Privatizing prisons is a hotly debated topic in modern penology. Whatever one's views on the subject, it is important to understand the extent to which private corporations, which contract to operate prisons at the federal, state and local levels, are subject to inmate lawsuits and to potential legal liability.
The law regarding the potential liabilities of correctional agencies and their employees, and the degree to which they are protected by various forms of immunity from suit, is complex and, to put it mildly, not always logically consistent. A sort of patchwork set of rules has evolved, with results sometimes differing on the basis of factors, such as whether the prison involved is a federal, state or local facility, or whether the lawsuit is brought against the United States, a state or county, the correctional agency, or against correctional officers or supervisory officials personally. As if this picture is not confusing enough, it can become even more bewildering when adding the possible permutations of these factors in lawsuits against private correctional entities.
On Nov. 27, 2001, in the case of Correctional Services Corp. v. Malesko, 534 U.S. 61, 122 S. Ct. 515, a closely divided U.S. Supreme Court ruled that although a federal inmate in a privately operated halfway house may sue an individual employee of the private correctional corporation for allegedly violating his or her constitutional rights, the inmate may not sue the correctional corporation itself. This article reviews the Malesko decision and then tries to shed at least some light on the general scope of potential liabilities of correctional corporations and their employees. This information is equally important to the parties on both ends of existing or potential privatization contracts -- governmental bodies, such as state departments of correction, county commissioners or the Federal Bureau of Prisons (BOP), as well as private corrections corporations.
The Legal Backdrop
The Federal Civil Rights Act (FCRA), 42 U.S.C. [section] 1983, (1) provides that one whose constitutional or other federally protected rights have been violated may bring suit for damages against the person(s) who caused the violation while acting under color of state law. Originally enacted in the post-Civil War era as the Ku Klux Klan Act, FCRA provided a remedy to former slaves and their descendants against state and local officials for lynchings and other acts of violence. During the latter half of the past century, FCRA came to be judicially recognized as a remedial vehicle available to all people, regardless of ancestry, whose civil rights have been violated by state or local officials. FCRA has come into frequent use in cases alleging unconstitutional school segregation, police brutality, and violation of the rights of inmates and mental health patients, among others, by people acting under color of state law.
By its own terms, FCRA does not apply against people who commit violations of civil rights while acting under color of federal law. In the case of Bivens v. Six Unknown Federal Narcotics Agents, (2) the Supreme Court upheld Bivens' right to sue FBI agents for damages for allegedly arresting him and unlawfully searching his home. The Bivens decision held that even in the absence of any statute (analogous to FCRA) that expressly provides such a right, the Constitution (in that case, the Fourth Amendment) implicitly conferred such a remedy to redress violations of civil rights committed by people acting under federal authority. (3)
Later cases generally have treated Bivens actions against federal officials analogously to FCRA actions against state officials, recognizing many of the same liabilities as well as the same immunities (i.e., sovereign immunity of the federal and state governments, absolute immunity of judicial officers, and qualified immunity of …