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Private Prisons, Private Records, Public Records Law (Tartaglia), 2015

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PRIVATE PRISONS, PRIVATE RECORDS
Mike Tartaglia∗

INTRODUCTION ............................................................................................. 1690
I. THE VALUE OF TRANSPARENCY IN PRIVATE CORRECTIONS ............. 1691
A. Effective Oversight and Accountability in Corrections ............. 1692
B. Overview of the Private Prison Industry ................................... 1694
C. Obstacles to Private Prison Oversight ...................................... 1696
1. Litigation Reforms Restricting Judicial Oversight of
Private Prisons ..................................................................... 1696
2. States’ Failures to Hold Private Prison Companies
Accountable for Contract Violations ................................... 1700
D. The Heightened Need for Transparency in Private Prisons ...... 1708
1. Staffing Information ............................................................ 1709
2. Conditions, Treatment, and Security ................................... 1713
a. Rates of Assaults, Escapes, and Other Security
Metrics .......................................................................... 1713
b. Medical Care ................................................................ 1715
c. Programs and Services ................................................. 1717
E. The Need for Greater Transparency and Accountability in
Immigration Detention .............................................................. 1719
II. THE STATE OF PRIVATE PRISON LAW AND PUBLIC RECORD
COMPLIANCE ..................................................................................... 1722
A. Most States and the Federal Government: Not Expressly
Applied....................................................................................... 1722
B. Private Prisons as Functional Equivalents of Government
Agencies..................................................................................... 1723
1. Florida ........................................................................... ...... 1724
2. Tennessee ............................................................................ 1727
C. Recent Developments in Litigation – Vermont, Texas, and
Kentucky .................................................................................... 1729
D. Other States Whose Public Records Laws Could Be
Applied to Private Prisons......................................................... 1732
III. RECOMMENDATIONS FOR REFORM.................................................... 1735
A. Utilize Functional Equivalency Tests to Access
Information on Operations and Conditions Through
∗
Student of law at Boston University School of Law. The author would like to thank
Professor Gerald Leonard for his guidance; Alex Friedmann for invaluable insight and
support; private prison opponents and advocates everywhere for inspiring this work; and his
parents, for obvious reasons.

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Settlements and Regular Reporting ........................................... 1735
B. Enact The Private Prison Information Act and State
Replicas ..................................................................................... 1738
C. Improve Existing Forms of Contract Drafting and
Oversight ................................................................................... 1741
D. Why Access to Information Via Public Records Laws is
Crucial ....................................................................................... 1741
CONCLUSION................................................................................................. 1743
INTRODUCTION
This Note seeks to explain how practitioners and advocates can ensure that
private prisons provide cost-effective services of sufficient quality when they
contract to incarcerate individuals on behalf of government entities. It focuses
primarily on the two largest industry competitors, Corrections Corporation of
America (“CCA”) and the GEO Group (“GEO”), who together control the vast
majority of the private prison ownership and management market.1 These
companies are the only publicly traded entities in this field, and both are
engaged in a broad range of correctional services, including facility
management and ownership, prisoner transportation, and community
supervision.2 There are also many smaller companies that manage hundreds of
thousands of prisoners, probationers,3 and parolees for profit in the United
States.4
Preserving human rights in prison is valuable both as a distinct goal and as it
relates to reducing recidivism, improving public health, and providing
meaningful opportunities for former prisoners to reintegrate. At a more basic
level, governments are ultimately responsible for the treatment of their
prisoners. The goal of regulating prison operations should be primarily to
promote the well-being of prisoners; while luxurious conditions are neither
warranted nor advisable, governments must provide some level of humane
treatment and basic rights to all prisoners.

1 See Kopin Tan, Private Prison Companies Have a Lock on the Business, WALL ST. J.,
Oct. 25, 2009, archived at http://perma.cc/LSY6-FHRV (stating that together, CCA and
GEO control sixty-four percent of all private-prison beds).
2 See, e.g., Company Profile for Corrections Corp of America, BLOOMBERG, archived at
http://perma.cc/W6BK-N5BM (last visited July 6, 2014).
3 See HUMAN RIGHTS WATCH, PROFITING FROM PROBATION: AMERICA’S “OFFENDERFUNDED” PROBATION INDUSTRY 1 (2014), available at
http://www.hrw.org/sites/default/files/reports/us0214_ForUpload_0.pdf, archived at
http://perma.cc/836T-X3P4.
4 A non-exhaustive list includes the following: Management and Training Corporation,
LCS Corrections Services, G4S Secure Solutions, Community Education Centers, Amazon
Correctional Services, Emerald Correctional Management, LaSalle Corrections, Youth
Services International; Corizon Health, Wexford Health Sources; Aramark, and Sodexo.

