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February 8, 2014

Is anyone making a broadside constitutional attack against private prisons?

The question in the title of this post is prompted by this notable new blog post by Professor Michael Tigar over at his blog TigarBytes.  The post is titled "Private Prisons Are Unconstitutional," and here is an excerpt:

In Tumey v. Ohio, 273 U.S. 510 (1927), the Supreme Court invalidated a system whereby the mayor who presided as a judge of minor offenses received a percentage of fines and fees that he levied on defendants. In Ward v. Monroeville, 409 U.S. 57 (1972), the fines assessed in the "mayor's court" provided a significant share of the town's financial resources. The mayor had a major role in the administration of town finances. The Court held this arrangement violated due process.

The due process evil of occupancy guarantees [in private prison contracts] works on two branches of government. The judge who sentences a defendant is an agent of the state, and awareness of the contractual obligation inevitably skews her judgment. It is but a small step from Tumey and Monroeville to such a conclusion.

However, there is an additional evil here. The prosecutors who choose whom to prosecute and for what offenses, and to advocate for particular sentences, have the most direct influence on incarceration, given that 90% or more criminal cases are resolved with guilty pleas. One must assess the influence -- direct and indirect -- on prosecutors to make sure that those prison beds are filled....

A case more directly on point is Young v. U.S. ex rel. Vuitton et fils, S.A., 481 U.S. 787 (1987). In New York, there was a federal injunction against sellers of fake Vuitton merchandise. Courts would allow Vuitton to select and pay special prosecutors, who would conduct contempt cases against violators. There are several opinions in the case, but the upshot is that without strict judicial supervision, the "Vuitton system" posed too great a danger that the special prosecutors would pay more attention to Vuitton's interests than to their ethical obligation to prosecute fairly.

Young is one case among many that result from the movement away from private prosecution to the system that prevails today in the United States.  Prosecutors are public officials, and while their choices of defendants and charges are entitled to considerable deference, influences other than the impartial public interest in punishing and deterring crime are suspect.

I do not pretend, in this post, to explore all the relevant case-law.  I simply express a hope that somebody will start to litigate these issues.

February 8, 2014 at 08:29 AM | Permalink


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It's an interesting theory. Certainly, internal prison discipline, good time credit, and other factors influencing early release should be independently decided if the prison's income is based on the prisoner staying there. The Judge precedents are fairly on point there.

Posted by: Erik M | Feb 8, 2014 3:45:25 PM

Erik - for most inmates, behavior does not impact release date.

Eugene Volokh (I think, as I commented) has a nice draft paper on the role of private prisons. He outlines many of the things which should be considered and moves the emphasis to outcomes (also arguing that public prisons should, but aren't, judged the same way, with which I disagreed). Certainly, one could poorly construct a contract either way: allowing a company to inappropriately hold or release inmates to be compensated. The latter may seem unlikely but it is not.

In the case of strict minimum inmate numbers, this misses the mark. In Ohio the number of guaranteed beds (maybe 3,900 of 51,000-some filled) is minimal. If one of the few hundred felony court common pleas judges (county) alltered her sentencing due to a (state) contract of less than 10% of beds, I would be perplexed.

Posted by: RK | Feb 8, 2014 8:51:43 PM

How would one litigate this? Under 1983/Bivens?

Posted by: Mark Allenbaugh | Feb 9, 2014 10:01:53 AM

It may require a major economic event that a huge cross-sections of a state's inhabits view as a major threat to their livelihoods in order to galvanize a major revolt, not by the convicts themselves, but by average Americans on the outside to force the state to abandon privatization of prisons and to put these prisons squarely back under government control.

A first major example of an armed public revolt against privatized prisons occurred way back in the 1890's (over 120 years ago) in Tennessee over the use of Convict-lease (the original form of prison privatization) inmates where the state leased convicts out to private companies under slave-like conditions. At issue was the decision by the state to allow the Tennessee Coal and Iron Company to use convicts (mostly black of both genders) in the coal mines as forced labor. Non-convict coal miners who depended on this employment for their livelihood understand immediately what was at stake and launched a major violent uprising against any mine that used convicts. Their opposition to convict-leasing was not so much based on humanitarian grounds, but on reasons of sheer economic survival.

The state initially thought it would save substantial tax-payer money by replacing free-world miners with convict laborers. The state found out a little differently as the miner revolt would drag on for several months. Not only did the miners do substantial property damage to the mines and holding prisons, but they forced the state to call out the National Guard. But even that did no good, as many National Guard members had friends among the rioters who worked in these mines and were close to the miner's families as well. Many Guard members also viewed convict-leasing as a possible threat to their civilian employment as well.

When Tennessee brought several miners into custody to face trial, the jurors almost immediately sided with the miners and NULLIFIED the charges against the miners. Many jurors in the towns where the miners lived were also close friends of the minors and their families. Even a change of venue did not help state prosecutors.

Thus, what was supposed to save the state money ended up costing the state and tax papers far more than a run-of-the-mill PUBLIC prison system would have.

Thus, during the early 1890's, Tennessee had to abandon convict-leasing and replace it with a state-supervised convict labor system where, at least in theory, the state would have an obligation to provide the basic human needs for the convicts that private leasing companies did NOT have to do. The state could not afford large numbers of convicts' deaths and injuries the way private mining companies like Tennessee Coal and Iron could.

Ironically, this rebellion known as the Coal Creek Rebellion, was the only successful major revolt of that decade as steel workers' uprisings in Pittsburgh, Pennsylvania, against the U.S. Steele Corporation under Henry Clay Frick failed miserably. The fact that Tennessee is a so-called "Right-to-work" state makes the success of the coal miners' revolt all the more striking! It shows that right-to-work laws do NOT guarantee the absence of labor strife. For more information, consult titles of historical treatment of this revolt in: IF ONE CONVICT DIES, GET ANOTHER; or CONVICT WARS. I'm not sure of the authors, but most college research libraries will have these two titles.

Posted by: william delzell | Feb 9, 2014 2:47:44 PM

When I went to law school in Tennessee, there was an occasional practice of families of victims hiring private attorneys to act as special prosecutors in criminal cases, especially in homicide cases. I don't know what oversight the local District Attorney exercised over these special prosecutors, and don't know if the practice still persists, but there might be some case law or legislation about this activity to serve as a guide.

Posted by: Greg Jones | Feb 10, 2014 9:50:57 AM

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