What's Wrong with Incarcerating People for Profit?

An interesting criminal case was dismissed this week.  The underlying indictment charged Vice President Dick Cheney and former Attorney General Alberto Gonzales with:

[E]ngaging in an organized criminal activity related to the vice president's investment in the Vanguard Group, which holds financial interests in the private prison companies running the federal detention centers.  It accuses Cheney of a conflict of interest and "at least misdemeanor assaults" on detainees because of his link to the prison companies.  The indictment accuses Gonzales of using his position while in office to stop an investigation in 2006 into abuses at one of the privately-run prisons.

Should the incarceration of criminals be a private, for-profit enterprise?  Courts have already ruled that when private corporations run prisons they may be deemed state actors for purposes of § 1983.  As the court in Rosborough v. Management & Training Corp., 350 F.3d 459, 461 (5th Cir. 2003), noted:

In Skelton v. Pri-Cor, Inc., the Sixth Circuit, relying on . . . Supreme Court precedents, held that a private company administering a state corrections facility could be sued under § 1983.  963 F.2d 100, 102 (6th Cir.1991).  The Sixth Circuit found determinative the fact that the corporation was "performing a public function traditionally reserved to the state." Id. (citing Evans, 382 U.S. at 299, 86 S.Ct. 486).  The court reasoned that "the power exercised by [the private prison-management company] is 'possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.' " Id. (quoting West, 487 U.S. at 49, 108 S.Ct. 2250).  Moreover it found that " '[t]here is a sufficiently close nexus between the State and the challenged action of [the corporation] so that the action of the latter may be fairly treated as that of the State itself.' " Id. (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974)). Thus, according to the Sixth Circuit, the private corporation "acted under color of law for purposes of § 1983." Id.

The American Civil Liberties Union has filed lawsuits involving several prison companies over the past decade alleging poor treatment of inmates. Last year, the organization and other parties filed a lawsuit against Corrections Corp. and the Department of Homeland Security's Immigration and Customs Enforcement arm in federal court in San Diego, alleging that the company was operating an overcrowded, unsafe immigrant-detention center in that city. Detainees were routinely assigned in groups of three to sleep in two-room cells -- meaning one had to sleep on the floor near the toilet -- or to temporary beds in recreation rooms and other common spaces, according to the complaint. The suit also alleged that detainees had little access to mental-health care.