Academic journal article The William and Mary Bill of Rights Journal

Prison Privatization and the Development of a "Good Faith" Defense for Private-Party Defendants to 42 U.S.C. § 1983 Actions

Academic journal article The William and Mary Bill of Rights Journal

Prison Privatization and the Development of a "Good Faith" Defense for Private-Party Defendants to 42 U.S.C. § 1983 Actions

Article excerpt


States seeking to cut costs in their budgets frequently turn to privatization as a more economical alternative to directly executing governmental objectives.1 The underlying theory is that private corporations are often able to provide services more efficiently than the government.2 One particular area where states are relying increasingly on public/private cooperation is correctional services.3 Part of this increase in dependence on private prison firms may be the result of an explosion in prison populations, and the resultant overcrowding of state prison facilities.4 There has been a particularly sharp rise in the degree to which states contract prison management to private companies over the past decade and a half.5 As a result, private prison management has become a formidable industry.6

One reason states may choose privatization of correctional facilities over other available alternatives is that "private corrections concerns offer states an attractive cost savings of ten to twenty percent over state-run prisons."7 Regardless of why states are investing substantially more money in prison privatization, this trend in increased private control over correctional functions has caused the emergence of two important legal questions: 1) will private parties involved in the provision of correctional services be subject to liability for deprivations of constitutional rights under 42 U.S.C. § 1983,8 and if so, 2) what defenses will be available to private prison official defendants as compared to their governmental counterparts? The first of these questions has been answered clearly in the affirmative.9 The second question, however, has yet to be fully resolved.

In Richardson v. McKnight,10 the Supreme Court held that private prison officials are not entitled to the protection of qualified immunity when faced with the potential for § 1983 liability despite the fact that public prison officials would be entitled to this immunity.11 The holding in Richardson, however, left open the possibility that private prison officials may be able to assert a "good faith" defense.12 It is this denial of qualified immunity to private prison officials in § 1983 actions that makes the question of a good faith defense for those officials working in the private sector such an important issue. If the trend of prison privatization continues, it is essential that the position of private prison officials within the scheme of § 1983 litigation be clearly defined.

This Note explores the need for and implications of formal recognition by the Supreme Court of the existence of a good faith defense for private prison official defendants in § 1983 actions. This Note also explores the possible contours of such a defense and provides a comparison between this defense and the qualified immunity from suit enjoyed by public prison officials. This Note concludes with recommendations for how the Court might define a good faith defense, and thus clarify a significant question in modern § 1983 jurisprudence.

Before addressing the possibilities for a good faith defense, this Note presents a description and analysis of § 1983 jurisprudence, particularly with respect to prison privatization, from both a historical and modern perspective. This discussion frames the proper context for an evaluation of the possibilities the concept of a good faith defense presents. After establishing a foundation in the prison privatization trend as it relates to § 1983 jurisprudence, an exploration of the need for, implications of, and possible contours of a good faith defense follows.


Before discussing the affirmative defenses available to public and private prison official defendants, it is necessary to discuss the development of the liability such defenses are designed to circumvent. In 1871, Congress enacted what would ultimately be codified as 42 U. …

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