The Supreme Court issued its decision today in Minneci v. Pollard (.pdf download), holding that employees of a private corporation operating a federal prison may not be held liable under federal law for committing constitutional violations. In so doing, the Court has left the 16% of the federal prison population that resides in privately-run facilities without a federal remedy when their jailers violate their constitutional rights.
Richard Lee Pollard was incarcerated in a federal prison in Taft, California. The prison was operated under contract by a private company, Wackenhut Corrections Corp. (now part of the Geo Group). In April 2007, Pollard tripped over a cart that had been left in the hallway, fell, and broke both of his elbows. Prison employees forced him to use his broken arms in painful ways, refused to provide the splints recommended by his doctors, and made him engage in prison tasks before his injuries had healed.
Pollard sued both the corporate entity and individual employees for damages under Bivens v. Six Unknown Federal Narcotics Agents, claiming that his Eighth Amendment right not to be cruelly punished had been violated. Bivens was a 1971 case in which the Supreme Court created a damages remedy against federal officers for constitutional violations, where there was no other remedy available.
In today’s decision, the Court reversed the Ninth Circuit’s holding that a Bivens action is available where the only alternative remedy is under state law. The Court followed its 2001 decision in Correctional Services Corp. v. Malesko, in which it held that the prisoner plaintiff could not state a Bivens claim against the private corporate entity running the federal prison in which he was incarcerated. In Malesko, the Court reasoned that a suit against a corporation would not deter individual misconduct, and that the plaintiff could sue under state tort law instead. Although in this case Pollard sued individual Wackenhut employees, the Court nonetheless concluded today that there is no reason to imply a Bivens remedy because, as in Malesko, Pollard can pursue his claims under state tort law.
However, as Justice Ginsburg points out in her lone dissent, Pollard would clearly have had a Bivens remedy if he were incarcerated in a prison run by the government, under the Court’s decision in Carlson v. Green. It is only happenstance that he was placed in a prison run by a private contractor, so he should have the same federal legal remedies available to him as if he were held in a government-run prison.
Justice Ginsburg argues that finding a federal cause of action here would serve the Bivens Court’s interests in the application of uniform federal law to such claims, and in creating a means to deter individuals from violating constitutional rights.
The federal Bureau of Prisons relies increasingly on outsourcing the incarceration of federal prisoners. In addition to the 16% of the federal prison population in privately-run facilities, nearly half of federal immigration detainees are held in privately-run detention facilities. Because private prison contractors have incentives to cut costs in order to maximize their profits, they pay corrections officers less, provide less training, and maintain fewer officers per inmate, as compared to federally-run prisons. As a result, inmates held in privately-held facilities face greater dangers to their health and safety than do other prisoners, and federal oversight of such facilities has been insufficient to correct such shortcomings. Yet today the Court has shut the federal courthouse doors to inmates who suffer as a result of these dangers.
Because the Supreme Court has ruled in favor of the corporate employees, inmates who are held in privately-run federal prisons are unable to sue under federal law when their constitutional rights are violated by their jailers.