Corrections Privatization
Legal Issues
Disagreements surrounding cost and efficiency may eventually be resolved with more complete data. Better contract monitoring and judicial oversight should curtail instances of exploitation and abuse of the inmate population. However, the legal ramifications of privatization pose challenging questions not easily rectified. Three complex issues stimulate heated debate on correctional privatization:
The propriety of private firms taking over state functions.
Inmate rights and due process considerations.
Liability and accountability for state actions.
A fundamental issue is public responsibility for the well-being of society. It is taken for granted that the apprehension and conviction of offenders are public responsibilities. Hence, the notion that convicted offenders should be the responsibility of private entrepreneurs motivated by profit seems contradictory (Walker, 1994: 582). The central question should be whether government has the authority to contract out what is now widely regarded as a public function. Commenting on the issue, Durham (1993: 43) states with some urgency that, "if the transfer of responsibility to penal institutions is not carefully executed, the consequences may be disastrous. Beyond inconvenience and unanticipated costs, both public safety and inmate well-being may be at stake."
The courts have clearly decided that private prisons can be assigned the same management responsibilities as those undertaken by state and local governments. This is not to say that state and local governments can wholly delegate their functions and duties to a private provider. Indeed, based on a number of recent infractions committed in private facilities, the courts will hold government responsible for actions taken by a private provider that violate an inmate's constitutional rights or that put the prison staff, inmates, or surrounding community in harm's way (Schosser, 1998; Clark, 1998).
What has not yet been resolved is whether privatization will undermine or enhance prisoners' rights as compared to publicly operated systems (Thomas, 1991). The U.S. Constitution protects individuals against the violation of due process (5th and 14th amendments) as well as the related issue of cruel and unusual punishment (8th amendment). Recent decades have witnessed a large volume of prison litigation concerning inmate rights and prison conditions that has resulted in most state correctional systems (or a facility within a state) operating under an imposed consent decree. The concern is whether private prisons can operate in such a manner that the exposure to litigation against government is reduced.
A number of U.S. Supreme Court cases have held that a person can only assert a denial of due process rights if that deprivation resulted from "state action" (Yarden, 1994: 331). The ultimate issue in determining whether an entity is subject to suit for violation of an individual's rights is whether the alleged infringement is attributable to an action by the state.
A person acts or purports to act under the "color of state law" when in the performance of official duties under any state, county, or municipal law, ordinance, or regulation (42 U.S.C. 1983) (Robbins, 1986). Federal civil rights law prohibits state officials or agencies from being named as defendants in civil suits while operating in their official capacities if a plaintiff seeks monetary damages. The question remains whether the actions of private corrections facilities regulated by the state can be considered transformed into state actions under "color of state law."
Thus far, the courts have decided that persons who provide services to inmates under contract are not immune from litigation for constitutional violations.[9] What is yet to be settled is the propriety of private firms running entire correctional facilities and the broad legal or constitutional questions that might apply (Cripe, 1997: 394).
The issues raised heretofore have practical implications in the day-to-day operations of a private correctional facility. Before entering into a contractual agreement with a private firm for the operation of a prison or jail, it would be necessary to identify whether the private company can be authorized to exercise force (including deadly force) to prevent escapes, to imprison citizens against their will, and to impose penalties on those who violate the regulations and rules of the institution. In the event that staff of private facilities are not allowed to enforce the rules and regulations of the institution, the likelihood of success of these corporations is obviously diminished. However, allowing a private prison to punish inmates who have violated institutional rules (which may differ from publicly operated facilities) without oversight by the state could be a denial of due process, especially if the punishment entails the loss of good time, which would serve to lengthen an inmate's period of imprisonment.
The other area of concern deals with actual prison conditions, such as access to medical care, mental health services, work, vocational and educational services, overcrowding, and protection from harm. Travis and colleagues (1985) pose a series of questions to be considered before full privatization of correctional facilities becomes commonplace. These issues include whether the contracting government agency would be liable for any illegal actions of the contractor; if conditions in the contracted penal facility are found to violate constitutional requirements, who would ultimately be responsible for their correction and held liable for damages; whether the contracting governmental agency could be rendered immune to the actions of the contractor, any negligence that results in the escape of prisoners, or the financial mismanagement of the facility; and whether the contracting agency would be responsible for bailing out a bankrupt contractor. With no clear court precedent on whether private prisons will come under the state action doctrine, prisoners' rights may ultimately depend on the nature of the contractual agreement between the state and the private operator.