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Part I evaluates the current state of law and practice regarding access to
information from private prisons. The need for greater oversight is especially
pronounced for private prisons, which have incentives to cut corners and are
funded primarily by tremendous taxpayer investments.5 In seeking to offer
mechanisms to enhance oversight, Part II analyzes how litigants have utilized
“functional equivalency” standards for public records suits and § 1983 liability
to require private prisons to comply with public records requests. Part II also
evaluates how attorneys in states with favorable statutory frameworks could
use these tests to similarly bind private prisons. Part III concludes with a set of
modest recommendations for increasing private prison transparency and
oversight, including litigation-oriented approaches, legislative reforms, and
improved contract drafting and enforcement.
I.

THE VALUE OF TRANSPARENCY IN PRIVATE CORRECTIONS

Effective oversight is a challenge for both public and private prisons. While
attorneys and advocates have developed some successful methods of prison
oversight, privatizing prison operations limits the effectiveness of these
methods. As oversight through litigation has diminished in effectiveness over
the past few decades, federal and state governments dramatically increased
their use of private companies.6 In the vast majority of United States
jurisdictions, private prisons are not required to disclose information pursuant
to public records requests in the same manner as government prisons.7
Extending public records laws to private prison companies can provide a
meaningful route for independent oversight to ensure that overcrowded,
budget-strained prison systems are effectively policed.8
Many state governments have responded to mounting calls for austerity and
efficiency by privatizing core government functions, including correctional
services. This trend has had significant consequences for the independent
oversight of government operations traditionally provided by media and
advocacy organizations that utilize public records laws.9 According to a 2012
report by In the Public Interest,
5 David Fathi, The Challenge of Prison Oversight, 47 AM. CRIM. L. REV. 1453, 1461-62
(2010).
6 Id. at 1462.
7 Id. (“As private corporations, they are typically not subject to open meeting and
freedom of information laws that apply to state and local departments of corrections.”).
8 Craig D. Feiser, Privatization and the Freedom of Information Act: An Analysis of
Public Access to Private Entities Under Law, 52 FED. COMM. L.J. 21, 22-24 (1999)
(discussing the ramifications of government agencies “turn[ing] to private entities in order
to function more efficiently”).
9 IN THE PUBLIC INTEREST, FLOODLIGHTS INSTEAD OF FLASHLIGHTS: SUNSHINE LAWS OUT
OF STEP WITH GOVERNMENT CONTRACTING LEAVES PUBLIC AND LAWMAKERS IN THE DARK 79 (2012), available at
http://www.inthepublicinterest.org/sites/default/files/0212%20ITPI%20Privatization_Report
_f_0.pdf, archived at http://perma.cc/78AE-QVYY.

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Without information to help answer . . . important questions, watchdog
organizations, journalists, advocacy groups, and interested residents lose
the ability to understand government policies and actions, monitor public
spending, inform their positions on various issues, advocate for what they
believe in, and hold the government accountable. A well-functioning
democracy relies on the public having honest answers to these key
questions. Privatization should not make this information more difficult
for the public to obtain.10
Contracting with private prison companies implicates two important
concerns regarding public accountability: liability for violations of prisoners’
rights and access to operational information.11 In addition to seeking cost
savings, governments may seek to reduce liability by contracting for the
provision of core functions.12 But privatization presents obstacles to the
traditional means of checking government power available to members of the
public, such as litigation and access to information. Increased transparency of
private prisons could make up for shortcomings in oversight resulting from
both conditions generally applicable to corrections and to conditions unique to
the industry.
A.

Effective Oversight and Accountability in Corrections

Overseeing prison operations to ensure humane prisoner treatment is a
complex and difficult task for both government-run and private facilities.13
Effective oversight involves a combination of mechanisms, including direct
government action, public transparency, and litigation.14 Direct government
action often comes from oversight personnel or departments tasked with
regulating components of prison operations and protecting basic human rights;
sometimes legislatures and executive officers use their powers to force reform.
Public oversight comes primarily from media, watchdog, and religious

