Privatized corrections

• Date: 01 May 2019
• Author: Lauren‐Brooke Eisen
• Published date: 01 May 2019
• DOI: http://doi.org/10.1111/1745-9133.12447

DOI: 10.1111/1745-9133.12447

RESEARCH ARTICLE

QUESTIONS OF LEGALITY

Privatized corrections

Questions of legality

Lauren-Brooke Eisen

New YorkUniversity

Correspondence

Lauren-BrookeEisen, 120 Broadway, 17th

Floor,New York, NY 10271.

Email:eisenl@brennan.law.nyu.edu

Mydeepest gratitude to Joshua C. Reisman,

NYULaw School J.D. Candidate, Class of

2019,for his tremendous research and writing

support forthis ar ticle, especiallyhis research

andwr iting contributions to Section II and III.

Iam also g rateful forthe feedback provided

bycolleagues Priya Raghavan, Bryan Furst,

AdurehOnyekwere, and Meghan Patzer.

Research Summary: In this article, I look at some of the

statutory and case law that has shaped the evolving regu-

lation of the private prison industry. I also examine some

critical gaps in legal issues regarding private contractors

that manage prisons, jails, and detention facilities. The

privatization of justice encompasses all for-profit firms

that make money in the prison-industrial complex. Critical

unanswered legal questions run the gamut from whether

it is legal for corporations to pay undocumented detainees

to work inside detention centers to whether it is legal for

a private probation company to extend a probationer’s

supervision.

Policy Implications: The United States has never fully

wrestled with many of the questions that private prisons

raise. As private firms stretch across state lines contracting

with the government at the local, state, and federal levels,

their authority and accountability is not always settled law.

Additionally, moral considerations have infrequently made

their way into America’s jurisprudential history in grap-

pling with issues around privatizing corrections, raising

possibilities of future litigation focusing on ideological

grounds.

KEYWORDS

legal legality, privatization, privatized corrections

I want to thank all three witnesses for their contribution this morning in terms of enabling

this committee to understand the move topr ivatizationof correction facilities in America,

and some of the legal issues, some of the practical problemsand some of the public policy

Criminology & Public Policy. 2019;18:419–446. wileyonlinelibrary.com/journal/capp © 2019 American Society of Criminology 419

420 EISEN

issues involved.…We may want to revisit this question at some time in the future. I think

we will need more experience with it. It is very recent. Its implications, I think, potentially

are very far reaching. And this is not, indeed, a minor undertaking. It is something which

in year 2000 we may look at in terms of failure or it may have disappearedfrom the scene

or, indeed, it may have become something very significant in terms of this country.

— Congressman Robert W. Kastenmeier, Judiciary Committee Member, Hearing on

Privatized Corrections (1985)

1INTRODUCTION

In November 1985, Congress convenedan oversight hearing on the privatization of corrections. Private

prisons were brand new at the time, a fledgling industry. The previous year, the Federal Bureau of

Prisons (BOP) had signed a 3-year contract with a private firm to house 60 juveniles in La Honda,

California. Additionally, Corrections Corporation of America (now rebranded as CoreCivic and one

of the first companies to manage prisons and jails) had recently secured contracts to operate facilities

for undocumented immigrants in Houston and Laredo, Texas; a federal prerelease treatment center in

Fayetteville, North Carolina; two juvenilefacilities in Memphis, Tennessee; the Hamilton County Jail

in Chattanooga, Tennessee; and a work camp in Panama City, Florida.

Legislators hoped the hearings would provide insight into certain questions about this budding indus-

try: Wouldpr ivatizationsave money? Would conditions of confinement be improvedin private prisons?

Is the government even legally authorized to delegate this power to private companies?

So novel was the industry at the time that Kentucky Congressman Ron Mazzoli asked the lawyer

for Corrections Corporation of America, “What do your people wear? Do they wear uniforms?” The

company’s lawyer answered, “Uniforms” (Privatization of Corrections, 1985, p. 46).

A staff attorney for the American Civil Liberties Union (ACLU) testified at the hearing, “Our

fears about privatization stem from the perception that we do not have yet in place a mechanism that

makes private authorities or their agents responsible for their actions in the same way that government

authorities can be held accountable under current law” (Privatization of Corrections, 1985, p. 7).

Yet the idea of contracting out the management of our prisons was so new that the ACLU’s staff

attorney—speaking for an organization today that explicitlystates t he “American economy should not

include locking people in cages for profit” (American Civil Liberties Union, n.d., para. 1)—told the

committee that they were not ready to take a position on the privatization of corrections (Privatization

of Corrections, 1985, p. 5).1

Legal scholar Professor Ira Robbins also testified at the hearing asking questions about both the

constitutionality as well as the philosophy of relying on private firms to outsource correctional man-

agement. He raised issues and questions that scholars and policy makers are still grappling with today.

Robbins asked, “To what extent, for example, should a private corporation employee be allowed to

use force, perhaps serious or deadly force, against a prisoner? Another example is whether a private

company employee should be entitled to make recommendations to parole boards, or to bring charges

against a prisoner for an institutional violation, possibly resulting in the forfeiture of good-time credits

toward the inmate’s release” (Privatization of Corrections, 1985, p. 66).

Richard Crane, Vice President of Legal Affairs for Corrections Corporation of America—the one

who was asked about the uniforms—testified in front of the committee that there were no legitimate

legal reasons not to contract with private prison firms. Crane said, “I will conclude by saying that there

are a number of objections on legal grounds to the incarceration of prisoners by private companies. I