prison systems, especially overcrowding, inadequate healthcare, and elevated operational expenses. Although there has been a variation in governance, with India having a state-managed system and the U. S. adopting a mixed public-private style, none of them have been reliable in addressing these problems. Privatisation, as an answer to cost reduction and efficiency improvement, cannot solve the structural issues on its own. As a matter of fact, it is liable to compromise transparency and accountability and even jeopardize fundamental human rights, as cost-reduction and poor healthcare services would govern nobody without proper supervision. The facts indicate that efficiency should not in any way be at the cost of human 38 U. S. Dep’t of Just. , Fed.

Bureau of Prisons, Reentry Services Division: Inmate Reentry Programs (2024)

39 Ministry of Home Affairs, Annual Prison Reforms Report (2023)

40 The Sentencing Project, Private Prisons in the United States (2024)

41 Nat’l Crime Records Bureau (NCRB), Prison Statistics India (2024)

42 Bureau of Justice Statistics (BJS), Prisoners in 2024 (2025)

dignity. There is therefore a need to have a balanced model which is a mix between innovation and responsible to the people. This balance can be achieved through a Public-Private Partnership (PPP) with close supervision of the state, which would enable the involvement of the private in areas that were not core, like healthcare and vocational education, but the state would still maintain control of areas such as justice and security. This model would fit Article 21 of the Indian Constitution, safeguarding the right to life and dignity, and the Eighth Amendment of the US Constitution, which forbids cruel and unusual punishment. Reform in prisons ought not to be evaluated in terms of economic savings but by the humane approach that a society takes towards its prisoners. Justice finally should be a moral and sovereign responsibility of the State.