CRAIG-CUMMINGS (DO NOT DELETE)

4/29/20 11:21 AM

ABOLISHING PRIVATE PRISONS:
A CONSTITUTIONAL AND MORAL IMPERATIVE
Robert Craig* and andré douglas pond cummings+
I.

INTRODUCTION

President Richard Nixon declared a “War on Drugs” in 1971.1
President Ronald Reagan federalized and militarized this “war” in the

*

+

1.

Associate Director, Abolish Private Prisons. J.D., University of Pennsylvania School
of Law. I want to thank Professor dré cummings for his expertise and kindness
writing this article with me. Additionally, everybody at Abolish Private Prisons,
including the Board of Directors and Executive Director John Dacey, has contributed
crucial insight—of course, none of this work would be possible without the generous
donors who support the organization. My partner Erin Duncan-O’Neill and son
Connor helped weather this unique time together and made it possible to find
enjoyment in our near-isolation. The University of Baltimore Law Review shepherded
this work with care, and any remaining issues are the authors’ fault.
Professor of Law, University of Arkansas at Little Rock William H. Bowen School of
Law; J.D., Howard University School of Law. I am grateful to my co-author Robert
Craig for partnering expertly with me on this article and for his excellent work as
Associate Director of Abolish Private Prisons, an Arizona 501(c)(3) created to combat
private for-profit incarceration. I am appreciative to John Dacey the Executive
Director of Abolish Private Prisons for his tireless work in exposing and challenging
the private prison regime. I am grateful to the University of Arkansas at Little Rock
William H. Bowen School of Law summer research grant which supported this work.
I wish to express appreciation and respect to the terrific Univeristy of Baltimore Law
Review editorial staff who organized a superb symposium “400 Years: Slavery and
the Criminal Justice System” and who contributed thoughtful comments and helpful
suggested edits to this resulting article. Finally, I express profound appreciation to
my partner Lavinia and our babies, Cole Kaianuanu, Malia Ao’ilagi, and Maxwell
Keave, who bring light and joy to my life, whose daily work is spent seeking to reveal
and reverse racial and corporate injustice that often exists in the dark. As usual, any
errors within are the sole responsibility of the authors.
See Ed Vulliamy, Nixon’s ‘War on Drugs’ Began 40 Years Ago, and the Battle Is Still
Raging, GUARDIAN (July 23, 2011, 7:07 PM), https://www.theguardian.com/society/
2011/jul/24/war-on-drugs-40-years [https://perma.cc/S4QN-6TBW] (“Four decades
ago, on 17 July 1971, President Richard Nixon declared what has come to be called
the ‘war on drugs.’ Nixon told Congress that drug addiction had ‘assumed the
dimensions of a national emergency,’ and asked Capitol Hill for an initial $84m
(£52m) for ‘emergency measures.’ Drug abuse, said the President, was ‘public enemy
number one.’”).

261

CRAIG-CUMMINGS (DO NOT DELETE)

262

UNIVERSITY OF BALTIMORE LAW REVIEW

4/29/20 11:21 AM

[Vol. 49

1980s.2 Shortly after the War on Drugs was declared, federalized,
and militarized, a private for-profit company in Tennessee sprang up
calling itself the Corrections Corporations of America (CCA).3 The
creation of this private prison corporation ushered in a new carceral
era where the traditional government function of adjudicating crime,
punishment, and imprisonment became intertwined with the
corporate governance principles and goals of profit maximization for
shareholders; executive compensation based on profits and share
price; forward-looking statements forecasting more robust prison
populations; and increased profit levels built almost solely on human
misery and degradation.4
In 1985, Professor Ira Robbins testified to the House Subcommittee
on Courts, Civil Liberties, and the Administration of Justice that U.S.
jurisdictions considering contracting with private entities for
incarceration services should proceed cautiously because there may
be serious constitutional and pragmatic concerns with such an
arrangement.5 He penned a law review article further delineating
reasons to approach private incarceration with caution6 and served as
the reporter for the American Bar Association’s (ABA) Task Force
on Privatization of Corrections.7 That Resolution was adopted at the
February 1990 Midyear Meeting as 115B and “urg[ed] that
jurisdictions considering authorization of contracts with private
corporations or other private entities . . . do so with extreme caution .

2.
3.

4.

5.
6.
7.

See MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE
OF COLORBLINDNESS 48–49, 69, 73 (2010).
See andré douglas pond cummings, “All Eyez on Me”: America’s War on Drugs and
the Prison-Industrial Complex, 15 IOWA J. GENDER, RACE & JUST. 417, 419 (2012);
see generally Tom Beasley, A New Industry Emerges to Meet a Very Real Need,
CORECIVIC, http://www.corecivic.com/about/history [https://perma.cc/T2BS-JEKQ]
(last visited Apr. 1, 2020) (CCA recently changed its name to CoreCivic; this article
will, hereinafter, use the current name even when referring to the company’s actions
taken under the prior name).
See cummings, supra note 3, at 419–20; see generally SHANE BAUER, AMERICAN
PRISON: A REPORTER’S UNDERCOVER JOURNEY INTO THE BUSINESS OF PUNISHMENT 45,
206, 229 (2018) (describing the human misery and general debasement of prisoners at
private prison facilities run by CoreCivic in Oklahoma and Louisiana).
Privatization of Corrections: Hearing Before the Subcomm. on Courts, Civil Liberties
& the Admin. of Justice of the H. Comm. on the Judiciary, 99th Cong. 69–107 (1985–
1986) (statement of Ira P. Robbins, Professor of Law, Washington College of Law).
See Ira P. Robbins, Privatization of Corrections: Defining the Issues, 69 JUDICATURE
324, 325, 331 (1987).
Ira P. Robbins Biography, AM. U. WASH. C. L., https://www.wcl.american.edu/comm
unity/faculty/profile/robbins/bio [https://perma.cc/7HET-WNYT] (last visited Apr. 1,
2020).

CRAIG-CUMMINGS (DO NOT DELETE)

2020]

4/29/20 11:21 AM

Abolishing Private Prisons

263

. . .”8 The Resolution further recognized that “the imposition and
implementation of a sentence of incarceration for a criminal offense
is a core function of government . . . and there is a strong public
interest in having prison and jail systems in which lines of
accountability are clear.”9
Despite passage of Resolution 115B in 1990, government reliance
on private incarceration has since increased approximately sixteenfold.10 Private prison corporation directors, executives, managers,
and their hired lobbyists currently work doggedly to increase
shareholder profits by: (1) influencing carceral policy so that larger
numbers of U.S. residents face incarceration;11 (2) exploiting
individuals locked up through private prison labor contracts;12 (3)
lobbying elected government officials to privatize entire state and
federal prison systems and increase prison populations;13 (4)
diminishing the quality of food and degree of safety for prisoners in
order to cut costs at privately run facilities;14 (5) drafting legislation
and lobbying elected legislators for passage of draconian sentencing
guidelines including three-strikes and you’re out, mandatory
minimums, and illegal immigration detention legislation;15 (6)
bribing judges to fill private prison facilities with children on
8.
9.
10.

11.
12.

13.

14.

15.

Index to ABA Criminal Justice Policies: 115B (CJS), A.B.A. (1990),
https://www.americanbar.org/groups/criminal_justice/policy/index_aba_criminal_just
ice_policies_by_meeting/ [https://perma.cc/9VAJ-W35R].
Id.
DAVID SHAPIRO, AM. CIVIL LIBERTIES UNION, BANKING ON BONDAGE: PRIVATE
PRISONS AND MASS INCARCERATION 5 (Nov. 2, 2011) (citing to a United States
Department of Justice report), https://www.aclu.org/sites/default/files/field_document
/bankingonbondage_20111102.pdf [https://perma.cc/2DXZ-NHUA].
See cummings, supra note 3, at 439–40.
See Patrice A. Fulcher, Emancipate the FLSA: Transform the Harsh Economic Reality
of Working Inmates, 27 J. CIV. RTS. & ECON. DEV. 679, 682 (2015); see Patrice A.
Fulcher, Hustle and Flow: Prison Privatization Fueling the Prison Industrial
Complex, 51 WASHBURN L.J. 589, 592, 600, 611 (2012) (discussing the exploitation
of prisoners within the prison industrial complex).
Chris Kirkham, Private Prison Corporation Offers Cash in Exchange for State
Prisons, HUFFPOST (Feb. 14, 2012, 9:37 AM), https://www.huffingtonpost.com/2012/
02/14/private-prisons-buying-state-prisons_n_1272143.html [https://perma.cc/68SAKEKG]. CoreCivic offered to purchase state-owned prison facilities from forty-eight
cash-strapped states, so long as the state contractually agreed to keep the prisons
occupied at 90% capacity. Id.
GREGORY GEISLER, CORRECTION INSTITUTION INSPECTION COMMITTEE, LAKE ERIE
CORRECTIONAL INSTITUTION 3–5, 13, 39 (2013); see also BAUER, supra note 4, at 39–
40, 91, 142–44 (detailing the unsafe and foolhardy cost cutting measures CoreCivic
engaged in at a private prison in Louisiana).
See cummings, supra note 3, at 438–39.

CRAIG-CUMMINGS (DO NOT DELETE)

264

UNIVERSITY OF BALTIMORE LAW REVIEW

4/29/20 11:21 AM

[Vol. 49

questionable charges;16 (7) requiring governments and municipalities
that contract for their services to maintain capacity in their private
prison facilities at 90% or in some contracts 100%;17 and (8) building
new prisons despite no government contract or inmates to fill them.18
Despite Professor Robbins’s and the ABA’s warning to proceed
into prison privatization with extreme caution, what seems
undeniable now is that the warning went unheeded and today private
prison corporations are driven by perverse and immoral incentives
whereby an increase in crime and an increase in the number of
human beings placed into America’s brutal prisons is good business
news for that industry.19 In reflecting on the fact that United States
prison conditions are cruel and dehumanizing,20 and that so many
prisoners are low-level, nonviolent minor drug offenders,21 the
question as to why we as a nation stand for private corporate profit in
the realm of human imprisonment must be addressed and resolved.22
The perverse incentives that drive corporate profit are revealed when
a growing population of imprisoned U.S. residents energizes
corporate interests.23 A private prison analyst recently stated that the
consistent yearly increase in the prison population “from a business
model perspective[] [is] clearly good news.”24
16.
17.

18.

19.
20.

21.

22.
23.

24.

Ian Urbina, Despite Red Flags About Judges, a Kickback Scheme Flourished, N.Y.
TIMES (Mar. 27, 2009), http://www.nytimes.com/2009/03/28/us/28judges.html
[https://perma.cc/UL3K-A6KK].
Kevin Johnson, Private Purchasing of Prisons Locks in Occupancy Rates, USA
TODAY (Mar. 8, 2012, 12:37 PM), http://www.usatoday.com/news/nation/story/201203-01/buying-prisons-require-high-occupancy/53402894/1 [https://perma.cc/2W54Y4U5]; Chris Kirkham, Prison Quotas Push Lawmakers to Fill Beds, Derail Reform,
HUFFPOST (Sept. 20, 2013), https://www.huffpost.com/entry/private-prisonquotas_n_3953483 [https://perma.cc/LV4S-66D2].
Matthew Mulch, Crime and Punishment in Private Prisons, 66 NAT’L LAW. GUILD
REV. 70, 74–75 (2009) (remarking that private prison companies, like CoreCivic, are
“building prisons on spec, with no contract to build and no prisoners to house”).
See infra notes 44–54 and accompanying text.
See generally BAUER, supra note 4, at 45, 66, 206, 227 (describing the brutal and
dehumanizing conditions present in the CoreCivic-run private prison in Louisiana and
detailing the history of brutality that private profit incarceration has foisted upon
inmates, often imprisoned for dubious reasons).
See generally ALEXANDER, supra note 2, at 95–97, 99, 186–87 (explaining the
number of arrests and convictions that result from the War on Drugs are
discriminatory and incarcerate hundreds of thousands of low-level drug offenders).
See cummings, supra note 3, at 433–34.
andré douglas pond cummings & Adam Lamparello, Private Prisons and the New
Marketplace for Crime, 6 WAKE FOREST J.L. & POL’Y 407, 413 (2016); see
cummings, supra note 3, at 421–22.
JeeYeon Park, Lock Up Profits — in Prison Stocks: Analyst, CNBC (Nov. 1, 2010,
11:48 AM), https://www.cnbc.com/id/39949086 [https://perma.cc/3SUC-G6BB].

CRAIG-CUMMINGS (DO NOT DELETE)

2020]

4/29/20 11:21 AM

Abolishing Private Prisons

265

Private prison executives and lobbyists seek to increase
privatization of the industry by promising that their prisons are run
more efficiently at lower costs, with greater safety records, improved
facilities, and with greater outcomes for prisoners.25 However,
studies and reports now show that these declarations by private
prison executives and lobbyists are deceitful.26 Private prisons are
increasingly being shown to cost contracting governments’ more, not
less, are less safe, and less economical.27 The exchange of taxpayer
funds from governments and municipalities into the hands of
corporate shareholders and executives is nothing more than an
unabashed transfer of taxpayer monies into the personal accounts of
those with a stake in private prisons—which are being shown to
provide no real benefit in return.28 Private incarceration makes no
sense morally,29 and it is increasingly apparent that the industry
makes no sense economically30 and, in fact, is likely
unconstitutional.31
In 2005, Professor Robbins again addressed the issue of prison
privatization.32 His conclusions have been updated, including that
private prisons are a “lamentable experiment” and “that the concept .
. . is bad policy . . . based on a tenuous legal foundation . . . [with]
profound moral implications.”33 Robbins notes the many “routine,
quasi-judicial decisions” private vendors make that affect prisoners’
welfare and legal status; the daily operations of private prisons that
are conducted outside of public supervision; and the financial bias
injected into circumstances where private corporations and key
25.

26.

27.
28.

29.
30.
31.
32.
33.

cummings & Lamparello, supra note 23, at 413; see also CHRISTOPHER HARTNEY &
CAROLINE GLESSMAN, PRISON BED PROFITEERS: HOW CORPORATIONS ARE RESHAPING
CRIMINAL JUSTICE IN THE U.S. 2 (May 2012), http://nccdglobal.org/sites/default/files/
publication_pdf/prison-bed-profiteers.pdf [https://perma.cc/3TCM-T5M3].
cummings & Lamparello, supra note 23, at 413; see also dré cummings, Private
Prison Industry Shenanigans in Florida, CORP. JUST. BLOG (Oct. 26, 2012, 9:30 AM),
http://corporatejusticeblog.blogspot.com/2012/10/private-prison-industryshenanigans-in.html [https://perma.cc/WZN7-VGD4].
cummings & Lamparello, supra note 23, at 413.
Id. at 413–14; see also David M. Reutter, Florida Provides Lesson in How Not to
Privatize State Prisons, PRISON LEGAL NEWS (Feb. 15, 2012),
https://www.prisonlegalnews.org/news/2012/feb/15/florida-provides-lesson-in-hownot-to-privatize-state-prisons/ [https://perma.cc/UJ6W-62BV].
cummings & Lamparello, supra note 23, at 414.
Id.
See infra Part IV.
Ira P. Robbins, Privatization of Corrections: A Violation of U.S. Domestic Law,
International Human Rights, and Good Sense, 13 HUM. RTS. BRIEF 12, 12 (2006).
Id. at 12, 16.

CRAIG-CUMMINGS (DO NOT DELETE)

266

UNIVERSITY OF BALTIMORE LAW REVIEW

4/29/20 11:21 AM

[Vol. 49

employees make more money when more people are imprisoned for
longer periods are each lamentable outcomes of a failed
experiment.34 Over the past few decades the United States has seen:
the rapid, profitable growth and political influence of the private
prison industry;35 how incarceration-for-profit ensures more
incarceration, quashes alternatives to incarceration, and creates a
financial bias in jailers against the release of prisoners;36 and, how
mainstream religions have criticized private, for-profit prisons as
immoral.37 There is increasing reason for concern that these private
prison corporations will become even more involved at the front end
of law enforcement by working with police agencies to make sure
their facilities stay filled.38
This article will show: first, that mixing profit with the core
governmental function of incarceration leads to damaging
consequences for prisoners, employees (of both private and public
prisons), and the public at large while benefiting a small group of
executives and shareholders;39 second, that the implementation of
for-profit incarceration in the United States hampers access to justice,
particularly for already marginalized groups;40 and third, that the
serious constitutional concerns noted by Professor Robbins have been
borne out, and they now deserve consideration by the United States
Supreme Court.41

34.
35.

36.
37.

38.

39.
40.
41.

See id. at 12.
See, e.g., CAROLINE ISAACS, PRIVATE PRISONS: THE PUBLIC’S PROBLEM, at i–ii (Feb.
2012), https://www.afsc.org/sites/default/files/documents/Arizona_Prison_Report_Ex
ecutive_Summary.pdf [https://perma.cc/AD6R-ESA6] (tracing the path between
donations from private prison lobbyists in Arizona to the passage of a bill authorizing
privatization of almost the entire state correctional system).
See SHAPIRO, supra note 10, at 12.
See generally Join the Movement!, ABOLISH PRIV. PRISONS, https://www.abolishprivat
eprisons.org/resolutions [https://perma.cc/CT87-H6HH] (last visited Apr. 1, 2020)
(providing an up-to-date list of religious organizations criticizing the industry).
See Beau Hodai, Private Prison Company Used in Drug Raids at Public High School,
COMMON DREAMS (Nov. 27, 2012), https://www.commondreams.org/news/2012/11/2
7/private-prison-company-used-drug-raids-public-high-school [https://perma.cc/92YM
-2ADP]; see also P. Smith, In Profit-Sharing Scheme, Oklahoma DA Used Contractor
for Highway Drug Stops, STOP DRUG WAR (July 22, 2013, 6:05 PM),
https://stopthedrugwar.org/chronicle/2013/jul/22/profitsharing_scheme_oklahoma_da
[https://perma.cc/ASL3-H6TN] (“[T]he contract . . . gave Desert Snow 25% of all
assets seized during training days and 10% of all assets seized even on days the
contractors were not present.”).
See infra Part II.
See infra Part III.
See infra Part IV.

