Correctional Services Corporation v. Malesko: Boss, “They Can’t Hurt You Now”

AuthorTom “Tad” Hughes,Alexander M. Holsinger
Published date01 December 2003
Date01 December 2003
Subject MatterJournal Article
10.1177/0887403403254212ARTICLECRIMINAL JUSTICE POLICY REVIEW / December 2003Holsinger, Hughes /CSC v. Malesko
Correctional Services
Corporation v. Malesko:
Boss, “They Can’t Hurt You Now”
Alexander M. Holsinger
University of Missouri, Kansas City
Tom “Tad” Hughes
University of Louisville
Overthepast20years,issuessurroundingthe privatization of various services within
correctional settings have been revisited in the United States and internationally.
Almost without question, the motivation for implementing privatization of various
services within a correctional setting (if not the entiretyof an institution, for example)
is by nature fiscal. The area of corrections has been the subject of much debate and
growth regarding privatization. Yet the newest dawn of the private prison has left
many questions unanswered. The answers will likely be found through litigation on
the federal level, and most of the questions will likely deal with issues of liability and
culpability.This article focuses on the recent Supreme CourtcaseofCorrectional Ser-
vices Corporation v. Malesko (2001). This case addressed the use of a federal civil
rights remedy, a Bivens action, against a private correctional facility. As such, the
case opinion helps to settle some of the issues surroundingthe liability of private cor-
rectional institutions as well as generate policy considerations significant to correc-
tional management.
Keywords: civil liability; Bivens action; privatization
In recent decades, private industry has crept back into the administra-
tion of various criminal justice agencies. In many cases it has been
viewed as fiscally responsible to allow private corporations to take over
several previously held functions of government.Philosophically this pres-
ents a dilemma. For example,some have argued that the sovereignty of gov-
ernment is compromised by the use of private industry. The potential for a
conflict of intere st between the ru les and standar ds of government s anc-
tions and the efficiencies of private enterprise certainly exists. On the
Criminal Justice Policy Review, Volume 14, Number 4, December 2003 451-463
DOI: 10.1177/0887403403254212
© 2003 Sage Publications

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