privatization of the coercive power of the state...

Privatization of the Coercive Power of the State,

Administrative Discretion, and Policy

Andy Williams

PAUP 814 Public-Private Partnerships

23rd June 2008

ANDY WILLIAMS: Privatization of the Coercive Power of State - June 2008

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Privatization of the Coercive Power of the State, Administrative Discretion,

and Policy

Abstract

The privatization of coercive powers of state are examined using moral, legal and administrative

frameworks of analysis, focusing on the private ownership and management of prisons in the

U.S. An argument is made that complete private ownership and management of prisons is not

desirable as the administrative and managerial discretion exercised by private staff constitutes

public policy in a core function of state, and contractual statements of policy do not provide

sufficient accountability.


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Privatization of the Coercive Power of the State, Administrative Discretion, and Policy

Introduction

The involvement of private enterprise in provision of government services is not a new

phenomenon; however, Thatcher and Reagan policies in Great Britain and the United States in

the early 1980’s encouraged the diffusion of privatization throughout the world (Morris &

Travis, 2003; Prager, 2008). In the majority of industrialized nations and in a significant

proportion of developing nations, privatization at all levels of government has since been

increasing. Numerous local governments in the U.S. have transferred ownership or management

of many government services to the private sector including: maintenance services, I.T. services,

school buses, garbage disposal and wastewater treatment, and basic provision of utilities (Savas,

2000). At the national level, driven by Reagan’s reaffirmation and expansion of the Bureau of

the Budget’s A-76 Circular, almost every federal department has undergone some level of

privatization, the most significant occurring in the Department of Defense (Kettl, 1993).

The majority of literature on privatization1 follows two arguments to analyze a particular

privatization decision – an economic argument and a political argument. The economic argument

focuses on cost-effectiveness and efficiency considerations. Government bureaucracies are

compared with market mechanisms in terms of efficiency and competitiveness, in their ability to

provide certain goods and services (Savas, 2000). The political or ideological argument focuses

on the size and scale of government, and the notion of the ‘State’ and its social contract with the

people (Garland, 1996). The distribution of power and control in society, the level of state 1 Although there are many configurations possible in privatization arrangements (see Savas, 2000, ch 3), for the purposes of this paper, I define privatization as either the complete sale of government infrastructure or provision of goods to private entities, or the management and operation of government services by private entities.


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centralization and control, and the ideology of collectivism versus individualism are examined

(Feigenbaum, Henig & Hamnett, 1998; Wolfe, 1991, 1999). Numerous studies consider the

implications of these two arguments on normative qualities of government such as

accountability, democracy and responsiveness, providing a nexus for discussion on the intrinsic

value of privatization decisions.

From the economic perspective, distribution of goods and provision of services by the

free market may be considered a more efficient mechanism than the state sector (Savas, 2000).

However, it has been recognized that efficiency may compromise accountability, as a

consequence of the governmental requirement for monitoring mechanisms to prevent

opportunistic behaviors which transfer government pathologies to the market (Breaux, Duncan,

Keller, & Morris, 2002; Heilman & Johnson, 1992; Morris, 2007). Cost-effectiveness is

achieved in market systems by the presence of competition; many studies have highlighted the

improvement in effectiveness and reduction in costs that privatization of government services,

especially at the local level, has brought over unwieldy and inflexible state bureaucracies

(Feigenbaum et al., 1998; Savas, 2000). However, in some instances, government must directly

intervene in the market and artificially create or regulate competition, thus diminishing the

expected benefits of privatization (Kettl, 1993). Private enterprise can be more flexible and

responsive to public need, as a result of being free from government regulations and staffing

constraints. In some cases, however, as a result of the requirement for accountability or other

demographic and social considerations, private enterprise is subject to stringent governmentally-

imposed limitations, thus reducing the increase in responsiveness and the net cost benefits

originally expected (Hart, 1997; Sappington & Stiglitz, 1987).