CRAIG-CUMMINGS (DO NOT DELETE)

2020]

4/29/20 11:21 AM

Abolishing Private Prisons

267

II. INHERENT CONSEQUENCES OF LINKING PROFIT AND
INCARCERATION
Privatization of incarceration introduces serious perverse incentives
created by government and financial bias throughout the criminal
justice process,42 and contracting a core government function to
private entities undermines the legitimacy of the justice system at
large.43 “Perhaps the most perverse incentive in the private prison
industry is that shareholder and executive profit are intimately tied to
the number of prisoners that enter the private prison facility.”44
When a profit motive is attached to human misery and bondage such
as incarceration, the evidence shows that the depths to which profit
seekers will sink to earn revenues knows no bounds, and the effects
reverberate through the justice system.45
Private prison companies, while forcefully disclaiming such
action,46 aggressively lobby for harsher prison sentences such as
mandatory-minimums and three-strikes laws;47 for legislation that
creates new crimes requiring incarceration, such as criminalization of
illegal immigration or active detention of schoolchildren;48 and
42.
43.
44.
45.
46.

47.
48.

See infra notes 46–66 and accompanying text.
See infra notes 46–71 and accompanying text.
cummings & Lamparello, supra note 23, at 429; see also cummings, supra note 3, at
436–38.
See BAUER, supra note 4, at 39, 49–50 (highlighting one way in which private prisons
choose to cut costs in order to ensure the maximization of profits).
See Richard P. Seiter, Private Corrections: A Review of the Issues, CORRECTIONS
CORP. AM. (Mar. 2008), https://ccamericastorage.blob.core.windows.net/media/Defau
lt/documents/CCA-Resource-Center/Private_Corr_Review.pdf [https://perma.cc/3NS
R-524W]. According to CoreCivic, it is a myth that they promote longer and tougher
sentences. Corr. Corp. of Am., Myths v. Reality in Private Corrections: The Truth
Behind the Criticism, PRISON LEGAL NEWS, https://www.prisonlegalnews.org/media/
publications/cca_myth_vs._reality_in_corrections_promotional_sheet.pdf [https://per
ma.cc/V5TH-6P67] (last visited Apr. 1, 2020). But see Lee Fang, Disclosure Shows
Private Prison Company Misled on Immigration Lobbying, NATION (June 4, 2013),
https://www.thenation.com/article/disclosure-shows-private-prison-company-misledimmigration-lobbying/ [https://perma.cc/9BPE-MTYQ] (“A new disclosure shows
that . . . Geo Group, has in fact paid an ‘elite team of federal lobbyists’ to influence
the comprehensive immigration reform legislation making its way through
Congress.”).
cummings, supra note 3, at 438–39, 438 n.102.
See, e.g., Nicole Flatow, Mississippi County Jails Kids for School Dress Code
Violations, Tardiness, DOJ Alleges, THINKPROGRESS (Nov. 27, 2012, 2:00 PM),
https://thinkprogress.org/mississippi-county-jails-kids-for-school-dress-code-violation
s-tardiness-doj-alleges-1fa9a26ae83b/ [https://perma.cc/4GXN-JLXQ] (describing
how the police are a “taxi-service” for shuttling students to jail for class misbehavior).

CRAIG-CUMMINGS (DO NOT DELETE)

268

UNIVERSITY OF BALTIMORE LAW REVIEW

4/29/20 11:21 AM

[Vol. 49

against decriminalization.49
In fact, these actions have been
generously rewarded as of late; reports reveal that the two largest
private prison companies, CoreCivic and GEO Group, together
generated more than $2.9 billion in revenue in 2010, with revenues
ever increasing through 2019.50 To increase revenue at the rate
indicated, private prison corporations, as mentioned above, hire
lobbyists to increase prison populations and prison construction.51
We argue that lobbying to increase the stream of prisoners and
lobbying for harsher sentencing regimes is not just unseemly but
inhumane,52 which leads to another aberrant incentive of prison
privatization: to increase profit, a private prison CEO is not selling
more shoes (like Nike) or making additional motion pictures (like
Disney), but is instead seeking to increase the flow of clients—
prisoners—into the prison system.53 Or stated another way, the
49.

50.

51.

52.
53.

See, e.g., Michael Cohen, How For-Profit Prisons Have Become the Biggest Lobby
No One Is Talking About, WASH. POST (Apr. 28, 2015, 6:00 AM),
https://www.washingtonpost.com/posteverything/wp/2015/04/28/how-for-profitprisons-have-become-the-biggest-lobby-no-one-is-talking-about/ [https://perma.cc/D5
5R-Q85G] (“The two largest for-profit prison companies in the United States . . . have
funneled more than $10 million to candidates since 1989 and have spent nearly $25
million on lobbying efforts.”). In a recent telling example, private prison companies
donated heavily to Donald Trump’s campaign, and their stocks sharply increased after
he was elected President. Under Mr. Trump, Private Prisons Thrive Again, N.Y.
TIMES (Feb. 24, 2017), https://www.nytimes.com/2017/02/24/opinion/under-mrtrump-private-prisons-thrive-again.html [https://perma.cc/V3K7-KVMU].
cummings, supra note 3, at 436–37; see also Andrea Nill Sanchez, Private Prisons
Spend Millions on Lobbying to Put More People in Jail, THINKPROGRESS (June 23,
2011, 4:00 PM), https://thinkprogress.org/private-prisons-spend-millions-onlobbying-to-put-more-people-in-jail-58e048bb37dd/ [https://perma.cc/4AE5-HQWF].
These profits have continued to grow in the past decade, as GEO Group alone
reported bringing in $2.47 billion in revenue for 2019. See Renae Merle & Tracy Jan,
Wall Street Pulled Its Financing. Stocks Have Plummeted. But Private Prisons Still
Thrive., WASH. POST (Oct. 3. 2019, 12:37 PM), https://www.washingtonpost.com/
business/2019/10/03/wall-street-pulled-its-financing-stocks-have-plummeted-privateprisons-still-thrive/ [https://perma.cc/9D9L-2TWJ].
Lee Fang, Prison Industry Funnels Donations to State Lawmakers Introducing
SB1070-Like Bills Around the Country, THINKPROGRESS (Sept. 16, 2010),
https://thinkprogress.org/prison-industry-funnels-donations-to-state-lawmakers-introd
ucing-sb1070-like-bills-around-the-afd16ced43b6/ [https://perma.cc/4AE5-HQWF].
See infra notes 72–80 and accompanying text.
cummings, supra note 3, at 437; see also PAUL ASHTON & AMANDA PETTERUTI,
JUSTICE POLICY INST., GAMING THE SYSTEM: HOW THE POLITICAL STRATEGIES OF
PRIVATE PRISON COMPANIES PROMOTE INEFFECTIVE INCARCERATION POLICIES 22,
(June 2011), http://www.justicepolicy.org/uploads/justicepolicy/documents/gaming
_the_system.pdf [https://perma.cc/X2G9-PD4U] (explaining that private prison
companies have hired thirty lobbyists in Florida to promote their prison interests).
Furthermore, CoreCivic has given over $900,000 annually to federal candidates since

CRAIG-CUMMINGS (DO NOT DELETE)

2020]

4/29/20 11:21 AM

Abolishing Private Prisons

269

private prison corporation is seeking to profit off of increasing the
number of U.S. bodies that can be locked in cages.54
The amount of private prison company dollars spent on lobbying
efforts is substantial.55 CoreCivic spent more than $3 million on
federal lobbying in 2005 and more than $1.2 million in 2019.56 The
largest U.S. private prison companies together have spent dozens of
millions of dollars lobbying both state and federal elected officials
since the founding of the U.S. private prison corporation in the
1970s.57 Private prison lobbyists advocate for harsh legislative
initiatives that increase the number of individuals sentenced to prison
time58 because “private prisons make money from putting people
behind bars.”59 In addition, prison lobbyists battle to grow
appropriations in expenditures in law enforcement, pass severe
immigration laws, and increase immigration detention.60 They also
seek to influence lawmakers to implement unforgiving incarceration
policies like the 2010 Arizona immigration legislation, originally
titled “The Support Our Law Enforcement and Safe Neighborhoods

54.
55.

56.

57.
58.
59.
60.

2003, and the prison companies have given more than $16 million to state and federal
legislators since 2000, providing additional evidence that states are some of the
private prison companies’ most important clients. Id. at 22, 24.
See Adam Gopnik, The Caging of America, NEW YORKER (Jan. 23, 2012),
https://www.newyorker.com/magazine/2012/01/30/the-caging-of-america
[https://perma.cc/F44Q-AGXU].
See ASHTON & PETTERUTI, supra note 53, at 17 (showing that in state campaign
contributions from 2003 to 2010, CoreCivic has spent over $1.5 million in twentyseven states, GEO has spent $2.4 million in twenty-three states, and from 2006 to
2009, Cornell Companies has spent $72,000 in six states).
Id. at 24; see also Client Profile: CoreCivic Inc., OPENSECRETS, http://www.
opensecrets.org/federal-lobbying/clients/summary?cycle=2019&id=D000021940
[https://perma.cc/VX78-UVT7] (last visited Apr. 1, 2020) (reporting that CoreCivic
spent $1.23 million on lobbying in 2019).
See ASHTON & PETTERUTI, supra note 53, at 22–24.
See id. The private prison companies promote and advocate for “three-strikes” and
“truth-in-sentencing” legislation because this creates more business. Id. at 3.
Id. at 21.
See Laura Sullivan, Prison Economics Helped Drive Ariz. Immigration Law, NAT’L
PUB. RADIO (Oct. 28, 2010, 11:01 AM), https://www.npr.org/2010/10/28/130833741/
prison-economics-help-drive-ariz-immigration-law [https://perma.cc/VJU7-PV5L];
see also Geiza Vargas-Vargas, The Investment Opportunity in Mass Incarceration: A
Black (Corrections) or Brown (Immigration) Play?, 48 CAL. W. L. REV. 351, 357–58
(2012) (“Prison companies cannot justify building new prisons on the basis of drug
convictions. However, prison companies can justify the building of new prisons
based on a whole new kind of prisoner: the illegal alien, and more specifically, the
‘Mexican.’”).

CRAIG-CUMMINGS (DO NOT DELETE)

270

UNIVERSITY OF BALTIMORE LAW REVIEW

4/29/20 11:21 AM

[Vol. 49

Act” (SB 1070).61 Several reports show that private prison lobbyists
had a hand in drafting the legislation that became SB 1070.62
Corporations are free to make campaign contributions to elected
government officials, and the private prison lobby contributes
liberally.63 In light of the seminal 2010 Supreme Court case Citizens
United,64 private prison corporations’ campaign contributions can
now be made directly from the private prison corporate treasury to
the federal and state legislators and judges whom they hope to
influence.65 Research indicates that private prison companies
contribute millions of dollars to mostly incumbent politicians,
seeking to garner influence in the legislative process, to continue
privatizing the prison regime and receive advantageous contracts for
private prison construction.66
According to news reports, more problems appear in the
courthouse.67 In what would eventually come to be known as the
“Kids For Cash” scandal, two Pennsylvania judges sentenced
juveniles to detention at twice the state average, earning $2.6 million
in kickbacks.68 In Iowa, the husband of a federal judge had
significant stock holdings of two private prisons; he increased those
holdings just five days before an immigration raid where nearly 400
workers were arrested, and of those, about 270 were sentenced to five
months in federal prisons.69
And in Mississippi, a former
61.

62.
63.
64.
65.

66.
67.
68.

69.

cummings, supra note 3, at 438–39; see ASHTON & PETTERUTI, supra note 53, at 30;
see How Corporate Interests Got SB 1070 Passed, NAT’L PUB. RADIO (Nov. 9, 2010,
1:00 PM), https://www.npr.org/2010/11/09/131191523/how-corporate-interests-gotsb-1070-passed [https://perma.cc/G6UR-BGF6]; see also Fang, supra note 51.
See Sullivan, supra note 60; see also How Corporate Interests Got SB 1070 Passed,
supra note 61.
ASHTON & PETTERUTI, supra note 53, at 15–22.
Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 319, 362–67 (2010).
See andré douglas pond cummings, Procuring ‘Justice’?: Citizens United, Caperton,
and Partisan Judicial Elections, 95 IOWA L. REV. BULL. 89, 98 (2010) [hereinafter
cummings, Procuring ‘Justice’?]; see also Atiba R. Ellis, Citizens United and Tiered
Personhood, 44 J. MARSHALL L. REV. 717, 745–49 (2011) (describing the potential
nefarious consequences of Citizens United).
cummings, supra note 3, at 437–39; see ASHTON & PETTERUTI, supra note 53, at 15–
22; see also SHAPIRO, supra note 10, at 39.
See infra notes 68–70 and accompanying text.
‘Kids for Cash’ Captures a Juvenile Justice Scandal from Two Sides, NAT’L PUB.
RADIO (Mar. 8, 2014, 6:26 PM), https://www.npr.org/2014/03/08/287286626/kids-forcash-captures-a-juvenile-justice-scandal-from-two-sides
[https://perma.cc/NJ7AKNVV]; Urbina, supra note 16.
Samantha Michaels, A Federal Judge Put Hundreds of Immigrants Behind Bars While
Her Husband Invested in Private Prisons, MOTHER JONES (Aug. 24, 2017),
https://www.motherjones.com/crime-justice/2017/08/a-federal-judge-put-hundreds-

CRAIG-CUMMINGS (DO NOT DELETE)

2020]

4/29/20 11:21 AM

Abolishing Private Prisons

271

commissioner of the Department of Corrections accepted over $1
million in bribes in exchange for lucrative state contracts with private
prisons.70 Not one of these problems would have occurred had the
traditional government function of imprisonment been left in public
hands, rather than private—each serves to highlight the corrupting
influence that profit has on human actors.71
Because a for-profit prison’s primary motivation is to maximize
profit, lowering the operational costs of running a facility is often at
the forefront of their decision-making process.72 This goal often
results in fewer available educational opportunities for prisoners, and
because private prison corporations benefit from high recidivism,
they have every incentive not to use proven anti-recidivism
programs.73 As one commentator notes, “[m]uch of the presumed
cost savings of private prisons are achieved through lower staffing
costs: private prisons pay their employees less than public prisons.”74
Likewise, private incarceration facilities understaff relative to public

70.

71.
72.

73.

74.

of-immigrants-behind-bars-while-her-husband-invested-in-private-prisons/
[https://perma.cc/5UPV-NX3K].
Alana Blinder, 2 Former Mississippi Officials Plead Guilty in a Graft Case Involving
Private Prisons, N.Y. TIMES (Feb. 25, 2015), https://www.nytimes.com/2015/
02/26/us/christopher-epps-former-mississipi-prisons-chief-pleads-guilty-in-corruption
-case.html [https://perma.cc/BG8G-PECA]. The investigation into the former
commissioner uncovered an even broader scheme: former legislator Cecil McCrory;
former state senator Irb Benjamin of Madison; Teresa Malone, the wife of former
lawmaker and former House Corrections Chairman Bennett Malone; Texas
businessman Mark Longoria; Dr. Carl Reddix; business and government consultant
Robert Simmons; former MDOC insurance broker Guy E. Evans; and prison
consultant Sam Waggoner were all charged and pled guilty. Jimmie E. Gates, 4
Louisiana Businessmen Charged in Chris Epps’ Corruption Case, CLARION LEDGER
(Oct. 4, 2018, 3:24 PM), https://www.clarionledger.com/story/news/2018/10/04/chrisepps-corruption-case-4-la-businessmen-charged-bribery/1524892002/
[https://perma.cc/VYY3-ZD3Q].
See infra Section III.A.
In fact, this downward pressure on operational cost is perhaps the marquee feature of
private incarceration and how the concept is sold to legislatures and other public
decision-makers. See generally BAUER, supra note 4, at 40, 142–43, 204–05, 253
(showing that as an undercover prison guard, decisions from hiring, through training,
to guarding prisoners, are all subject to this downward pressure leading to unwise and
unsafe outcomes).
See, e.g., Judith Greene, Comparing Private and Public Prison Services and
Programs in Minnesota: Findings from Prisoner Interviews, 11 CURRENT ISSUES
CRIM. JUST. 202, 215–16 (1999) (finding that prisoners were significantly less likely
to have access to any kind of education during private incarceration).
Matt Simmons, Punishment & Profits: A Cost-Benefit Analysis of Private Prisons,
OKLA. POL’Y INST. (Aug. 7, 2013), https://okpolicy.org/punishment-profits-a-costbenefit-analysis-of-private-prisons/ [https://perma.cc/3LVH-8KD3].

