Academic journal article Emory Law Journal

Inherently Governmental: A Legal Argument for Ending Private Federal Prisons and Detention Centers †

Academic journal article Emory Law Journal

Inherently Governmental: A Legal Argument for Ending Private Federal Prisons and Detention Centers †

Article excerpt

INTRODUCTION

In February 2017, Attorney General Jefferson Sessions reversed the Obama Administration's plan to phase out federal government contracting with private prison companies.1 Under President Obama, the U.S. Department of Justice (DOJ) decided to phase out private prison contracts because it found that private prisons are less safe, less secure, and roughly equal in cost as compared to government facilities.2 The Trump Administration, by contrast, maintains that private prisons are effective and will be necessary "to meet the future needs of the federal correctional system."3 Both administrations have framed the issue of prison privatization in empirical terms-focusing on costs, prison conditions, or the size of the prison population-rather than in legal or moral terms.

Independent of the Obama Administration's contested empirical conclusions about private prisons,4 this Comment argues there is a legal reason to end private prison contracting at the federal level. Under the Federal Activities Inventory Reform (FAIR) Act of 1998, the federal government cannot contract out "inherently governmental functions" for performance by the private sector.5 The FAIR Act defines inherently governmental function as "a function that is so intimately related to the public interest as to require performance by Federal Government employees."6 If prison operation is an inherently governmental function, then prison privatization violates the FAIR Act.

Whether the operation of prison and detention facilities is an inherently governmental function within the meaning of the FAIR Act is an important, but neglected, question. The administrative designation of this function matters because recognizing prison and detention services as an inherently governmental function would require the DOJ to reverse its current policy and put an end to contracting for these services at the federal level.7 Furthermore, reclassifying this function would bar private contracting for detention services not only by the Federal Bureau of Prisons (BOP), but also by other federal agencies such as Immigration and Customs Enforcement (ICE). Although the civil detention of immigrants based on their citizenship status can be distinguished conceptually from corrections, this distinction has become blurred: unauthorized immigration is increasingly prosecuted as a criminal act,8 and immigration detainees are treated like prisoners.9 Because criminal incarceration and immigration detention both manifest the government's power to deprive a person of liberty in the name of law enforcement, raise overlapping concerns, and are treated as a single category for purposes of federal procurement policy,10 this Comment's argument applies to both prisons and immigration detention centers.

Neither scholars nor courts have provided a comprehensive legal analysis of whether imprisonment is an inherently governmental function under the FAIR Act. Some scholars have argued that prison management cannot legitimately be delegated to the private sector because of its inherently governmental nature, but they have generally framed this argument in philosophical or moral, rather than legal, terms.11 A few scholars have noted that the FAIR Act can be interpreted to bar private federal prisons, but have not developed this argument fully.12 Courts have not had occasion to consider whether the operation of prison and detention facilities is an inherently governmental function under the FAIR Act, as the ability to challenge an agency's designation is limited by the statute's "interested party" standing requirements.13 This Comment seeks to provide a comprehensive legal analysis of whether the operation of prison and detention facilities is an inherently governmental function within the meaning of the FAIR Act.

Whether the FAIR Act bars private prison and detention facilities hinges on an ambiguous term. The statutory definition of the term inherently governmental function-a "function that is so intimately related to the public interest as to require performance by Federal Government employees"14-is far from self-explanatory. …

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