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From the political perspective, market-based economics is used as evidence on which to

base strategies that reduce government spending, create economic prosperity, enhance freedom,

and strengthen necessary state control by diminishing unnecessary state intervention (Wolfe,

1999). However, critics argue that the social contract – the notion that only state institutions

derived from popular sovereignty are legitimate – is at risk, having significant implications for

democracy, transparency and accountability (Barber, 2000; Kahn & Minnich, 2005). Many

politicians, often classed as ‘neo-liberal’, use privatization as a fundamental policy choice that

seeks to reduce the collectivist ideal of government to ensure more responsibility, freedom and

choice for the individual (Jing, 2005). Yet others see this as a reduction in public involvement in

government and a diminution of political sovereignty (Bruszt, 2002); or as market ideology

“imprisoning” government policy (Lindblom, 1982), whilst others go as far to view privatization

as a form of economic tyranny (Chomsky, 1999, 2006; Whyte, 2007)

The decision by a government at any level to privatize a government function is,

fundamentally, a policy choice. Economic and political arguments abound over the various

merits and pitfalls of a variety of privatization options; however, the ubiquitous fact remains that

privatization changes policy rather than solely implementing it more efficiently (Heilman &

Johnson, 1992). Furthermore, scholars on both sides of the privatization debate have recognized

that privatization fundamentally changes the nature of government and that regardless of one’s

perspective, pragmatically; new and different government capacity must be developed to manage

these new governance arrangements (Kettl, 2000, 2002; Sellers, 2000).

There is no such area where these arguments are more apparent than in the issues

surrounding privatization of core functions of state – the provision of ‘collective’ goods (Savas,

2000). One such collective good that has received attention in recent years is the coercive power


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of the state. Policies that privatize the coercive apparatus of the state – institutions of security,

justice and punishment – raise several important moral and legal issues outside the usual

arguments occurring in privatization of other functions of government. A further, more complex

issue that is not covered in the literature is the implication on administrative discretion and its

relation to policy in these privatized arrangements.

In this article, I outline the concept of coercive authority and review the issues that arise

when coercive government functions are privatized, using moral and legal frameworks of

analysis. Using the specific case of privatization of correctional facilities and an administrative

framework of analysis, I discuss the implications for administrative discretion and its relation to

policy, and show their relation to the other frameworks of analysis. I argue that in the case of

government functions that impart the coercive power of the state such as prison institutions,

privatization has serious implications for the role of public administrators. Prison population has

reached now record numbers, with one out of every 100 Americans in some form of punitive

incarceration (Pew Center on the States, 2008). The costs of prisons are soaring, which in

addition to the problem of prison overcrowding, is placing governments under pressure.

However, it is public administrators that are ultimately responsible for executing solutions to

provide relief from this pressure, and need to be aware of the all the positive and negative

implications of prison privatization.

This research is important for two reasons. First, privatization of coercive government

functions is growing: private security guards now outnumber the number of state law

enforcement officers; the private prison industry has been booming in recent years with

corporations now operating many prisons in the U.S; private probation and parole services are

now in operation in many states (Reynolds, 2000); and private military contractors provide


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significant support, in both combat and non-combat roles, to national armed forces, with U.S.-

paid contractors now outnumbering U.S. military personnel both Iraq and Afghanistan (Singer,

2003; Matthews, 2008). Public administrators now have the responsibility to manage contracts

and oversee regulation of these initiatives; a responsibility that is distinctly different from what

most public bureaucracies originally were designed to do, and against the general expectations of

aspiring administrators on M.P.A. programs, for example (Kettl, 2000). Secondly, it widely

accepted that there is often a wide gap between stated government policy, its interpretation by

bureaucrats, and the manner in which it is implemented by ‘street-level’ staff (Lipskey, 1980;

Lindblom & Woodhouse, 1993; Howlett & Ramesh, 2003). Administrators are increasingly

called upon to contribute to the process of formulating policy, as a result of their expertise and

experience in their field of specialty, and are given significant discretion in implementation. A

certain amount of ‘bureaucratic intelligence’ must be accepted in that effective implementation

necessarily involves some level of delegation of authority to administrative staff to allow them

freedom of action (Lindblom & Woodhouse, 1993). In those government functions that involve

coercive authority and the deprivation of citizens’ liberty, therefore, it is paramount to

understand the wider implications of devolution in the form of privatization, in the context of

policy-making, and managerial and street-level discretion (Vaughn & Otenyo, 2007).