CRAIG-CUMMINGS (DO NOT DELETE)

272

UNIVERSITY OF BALTIMORE LAW REVIEW

4/29/20 11:21 AM

[Vol. 49

ones,75 and even the staff eventually hired by private prison
corporations tend to be underqualified and suffer from higher
turnover.76 These decisions sometimes lead to disastrous results.77
In one 2016 case, a federal judge said conditions at one private
prison “paint[ed] a picture of such horror as should be unrealized
anywhere in the civilized world,” as the prison was essentially run by
gangs, held organized gladiator-style fights encouraged by guards,
and had “sexual misconduct . . . among the worst that we have seen
in any facility anywhere in the nation.”78 In another stunning case,
“[a] private prison in Idaho . . . established a reputation as
a ‘gladiator school’ because prison guards encouraged violence
between inmates.”79
Oklahoma Director of Department of
Corrections Joe Allbaugh stated that he does not “believe taxpayers
should be paying a premium for our prisoners [to private
corporations]. . . . [B]ecause I think we can house inmates more
efficiently.”80 At bottom, cost-effectiveness alone means nothing
without accounting for the quality of the prison environment, which
evidence shows borders on abusive.81
The profit motive also leads to less safety for correctional officers
as operators drive down expenditures when reducing staffing costs.82
Private prisons pay individual officers less: on average private
corrections officers “received salaries that were about $7,000 lower
than the average public officer’s salary.”83 And in addition to paying
each private officer less than their public counterparts, private prison
operators “also tend to hire fewer officers; private prisons report an
average of one officer per 6.9 inmates compared to one officer per
75.
76.
77.
78.
79.
80.

81.
82.

83.

See David M. Siegel, Internalizing Private Prison Externalities: Let’s Start with the
GED, 30 NOTRE DAME J.L. ETHICS & PUB. POL’Y 101, 106–07 (2016).
David N. Khey, Privatization of Prison, in 3 THE ENCYCLOPEDIA OF CRIME AND
PUNISHMENT 1036, 1041 (Wesley G. Jennings ed., 1st ed. 2016).
See, e.g., BAUER, supra note 4, at 143–44.
Timothy Williams, Privately Run Mississippi Prison, Called a Scene of Horror, Is
Shut Down, N.Y. TIMES (Sept. 15, 2016), https://www.nytimes.com/2016/09/16/us/
mississippi-closes-private-prison-walnut-grove.html [https://perma.cc/3DLD-AHJV].
Simmons, supra note 74.
Andrew Knittle, Oklahoma Paid Record $92.7 Million to Private Prisons in 2015,
OKLAHOMAN (Mar. 29, 2016, 7:00 AM), https://oklahoman.com/article/5487769/okla
homa-paid-record-927-million-to-private-prisons-in-2015
[https://perma.cc/Y7T7MPT4].
See, e.g., Developments in the Law—the Law of Prisons, 115 HARV. L. REV. 1838,
1883 (2002).
See Megan Mumford et al., The Economics of Private Prisons, HAMILTON PROJECT
(Oct. 20, 2016), https://www.hamiltonproject.org/papers/the_economics_of_private_
prisons [https://perma.cc/KE4V-3RHA].
Id.

CRAIG-CUMMINGS (DO NOT DELETE)

2020]

4/29/20 11:21 AM

Abolishing Private Prisons

273

4.9 inmates in public facilities.”84 In Oklahoma, “the ugliest
outbreaks of prison violence toward correctional officers and among
inmates have occurred in [that state’s] private prisons, underlining
the dangerous conditions in those facilities.”85
In addition, the legitimacy of the justice system at large suffers
from both normative and descriptive problems of private
incarceration.86 As discussed above, private prisons have been
plagued by scandals, some of which have gripped the nation’s
attention.87 Because the systemic problems of private incarceration
stretch from legislation through release, the public has witnessed the
negative effects on legislators, judges, and the prison institutions
themselves.88 These problems have contributed to a declining view
of the justice system among U.S. residents,89 including debates over
the morality of investing in the private prison industry.90 Scholarly
research also largely views the normative case for private
incarceration with great skepticism.91
III. ACCESS TO JUSTICE
The discussion about whether for-profit prison corporations can
deliver on their stated purpose masks a more important failing: they
are crucial components in perpetuating the failed policies that lead to

84.
85.

86.
87.
88.
89.

90.

91.

Id.; see also BAUER, supra note 4, at 142–43.
Ryan Gentzler, Private Prisons Are Bad Policy, but They’re Not to Blame for
Oklahoma’s Incarceration Problem, OKLA. POL’Y INST. (Mar. 12, 2018),
https://okpolicy.org/private-prisons-are-bad-policy-but-theyre-not-to-blame-foroklahomas-incarceration-problem/ [https://perma.cc/7AQH-V8ED].
See infra notes 105–10 and accompanying text.
See supra notes 67–80 and accompanying text.
See supra notes 46–84 and accompanying text.
Congressional job approval remains among the lowest in the past quarter-century.
Congress and the Public, GALLUP, http://news.gallup.com/poll/1600/CongressPublic.aspx [https://perma.cc/3XL7-W9XD] (last visited Apr. 1, 2020). Public
opinion on the justice system at large has decreased since the early 2000s.
Confidence in Institutions, GALLUP, http://news.gallup.com/poll/1597/ConfidenceInstitutions.aspx [https://perma.cc/JZY5-CSZH] (last visited Apr. 1, 2020).
Mike Antonucci, California’s Pension Fund Managers Are at Odds with Activists and
Some Union Leaders over Divestments, LA SCH. REP. (Feb. 27, 2018),
http://laschoolreport.com/californias-pension-fund-managers-are-at-odds-withactivists-and-some-union-leaders-over-divestments/ [https://perma.cc/F82R-XBDY].
See, e.g., Yoav Peled & Doron Navot, Private Incarceration – Towards a
Philosophical Critique, 19 CONSTELLATIONS 216, 216–17, 30 (2012) (developing a
moral argument against private incarceration based on civic republican foundations).

CRAIG-CUMMINGS (DO NOT DELETE)

274

UNIVERSITY OF BALTIMORE LAW REVIEW

4/29/20 11:21 AM

[Vol. 49

mass incarceration and hamper access to justice.92 Public prisons
have their share of problems, of course: overcrowding, safety, and
crumbling infrastructure among them.93 But injecting the core state
function of incarceration with a profit motive leads to its own
problems, many of which particularly affect already disadvantaged
and oppressed communities.94
In fact, private, for-profit
incarceration violates all three principles of the United States
Department of Justice’s Office for Access to Justice: ensuring
fairness, increasing efficiency, and promoting accessibility.95
A. Ensuring Fairness
One of the core principles of “access to justice” initiatives is
ensuring that the judicial system delivers “fair and just outcomes for
all parties, including those facing financial and other
disadvantages.”96 Placing a financial motive into the justice system
works directly against that purpose.97
First, private prison operators have a strong financial incentive to
keep prison occupancy as high as possible because, as a business,
large and predictable revenue streams are crucial for corporate health
and vitality.98 This incentive manifests in lobbying against common
sense criminal justice reforms and lobbying for expansion of criminal
and immigration laws.99 For example, as introduced above, a report
92.

93.

94.
95.

96.
97.
98.

99.

See Julia Bowling, Do Private Prison Contracts Fuel Mass Incarceration? BRENNAN
CTR. FOR JUST. (Sept. 20, 2013), https://www.brennancenter.org/our-work/analysisopinion/do-private-prison-contracts-fuel-mass-incarceration [https://perma.cc/S5VV2DCU].
See P.R. Lockhart, America Is Finally Being Exposed to the Devastating Reality of
Prison Violence, VOX (Apr. 5, 2019, 7:10 PM), https://www.vox.com/policy-andpolitics/2019/4/5/18297326/prison-violence-ohio-alabama-justice-department-lawsuit
[https://perma.cc/ZMK2-6XBR].
See Section III.A.
See Sections III.A–C. There are varying definitions of “access to justice.” The
categories mentioned herein are meant to be representative rather than definitive or
exhaustive. Access to Justice, U.S. DEP’T. JUST., https://www.justice.gov/olp/accessjustice [https://perma.cc/9GJQ-CZVS] (last updated Oct. 24, 2018).
Id.
See infra notes 98–119 and accompanying text.
See, e.g., CORRS. CORP. OF AM., FORM 10-K 36 (Feb. 24, 2010), http://ir.corecivic.com
/sec-filings/sec-filing/10-k/0000950123-10-016309 [https://perma.cc/UTD5-9VDN]
(“We believe the long-term growth opportunities of our business remain very
attractive as insufficient bed development by our customers should result in a return
to the supply and demand imbalance that has been benefiting the private prison
industry.”).
See Cohen, supra note 49 (“The two largest for-profit prison companies in the United
States – GEO and Corrections Corporation of America – and their associates have

CRAIG-CUMMINGS (DO NOT DELETE)

2020]

4/29/20 11:21 AM

Abolishing Private Prisons

275

by National Public Radio revealed “a quiet, behind-the-scenes effort
to help draft and pass Arizona Senate Bill 1070 by an industry that
stands to benefit from it: the private prison industry.”100 The
enormous gulf dividing the political power harnessed by large
corporations and the marginalized groups who suffer the
consequences of over-criminalization increases the odds that the
justice system will not deliver the fair and just outcomes envisioned
by access to justice advocates, instead tending toward results that
enrich the already powerful.101
In addition to the legal but harmful lobbying efforts of for-profit
incarceration corporations, privatization necessarily increases the
avenues of corruption, often at the risk of harming marginalized
communities.102 The seductive presence of wealth can influence
decision-making at various points of the criminal justice process.103
For example, a wide-ranging kickback scheme perpetrated by thenMississippi Department of Corrections Commissioner Christopher
Epps touched on almost every aspect of imprisonment: construction
of facilities, maintenance of those facilities, operation of those
facilities, prisoner health care, commissary services, inmate
telephone use, post-release tracking and monitoring, and drug
testing.104 After investigating the scheme, Mississippi recovered
$26.6 million in settlement agreements with the various private
prisons and other companies involved in the scandal.105
The corruptive effects of privatization have also touched judges.106
In Pennsylvania, as described above, two juvenile court judges were
involved in a scheme to close a county-run detention facility, forcing
children into a privately-run center and sentencing juveniles to
harsher punishments, including detention for behavior that would
otherwise not merit such a sentence.107 This scheme, known as the

100.
101.
102.
103.
104.

105.
106.
107.

funneled more than $10 million to candidates since 1989 and have spent nearly $25
million on lobbying efforts.”).
Sullivan, supra note 60.
See infra notes 102–19 and accompanying text.
See supra notes 98–101 and accompanying text; see infra notes 103–20 and
accompanying text.
See infra notes 104–19 and accompanying text.
Press Release, Jim Hood, Attorney Gen., Office of the Attorney Gen. State of Miss.,
Hood Recovers $26.6 Million, Settles Final Epps Bribery Case (Jan. 24, 2019),
http://www.agjimhood.com/releases/hood-recovers-26-6-million-settles-final-eppsbribery-case/ [https://perma.cc/KB8L-U524].
Id.
See infra notes 107–11 and accompanying text.
See Urbina, supra note 16.

CRAIG-CUMMINGS (DO NOT DELETE)

276

UNIVERSITY OF BALTIMORE LAW REVIEW

4/29/20 11:21 AM

[Vol. 49

“kids-for-cash” scandal, resulted in, among other things, the suicide
of one teenager, a guilty plea from one judge, and a criminal
conviction of the other.108
More recently, as illustrated above, an investigation alleged that the
husband of a federal court judge increased his stock holdings of
companies involved in private detention days before a large raid that
resulted in almost 400 arrests.109 Court filings suggest that the judge
knew about and took part in the planning of the raid for several
months beforehand.110 These instances show that fairness in the legal
system disappears when those involved with dispensing justice have
a financial stake in the outcome, and even if no wrongdoing occurred
in the case involving the federal judge, such financial entanglement
strips away the appearance of fairness.111
The avenues for corruption are not limited to the courthouse, as
some of the largest companies involved in for-profit incarceration are
now expanding into areas adjacent to their core business, many of
which prey on communities of color and poor communities.112 GEO
Group, for example, lists post-release services on their website,
including “programs tailored to pretrial, parole, probation, in-custody
populations and those involved in immigration proceedings.”113
Unfortunately, these services are also ripe for abuse.114 In Georgia,
one company settled a case for $1.5 million based on “illegally
throwing [the plaintiffs] in jail for not paying supervision fees and
fines for traffic offenses or minor crimes like public intoxication.”115
108. The Associated Press, Mom Blames Son’s Suicide on Luzerne County Judge in ‘Kids
for Cash’ Case, PENN LIVE, https://www.pennlive.com/midstate/2011/02/mom_
blames_luzerne_county_judg.html [https://perma.cc/JY3C-QHUA] (last updated Jan.
6, 2019); Pennsylvania Judge Gets 28 Years in ‘Kids for Cash’ Case, NBC NEWS,
http://www.nbcnews.com/id/44105072/ns/us_news-crime_and_courts/t/pennsylvaniajudge-gets-years-kids-cash-case/#.Xi25a8hKiUl [https://perma.cc/ELK5-6955] (last
updated Aug. 11, 2011).
109. Michaels, supra note 69.
110. See id.
111. See supra notes 106–10 and accompanying text.
112. See infra notes 113–19 and accompanying text.
113. GEO Continuum of Care, GEO GROUP, INC., https://www.geogroup.com/geos_
continuum_of_care [https://perma.cc/B7AH-8LJV] (last visited Apr. 1, 2020).
114. See Rutherford County, TN: Private Probation, C.R. CORPS, http://www.civilrights
corps.org/work/criminalization-of-poverty/rutherford-county-tn-private-probation
[https://perma.cc/7ZFU-QAHY] (last visited Apr. 1, 2020); see also Rhonda Cook,
Private Probation Company Settles Lawsuits for More than $2 Million, ATLANTA J.CONST. (Feb. 2, 2017), https://www.ajc.com/news/local/private-probation-companysettles-lawsuits-for-more-than-million/mkHQH9KFMSBNC4E8b
K6QzM/ [https://perma.cc/RP65-FUJ3].
115. Cook, supra note 114.

CRAIG-CUMMINGS (DO NOT DELETE)

2020]

4/29/20 11:21 AM

Abolishing Private Prisons

277

And in Tennessee, Civil Rights Corps reached “a landmark
settlement in a first-of-its-kind class action case . . . against
Rutherford County and PCC, Inc., a private probation company that
made millions of dollars over more than a decade by exploiting the
poorest people in Rutherford County.”116 That lawsuit, which ended
with a $14.3 million settlement, “alleged an unconstitutional
racketeering enterprise between the County and the for-profit
probation company to extort money from impoverished people”; as a
result, the probation company went out of business, and Rutherford
County agreed, inter alia, to prevent future privatization of its
probation system.117
Private companies continue to expand into new profit-making areas
and make decisions that lead to unjust outcomes for vulnerable
groups, including a recent agreement between Cook County, Illinois
and Track Group for ankle monitors capable of two-way
communication.118 The technology enables employees at Track
Group’s monitoring center to initiate a call with the juvenile that
cannot be declined and includes both speaking and monitoring, all of
which is recorded and remains available for any purpose, including
criminal investigation.119
These episodes represent a preview of what is to come if
government entities continue the process of privatizing justice.
Introducing profit into the justice system thwarts fairness, often by
placing additional burdens on poor and minority groups, which is
antithetical to the concept of fair and just outcomes that is
fundamental to the idea of access to justice.120
B. Increasing Efficiency
The Department of Justice also recognizes as a core principle of
access to justice that the judicial system should deliver “fair and just
outcomes effectively, without waste or duplication.”121 At first
blush, private, for-profit incarceration seems a good match for
increasing efficiency because producing greater efficiency is a core
116. Rutherford County, TN: Private Probation, supra note 114.
117. Id.
118. See Kira Lerner, Chicago’s Ankle Monitors Can Call and Record Kids Without Their
Consent, CITYLAB (Apr. 8, 2019), https://www.citylab.com/equity/2019/04/chicagoelectronic-monitors-juveniles-can-call-and-record-them-without-consent/586639/
[https://perma.cc/DHU2-92HA].
119. Id.
120. See supra notes 96–119 and accompanying text.
121. Access to Justice, supra note 95.

CRAIG-CUMMINGS (DO NOT DELETE)

278

UNIVERSITY OF BALTIMORE LAW REVIEW

4/29/20 11:21 AM

[Vol. 49

promise of these businesses,122 but they have failed to deliver on that
promise.123 Empirical research into this question is ongoing, and at
this point is not conclusive because widescale for-profit incarceration
is a relatively new phenomenon.124 However, a growing body of
studies suggests that private facilities are at best equally efficient,125
and in many cases are significantly less efficient.126 An early metaanalysis of twenty-four independent studies in 1999 revealed no
statistically significant difference in per diem cost of an individual
prisoner in public or private facilities, whether such facility was
minimum-, medium-, or maximum-security.127
More recently, the American Civil Liberties Union (ACLU)
collected information from states and the federal government and
published the results.128 The Arizona Auditor General found that it
was costlier to house prisoners in private facilities for “both
minimum- and medium-custody beds – the two categories of beds for
which the [Arizona Department of Corrections] contracts.”129 A
committee in Monmouth County, New Jersey recommended against
private prisons because of potentially “increased risk of liability and
safety risks without proof of cost savings.”130 In a separate memo
from then-Attorney General Sally Yates, she noted that:
[T]ime has shown that [private prisons] compare poorly to
our own Bureau facilities. They simply do not provide the
same level of correctional services, programs, and
resources; they do not save substantially on costs; and as
noted in a recent report by the Department’s Office of
Inspector General, they do not maintain the same level of
safety and security.131

122. See HARTNEY & GLESMANN, supra note 25.
123. See infra notes 124–38 and accompanying text.
124. See Travis C. Pratt & Jeff Maahs, Are Private Prisons More Cost-Effective than
Public Prisons? A Meta-Analysis of Evaluation Research Studies, 45 CRIME &
DELINQ. 358, 358 (1999).
125. See id. at 358–59.
126. See id. at 359.
127. Id. at 358.
128. SHAPIRO, supra note 10, at 6–7.
129. Id. at 19.
130. Id. (emphasis omitted).
131. Memorandum from Sally Yates, Deputy Attorney Gen. U.S. Dep’t of Justice to
Acting Dir. Fed. Bureau of Prisons (Aug. 18, 2016), https://www.justice.gov/archives/
opa/file/886311/download [https://perma.cc/5THE-8VG9].

