An Arizona federal court dismissed a civil rights complaint brought in June 2020 by the Arizona State Conference of the National Association for the Advancement of Colored People (NAACP) under the novel theory that, by commodifying people for profit, the state’s contract with private prison companies created a form of slavery prohibited by the Thirteenth Amendment as well as more conventional challenges based on alleged Eighth and Fourteenth Amendment violations.

Jeffey Nielsen, Larry Hilgendorf, Terry Browness, Joseph Bulen, and Brian Boudreaux are Arizona state prisoners being held in privately-operated prisons pursuant to contracts between various private prison companies and the Arizona Department of Corrections, Rehabilitation & Reentry (ADCRR). They and the NAACP filed a class action complaint for themselves and other ADCRR prisoners held in private prisons, alleging the use of prisoners as fungible assets and commodities for profit created of a form of prohibited slavery, constituted cruel and unusual punishment, and violated due process and equal protection rights.

In an order filed March 8, 2021, the court held that the plaintiffs had not alleged any facts showing that those held in private prisons are forced to perform labor in keeping with traditional notions of slavery or involuntary servitude. It rejected the theory that mere confinement in a private prison reduces a prisoner to a commodity in violation of the Thirteenth Amendment.

Likewise, the court held that plaintiffs failed to cite any authority that merely holding prisoners in private prisons violated the Eighth Amendment prohibition against cruel and unusual punishment, even if fewer programs were available to them and the prison staff was not trained to ADCRR standards.

The court rejected the plaintiffs’ claims of being denied due process in disciplinary actions in private prisons and the assertion that “structural bias” existed when the entity initiating the disciplinary action has a profit-based motive to keep the subject of the action in prison longer. The court noted that the disciplinary hearing officer was an ADCRR employee as was the deputy warden who reviews disciplinary appeals and there was no allegation that the ADCRR employees had a profit motive to keep prisoners incarcerated.

The equal protection claim also failed because plaintiffs did not allege discrimination subject to strict review and the fact that they had fewer programs than prisoners in state prisons was not shown to be unrelated to legitimate governmental objectives. Therefore, the defendants’ motion to dismiss was granted. The plaintiffs filed an amended complaint in an effort to save the litigation which was met with another motion to dismiss which is pending as we go to press. No court has held any aspects of government privatization to be unlawful or illegal under the federal constitution. See: Nielsen v. Shinn, USDC, Dist. AZ, Case No. 2:20-cv-01182-DLR-JZB. 

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