The Coercive Power of the State

James Madison wrote in Federalist no. 51: “In framing a government which is to be

administered by men over men, the great difficultly lies in this: you must first enable the

government to control the governed; and in the next place oblige it to control itself” (Madison,

1788 / 2003, p. 319). Although this article was primarily about the self-regulating checks and


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balances of the nascent American state, Madison articulated one of the core and necessary

principles of government – that through being the exclusive distributor of coercive force enacted

from authority derived by consent, government shall have the ability to legitimately control the

governed. The notions of ‘control’ and ‘legitimacy’ have been debated by political theorists for

many years, and this article is not the location for revisiting such deliberations; however, there is

little dissent from the perspective that coercive authority is integral to the nature of the modern

state (Arnold, 2006; Reisig & Pratt, 2000), distinguishing it from social order in early societies

that was derived from moral or practical reciprocal behaviors (Molinero, 2000). In fact, Weber

(1919, p. 1) defined the ‘state’ as: “…a human community that successfully claims the

monopoly of the legitimate use of physical force within a given territory.” Policy-makers,

administrators and citizens likewise espouse the Weberian (1947) view that criminal acts violate

laws that were created only by representatives of the state. Thus a necessary feature of legal

punishment is that it “must be imposed and administered by an authority constituted by a legal

system against which the offense is committed” (Hart, 1968, p. 5, as cited in Reisig & Pratt,

2000).

As Weber (1919, p. 1) noted: “…the right to use physical force is ascribed to other

institutions or to individuals only to the extent to which the state permits it”. Depending on one’s

interpretation, the point of whether or not ‘institution’ can mean ‘private institution’ is a critical

question. Accepting that the very notion of the state is defined by its ability to control with

coercive power, and that the only legitimate use of this power is through government authority

derived from consent, then any argument over the delegation of this authority must necessarily

examine the question of legitimacy. Using the case of correctional institutions in the U.S., I

examine this question using moral and legal frameworks, before turning to the practical issue of


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public administration of private facilities and the impact on corrections policy-making.

Arguments concerning political and economic considerations will not be discussed, as much

coverage has been given elsewhere (Pratt & Mahs, 1999) and are not relevant to the primary

discussion in this paper – in fact, a Bureau of Justice Assistance report (Austin & Coventry,

2001, p. 59) which reviewed a range of economic studies in prison privatization concluded:

“(The) privatization model…essentially mimics the public model but achieves modest cost

savings…by making modest reductions in staffing patterns, fringe benefits, and other labor-related

costs. There is no evidence showing that private prisons will have a dramatic impact on how

prisons operate. The promises of 20-percent savings…have simply not materialized….If nothing

else, the private sector has shown that it is as equally capable of mismanaging prisons as the

public sector.”

The Moral Dimension

There is a subtle difference between the morality of an individual and the public morality

of the state. Dwight Waldo noted that: “Public morality concerns decisions made and action

taken directed toward the good of a collectivity…an entity or group larger than immediate social

groups such as family and clan” (Waldo, 1980, in Stillman, 2005, p. 505). Actions such as the

permanent deprivation of a person’s liberty, the execution of a convicted criminal, or the killing

of a citizen by a law-enforcement officer, are all considered morally justifiable in the eyes of the

state; however, these actions may be partially or wholly despicable in the eyes of a great number

of citizens, regardless of the circumstances of those actions. As previously discussed, the state

has certain coercive authorities conferred upon it by the consent of the people. With regard to the

state’s delegation of coercive force to private entities, several arguments have been raised.

Given that the ability to legitimately apply coercive force is intrinsic to the very notion

of the state, some consider it plainly immoral to confer this ability to a non-state entity such as a

correctional corporation, regardless of the specificity of any contract or the extent of monitoring


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(DiIulio, 1997). This view is prevalent in much anti-privatization literature in the popular media,

however, it is applied and explained with little theoretical rigor. Others have used in-depth

analysis of libertarian moral philosophies to demonstrate that they have been inconsistently

applied with prison privatization. Reisig and Pratt (2007) note that the libertarian principle of a

minimal state is often used as justification for privatizing public prisons and reducing the state,

however this is contrary to the fundamental libertarian concept that redistributive protection

belongs to an authority not possessed by any individual. Although in the U.S., corporations are

recognized with the same rights as ‘person’, individuals only have the minimalist right to self-

defense, not to detain or punish.