CRAIG-CUMMINGS (DO NOT DELETE)

2020]

4/29/20 11:21 AM

Abolishing Private Prisons

279

And while there are a small sample of studies that have found
minimal cost reduction, those purported savings often result from
unpalatable cost-cutting.132 For example, in a careful examination of
nine states that housed at least 3000 prisoners in private prisons,
Christopher Petrella found that people of color were overrepresented
in private facilities relative to their public counterparts and that this
outcome was the result of “finely tailored contractual provisions that
implicitly exempt private prison companies from housing certain
types of individuals whose health care and staffing costs
disproportionately attenuate profit margins.”133 Or, stated another
way, private prisons cherry pick the inmates they would most like to
house because those prisoners are healthy and active, thereby
providing greater profit margins in saving on healthcare costs and
exploiting for labor gains.134
Other studies find inimicable cost-reduction in services that
otherwise provide inmates with well-documented societal benefits.135
Two researchers recently examined recidivism rates of similar
prisoners housed in public and private facilities in Oklahoma and
found that when holding other factors constant, people in general
were more likely to recidivate when they spent more time in a private
prison, and that men in private facilities were particularly more likely
to recidivate.136 Another study found that private prisons are staffed
by fewer guards, and those guards are less qualified and undertrained
compared to their public counterparts; those factors were
hypothesized to account for the fact that private facilities are more
dangerous, both for prisoners and staff, due to higher rates of
violence.137 Similar findings in a report by the Office of Inspector
General comparing federal prisons to private facilities served as a key
reason that the Department of Justice under President Obama decided
to phase out the use of privately contracted facilities, although that

132. See Christopher Petrella, The Color of Corporate Corrections, Part II: Contractual
Exemptions and the Overrepresentation of People of Color in Private Prisons, in 3
RADICAL CRIMINOLOGY 81, 82–83 (2014).
133. Id. at 82–83.
134. See id.
135. See supra notes 72–73 and accompanying text; see infra notes 136–38 and
accompanying text.
136. Andrew L. Spivak & Susan F. Sharp, Inmate Recidivism as a Measure of Private
Prison Performance, 54 CRIME & DELINQ. 482, 499–500 (2008).
137. See Curtis R. Blakely & Vic W. Bumphus, Private and Public Sector Prisons: A
Comparison of Select Characteristics, 68 FED. PROB. 27 (2004); see also BAUER,
supra note 4, at 40, 142–43, 252–53.

CRAIG-CUMMINGS (DO NOT DELETE)

280

UNIVERSITY OF BALTIMORE LAW REVIEW

4/29/20 11:21 AM

[Vol. 49

decision, but not the underlying evidence, was reversed by Attorney
General Jeff Sessions.138
Private, for-profit prisons have not lived up to their promised
efficiency, and ensuring access to justice requires that outcomes are
delivered effectively and without waste, a result that private prison
companies have not been able to produce.139 The cost-cutting
mechanisms employed to deliver profits to shareholders have not led
to cheaper incarceration, and as researchers continue to gather and
analyze data from the growing privately-incarcerated population, a
strong body of evidence is showing that cost-cutting measures result
in less-safe prisons with fewer opportunities for successful
rehabilitation.140
C. Promoting Accessibility
Finally, the Office for Access to Justice aims to eliminate “barriers
that prevent people from understanding and exercising their
rights,”141 which is a goal that private, for-profit incarceration hinders
in at least two ways.142 First, in many states, it is harder to access
information from private prisons than their public counterparts.143
Public facilities are subject to certain records requests, while private
facilities often are not.144
Second, funding is a core part of democratic engagement for
criminal justice.145 Traditionally, voters can exercise their direct
democratic voting rights to approve or disapprove of bonds for prison
construction.146 This activity serves as an important check on
prosecutorial conduct by limiting the amount of people that can be
138. DEP’T OF JUSTICE, OFFICE OF THE INSPECTOR GEN., REVIEW OF THE FEDERAL BUREAU
OF PRISONS’ MONITORING OF CONTRACT PRISONS (Aug. 2016), https://oig.justice.gov/
reports/2016/e1606.pdf [https://perma.cc/LRX3-EN73]; Memorandum from Jefferson
B. Sessions III, Attorney Gen. U.S. Office of the Attorney Gen., to Acting Dir. Fed.
Bureau of Prisons (Feb. 21, 2017), https://www.bop.gov/resources/news/pdfs/2017
0224_doj_memo.pdf [https://perma.cc/K955-88GV].
139. See supra notes 121–38 and accompanying text.
140. See supra notes 72–85 and accompanying text.
141. Access to Justice, supra note 95.
142. See infra notes 143–51 and accompanying text.
143. See Lauren-Brooke Eisen, Private Prisons Lock Up Thousands of Americans with
Almost No Oversight, BRENNAN CTR. FOR JUST. (Nov. 8, 2017),
https://www.brennancenter.org/analysis/private-prisons-lock-thousands-americansalmost-no-oversight [https://perma.cc/8G7D-EXEN].
144. See id.
145. See infra notes 146–51 and accompanying text.
146. Dana C. Joel, The Privatization of Secure Adult Prisons: Issues and Evidence, in
PRIVATIZING CORRECTIONAL INSTITUTIONS 51, 58 (Gary W. Bowman et al. eds.,
1993).

CRAIG-CUMMINGS (DO NOT DELETE)

2020]

4/29/20 11:21 AM

Abolishing Private Prisons

281

incarcerated at any one point.147 Data in this area is hard to come by,
but throughout the 1980s, “an average of 60 percent of all local
referenda for jail bonds was rejected.”148 State legislators can bypass
voters on this front, however, by contracting with a private company
who invests the capital for construction of the facility and drawing
funds for a contract (as long as twenty years in many states) from the
state’s general coffers.149 In this way, private prisons narrow the
ability of people to exercise their rights to participate in setting the
boundaries of criminal justice spending to only voting for
representatives.150 And as discussed above, the concentrated interest
of private prison corporations means they will spend large sums of
money lobbying and donating to individual legislators to capture
their support.151
Far from increasing society’s access to justice by removing barriers
to exercising individuals’ rights, private, for-profit incarceration tilts
the balance of power toward small groups of wealthy and politically
connected organizations.152
IV. SERIOUS CONSTITUTIONAL CONCERNS OF FORPROFIT INCARCERATION
Private for-profit incarceration raises profound constitutional
concerns. The recent renaissance of the private incarceration
industry means the United States court systems have not yet fully
addressed the problem.153 In Israel, however, a petition to its
Supreme Court was filed shortly after legislation authorizing private
operation of prisons passed the Knesset.154 The Supreme Court of
Israel eventually found the entirety of the authorizing legislation
invalid because it violated Basic-Law: Human Dignity and

147.
148.
149.
150.
151.
152.
153.

See id. at 57.
Id. at 58.
See id. at 58–59.
See id. at 57–59.
See supra notes 45–66 and accompanying text.
See supra notes 141–51 and accompanying text; see supra Part II.
See Private Prison Contractors Can’t Stand in the Way of the Public’s Right to Know,
CTR. FOR CONST. RTS. (Aug. 28, 2017), https://ccrjustice.org/home/blog/2017/08/28/
ccr-news-private-prison-contractors-can-t-stand-way-public-s-right-know
[https://perma.cc/295C-9C34].
154. Barak Medina, Constitutional Limits to Privatization: The Israeli Supreme Court
Decision to Invalidate Prison Privatization, 8 INT. J. CONST. L. 690, 696 (2010)
(clarifying that the Knesset is both the Legislative branch and the Constitutive
assembly of Israel).

CRAIG-CUMMINGS (DO NOT DELETE)

282

UNIVERSITY OF BALTIMORE LAW REVIEW

4/29/20 11:21 AM

[Vol. 49

Liberty.155 That decision is instructive both because United States
Supreme Court jurisprudence and the Israeli Basic-Law explicitly
recognize human dignity as central to a person’s liberty interest156
and because the reasoning relied exclusively on legal principles
rather than any kind of cost-benefit analysis offered by
privatization.157
Private, for-profit incarceration in the United States implicates at
least six distinct constitutional doctrines: 1) the private nondelegation
doctrine;158 2) the right to an unbiased adjudicator protected by due
process;159 3) the fundamental right to be treated like a person rather
than like property protected by substantive due process and equal
protection;160 4) procedural due process concerns related to
substantial risks of erroneous deprivations of liberty;161 5) the
prohibition on slavery in the Thirteenth Amendment;162 and 6) the
prohibition on cruel and unusual punishment in the Eighth
Amendment.163 Below, we argue that private, for-profit incarceration
violates each of these constitutional protections, or, at a minimum,
raises serious questions of constitutional law that must be
addressed.164
A. Nondelegation
Private incarceration represents “delegation in its most obnoxious
form; for it is not even delegation to an official or an official body,
presumptively disinterested, but to private persons whose interests
may be and often are adverse to the interests of” the incarcerated.165
The “intelligible principles” test may have rendered the public
nondelegation doctrine toothless; “[n]ot so, however, in the case of
private entities to whom the Constitution commits no executive
power.”166 Although courts have not explicitly delineated the

155. Id.
156. Id.; see, e.g., Lawrence v. Texas, 539 U.S. 558, 574 (2003) (noting that personal
dignity is “central to the liberty protected by the Fourteenth Amendment”).
157. See Medina, supra note 154, at 704–06.
158. See infra Section IV.A.
159. See infra Section IV.B.
160. See infra Section IV.C.
161. See infra Section IV.D.
162. See infra Section IV.E.
163. See infra Section IV.F.
164. See infra Sections IV.A–F.
165. Carter v. Carter Coal Co., 298 U.S. 238, 311 (1936).
166. Ass’n of Am. R.R.s v. Dep’t of Transp., 721 F.3d 666, 670 (D.C. Cir. 2013), vacated
and remanded sub nom. Dep’t of Trans. v. Ass’n of Am. R.R.s, 575 U.S. 43 (2015).

CRAIG-CUMMINGS (DO NOT DELETE)

2020]

4/29/20 11:21 AM

Abolishing Private Prisons

283

structural underpinnings of the private nondelegation doctrine,167 two
main themes drive their decisions: first, core governmental functions
cannot be delegated to private parties;168 and second, executive
branches cannot grant legal enforcement power to entities outside the
government over whom the executive does not exercise control.169
Each of these themes point toward the result that private
incarceration violates the United States Constitution.170
1.

Core Government Function

It is beyond dispute that essential government functions must be
exercised by their respective branches.171 For example, in A.L.A.
Schechter Poultry, the Supreme Court assumed that only Congress
could “perform[] its essential legislative function” of creating
generally applicable rules of behavior.172 Likewise, the Court has
explained that enforcing the laws and appointing and having control
over the officers charged with the duty of enforcing those laws is
exclusively an executive function.173 In these cases, the task the
Court faces is determining whether the challenged behavior
constitutes a government function exclusive to that branch.174 It is
hard to imagine a task more quintessential to executive authority than
incarceration. The Supreme Court has been hesitant to define
essential government functions175 and has never directly addressed
whether incarceration is a government power susceptible of
delegation.176

167. Jason Iuliano & Keith E. Whittington, The Nondelegation Doctrine: Alive and Well,
93 NOTRE DAME L. REV. 619, 623–24 (2018).
168. See infra Section IV.A.1.
169. See infra Section IV.A.2.
170. See infra Sections IV.A.1–2.
171. See infra notes 172–74 and accompanying text.
172. A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 529–30 (1935).
173. See, e.g., Myers v. United States, 272 U.S. 52, 122, 176 (1926).
174. See A.L.A Schechter Poultry Corp., 295 U.S. at 529–30; see Myers, 272 U.S. at 106.
175. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 531 (1985) (“Our
examination of this ‘function’ standard applied in these and other cases over the last
eight years now persuades us that the attempt to draw the boundaries of state
regulatory immunity in terms of ‘traditional governmental function’ is not only
unworkable but is also inconsistent with established principles of federalism . . . .”).
176. Stacey Jacovetti, Note, The Constitutionality of Prison Privatization: An Analysis of
Prison Privatization in the United States and Israel, 6 GLOBAL BUS. L. REV. 61, 64
(2016).

CRAIG-CUMMINGS (DO NOT DELETE)

284

UNIVERSITY OF BALTIMORE LAW REVIEW

4/29/20 11:21 AM

[Vol. 49

Supporters of privatization argue that delegation can be proper
when coupled with sufficient oversight and regulation;177 however,
the nature of incarceration requires jailers to exercise authority
quickly and decisively.178 In these types of situations, oversight is
meaningless because government authority cannot intervene quickly
enough to prevent oversteps.179 Further, any remedies available to
the inmate are necessarily post hoc, and courts—aware of the quickmoving and fraught circumstances of imprisonment—are hesitant to
question jailers’ decision-making.180
Other sources of thought, however, suggest that restriction of
liberty is among the powers most closely intertwined with the
concept of sovereignty such that only government entities may
legitimately effect significant restriction of a person.181 The Supreme
Court of Israel, for example, ruled that privatization of prisons
violated the Basic-Law.182 That decision started from the principle
that the “right to personal liberty is without doubt one of the most
central and important basic rights in any democracy.”183 Legal
academia also generally recognizes the close tie between
incarceration and sovereignty.184
And likewise, the state’s
“monopoly” on force185 as coercion is fundamental to many
177. See id. at 67.
178. See BAUER, supra note 4, at 228–29, 252–53 (describing the numerous stabbings and
assaults that take place inside private prisons).
179. See id.
180. See Editorial Board, Holding Prison Guards Accountable, N.Y. TIMES (Dec. 6, 2017),
https://www.nytimes.com/2017/12/06/opinion/prison-guards-new-york.html
[https://perma.cc/88L6-XEED].
181. See infra notes 182–89 and accompanying text.
182. HCJ 2605/05 Academic Center of Law and Business v. Minister of Finance PD 27, 34
(2009) (Isr.), http://www.privateci.org/private_pics/Israel_Ruling.pdf [https://perma.c
c/9EXB-UMFG].
183. Id. at 58. The Israeli court recognized that right is not absolute, however, and
restriction is proper when a person violates certain laws. Id. at 59. The identity of the
entity restricting the liberty interest was crucial to their analysis because such
restriction is only legitimate when done for the public interest—in the case of
incarceration, the goals of deterrence, rehabilitation, and punishment. Id. at 60.
184. The legal academic writing in this area covers vast swaths, from the historical, see
Clifford J. Rosky, Force, Inc.: The Privatization of Punishment, Policing, and
Military Force in Liberal States, 36 CONN. L. REV. 879 (2004), to the philosophically
normative, see Sharon Dolovich, State Punishment and Private Prisons, 55 DUKE L.J.
437 (2005), and from the strictly constitutional, see Alexander Volokh, The
Constitutional Possibilities of Prison Vouchers, 72 OHIO ST. L.J. 983 (2011), to the
economic, see John F. Pfaff, The Complicated Economics of Prison Reform, 114
MICH. L. REV. 951 (2016).
185. The Constitution explicitly recognizes one instance through which Congress can
authorize private parties to exercise coercive force: the Marque and Reprisal Clause.

CRAIG-CUMMINGS (DO NOT DELETE)

2020]

4/29/20 11:21 AM

Abolishing Private Prisons

285

philosophical accounts of political legitimacy, from Thomas
Hobbes186 to John Rawls187 and from Max Weber188 to Ronald
Dworkin.189
These sources state with a nearly uniform voice that incarceration
is inherently entwined with statehood, and the Supreme Court relies
on them as persuasive authorities when confronting constitutional
issues.190 Recently, the Court referred to the Declaration of
Independence as evidence for how to interpret the Second
Amendment.191 Additionally, John Locke was cited at length by two
Justices in the dissent of Obergefell v. Hodges,192 and Ronald
Dworkin’s delineation of two meanings of “discretion” was
important to the majority in Board of Pardons v. Allen.193 Finally,

186.

187.
188.

189.
190.
191.
192.

193.

