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

• Jurisdiction: United States,Federal
• Publication year: 2017
• Citation: Vol. 67 No. 2

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

Fiona O'Carroll

INHERENTLY GOVERNMENTAL: A LEGAL ARGUMENT FOR ENDING PRIVATE FEDERAL PRISONS AND DETENTION CENTERS^*

Abstract

Under the Federal Activities Inventory Reform (FAIR) Act of 1998, the federal government's "inherently governmental functions" must be performed by government actors, while its "commercial activities" may be performed by private contractors. This statute has important implications for the legality of privately operated federal prisons and immigration detention centers. If operating prisons and detention centers is an inherently governmental function within the meaning of the FAIR Act, then these facilities cannot be operated by private contractors. This Comment provides a comprehensive legal analysis of whether the operation of prison and detention facilities is an inherently governmental function.

Federal government policy recognizes two tests for identifying inherently governmental functions. First, under the "exercise of discretion" test, a function is inherently governmental if it involves exercising discretion in applying government authority. Second, under the "nature of the function" test, a function is inherently governmental if it involves exercising the sovereign powers of the United States. This Comment argues that operating prison and detention facilities is an inherently governmental function under either test. It is inherently governmental under the exercise of discretion test because private prison contractors, in applying the government's authority to incarcerate people, exercise discretion with significant consequences for prison conditions and inmates' liberties. Further, imprisonment is also an inherently governmental function under the nature of the function test because its legitimacy rests on the sovereign power to deprive a person of liberty in the name of law enforcement, public safety, or border control. Thus, the operation of prison and detention facilities is an inherently governmental function that cannot legally be contracted out to the private sector.

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Introduction..............................................................................................295

I. Prison Privatization and the Law of Federal Contracting....................................................................................299

A. Overview of Prison Privatization in the United States.............. 299
B. The Legal and Regulatory Framework Governing Privatization .............................................................................. 301

1. The FAIR Act......................................................................... 301
2. Federal Acquisition Regulation............................................. 305
3. OMB Circular A-76 ............................................................... 307

II. The Exercise of Discretion Test..................................................309

A. The Role of Discretion in Prison Administration and Guarding ................................................................................... 311
B. Why the Exercise of Discretion Is Problematic in Private Prisons....................................................................................... 314
C. Application of the FAIR Act's Discretion-Based Definition of Inherently Governmental Function ........................................... 316

III. The Nature of the Function Test................................................319

A. Arrest, Sentencing, and Incarceration....................................... 319
B. Liberal Legitimacy: The Philosophical Case Against Prison Privatization .............................................................................. 321

1. State Power and Individual Liberty..................................... 321
2. State Agents and Symbolic Meaning ................................... 323
3. Detention by Immigration Authorities ................................. 325

C. Nature of the Function Analysis in Case Law ........................... 326

IV. Implications.....................................................................................331

Conclusion..................................................................................................334

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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

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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

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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. It raises fundamental questions about the proper roles of government and the private sector in American society.¹⁵

To clarify the federal government's outsourcing policy, the Office of Management and Budget (OMB) established two tests for identifying inherently governmental functions: (1) the "exercise of discretion" test, which (as its name suggests) focuses on whether a function requires discretion in applying government authority, and (2) the "nature of the function" test, which focuses on whether a function involves the "exercise of sovereign powers."¹⁶ If a function is inherently governmental under either test, it should be designated as an inherently governmental function that is ineligible for federal contracting.¹⁷

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The exercise of discretion test and the nature of the function test provide a useful structure for analyzing the propriety of prison privatization because the tests encapsulate two fundamentally different approaches to the issue. The exercise of discretion test reflects an approach to the prison privatization debate that focuses on the real-world effects of privatization. This test, which prohibits private contractors from performing functions involving the exercise of discretion in applying government authority, reflects the value of democratic accountability and seeks to guard against potential abuses of discretion by the private sector.¹⁸ Looking to the degree of discretion associated with a function makes sense for critics of prison privatization who are concerned with...