Another moral argument commonly encountered is that of interests. Although this has an

economic basis in free-market capitalism and more formalized statements in principal-agent

theory (Breaux et al, 2002; Morris, 2007), the moral argument pertains to the notion that a

corporation profits from the incarceration and punishment of human beings. The ultimate goal of

any government is to eliminate crime totally by rehabilitating those in detention, and deterring

any would-be offenders – the consequence being to eliminate the requirement for prison

facilities. The ultimate goal of any corporation is to make at least enough money to be

economically viable, but generally, it is to profit. Obviously, these ultimate goals are in violent

conflict. In principal this argument is final; however, pragmatically, it is wholly unrealistic to

entertain such a scenario as the total elimination of crime and therefore prisons. In fact, there is

ample evidence to suggest that requirements for profit and competition have many positive

benefits on prison operation and that the problem of conflicting interests in the market is equally

as bad as conflicting interests in public agencies (Elvin, 1985; Lukemeyer, & McCorkle, 2006;

Logan, 1987). Furthermore, traditional arguments against bureaucracy can be applied: there is no


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reason to suggest that public corrections bureaucrats would happily put themselves out of work

by eliminating prisons and do, in fact, seek to influence politicians to the contrary (Wilson,

1989). However, there are equal potential and documented influences in the corporate sector,

with private prison company executives having political influence in many states (Brancaccio,

2008).

In the literature review conducted for this research, little evidence was discovered to

argue the case against prison privatization on moral grounds, other than the widely held

emotional and symbolic belief that prisons should be institutions of the state. Conflict of interest

arguments against business are widespread, even with respect to bias in scholarship (Geis,

Mobely, & Schicor, 1999) and are probably without resolution. As DiIulio (1997) claims,

privatization of corrections is morally equivalent to privatization of law enforcement and of

justice, yet these receive far fewer advocates. This morally relativistic argument highlights the

fact that much government policy is driven by practical concern, rather than moral consequences.

The key moral issue may not be the symbolism of a prisoner seeing a corporate logo on prison

guards’ shirts rather than a badge of state, but more about the accountability structures in this

arrangement (Donahue, 1989). However, the perplexing question regarding the long term

implications of new societal norms that may eventually accept the use of coercive force by non-

government agencies in all areas, cannot yet be answered.

The Legal Dimension

The legal arguments surrounding the legitimacy of prison privatization focus on several

key areas. First, the constitutionality of delegation of coercive power is examined in the sense of

the normative role of state (Field, 1987; Sullivan, 1987; Zalar, 1999). Legal scholars have


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recently concluded that doctrines examining the relationship between administrative agencies

and constitutional issues with respect to privatization, are poorly understood and need more

analysis (Metzger, 2003). The fact that private prison corporations can exercise significant

discretion over operation of government programs is seen as unconstitutional, however, the

responsibility of administrators to develop more innovative and unrestrictive mechanisms of

accountability is noted (Gentry, 1986). Another perspective is that privatization permits the

government to evade constitutional restraints (Gilmour & Jensen, 1998; Sullivan, 1987). In the

case of prison operations, this point may be mute: regardless of the fact that the long-term public

service prisons provide to society is critical, they do not provide a direct and tangible service to

individual citizens, access to which is not threatened by privatization. However, in the case of

private prisons, questions arise about the ability of a citizen to have access to information

regarding detailed operational procedures, financial information, and a voice in how prisoners

are treated, rehabilitated and punished.

Second, the question of liability is addressed. In the event of a violation of inmate’s civil

rights, or the death or injury of an inmate at the hands of a corporations’ prison guards, there are

difficulties in establishing liability (Dunham, 1986, Elvin, 1985). Moe (1987) notes that major

prison policy and administrative decisions regarding these issues have effectively been moved

from the legislature to the judiciary, in that it is left to lawyers and judges to unravel the

complexities and clear the ambiguities in the event of litigation. There is also evidence to suggest

that the scrutiny to which private corporations are subjected actually serves to reduce the number

of abuses in treatment of inmates, service provision and corruption.

These issues are certainly complex for the legal community and have a direct impact on

the roles and responsibilities of public administrators. As the boundaries between government


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and non-government institutions become blurred, the rule of law is blurred, becoming guided by

a quasi-authority based on processes, i.e., mechanisms for action set in public-private

organizational configurations that are pragmatic and may function well, but do not have deep

legal foundations (Moe, 1988; Moe & Stanton, 1989). If private prisons are to become a norm,

then development of rigorous and unambiguous legal founding is necessary for the public

administrator to manage contracts with private entities or to engage in more integrated

partnerships. As Stillman (1987, p. 6) noted, the Constitution wisely instituted federalism to

restrain government powers, but “perhaps unwisely and incorrectly it ignored the consequences

of unchecked private power.”