U.S. CONST. art. I, § 8, cl. 11. This Clause enshrined the Revolutionary War practice
of dressing the actions of privateers in the cloak of government to redress injuries
done to the state. See C. Kevin Marshall, Comment, Putting Privateers in Their
Place: The Applicability of the Marque and Reprisal Clause to Undeclared Wars, 64
U. CHI. L. REV. 953, 958–60 (1997). Because the Constitution explicitly recognizes
this single instance of private exercise of public power, other such delegations are
constitutionally suspect. See, e.g., Arizona v. United States, 567 U.S. 387, 432 (2012)
(Scalia, J., concurring in part and dissenting in part) (explaining that expressio unius
est exclusio alterius is a common-sense interpretive canon that reveals drafters’ intent
to exclude similar items not explicitly listed when at least one item is listed).
THOMAS HOBBES, LEVIATHAN 126 (Richard Tuck ed., Cambridge Univ. Press 1991)
(1651) (“Eleventhly, to the Soveraign is committed the Power of Rewarding with
riches, or honour; and of Punishing with corporall, or pecuniary punishment, or with
ignominy every Subject according to the Law he hath formerly made . . . .”).
JOHN RAWLS, POLITICAL LIBERALISM 136 (expanded ed. 2005) (“Second, political
power is always coercive power backed by the government’s use of sanctions, for
government alone has the authority to use force in upholding its laws.”).
MAX WEBER, Politics as a Vocation, in FROM MAX WEBER: ESSAYS IN SOCIOLOGY 77,
78 (H.H. Gerth & C. Wright Mills eds. & trans., 1946) (“Of course, force is certainly
not the normal or the only means of the state—nobody says that—but force is a means
specific to the state. Today the relation between the state and violence is an especially
intimate one.”).
RONALD DWORKIN, LAW’S EMPIRE 190–91 (1986).
See infra notes 191–99 and accompanying text.
See District of Columbia v. Heller, 554 U.S. 570, 586 (2008). The dissent also cited
the Declaration of Independence. Id. at 640–41 (Stevens, J., dissenting).
Obergefell v. Hodges, 135 S. Ct. 2584, 2613, 2634, 2636–38 (2015) (Roberts, J. and
Thomas, J., dissenting) (“The founding-era understanding of liberty was heavily
influenced by John Locke, whose writings ‘on natural rights and on the social and
governmental contract’ were cited ‘[i]n pamphlet after pamphlet’ by American
writers.” (quoting BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN
REVOLUTION 27 (1967)).
Bd. of Pardons v. Allen, 482 U.S. 369, 375 (1987) (citing RONALD DWORKIN, TAKING
RIGHTS SERIOUSLY 32 (1977)).

CRAIG-CUMMINGS (DO NOT DELETE)

286

UNIVERSITY OF BALTIMORE LAW REVIEW

4/29/20 11:21 AM

[Vol. 49

the Court explicitly relies on foreign law for the understanding of the
Eighth Amendment’s ban on unusual punishment,194 and at least one
Justice has explained that foreign courts can be sources of wisdom
for the United States Supreme Court.195
Of note too, is the fact that state courts have been more active in
invalidating delegations of executive and legislative authority.196
While the federal Supreme Court has rarely addressed the
nondelegation doctrine,197 state courts have developed a relatively
large body of caselaw, even if it suffers from inconsistency.198 For
example, the Washington Supreme Court invalidated an initiative
that would have required every piece of tax legislation passed by the
legislature to be approved in a statewide referendum because it
unconstitutionally delegated the legislative power to the people at
large.199
The Supreme Court of Texas reviewed this growing body of state
decisions in Texas Boll Weevil Eradication Foundation, Inc. v.
Lewellen, a case that is important not only for its holding that the
“[l]egislature made an unconstitutionally broad delegation of
authority to the Foundation, a private entity,” but also because it
contains reasoned judicial analysis of the private nondelegation
doctrine in the face of the modern administrative state that relies on
public-private partnerships to accomplish a wide variety of goals.200
In fact, one concern with the nondelegation doctrine is the sweeping
breadth suggested by some statements of its principles.201 For
example, in Texas Boll Weevil, the court stated the general position
(one that is echoed throughout opinions addressing the nondelegation
194. See, e.g., Roper v. Simmons, 543 U.S. 551, 575–78 (2005) (“It is proper that we
acknowledge the overwhelming weight of international opinion against the juvenile
death penalty, resting in large part on the understanding that the instability and
emotional imbalance of young people may often be a factor in the crime.”).
195. See Adam Liptak, Ginsburg Shares Views on Influence of Foreign Law on Her Court,
and Vice Versa, N.Y. TIMES (Apr. 11, 2009), https://www.nytimes.com/2009/04/12/us
/12ginsburg.html [https://perma.cc/8UQF-UHEV] (“Why shouldn’t we look to the
wisdom of a judge from abroad with at least as much ease as we would read a law
review article written by a professor?”).
196. See Amalgamated Transit Union Local 587 v. State, 11 P.3d 762, 806 (Wash. 2000).
197. See Iuliano & Whittington, supra note 167, at 634.
198. See id. at 645 (“Ultimately, the nondelegation doctrine is notable not for its demise
during the New Deal revolution but rather for its surprising persistence through the
twentieth and early twenty-first centuries.”).
199. See Amalgamated Transit, 11 P.3d at 806.
200. Tex. Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 457 (Tex.
1997).
201. Id. at 469 (citing George W. Liebmann, Delegation to Private Parties in American
Constitutional Law, 50 IND. L.J. 650, 659 (1975)).

CRAIG-CUMMINGS (DO NOT DELETE)

2020]

4/29/20 11:21 AM

Abolishing Private Prisons

287

doctrine) that “[t]he power to pass laws rests with the Legislature,
and that power cannot be delegated to some commission or other
tribunal.”202
However, “these blanket pronouncements should not be read too
literally” because the demands of a functioning society require that
“the debate over unconstitutional delegation becomes a debate not
over a point of principle but over a question of degree.”203 To this
end, after finding inspiration from opinions of other states’ highest
courts and articles from legal academia, the Texas Supreme Court
announced eight factors to weigh when deciding whether any
particular delegation to a private party is proper:
1. Are the private delegate’s actions subject to meaningful
review by a state agency or other branch of state
government? 2. Are the persons affected by the private
delegate’s actions adequately represented in the decision
making process? 3. Is the private delegate’s power limited
to making rules, or does the delegate also apply the law to
particular individuals? 4. Does the private delegate have a
pecuniary or other personal interest that may conflict with
his or her public function? 5. Is the private delegate
empowered to define criminal acts or impose criminal
sanctions? 6. Is the delegation narrow in duration, extent,
and subject matter? 7. Does the private delegate possess
special qualifications or training for the task delegated to it?
8. Has the Legislature provided sufficient standards to guide
the private delegate in its work?204
We suggest neither that these eight factors are exclusive nor that all
courts should use this exact list; but, together, these factors do
encompass many concerns at the heart of delegation.205 However,
applying this exemplary list to private for-profit incarceration,
questions two, three, four, five, and six clearly point in favor of
finding delegation of incarceration to private for-profit corporations
unconstitutional, and arguably questions one and seven point in the

202. Id. at 466 (quoting Brown v. Humble Oil & Refining Co., 83 S.W.2d 935, 941 (Tex.
1935).
203. Id.
204. Id. at 471–72.
205. See David M. Lawrence, Private Exercise of Governmental Power, 61 IND. L.J. 647,
659–60 (1986).

CRAIG-CUMMINGS (DO NOT DELETE)

288

UNIVERSITY OF BALTIMORE LAW REVIEW

4/29/20 11:21 AM

[Vol. 49

same direction.206 Particularly troublesome are the factors that
denote that a private delegate having a pecuniary interest that
conflicts with his or her public function (factor four) and that the
private delegate is able to define criminal acts and impose sanctions
(factor five) are unmistakably implicated in private for-profit
incarceration as particularly highlighted above.207 Notably, the
dissenting opinion expressed concern that this test would have
“unknown ramifications” to, among other delegations, private prisons
in Texas.208
2.

Modern Revival in Federal Court

Recently, several Justices of the Supreme Court (and, in fact,
judges on appellate courts)209 have shown an eagerness to address the
increasing delegation of powers constitutionally assigned to the
legislative and executive branches.210 Justice Alito sided with the
majority in Department of Transportation v. Association of American
Railroads (AAR), finding that Amtrak is a federal actor for
constitutional purposes.211 His separate concurrence, however,
provided one focus for modern judges analyzing the problem of
delegation: political accountability.212 Justice Alito noted that all
officers of the United States take an oath or affirmation to support the
Constitution, and “[t]here is good reason to think that those who have
not sworn an oath cannot exercise significant authority of the United
States.”213 Further, “[t]hose who exercise the power of Government”
are subject to special restraints because of the exercise of that
power.214 The Court has been hesitant to “enforce the nondelegation
doctrine with more vigilance [because] the other branches of
Government have vested powers of their own . . . however, there is
not even a fig leaf of constitutional justification” when dealing with
delegations to private entities because they are not vested with
legislative or executive powers.215
206. See supra note 204 and accompanying text.
207. See supra Part II.
208. Tex. Boll Weevil Eradication Found., Inc., 952 S.W.2d. at 492 (Cornyn, J., concurring
in part and dissenting in part).
209. See U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 417–19 (D.C. Cir. 2017) (Kavanaugh,
J., dissenting) (per curiam).
210. See infra notes 211–28 and accompanying text.
211. Dep’t of Transp. v. Ass’n of Am. R.R.s, 575 U.S. 43, 56 (2015) (Alito, J.,
concurring).
212. See id. at 56–57.
213. Id. at 57.
214. Id. at 58.
215. Id. at 61–62.

CRAIG-CUMMINGS (DO NOT DELETE)

2020]

4/29/20 11:21 AM

Abolishing Private Prisons

289

Under Justice Alito’s theory, courts should doctrinally split
nondelegation analysis into two distinct camps: public and private.216
Analysis of public delegation is complex because for any given
activity, one could classify it as part of the legislative, executive, or
judicial powers.217 For example, the activity at issue in AAR exhibits
some hallmarks of executive power (initiating oversight by the
Surface Transportation Board) and some legislative actions (crafting
metrics and minimum standards for train operations).218 Therefore,
determining whether the entity exercising that power is properly part
of the executive or legislative branch may be a futile exercise for
courts.219 When a private entity exercises legislative or executive
powers, however, no such problem is present: a private party simply
cannot exercise either legislative or executive power.220
Justice Alito recognized gradations of concern when dealing with
private delegation, noting that Congress authorizing citizen suits
raises grave concerns while delegating regulatory power is delegation
“in its most obnoxious form.”221 Restricting liberty in the process of
enforcing the law fits squarely in the executive branch powers,222 and
as discussed above, the nature of incarceration means that delegation
of that function necessarily entails private parties exercising coercive
authority that is reviewable only after the fact, when monetary
remuneration may be a poor substitute for the vindication of
constitutional rights.223 Given the grave problems with public
accountability implicated by private incarceration, the industry likely
runs afoul of Justice Alito’s conception of the nondelegation
doctrine.224
Justice Thomas also concurred with the AAR majority’s
disposition, but did not join the analysis “because it fail[ed] to fully
correct the errors that require us to vacate” the decision.225 His
concurrence focused on the structure of the Constitution,226 noting
216.
217.
218.
219.
220.
221.
222.
223.
224.
225.
226.

See id. at 60.
See id. at 58–61.
See id.
See id. at 61.
See id. at 62.
See id. (quoting Carter v. Carter Coal Co., 298 U.S. 238, 311 (1936)).
See supra Section IV.A.1.
See Ass’n of Am. R.R.s, 575 U.S. at 61–62 (Alito, J., concurring).
See id.
Id. at 67 (Thomas, J., concurring).
This concurrence accompanied two others that Justice Thomas filed recently
addressing nondelegation. In Michigan v. EPA, Justice Thomas argued that Chevron
deference potentially violates the vesting clauses of either Article III (because it

CRAIG-CUMMINGS (DO NOT DELETE)

290

UNIVERSITY OF BALTIMORE LAW REVIEW

4/29/20 11:21 AM

[Vol. 49

that the grants of legislative, executive, and judicial power are
exclusive, so “[w]hen the Government is called upon to perform a
function that requires an exercise of legislative, executive, or judicial
power, only the vested recipient of that power can perform it.”227
After delineating the legislative power, Thomas further explained
that “although the Constitution is less specific about how the
President shall exercise power, it is clear that he may carry out his
duty to take care that the laws be faithfully executed with the aid of
subordinates.”228
Taken together, the Alito and Thomas concurrences229 demonstrate
a renewed interest in the nondelegation doctrine at the Supreme
Court,230 and because incarceration is such a fundamentally executive
function, the constitutionality and practice of incarcerating people for
profit deserves, at a minimum, a full and reasoned decision.231
B. Biased Adjudicator
The Due Process Clause prohibits adjudication by an interested
party.232 In particular, it violates the Due Process Clause if an
average person in the adjudicator’s position is likely to be partial.233
Private, for-profit prisons act as adjudicators in varying degrees over
the inmates in their facility by, for example, issuing negative

227.
228.
229.

230.
231.
232.
233.

allows agencies to interpret statutes) or Article I (because it allows agencies to create
generally applicable rules). Michigan v. EPA, 135 S. Ct. 2699, 2712–14 (2015)
(Thomas, J., concurring). In Perez v. Mortgage Bankers Ass’n, he wrote that
Seminole Rock deference – under which courts defer to agency interpretation of
regulations – “represents a transfer of judicial power to the Executive Branch, and it
amounts to an erosion of the judicial obligation to serve as a ‘check’ on the political
branches.” Perez v. Mortg. Bankers Ass'n, 575 U.S. 92, 119 (2015). In all three of
these cases, Thomas closely analyzes the constitutional separation of powers and how
continuing deference and delegation may violate the careful allocation intended by the
drafters. See Michigan, 135 S. Ct. at 2712–2714 (Thomas, J., concurring); see Perez,
575 U.S. at 112–33 (Thomas, J., concurring); see Ass’n of Am. R.R.s, 575 U.S. at 66–
69 (Thomas, J., concurring).
Ass’n of Am. R.R.s, 575 U.S. at 68.
Id.
Additionally, the majority opinion from the D.C. Circuit provided a thorough and
convincing analysis that the delegation to Amtrak violated the private nondelegation
doctrine. See Ass’n of Am. R.R.s v. U.S. Dep’t of Transp., 721 F.3d 666, 674–77
(D.C. Cir. 2013), vacated and remanded, 575 U.S. 43 (2015). The conclusion that
Amtrak was a private actor was overturned, so the Supreme Court did not address the
merit of the nondelegation analysis. See Ass’n of Am. R.R.s, 575 U.S. at 55.
See supra text accompanying notes 212–28.
See supra text accompanying notes 171–80.
See U.S. CONST. amend. V; see also Goldberg v. Kelly, 397 U.S. 254, 271 (1970).
See Marshall v. Jerrico, Inc., 446 U.S. 238, 242–43 (1980).

CRAIG-CUMMINGS (DO NOT DELETE)

2020]

4/29/20 11:21 AM

Abolishing Private Prisons

291

behavior determinations, classifying and assigning individuals to
different units, deciding who is eligible for educational or work
programs, and determining the eligibility status of early release or
good time release.234
In Tumey v. Ohio, the Supreme Court reviewed a state statute
through which town mayors sat as judges, and if a defendant was
convicted, fees and fines assessed against the defendant could be kept
by the municipality.235 Additionally, some municipalities passed
ordinances that allowed the mayor to keep the fees allocated to the
municipality; as a result, mayors were sitting as judges in cases
where they would personally receive fees and fines assessed to a
defendant they found guilty.236
In striking down such an
arrangement, the Court noted:
Every procedure which would offer a possible temptation to
the average man as a judge to forget the burden of proof
required to convict the defendant, or which might lead him
not to hold the balance nice, clear, and true between the
state and the accused denies the latter due process of law.237
Since Tumey, the Court has expanded on the principle that a judge
cannot preside over a case in which she has a direct financial
incentive without violating the Due Process Clause of the
Constitution; in particular, the Court has decided that the Clause is
violated when “the probability of actual bias on the part of the judge
or decisionmaker is too high to be constitutionally tolerable.”238
For example, the Court overturned a conviction when a mayor
presided over the trial and fees from that trial went to the town’s
general fisc, over which the mayor also had control.239 Likewise, the
Due Process Clause was violated where an Alabama Supreme Court
Justice voted to uphold punitive damages in one case while he was a
lead plaintiff in a similar case in the lower court.240 And most
recently and expansively, the Court required recusal when the owner
of a company found liable in a tort case made large donations to a

234.
235.
236.
237.
238.
239.
240.

See BAUER, supra note 4, at 41–66.
See Tumey v. Ohio, 273 U.S. 510, 516–18 (1927).
Id. at 518–21.
Id. at 532.
Withrow v. Larkin, 421 U.S. 35, 47 (1975).
See Ward v. Village of Monroeville, 409 U.S. 57 (1972).
See Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 825 (1986).

