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

• Author: Tom “Tad” Hughes,Alexander M. Holsinger
• Published date: 01 December 2003
• DOI: 10.1177/0887403403254212
• Date: 01 December 2003
• Subject Matter: Journal 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

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Criminal Justice Policy Review, Volume 14, Number 4, December 2003 451-463

DOI: 10.1177/0887403403254212

© 2003 Sage Publications