The Administrative Dimension

It is a well accepted fact that state legislature cannot, and probably should not, specify

policies directing the operation of complex government institutions to great detail. Although

administrators are formally guided in their duties by written policies and legal guidelines, the

complexity of situations encountered necessarily requires discretion at all levels of an

organization. Vaughn and Otenyo (2007, p. xii) define discretion as:

“…embrac(ing) ideas about judgment, discernment, liberty, and license. It is about judging among

competing values, choosing a best possible solution, and being free to extend the rights and duties

of office...(It) is often part of the way decisions are made to conform to professional, community,

legal, and moral norms.”

Although the concept of discretion is commonly associated with administrative ethics (Haque,

2004; Johnson & Cox, 2005; Kelly, 1994), I will primarily examine the policy implications. The

point at which ‘street-level’ bureaucrats translate policy into implemented policy has been

extensively studied (Lipskey, 1980); similarly, the discretion of managerial staff is also

recognized (Vaugn & Otenyo, 2007). A key point is that there is a difference between stated


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government policy and implemented policy, in that the sum of interpretations, judgments and

actions of staff throughout a bureaucracy constitute actual policy. In the case where

government functions are devolved from the institutions of government, such as prison

privatization, a question arises about the extent to which the interpretations, judgments and

actions of privately employed prison staff sum up to constitute public prison policy.

Using the Virginia Department of Corrections (2008a) as an example, once convicted and

sentenced to incarceration, an inmate will be processed and assessed by a number of prison staff.

The first stage is security assessment, where prisoners are screened and their security status is

determined to allow their placement in a facility. Although there are strict guidelines governing

this process depending on the nature of the offense, number of previous convictions and mental

health history, there is still a significant amount of discretion involved on behalf of the staff. The

outcome of the inmate’s treatment and future in general, depends in a great part on their initial

placing. Once assigned to a facility, the inmate will undergo health and mental screening by

prison staff and will be assigned a treatment program supervisor. Depending on the facility and

the status of the offender, the treatment program will involve classroom education, employment

training, actual work, substance abuse treatment, or anger management classes, for example.

Many of these prison staff contribute to the inmate’s report file, which in a large part determines

their eligibility for parole and transfer to lower security insitutions (Virginia Department of

Corrections, 2008b).

The prison management is responsible for ensuring that the operation of the prison is

effective, conducting liaisons with other state agencies, hiring of staff, staff supervision, and

ensuring quality standards are met. The prison superintendent is ultimately responsible for all of

the inmates whilst they are present in the prison. The superintendent will also work with


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centralized Department of Corrections (DOC) officials in determining budgets and setting

priorities.

Prison Administration Prison MaintenanceAccountants Boiler OperatorsAdministrative Assistants Buildings and GroundsAgricultural Supervisors CarpentersBusiness Managers ElectriciansBuyers Electronic TechniciansHuman Resource Positions Fiscal Assistants & TechniciansOperations Officers Food ServicesPostal Assistants Plumbers/SteamfittersProgrammers/Analysts Treatment Plant OperatorsSafety Specialists

Prison Security Inmate Health CareAssistant Wardens DentistsInvestigators Dental AssistantsSurveillance Officers PhysiciansWardens Nurses & Nurse SupervisorsCorrections Officers (Sgt., Lt., Cpt., & Maj.) Psychologists

Radiological TechniciansInmate Rehabilitation Services Recreations SupervisorsProbation Officers Rehabilitation CounselorsTreatment Program Supervisors

Table 1: Prison Roles in Virginia Department of Corrections (VADOC, 2008a)

The management of a prison will ultimately determine the nature of services received by

inmates, the location strategy for allocation of inmates to facilities and decisions on

overcrowding, and overall has a great impact on the quality and success of a prison.

The action of ‘street-level’ prison staff, namely the wardens, correctional officers and

treatment program staff, will constitute the implemented policy in the prison and that of the

DOC. The individual judgments the staff make over whether or not to enforce certain rules or

enact certain punishments will certainly have a large impact on inmate rehabilitation, punishment


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and prison standards. In all cases, the staff are accountable to their supervisors, who are

accountable to the prison superintendent, who is accountable to the officials in the central offices

of a DOC.