CRAIG-CUMMINGS (DO NOT DELETE)

292

UNIVERSITY OF BALTIMORE LAW REVIEW

4/29/20 11:21 AM

[Vol. 49

West Virginia Supreme Court candidate who was elected and
eventually heard an appeal of the underlying case.241
For-profit incarceration violates the biased adjudicator doctrine of
the Due Process Clause if either (1) decision-making inside of a
private prison operates with a bias that negatively affects prisoners,
or (2) political influence of private prison corporations has an
impermissibly large influence on adjudicators.242 Recent evidence
indicates that private prison operators are violating the biased
adjudicator doctrine on both counts, thereby contravening the Due
Process Clause of the Constitution.243
C. Fundamental Rights Protected by Substantive Due Process and
Equal Protection
The Constitution also ensures that some rights are not infringed by
the government, regardless of the amount of safeguarding
procedures.244 Here, not being treated like a slave is a fundamental
right that the government cannot infringe upon without showing that
it has a compelling interest in doing so, and that any infringement is
narrowly tailored to achieve that end.245 The argument is both
historical—widespread corporate private imprisonment was not a
government practice until fairly recently246—and modern—states and
nations are moving away from the practice as experience and
evidence proves the theory that for-profit incarceration does not save
money and results in worse outcomes for prisoners.247
The Constitution protects fundamental rights under two different
doctrines: substantive due process248 and equal protection.249 If it is a
fundamental right, any government interference must meet the high
strict scrutiny standard, under which the government must show that
the interference is supported by a compelling interest and the
instantiation of the interference is the most narrowly drawn means of
241. See Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 872 (2009); see also cummings,
Procuring ‘Justice’?, supra note 65, at 99–102 (describing the factual underpinnings
of the Caperton v. Massey case where judicial recusal was ordered).
242. See supra text accompanying notes 223–32.
243. See BAUER, supra note 4, at 49–67.
244. See Zinermon v. Burch, 494 U.S. 113, 125–28 (1990).
245. See supra text accompanying notes 238–40; see also infra text accompanying notes
246–53.
246. SHAPIRO, supra note 10, at 5.
247. Memorandum from Sally Yates, Deputy Attorney Gen. U.S. Dep’t of Justice to
Acting Dir. Fed. Bureau of Prisons, supra note 131.
248. Russell W. Galloway, Jr., Basic Substantive Due Process Analysis, 26 U.S.F. L. REV.
625, 627 (1992).
249. U.S. CONST. amend. XIV, § 1.

CRAIG-CUMMINGS (DO NOT DELETE)

2020]

4/29/20 11:21 AM

Abolishing Private Prisons

293

achieving the government’s compelling goal.250 If the right is not
fundamental, generally the government must only show that the
action is rationally related to a legitimate interest (and courts are
extremely reluctant to invalidate state action under this standard).251
Examples of fundamental rights protected under substantive due
process demanding the highest protection include “the right to marry,
rights with respect to procreation, sexual activity (including private
consensual homosexual activity), and medical care decisionmaking.”252 Under equal protection, courts have protected the right
to vote, the right to travel, and the right not to be discriminated
against based on race or ethnicity.253
Increasingly, these rights are being interpreted as interconnected.254
For example, in Plyler v. Doe, the Supreme Court imported some
principles traditionally relied on in due process cases to its equal
protection analysis: the opinion explicitly rejected the conclusion that
undocumented immigrant children were a suspect class—the usual
way to reach heightened scrutiny under equal protection—and further
rejected the conclusion that public education itself was a fundamental
right.255 However, the Court found its way to heightened scrutiny
because although access to public education was not quite
fundamental and the children did not quite represent a suspect class,
the combination of the two deserved special protection.256 Further,
Justice Kennedy explained the interplay between these clauses in
Obergefell v. Hodges, the case that protected the ability of same-sex
couples to marry:
The Due Process Clause and the Equal Protection Clause
are connected in a profound way, though they set forth
independent principles; rights implicit in liberty and rights
250. Galloway, supra note 248, at 638.
251. See id. at 643-44.
252. Vincent J. Samar, At the Intersection of Due Process and Equal Protection:
Expanding the Range of Protected Interests, 68 CATH. U. L. REV. 87, 91 (2019)
(cataloging the history of fundamental rights cases protected by Substantive Due
Process).
253. Id. at 92-93. It is worth noting that the Court has not always called these rights
“fundamental” in the equal protection context; nonetheless, they do receive strict
scrutiny protection and exhibit most of the same traits regardless of the label. See
Strict Scutiny, L. LIBR. – AM. L. & LEGAL INFO., https://law.jrank.org/pages/10552/
Strict-Scrutiny.html [https://perma.cc/9L9N-N69K] (last visited Apr. 1, 2020).
254. See infra notes 255–57 and accompanying text.
255. Plyler v. Doe, 457 U.S. 202, 218–23 (1982).
256. Id. at 230.

CRAIG-CUMMINGS (DO NOT DELETE)

294

UNIVERSITY OF BALTIMORE LAW REVIEW

4/29/20 11:21 AM

[Vol. 49

secured by equal protection may rest on different precepts
and are not always co-extensive, yet in some instances each
may be instructive as to the meaning and reach of the other,
and in any particular case one Clause may be thought to
capture the essence of the right in a more accurate and
comprehensive way, even as the two Clauses may converge
in the identification and definition of the right.257
This hybrid analysis fits neatly when examining the modern
practice of private for-profit incarceration because the right not to be
held like a slave for the benefit of another party implicates both types
of concerns.258 Turning first to due process, the Supreme Court laid
out the legal framework for determining whether a right is
“fundamental,” noting that it does not rely on any formula; instead,
“[h]istory and tradition guide and discipline this inquiry but do not
set its outer boundaries. That method respects our history and learns
from it without allowing the past alone to rule the present.”259
The argument that for-profit incarceration violates the fundamental
right not to be treated like a slave is both historical and modern.260
The historical argument distinguishes the modern incarnation of
private incarceration from the kinds of private jailing that existed
historically.261 For example, although there was a practice in
England of private innkeepers being given small payments to hold
people before trial,262 that kind of arrangement does not bear the
same hallmarks of slavery that modern for-profit incarceration does:
in the latter case of for-profit incarceration, the private corporation
has complete control over the prisoner for long periods of time,
generates profit by the presence of the prisoner in a cell, increases
margins by convincing or coercing the prisoner to labor in a variety
of ways, and has the ability and incentive to increase recidivism by
not providing access to successful rehabilitative programs.263
257. Obergefell v. Hodges, 135 S. Ct. 2584, 2602–03 (2015).
258. See infra notes 259–67 and accompanying text.
259. Obergefell, 135 S. Ct. at 2598 (citing Poe v. Ullman, 367 U.S. 497, 542 (1961)
(Harlan, J., dissenting) (citation omitted)).
260. See infra Section IV.E.1.
261. Ahmed A. White, Rule of Law and the Limits of Sovereignty: The Private Prison in
Jurisprudential Perspective, 38 AM. CRIM. L. REV. 111, 123-24 (2001).
262. See Dave Hill, Marshalsea Mansions of Misery, GUARDIAN (Oct. 29, 2016, 2:34 PM),
https://www.theguardian.com/uk-news/davehillblog/2016/oct/29/marshalseasmansions-of-misery [https://perma.cc/767C-MR52].
263. See Noah Smith, Private Prisons Are a Failed Experiment, BLOOMBERG (Apr. 1,
2019, 7:30 AM), https://www.bloomberg.com/opinion/articles/2019-04-01/u-sprivate-prisons-are-a-failed-government-experiment [https://perma.cc/3JTP-CDDZ].

CRAIG-CUMMINGS (DO NOT DELETE)

2020]

4/29/20 11:21 AM

Abolishing Private Prisons

295

The modern portion of the argument points to the growing number
of states and localities that have banned private incarceration,264
organizations that have called for the same,265 and countries like
Israel who have found the practice to violate core individual rights
that are based on the same philosophical bases as the United
States.266 In addition, even the countries who are allowing private
incarceration to continue seem to be moving forward in a way that
operates differently from how CoreCivic and GEO Group currently
contract with state and federal agencies in the United States: in New
Zealand, for example, at least one new private facility is purportedly
being built with minimizing recidivism as a core principle which
does not square with the profit motive present in the U.S.267
However, even if this analysis does not quite result in strict
scrutiny on its own, the inclusion of the principles of equal protection
may provide assistance.268 As discussed above, prisoners in private
for-profit facilities are likely to face a variety of negative
consequences simply because they are assigned there rather than to a
facility operated by the government.269 And like in Plyler, they do
face these consequences as the result of a voluntary act rather than an
innate characteristic they possess.270 But it seems starkly unfair to
subject the category of people placed in these private facilities to
worse consequences due to an arbitrary decision by the government
agency.271
We argue that this combination of fundamental right-adjacency and
arbitrarily unfair consequences based on private categorization

264. Steve Gorman, California Bans Private Prisons and Immigration Detention Centers,
REUTERS (Oct. 11, 2019, 5:40 PM), https://www.reuters.com/article/us-californiaprisons/california-bans-private-prisons-and-immigration-detention-centers-idUSKBN
1WQ2Q9 [https://perma.cc/U854-RFJD].
265. Join the Movement!, supra note 37.
266. Angela E. Addae, Challenging the Constitutionality of Private Prisons: Insights from
Israel, 25 WM. & MARY J. RACE, GENDER & SOC. JUST. 527, 543 (2019).
267. See Rikha Sharma Rani, New Zealand Tries a Different Kind of Private Prison,
CITYLAB (Aug. 31, 2017), https://www.citylab.com/equity/2017/08/new-zealandtries-a-different-kind-of-private-prison/538506 [https://perma.cc/TM4S-MY93]; see
also Lauren-Brooke Eisen, Down Under, More Humane Private Prisons, N.Y. TIMES:
OPINION (Nov. 14, 2018), https://www.nytimes.com/2018/11/14/opinion/privateprisons-australia-new-zealand.html [https://perma.cc/6EHX-SWGF].
268. See supra notes 249–57 and accompanying text.
269. See supra notes 260–67 and accompanying text.
270. See Plyler v. Doe, 457 U.S. 202, 219 n.19 (1982).
271. See supra notes 229–31 and accompanying text.

CRAIG-CUMMINGS (DO NOT DELETE)

296

UNIVERSITY OF BALTIMORE LAW REVIEW

4/29/20 11:21 AM

[Vol. 49

deserves the protection of heightened scrutiny provided by the
interplay between substantive due process and equal protection.272
D. Procedural Due Process
The Fifth and Fourteenth Amendment Due Process Clauses require
that the state or any private entity acting in concert with or on behalf
of the state provide sufficient procedures to prevent unconstitutional
deprivation of core rights, including life, liberty, and property.273
Common sense, theory, and experience have shown that private, forprofit incarceration negatively affects individuals: the prison
corporation has every incentive to keep people in prison longer, make
it more likely that the person returns to prison after release, and staff
the facility with minimal, untrained staff, thereby depriving prisoners
of life, liberty, or property.274 Requiring additional procedures to
ensure that such deprivations do not occur is not prohibitive; in fact,
research shows that if private facilities are in fact cheaper, all or most
of the cost savings can be explained by the fact that private facilities
tend to house prisoners that require fewer resources.275
Generally, procedural due process focuses on whether the person
challenging the outcome of any state action that deprived them of
life, liberty, or property received adequate procedural safeguards.276
For example, the landmark Mathews v. Eldridge case examined
whether a Social Security beneficiary’s due process rights were
violated when the federal government terminated those benefits
without a prior evidentiary hearing.277 To answer the question, the
Court developed a three-part test that balances (1) the importance of
the private right at issue; (2) the risk of an erroneous deprivation of
that right given the procedures in place and the probable added value
of additional procedural safeguards; and (3) the government’s
interest, including the additional expense or other bureaucratic
requirements for implementing the additional safeguards.278

272. See supra notes 259–71 and accompanying text.
273. See Ann Woolhandler, Procedural Due Process Liberty Interests, 43 HASTINGS
CONST. L.Q. 811, 821-22 (2016).
274. See Tara Joy, The Problem with Private Prisons, WESLEYAN ARGUS (Feb. 2, 2018),
http://wesleyanargus.com/2018/02/02/the-problem-with-private-prisons/?utm_content
=buffer83bd7&utm_medium=social&utm_source=twitter.com&utm_campaign=buffe
r [https://perma.cc/UUF7-YGSB].
275. See supra notes 132-34 and accompanying text.
276. See Woolhandler, supra note 273, at 846-47.
277. Mathews v. Eldridge, 424 U.S. 319, 323 (1976).
278. See id. at 321.

CRAIG-CUMMINGS (DO NOT DELETE)

2020]

4/29/20 11:21 AM

Abolishing Private Prisons

297

Each prong in the analysis arguably suggests that due process
rights are violated by the current arrangement of private prison
corporations.279 First, the liberty interest protected by due process is
perhaps the most important type of interest, the literal freedom from
physical restraint, and at a minimum, courts have indicated that any
infringement of liberty will be examined very closely.280
The second prong is somewhat more complicated, as it is not
immediately clear what procedure a potential plaintiff would
challenge.281 The most obvious answer is to challenge each
individual transfer, arguing that whatever agency decision resulted in
a plaintiff being moved to a private facility did not have sufficient
safeguards to prevent the erroneous deprivation of rights inherent in
the facilities to which they were transferred.282 To bolster this
argument, the plaintiff could point to the kinds of contracts which
may not have those inherent problems as a viable alternative.283
The third prong is also complex.284 There is some lack of clarity
(primarily in academic literature and inspector general reports from
the federal government and various states) about whether private
prison contracts save governments money or allow for greater
flexibility; although a growing body of research suggests that if any
money is saved at all it is minimal and probably depends on how the
researcher accounts for different populations in different facilities.285
But in terms of bureaucratic overhead, a paradox appears: for every
additional procedure to safeguard a person’s rights in a private
facility, the overseeing government entity must expend additional
time and money.286 Thus, as governments increase the safeguards
required to satisfy due process requirements, the scale tilts further
towards violating the third prong of procedural due process
279.
280.
281.
282.
283.
284.
285.
286.

See supra notes 276–78 and accompanying text.
See Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015).
See Matthews, 424 U.S. at 321.
See Douglas W. Dunham, Inmates’ Rights and the Privatization of Prisons, 86
COLUM. L. REV. 1475, 1491–93 (1986) (discussing how decisions to transfer prisoners
to private prisons do not require due process safeguards).
For example, a New Zealand private prison facility has been designed from the
ground up with a focus on lowering recidivism rates. See Rani, supra note 267.
See supra notes 276–78 and accompanying text.
See Memorandum from Sally Yates, Deputy Attorney Gen. U.S. Dep’t of Justice to
Acting Dir. Fed. Bureau of Prisons, supra note 131.
See KARA GOTSCH & VINAY BASTI, CAPITALIZING ON MASS INCARCERATION: U.S.
GROWTH IN PRIVATE PRISONS, SENT’G PROJECT (Aug. 2, 2018),
https://www.sentencingproject.org/publications/capitalizing-on-mass-incarceration-us-growth-in-private-prisons/ [https://perma.cc/EPP6-LQVN].

CRAIG-CUMMINGS (DO NOT DELETE)

298

UNIVERSITY OF BALTIMORE LAW REVIEW

4/29/20 11:21 AM

[Vol. 49

analysis.287 Therefore, we suggest here that a prisoner being held in a
private for-profit incarceration facility can colorably argue that
her/his procedural due process rights are being violated.288
E. Slavery
The Thirteenth Amendment to the United States Constitution
sought to outlaw slavery in the United States: “[n]either slavery nor
involuntary servitude, except as a punishment for crime whereof the
party shall have been duly convicted, shall exist within the United
States, or any place subject to their jurisdiction.”289
This Amendment has been largely unexplored by the Supreme
Court, particularly in the last century.290 However, a flurry of
academic activity suggests a way forward for courts and litigants
looking to apply the Thirteenth Amendment in novel factual
scenarios.291 For example, the article The Thirteenth Amendment and
Slavery in the Global Economy provides a roadmap for a modern
understanding of “slavery” as a practice in the modern world.292 In
particular, it describes “doctrinal tools—the same tools that pre-Civil
War courts in free jurisdictions employed in combating the domestic
institution of slavery while it was still alive, and that the post-Civil
War Supreme Court employed in concluding that putatively
‘voluntary’ peonage schemes could not survive Thirteenth
Amendment scrutiny.”293 It concludes that “[a]ny analysis of forced
labor in a new industrial context must afford a privileged place to
[the owner/subject relationship], as the Court did in prohibiting the
emerging peonage schemes of the early twentieth century.”294
Other academics have suggested that the Thirteenth Amendment
could operate to: (1) prohibit sexual slavery in prison perpetrated by
one prisoner against another,295 (2) prohibit exploitative marriages
where one spouse is an immigrant found through an international
287.
288.
289.
290.

291.
292.
293.
294.
295.

See id.; see also Mathews v. Eldridge, 424 U.S. 319, 321 (1976).
See supra notes 279–87 and accompanying text.
U.S. CONST. amend. XIII, § 1.
See George Rutherglen, The Thirteenth Amendment in Legal Theory, 104 CORNELL L.
REV. ONLINE 160, 160–61 (2019), https://www.lawschool.cornell.edu/research/
cornell-law-review/Cornell-Law-Review-Online/upload/Rutherglen-essay-final.pdf
[https://perma.cc/P7NQ-4678].
See infra notes 292–302 and accompanying text.
Tobias Barrington Wolff, The Thirteenth Amendment and Slavery in the Global
Economy, 102 COLUM. L. REV. 973, 1031–32 (2002).
Id. at 1032.
Id.
Kamal Ghali, No Slavery Except as a Punishment for Crime: The Punishment Clause
and Sexual Slavery, 55 UCLA L. REV. 607, 642 (2008).

CRAIG-CUMMINGS (DO NOT DELETE)

2020]

4/29/20 11:21 AM

Abolishing Private Prisons

299

matchmaking organization,296 (3) provide an alternative
constitutional basis to support a woman’s right to abortion,297 and
even (4) require the state to intervene to stop child abuse.298
Drawing inspiration from this recent academic attention to the
Thirteenth Amendment, we see three novel arguments suggesting
that for-profit incarceration is unconstitutional: first, all incarceration
is slavery, but the punishment clause allows the State and only the
State to hold someone in the state of carceral slavery;299 second, even
if all incarceration is not slavery, the commodification of prisoners
when they are held in a private for-profit prison changes their status
from indentured servitude to slave;300 and third, even if it is
permissible to hold a prisoner as a slave, such action would require
the legislature to authorize and the court to impose such punishment
specifically.301
Before turning to these legal arguments, we provide needed context
for the claim that for-profit incarceration is a form of slavery by
tracing the direct connection between slavery as practiced from precolonial United States until the passage of the Thirteenth Amendment
and addressing the understanding of the Punishment Clause that
would permit slavery as punishment for a crime.302
1.

The Historical Line Between Chattel Slavery and For-Profit
Prisons

History provides a clear line between the chattel slavery that
characterized the engine of American growth from the colonial
period up through the Civil War and modern for-profit private
prisons.303 At its core, chattel slavery represented the subjugation of
black labor for the sole financial benefit of slave owners.304 The
296. Vanessa B.M. Vergara, Comment, Abusive Mail-Order Bride Marriage and the
Thirteenth Amendment, 94 NW. U. L. REV. 1547, 1588–90 (2000).
297. Andrew Koppelman, Forced Labor: A Thirteenth Amendment Defense of Abortion, 84
NW. U. L. REV. 480, 483–85 (1990).
298. Akhil Reed Amar & Daniel Widawsky, Commentary, Child Abuse as Slavery: A
Thirteenth Amendment Response to DeShaney, 105 HARV. L. REV. 1359, 1383–85
(1992).
299. See infra Sections IV.E.2–3.
300. See infra Section IV.E.4.
301. See infra Section IV.E.5.
302. See infra Sections IV.E.1–2.
303. See infra notes 304–22 and accompanying text.
304. See JUNIUS P. RODRIGUEZ, The Rise of “King Cotton” and the Economics of Slavery,
in 2 SLAVERY IN THE UNITED STATES: A SOCIAL, POLITICAL AND HISTORICAL
ENCYCLOPEDIA 107, 109–11 (Junius P. Rodriguez ed., 2007).

CRAIG-CUMMINGS (DO NOT DELETE)

300

UNIVERSITY OF BALTIMORE LAW REVIEW

4/29/20 11:21 AM

[Vol. 49

relationship was marked by one individual being the property of and
entirely subject to the demands of another.305 When the Civil War
ended, northern abolitionists looked to enshrine the promise of the
Emancipation Proclamation in the United States Constitution, and the
Thirteenth Amendment was the result.306
However, Reconstruction-era policies looked to institute slavery by
different names: widespread indentured servitude that touched black
lives much more harshly than white apprenticeships;307 “Coolie
labor” aimed primarily at Asian immigrants, whether working in the
United States or contracted by American corporations working
abroad, such as at the Panama Canal;308 and various peonage
systems, which operated throughout the southern United States, with
different particulars depending on the locality.309 But a common
theme of these systems, particularly in the South and particularly
peonage, was a structural tool to bring black men into contact with
the state’s legal arm through black codes and convict leasing, and
thereby perpetually subjugate them for the benefit of others.310
After the worst remnants of these systems were eradicated in the
middle of the 20th century, there was a brief reprieve;311 however,
with the burgeoning War on Drugs instituted and militarized in the
305. See id. at 122–23.
306. See Alexander Tsesis, A Civil Rights Approach: Achieving Revolutionary
Abolitionism Through the Thirteenth Amendment, 39 U.C. DAVIS L. REV. 1773, 1801–
06 (2006) (detailing extensive impact of northern abolitionists on development of the
Thirteenth Amendment).
307. See JUNIUS P. RODRIGUEZ, Reconstruction: Are Liberty and Justice for All?, in 1
SLAVERY IN THE UNITED STATES: A SOCIAL, POLITICAL AND HISTORICAL
ENCYCLOPEDIA, supra note 304, at 143, 148–49; see also Margaret A. Burnham,
Property, Parenthood, and Peonage: Reflections on the Return to Status Quo
Antebellum, 18 CARDOZO L. REV. 433, 440–43 (1996) (discussing Supreme Court
precedent on unconstitutional differences between white and black apprenticeships).
308. Panama Canal Laborers—Involuntary Servitude, 25 Op. Atty. Gen. 474, 480–82
(1905); see also Paul Finkelman, Coping with a New “Yellow Peril”: Japanese
Immigration, the Gentlemen’s Agreement and the Coming of World War II, 117 W.
VA. L. REV. 1409, 1431–33 (2015) (explaining exploitation of Asian immigrant
laborers).
309. See Julie A. Nice, Welfare Servitude, 1 GEO. J. ON FIGHTING POVERTY 340, 345, 351–
53 (1994) (discussing peonage system development in the South and Supreme Court
cases dealing with the same).
310. See id. at 353 (discussing surety system); see also Gary Stewart, Note, Black Codes
and Broken Windows: The Legacy of Racial Hegemony in Anti-Gang Civil
Injunctions, 107 YALE L.J. 2249, 2259–61 (1998) (discussing pervasive use of black
codes).
311. See Risa L. Goluboff, Race, Labor, and the Thirteenth Amendment in the 1940s
Department of Justice, 38 U. TOL. L. REV. 883, 889–93 (2007) (detailing actions to
eradicate racist peonage and surety systems and protect black citizens).

CRAIG-CUMMINGS (DO NOT DELETE)

2020]

4/29/20 11:21 AM

Abolishing Private Prisons

301

1970s and 1980s,312 private corporations saw an opportunity to
implement a new system that featured many of the markers of
previous iterations of slavery with even closer entanglement with the
state.313
As prison population skyrocketed as a result of mandatory
minimums and increased enforcement of drug crimes, state facilities
became inadequate to hold the growing number of prisoners.314
Private, for-profit entities stepped in to fill the gap.315 They devised
contracts to build facilities to house this new population, which
represented black males at a significantly higher rate than the general
population.316 Several reasons underlie this disparity, including racist
policing practices, sentencing guidelines that affected black male
defendants in ways that other groups escaped, and wider government
policies that kept black populations stuck in patterns of poverty (such
as redlining housing areas).317
The result is undeniable: young, black men are being incarcerated
at staggeringly high rates.318 And to make matters worse, private
prisons tend to house disproportionate rates of young black men
because they represent the cheapest segment of prisoners: they are
less likely to require the expensive medical care that often
accompanies older and female prisoners.319
312. RONALD CHEPESIUK, THE WAR ON DRUGS: AN INTERNATIONAL ENCYCLOPEDIA, at
xxviii (1999).
313. See cummings & Lamparello, supra note 23, at 410–12.
314. See John Conyers, Jr., The Incarceration Explosion, 31 YALE L. & POL’Y REV. 377,
377, 379–82 (2013) (detailing development of mass incarceration in United States);
see also Am. Civ. Liberties Union, Overcrowding and Overuse of Imprisonment in
the United States, UNITED NATIONS OFF. HIGH COMMISSIONER HUM. RTS. 1 (May
2015),
https://www.ohchr.org/Documents/Issues/RuleOfLaw/OverIncarceration/ACLU.pdf
[https://perma.cc/9SAQ-MTCV] (discussing inadequate state facilities).
315. See cummings & Lamparello, supra note 23, at 411–12.
316. See id. at 409–12.
317. See id. at 407, 409–10, 434; see Alex Gano, Disparate Impact and Mortgage
Lending: A Beginner’s Guide, 26 J. AFFORDABLE HOUSING & COMMUNITY DEV. L.
437, 451–52 (2018) (discussing redlining practices); see Eric Holder, U.S. Att’y Gen.,
Remarks at the Annual Meeting of the American Bar Association's House of
Delegates (Aug. 12, 2013), https://www.justice.gov/opa/speech/attorney-general-ericholder-delivers-remarks-annual-meeting-american-bar-associations
[https://perma.cc/TR47-CP9B] (discussing pervasive nature of disparate impact).
318. See ALEXANDER, supra note 2, at 175–76.
319. OFFICE OF THE INSPECTOR GEN., U.S. DEP’T OF JUSTICE, THE IMPACT OF AN AGING
INMATE POPULATION ON THE FEDERAL BUREAU OF PRISONS, at i–ii (2015),
https://oig.justice.gov/reports/2015/e1505.pdf
[https://perma.cc/7Z9F-UTMJ]
(detailing increased cost statistics for older inmates); NAT’L COUNCIL ON CRIME AND

CRAIG-CUMMINGS (DO NOT DELETE)

302

UNIVERSITY OF BALTIMORE LAW REVIEW

4/29/20 11:21 AM

[Vol. 49

Then, when the younger, overwhelmingly black male population
arrives at the private facility, they are afforded fewer educational
opportunities than their white counterpart population at public
facilities;320 they work for less wages (at some private facilities,
workers make pennies per hour, while public facilities often pay
several dollars an hour, which is an indefensibly small amount, but
an order of magnitude higher than the private prison population);
they receive disciplinary decisions at a higher rate than public
prisoners; and they ultimately spend more time incarcerated for the
same crimes than if they were incarcerated in a public facility.321 It is
no surprise that each of these differences is intimately linked to
higher profits for the private corporation.322

DELINQUENCY, THE SPIRAL OF RISK: HEALTH CARE PROVISION TO INCARCERATED
WOMEN 7, 20 (2006), http://www.nccdglobal.org/sites/default/files/publication_pdf/
spiral-of-risk.pdf [https://perma.cc/RQ8T-FLE9] (detailing common health care issues
of female prisoners); Rina Palta, Why For-Profit Prisons House More Inmates of
Color, NAT’L PUB. RADIO (Mar. 13, 2014, 7:12 AM), https://www.npr.org/sections/
codeswitch/2014/03/13/289000532/why-for-profit-prisons-house-more-inmates-ofcolor [https://perma.cc/D8ES-SULR] (discussing selection of young people of color
by private prisons).
320. This condition reflects a similar disparity dating back to the late 19th century. See In
re Turner, 24 F. Cas. 337, 339 (C.C. Md. 1867) (discussing difference in treatment of
black and white indentured servants).
321. See BAUER, supra note 4, at 160 (discussing black inmates as majority of population
at private prison); see Anita Mukherjee, Does Prison Privatization Distort Justice?
Evidence on Time Served and Recidivism, SEMANTIC SCHOLAR 13, 23 (Mar. 8, 2016),
https://pdfs.semanticscholar.org/b1d8/
154954dd2d124b048b9083782e3aaed18a9f.pdf?_ga=2.231055835.510023849.15796
52499-4278527.1579652499 [https://perma.cc/ZX6E-6NF5] (summarizing data
showing inmates in private prisons serve longer sentences and are subject to more
disciplinary action); see also Clint Smith, Why the U.S. Is Right to Move Away from
Private Prisons, NEW YORKER (Aug. 24, 2016), https://www.newyorker.com/news/
news-desk/why-the-u-s-is-right-to-move-away-from-private-prisons [https://perma.cc/
G6P6-4AX7] (reporting lack of education provided to private prison inmates).
Compare BAUER, supra note 4, at 53 (detailing wage of two cents per hour in private
prison), with Wendy Sawyer, How Much Do Incarcerated People Earn in Each
State?, PRISON POL’Y INITIATIVE (Apr. 10, 2017), https://www.prisonpolicy.org/blog/
2017/04/10/wages/ [https://perma.cc/U989-TJVU] (providing table of information on
inmate wages at public prison facilities).
322. Patrice A. Fulcher, Emancipate the FLSA: Transform the Harsh Economic Reality of
Working Inmates, 27 J.C.R. & ECON. DEV. 679, 681–82 (2015) (discussing wages
designed to maximize profits); see also Mukherjee, supra note 321, at 23, 25
(detailing how inmates in private prison serve longer portions of their sentence to
increase profits); see also Smith, supra note 321 (reporting lack of education for
private prison inmates to increase profits).

CRAIG-CUMMINGS (DO NOT DELETE)

2020]

2.

4/29/20 11:21 AM

Abolishing Private Prisons

303

The Punishment Clause

Perhaps the most significant hurdle facing a successful challenge to
private incarceration based on the Thirteenth Amendment is the
Punishment Clause.323 As noted above, the Thirteenth Amendment
states that “[n]either slavery nor involuntary servitude, except as a
punishment for crime whereof the party shall have been duly
convicted, shall exist . . . .”324 If the Punishment Clause modifies
both slavery and involuntary servitude, the challenge to private
incarceration based on the Thirteenth Amendment relies on arguing
that the Clause does not apply for some reason;325 however, such a
conclusion is not foregone.326
In fact, there are good reasons to think that this reading of the
Amendment should not prevail.327 First, as a historical matter,
research suggests that most congresspeople at the time the
Amendment was drafted and passed believed that the language
completely abolished slavery, particularly the Republicans
responsible for writing the Amendment.328 And second, the
alternative reading allows for full chattel slavery as a punishment for
crime, which is an unlikely outcome.329 It would have allowed
Reconstruction-era southern states to skirt the efficacy of the
Amendment by implementing slavery as punishment for even minor
crimes (something the drafters of the Amendment were concerned
about preventing), and such a reading goes against modern mores and
values.330 While southern states did implement convict leasing and
black codes, essentially implementing slavery by another name (i.e.,
forced labor for those incarcerated on dubious charges), it did require
an incarcerable offense first.331 Notably, these practices never
reached the Supreme Court, and it is doubtful that the modern
Supreme Court would uphold the practice of convict leasing given
the evolution of societal norms, particularly the understanding that

323. U.S. CONST. amend. XIII, § 1; see also Slaughter-House Cases, 83 U.S. 36, 50, 69
(1872) (upholding servitude exception for punishment of crime).
324. U.S. CONST. amend. XIII, § 1 (emphasis added).
325. See Slaughter-House Cases, 83 U.S. at 72 (1872).
326. See infra notes 328–33 and accompanying text.
327. See infra notes 328–30 and accompanying text.
328. See, e.g., Ghali, supra note 295, at 625–27.
329. See id. at 627–28.
330. See id.
331. See BAUER, supra note 4, at 18–19.

CRAIG-CUMMINGS (DO NOT DELETE)

304

UNIVERSITY OF BALTIMORE LAW REVIEW

4/29/20 11:21 AM

[Vol. 49

prisoners retain key human rights.332 Finally, some textual analysts
have argued that the placement of the Punishment Clause after
“indentured servitude” means that the Clause modifies only the term
“indentured servitude” and not “slavery.”333
3.

All Incarceration Is Slavery, and Incarceration in For-Profit
Institutions Is Prohibited

The drafters of the Thirteenth Amendment knew that the
contemporaneous
understanding
of
slavery
encompassed
incarceration, and they, therefore, included the Punishment Clause
exception to preserve the ability of the government to punish
people.334 The view that prison was a form of slavery is perhaps best
summed up by an opinion from the Supreme Court of Virginia,
where, describing a prisoner, the court stated: “He has, as a
consequence of his crime, not only forfeited his liberty, but all his
personal rights except those which the law in its humanity accords to
him. He is for the time being the slave of the State.”335
This view of prisoners has been somewhat softened, of course:
Prisoners no longer forfeit all of their personal rights.336 However,
Justice Christian, the author of the Ruffin decision, was not alone in
his view of prisoners as slaves.337 Speaking shortly after the Civil
War, prominent abolitionist Carl Schurz noted that “emancipation of
the slaves is submitted to only in so far as chattel slavery in the old
form could not be kept up.”338 In fact, he noted that the slaves were
no longer considered to be property of a private party, instead the
newly free man becomes the slave of society because “state
legislation will share the tendency to make him such,” recognizing
332. See Ryan S. Marion, Note, Prisoners for Sale: Making the Thirteenth Amendment
Case Against State Private Prison Contracts, 18 WM. & MARY BILL RTS. J. 213, 225–
229 (2009).
333. Becky Little, Does an Exception Clause in the 13th Amendment Still Permit Slavery?,
HISTORY (Oct. 2, 2018), https://www.history.com/news/13th-amendment-slaveryloophole-jim-crow-prisons [https://perma.cc/T8YS-VK33].
334. James G. Pope, Mass Incarceration, Convict Leasing, and the Thirteenth Amendment:
A Revisionist Account, 94 N.Y.U. L. REV. 1465, 1476 (2019) (“Sumner himself later
opined that the Senators had ‘supposed that the [Clause] was simply applicable to
ordinary imprisonment,’ rejecting his own view ‘that it might be extended so as to
cover some form of slavery.’”).
335. Ruffin v. Commonwealth, 62 Va. 790, 796 (1871).
336. Do Inmates Have Rights? If So, What Are They?, HG.ORG, https://www.hg.org/legalarticles/do-inmates-have-rights-if-so-what-are-they-31517 [https://perma.cc/4HTX5BYK] (last visited Apr. 1, 2020).
337. See CARL SCHURZ, REPORT ON THE CONDITION OF THE SOUTH 101 (1865) (ebook).
338. Id. at 179.