In the case of the entire prison ownership and management being privatized, the

operation of a prison staff is now governed and regulated through monitoring and enforcement of

a contract between a DOC and a private corporation. The chain of accountability is legally

passed through the contracting procedures, although ambiguities can still be present as

previously observed. The ‘public’ policy of the DOC now becomes the ‘private’ policy of a

corporation through the contractual process. As a contract cannot specify operating procedures

that outline actions to be taken in every eventuality, as this is far to restrictive and unenforceable,

it is not possible therefore, to specify policy exactly. Furthermore, the contract can specify

standards for prison operations and prison services, but ensuring enforcement to the letter is very

costly. The contract can also specify standards in results, but given that a causal relationship

between prison services received and recidivism rates is not guaranteed, this would serve to

increase costs, as the private corporation seeks to mitigate the risk. A contract retrieved from an

Australian DOC for the private construction and management of a prison facility was 302 pages

long (Victoria State, ND). It is evident that the time and skill required to develop a contract is

formidable. As is often the case in many other areas of government, the selected contractor has to

be involved in the actual writing of the contract, to account for lack of expertise and resources in

the government department.

The managerial staff working in a central state DOC, for example, would typically be

involved in overseeing the operations of all prisons and parole services and would continuously

deal with emerging issues, budget changes, and continual development of best practices and


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policy. In many ways, policy implementation is an experimental and evolutionary process that

captures the continual discretions and decisions of managerial staff (Pressman and Wildavsky,

1984). One disadvantage to contracting is that, unless provision for change is specifically

included, innovation and change may not be forthcoming. Some scholars have called for prison

contracts to be based primarily on results, thus freeing the private prison corporations from

regulatory constraints and encouraging more innovation in treatments and services. A particular

issue arises in the managerial staff in a private prison – the superintendent and chief correctional

officers, who may be responsible for internal budget controls, staff management and overall

discharge of punishments and services. Unless specified explicitly in the contract, they will

necessarily have a wide discretion for action in discharge of their duties and control and

allocation of staff resources. The key problem is that, should a contractually-unspecified

situation arise in which they are called to exercise their discretion result a serious complication,

where does accountability lie? On one hand, the officer involved may be accountable, however,

his defense may be that the situation was unavoidable and he had no other choice but to use his

best judgment. On the other hand, the state DOC is accountable because they failed to provide

detailed guidelines in contractual operating procedures. Cases such as this will surely arise also

in public prisons, however, the question of accountability is somewhat simpler, and lessons

learnt can immediately be incorporated into operating procedure.

Conclusions and Recommendations

It is evident from the brief examination of prison operations that prison staff necessarily

have wide latitude in the discharge of their coercive duties, both at the ‘street-level’ and

managerial level. It is also evident that in the case of prison privatization, the role of state


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employees changes fundamentally. State employees must have the ability and expertise to

develop, tender, refine and enforce a prison contract. In most states, where both private and

public prisons operate, state DOC staff must also have the ability to be involved in the

management of actual prison operations. Further research is necessary to investigate the way in

which state DOCs are re-structuring, training and managing their staff to meet these new

operating realities.

In a legal sense, the question of administrative discretion within public bureaucracies has

long been a challenge, however, generally street-level staff are shielded from major implications

provided they are not negligent or plainly contravening rules. Managerial staff are legally

responsible for the actions of staff under their supervision. This changes in the case of prison

privatization, as state DOC officials now are no longer involved in the detailed supervision of

prison superintendents. As a result of this inconsistency in accountability, the moral arguments

can be enacted – that is it fundamentally, morally wrong for the state to delegate coercive power

without clear lines of public accountability. This is equally a policy issue in addition to a legal

and moral issue; DOCs may need state-wide or federal policy initiatives to research and develop

more innovative and accountable mechanisms in private prison administration. Part of this policy

should also consider the issue of state capacity in coercive powers, in the event of a major

contractual default by a private corporation. Contracts should have built in redundancy measures,

or states should refrain from total privatization of all prisons.

Prison privatization through contracting appears to a type of government policy: contracts

effectively become detailed statements of policy. There is a fundamental issue regarding the

public visibility of this policy in private cases, and the fact that policy is being continually

created by non-state agents, who may have interests other than the public interest in mind. .


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