CRAIG-CUMMINGS (DO NOT DELETE)

2020]

4/29/20 11:21 AM

Abolishing Private Prisons

305

that criminal convictions could lead to slavery, but not to the former
master, to the government.339
However, except for anti-abolitionists from the post-Civil War
South, that exception was not meant to exempt private for-profit
incarceration from the Amendment’s slavery prohibition.340 In fact,
the Republican party responsible for the drafting and passage of the
Amendment explicitly drew a line between normal incarceration,
which often manifested in hard labor for the benefit of the State, and
reimplementation of chattel slavery under the new name of convict
leasing.341
The current model of for-profit incarceration mirrors the model
explicitly rejected by those responsible for the Thirteenth
Amendment.342
Today, individuals are convicted of crimes,
committed to the responsibility of a government agency for a period
of time, and then sold to a corporation as part of a “lot” of
unidentified prisoners so that the private prison corporation can make
more money.343 The major difference is that these corporations are
sophisticated enough not to require manual labor to make money;
instead, the prisoner’s mere presence in his cell generates revenue by
virtue of his appearance on a balance sheet.344 This transfer of funds
from government to a private party on the back of an incarcerated
person was not meant to be exempted by the Punishment Clause.345
4.

The Commodification of Prisoners Changes Their Status from
Prisoner to Slave

Even if one is not convinced that incarceration by itself is slavery,
it becomes so when the prisoner is sold from a public facility to a
private one to enrich his new jailer.346 Some people suggest that a
Thirteenth Amendment suit by a non-forced laboring prisoner “is at
least irrelevant and at most ludicrous” because it constitutes neither
slavery nor involuntary servitude to be incarcerated.347 Avoiding this
outcome and successfully opening such a challenge to prisoners in
for-profit facilities requires a close analysis of the private prison’s
339.
340.
341.
342.
343.
344.
345.
346.
347.

Id.
See Pope, supra note 334, at 1485–90.
Id.
See infra notes 343–45 and accompanying text.
See Marion, supra note 332, at 237.
See id. at 236.
See id. at 237.
See Marion, supra note 332, at 235–37.
Id.

CRAIG-CUMMINGS (DO NOT DELETE)

306

4/29/20 11:21 AM

UNIVERSITY OF BALTIMORE LAW REVIEW

[Vol. 49

remuneration in the context of private incarceration as an industry.348
For example, an examination of the operational structure of a private
prison and how a prisoner adds value to the corporation through both
his own labor—for example, by cleaning his cell, laundering outfits,
or serving meals—and his meager living conditions shows how even
a non-hard laboring prisoner is a slave because his body is being used
to enrich the corporate owner.349
Viewing through this
commodification lens differentiates the prisoner in a state prison
(which is a drain on resources) and the prisoner in a private prison
(whose continued incarceration represents an increased profit margin
for the prison corporation).350
Under this softened view, incarceration constitutes slavery only
when a prisoner makes money for a private party.351 The key
constitutional question then becomes whether slavery is permitted at
all, rather than whether there is a distinction between slavery at the
hands of the state and slavery for the benefit of a private party; and,
as we discuss above, we think careful analysis of the Punishment
Clause reveals that the exception applies only to indentured
servitude.352 Therefore, because the prisoner becomes a slave once
commodified and the Punishment Clause does apply to slavery, the
practice of private for-profit incarceration is unconstitutional.353
5.

Imposition of Slavery Requires Specific Intention from
Legislature and Sentencing Judge

We also argue that if the Punishment Clause does allow a prisoner
to be held as a slave, then the legislature must authorize such a
punishment for specific crimes, and the sentencing judge must
impose the punishment explicitly, rather than transfer to slave-like
conditions as a corollary condition of the sentence.354
The Supreme Court has stated that in the Eighth Amendment
context, “punishment” requires an intentional mental state; that is,
“punishment” is not cruel and unusual unless the prison official
affirmatively intends that action and it is not the result of mere
accident or negligence.355 In that context, the Court quoted Judge
Posner, who explained that:
348.
349.
350.
351.
352.
353.
354.
355.

Id.
Id. at 235–37.
Id.
See supra notes 346–50 and accompanying text.
See supra notes 323–33 and accompanying text.
See supra notes 346–50 and accompanying text.
See infra notes 355–62 and accompanying text.
Wilson v. Seiter, 501 U.S. 294, 300 (1991).

CRAIG-CUMMINGS (DO NOT DELETE)

2020]

4/29/20 11:21 AM

Abolishing Private Prisons

307

The infliction of punishment is a deliberate act intended to
chastise or deter. This is what the word means today; it is
what it meant in the eighteenth century…. [I]f [a] guard
accidentally stepped on [a] prisoner’s toe and broke it, this
would not be punishment in anything remotely like the
accepted meaning of the word, whether we consult the
usage of 1791, or 1868, or 1985.356
If punishment means the same thing in the Thirteenth Amendment
as it does in the Eighth – and there is no good reason to treat them
differently – slavery as punishment for a crime can only pass
constitutional muster if it is intentionally imposed by the sentencing
judge and authorized by Congress.357
This is so because
“punishment always requires a mental state: It is imposed
intentionally by a legislature or a sentencing judge . . . .”358 In other
words, a prisoner could not be held as a slave (i.e., traded as property
for the benefit of a private entity) unless the judge so ordered because
“prison conditions, no matter how harsh, can never qualify as
punishment without inquiring into the mental state of a prison
official.”359 Further, we recognize that legislatures know how to tie
such a sentence together for certain crimes given the history of the
black codes and convict leasing discussed above.360 Therefore,
because Congress has not authorized slavery for any crime, and no
judge has imposed that sentence, any prisoner currently incarcerated
in a private for-profit reason is being held contrary to the Thirteenth
Amendment.361
As the Constitution’s ban on slavery through the Thirteenth
Amendment should eliminate the use of private for-profit prisons in
the United States, we finally argue that private incarceration should
be eradicated because it violates the Cruel and Unusual Punishment
Clause of the Eighth Amendment.362

356. Id. (alteration in original) (quoting Duckworth v. Franzen, 780 F.2d 645, 652 (7th Cir.
1985)).
357. See id.
358. Ghali, supra note 295, at 635.
359. See Wilson, 501 U.S. at 300; see Ghali, supra note 295, at 635.
360. See supra notes 307–10 and accompanying text.
361. See infra Section IV.F.
362. See infra Section IV.F.

CRAIG-CUMMINGS (DO NOT DELETE)

308

UNIVERSITY OF BALTIMORE LAW REVIEW

4/29/20 11:21 AM

[Vol. 49

F. Cruel and Unusual Punishment
The Eighth Amendment to the United States Constitution affirms:
“excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.”363 The Supreme Court
has reasoned “that it is a precept of justice that punishment for crime
should be graduated and proportioned to the offense.”364 The Court
has employed various analytical approaches depending on the context
of the challenged government behavior, including: “gross
disproportionality,” a “categorical approach that implements bright
line rules to prohibit certain sentencing practices,”365 and “wanton
and unnecessary infliction of pain.”366
Under any of these
paradigms, treating people like slaves by commodifying their
existence is cruel and unusual.367
We first note that modern Eighth Amendment jurisprudence is at
best a “thicket” of confusing holdings muddled by plurality
opinions.368 Additionally, an Eighth Amendment challenge to
private for-profit incarceration falls far outside the typical cases
addressed under the prohibition on cruel and unusual punishment.369
Those cases—especially the ones that receive attention from the
Supreme Court—tend to be capital cases, often deal with methods of
execution, otherwise seek the boundaries of life imprisonment,
address the lack of medical care, or confront dangerous
overcrowding.370
Further, given other abhorrent practices currently at the forefront of
Eighth Amendment jurisprudence—for example, torturous
combinations of chemicals used in lethal injection compounds that

363. U.S. CONST. amend. VIII.
364. Weems v. United States, 217 U.S. 349, 367 (1910).
365. Kevin White, The Constitutional Limits of the “National Consensus” Doctrine in
Eighth Amendment Jurisprudence, 2012 BYU L. Rev. 1371, 1372.
366. Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
367. See id.
368. Lockyer v. Andrade, 538 U.S. 63, 72 (2003).
369. See generally The Case Against the Death Penalty, AM. CIV. LIBERTIES UNION (2012),
https://www.aclu.org/other/case-against-death-penalty
[https://perma.cc/6AX5CZVC] (discussing that the normal case challenging the Eighth Amendment is
regarding the death penalty) .
370. See id.; see also Nina Totenberg, Supreme Court Closely Divides on “Cruel and
Unusual” Death Penalty Case, NAT’L PUB. RADIO (Apr. 1, 2019, 11:48 AM),
https://www.npr.org/
2019/04/01/708729884/supreme-court-rules-against-death-row-inmate-who-appealedexecution [https://perma.cc/42CT-TYKV].

CRAIG-CUMMINGS (DO NOT DELETE)

2020]

4/29/20 11:21 AM

Abolishing Private Prisons

309

can lead to prisoners “writhing in pain”—371warehousing prisoners in
private facilities in the service of enriching corporations and their
shareholders represents a more abstract concern that can fail to
resonate as deeply.372 Nonetheless, here we sketch the outlines of an
Eighth Amendment challenge using broad principles underlying the
prohibition of cruel and unusual punishment.373
Traditionally, the Supreme Court has employed a proportionality
analysis to challenges involving the sentence of a particular person
(usually for terms-of-year challenges) and reserved the categorical
analysis for capital cases.374 Recently, however, the court has
signaled a willingness to expand the scope of its categorical analysis
to include non-capital sentences.375 We argue that the unique
circumstances involved with incarcerating people for profit
implicates concerns that make a categorical challenge relying on
modern conceptions of human dignity appropriate.376 This categorical
approach looks to “evolving standards of decency” including national
consensus, international considerations, historical teachings, and the
judge’s own conscience.377
The existence of a national consensus on a given correctional
practice, or a lack thereof, is often a major consideration for courts.378
That determination includes, but is not limited to, looking to state
legislatures as a barometer of preferences across the nation.379 Here,
for-profit incarceration is currently used in a majority of states and by
several federal agencies.380 Consequently, it may seem that there is a
national consensus supporting for-profit incarceration.381 However,
there is significant momentum against private prisons, including:
multiple states passing recent legislation banning the practice; a
widespread divestment campaign consisting of diverse groups from
students and teachers to banks; and growing political effort to push
371. Graham L. Brewer & Manny Fernandez, Oklahoma Botched 2 Executions. It Says It’s
Ready to Try Again, N.Y. TIMES (Feb. 13, 2020), https://www.nytimes.com/2020/
02/13/us/oklahoma-executions.html [https://perma.cc/T3J2-QMH2].
372. See supra notes 368–71 and accompanying text.
373. See infra notes 374–96 and accompanying text.
374. White, supra note 365, at 1372–73.
375. Graham v. Florida, 560 U.S. 48, 61–62 (2010).
376. See infra notes 377–96 and accompanying text.
377. See Coker v. Georgia, 433 U.S. 584, 592–600 (1977).
378. White, supra note 365, at 1376–78 (tracing the history of the national consensus
approach and major benchmark cases).
379. Id. at 1367.
380. See GOTSCH & BASTI, supra note 286, at 5.
381. See id.

CRAIG-CUMMINGS (DO NOT DELETE)

310

UNIVERSITY OF BALTIMORE LAW REVIEW

4/29/20 11:21 AM

[Vol. 49

the conversation into the mainstream.382 Additionally, we expect this
momentum to continue, strengthening the argument as potential cases
work their way through the court system.383
Courts also inform their Eighth Amendment analysis by
considering the historical perspective of the challenged practice.384
As discussed above, for-profit incarceration is just the latest iteration
of slavery, an institution that is widely regarded among the most
morally repugnant in the history of the world.385 Through this lens,
the historical perspective on profiting off ownership of another
person is clear: at least since the late 19th century in the United
States, such a relationship is a complete anathema.386 Even if a
reviewing court does not see the for-profit incarceration arrangement
as tantamount to slavery, it should nonetheless be convinced that
carrying out punishment for a crime has essentially always been the
province of the state.387 In either case, the historical perspective on
ownership of or profiting off the punishment of another person
weighs against the constitutionality of the practice.388
Finally, the third main prong that courts review to determine where
the current evolving standard of decency stands is through looking at
international standards.389 In Roper, for example, the Court quoted
this noteworthy passage from Thompson v. Oklahoma to arrive at its
holding:
382. See Catherine Kim, Private Prisons Face an Uncertain Future as States Turn Their
Backs on the Industry, VOX (Dec. 1, 2019, 3:53 PM), https://www.vox.com/policyand-politics/2019/12/1/20989336/private-prisons-states-bans-califonia-nevadacolorado [https://perma.cc/K8HU-UKRP]; see Molly Korab, University Students Push
for Prison Divestment, COMMON DREAMS (Feb. 2, 2015), https://www.commondream
s.org/views/2015/02/02/university-students-push-prison-divestment [https://perma.cc/
8RMR-GNDV]; see Mike Ludwig, In the US, Big Banks Are Divesting from Private
Prisons, Thanks to Anti-ICE Activism, EQUAL TIMES (Aug. 20, 2019), https://www.eq
ualtimes.org/in-the-us-big-banks-are-divesting?lang=en#.Xi3lXGhKhPY [https://per
ma.cc/EM4Y-LQ5K]; see Ashley Smith, New York Teachers Fight for Divestment
from Prison Industry, TRUTHOUT (June 12, 2019), https://truthout.org/articles/newyork-teachers-fight-for-divestment-from-prison-industry/
[https://perma.cc/G4RZ3GL3].
383. See supra notes 378–82 and accompanying text.
384. See supra Section IV.E.1.
385. See supra Section IV.E.4.
386. See Vicky Peláez, The Prison Industry in the United States: Big Business or a New
Form of Slavery?, CTR. FOR RES. ON GLOBALIZATION (Dec. 15, 2019),
https://www.globalresearch.ca/the-prison-industry-in-the-united-states-big-businessor-a-new-form-of-slavery/8289 [https://perma.cc/H9BR-9A9E].
387. But see id.
388. See id.
389. See infra notes 390–95 and accompanying text.

CRAIG-CUMMINGS (DO NOT DELETE)

2020]

4/29/20 11:21 AM

Abolishing Private Prisons

311

The plurality also observed that “[t]he conclusion that it
would offend civilized standards of decency to execute a
person who was less than 16 years old at the time of his or
her offense is consistent with the views that have been
expressed by respected professional organizations, by other
nations that share our Anglo-American heritage, and by the
leading members of the Western European community.”390
Here, the evidence is mixed.391 Israel stands out as the prime
example of a nation that has banned the practice of for-profit
incarceration, and they did so in a convincing manner, relying on
human rights and philosophies shared with the United States.392
Likewise, only a small number of countries overall use private prison
facilities: approximately eleven as of 2013.393 However, the trend
does seem to be growing somewhat, and the practice is concentrated
in English-speaking common law countries, such as England,
Australia, and New Zealand.394
Nevertheless, momentum in
opposition to private incarceration for profit is growing in the United
States.395
Thus, on balance, based on national, historical, and international
perspectives and practices, we argue that private prisons run afoul of
the Cruel and Unusual Punishment Clause of the Eighth Amendment
while recognizing the challenges inherent to this claim.396 And
further, we hope that as this practice receives additional public
scrutiny, more states will ban for-profit incarceration within their
borders, strengthening the Eighth Amendment argument.
V. CONCLUSION
For a myriad of reasons, the very existence of private for-profit
incarceration represents questionable and dubious legality.397 We
argue above that on at least six primary grounds private prisons are
390. Roper v. Simmons, 543 U.S. 551, 561 (2005) (quoting Thompson v. Oklahoma, 487
U.S. 815, 830 (1988)).
391. See infra notes 392–95 and accompanying text.
392. See supra notes 154–57 and accompanying text.
393. See Cody Mason, International Growth Trends in Prison Privatization, SENT’G
PROJECT 2 (Aug. 20, 2013), https://sentencingproject.org/wp-content/uploads/2015/12
/International-Growth-Trends-in-Prison-Privatization.pdf
[https://perma.cc/9W3ECT89].
394. See id.
395. See supra notes 382–83 and accompanying text.
396. See supra notes 363–95 and accompanying text.
397. See supra Part II.

CRAIG-CUMMINGS (DO NOT DELETE)

312

UNIVERSITY OF BALTIMORE LAW REVIEW

4/29/20 11:21 AM

[Vol. 49

unconstitutional.398 Further, we argue above that private prisons are
abhorrent on moral grounds, including for the ways that for-profit
incarceration wrecks access to justice and diminishes equality in the
U.S. criminal justice system.399 When a carceral regime incentivizes
incarcerating more U.S. residents for longer periods of time, with
lesser hope for rehabilitation400 and achieves its ends by offering less
safe, less efficient, and less humane prison conditions,401 then this
regime must be confronted.
Private prisons have not been the panacea promised by
corporations responsible for selling their use to government
entities.402 From private local jails to private federal prisons, we see
rampant prisoner abuse,403 underqualified and underpaid staff,404 lack
of educational opportunities and rehabilitation programs,405 and cost
savings that vanish on close analysis.406 Granting such power to
private entities violates the constitutional rights of prisoners so
housed.407

398.
399.
400.
401.
402.
403.
404.
405.
406.
407.

See supra Part IV.
See supra Part III.
See supra notes 72–76, 140 and accompanying text.
See supra notes 77–85 and accompanying text.
See supra Part II.
See supra notes 78–81 and accompanying text.
See supra notes 74–76, 82–85 and accompanying text.
See supra notes 72–73 and accompanying text.
See supra Section III.B.
See supra Part IV.