10

Id. at 4.
Stephen Raher, The Business of Punishing: Impediments to Accountability in the
Private Corrections Industry, 13 RICH. J.L. & PUB. INT. 209, 229 (2010) (“Private prisons
tend to distance public officials from responsibility for the way private prisons are run.”)
(citing Ahmed A. White, Rule of Law and the Limits of Sovereignty: The Private Prison in
Jurisprudential Perspective, 38 AM. CRIM. L. REV. 111, 140 (2001)).
12 Id. at 234 (“While private prison companies’ non-governmental status can be exploited
in numerous ways, two particularly salient areas are . . . a discussion of contractor liability
for violations of inmates’ civil rights [and] . . . an exploration of the problems concerning
public access to information regarding private prison operations.”).
13 Fathi, supra note 5, at 1453 (explaining that a combination of factors “creates a
significant risk of mistreatment and abuse” in prisons). For a comprehensive bibliography of
significant correctional oversight resources, see Michele Deitch, Annotated Bibliography on
Independent Prison Oversight, 30 PACE L. REV. 1687, 1687 (2010) (explaining that “[t]he
body of literature regarding correctional oversight is both limited and fragmented . . . .”).
14 See Fathi, supra note 5, at 1453-54, 1461-62.
11

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PRIVATE PRISONS, PRIVATE RECORDS

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organizations, which report on and analyze operational and performance data.
Through public education and political organizing efforts, these groups
advocate for reform of prison and jail conditions, programs, and outcomes.
Litigation has historically been the most common and effective means of
improving prison operations and conditions, but its effectiveness in recent
years has been curtailed by statutory reform and judicially imposed
limitations.15 Over the past two decades, the Prison Litigation Reform Act
(“PLRA”)16 drastically restricted judicial prison oversight and the ability of
prisoners to file suit.17 Similarly, federal restrictions on legal services funding
practically eliminated a chief source of indigent prisoner representation, and
the Supreme Court broadly redefined what could constitute adequate access to
the courts for prisoners in Lewis v. Casey,18 requiring only an abstract “access
to the courts” rather than access to a law library or legal assistance.19
Despite the changed nature of prison litigation, oversight mechanisms have
struggled with some consistent obstacles. Different jurisdictions monitor their
facilities in different ways, to varying degrees of success. Systemic problems
plague prison systems across the country, ranging from sanitation and
classification issues to deficiencies in security and delivery of services.20 A
review of prison conditions across the country is beyond the scope of this
Note, but these problems are not unique to either government or privately run
prisons.
Without a comprehensive oversight mechanism in the United States, prison
oversight could be enhanced by increased access to operational information,

15

Id. at 1454-59; Michael B. Mushlin & Michele Deitch, Opening Up a Closed World:
What Constitutes Effective Prison Oversight?, 30 PACE L. REV. 1383, 1406 (2010) (“While
the major thrust of this volume focuses on non-judicial forms of oversight, it cannot be
overlooked that, in the United States to date, the most significant form of oversight has
come about through civil rights litigation brought before the federal courts of the United
States.”). The PLRA imposed substantial limitations on the abilities of both individuals and
classes of prisoners to bring lawsuits challenging prison conditions. Fathi, supra note 5, at
1454-59. For a thorough explanation of its restrictions and their impact on prisoner-rights
litigation, see generally, MICHAEL B. MUSHLIN, RIGHTS OF PRISONERS, 566-67 (2009)
(explaining that certain provisions of the PLRA make litigation more difficult for inmates);
Margo Schlanger, Inmate Litigation, 116 HARV. L. REV. 1555, 1557 (2003) (reviewing
filing trends seven years after the PLRA’s passage and finding that all filings in federal
court declined by forty percent and that meritorious claims became significantly more
difficult to litigate successfully).
16
Pub. L. No. 104–134, 110 Stat. 1321–66 (1996).
17 Fathi, supra note 5, at 1454-58 (explaining the various ways in which the PLRA has
confined the federal courts’ oversight role).
18 518 U.S. 343, 350-51 (1996).
19 Fathi, supra note 5, at 1458-60.
20
See infra Parts I.D.1, I.D.2 (detailing these problems and the need for heightened
transparency).

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for both government entities and the public.21 Outside of judicial enforcement,
“regulation and oversight of correctional facilities in the United States is spotty
and in many jurisdictions nonexistent. . . . [E]xternal monitoring and oversight
mechanisms . . . in many places exist only in rudimentary form or not at all.”22
Increasing public access to information permits for greater scrutiny of prison
conditions and operations, and would likely improve monitoring and oversight
of all facilities.23
B.

Overview of the Private Prison Industry

The modern private prison industry was born in the mid-1980s when CCA, a
Tennessee company, attempted to contract with the state of Tennessee to
operate its entire state prison system.24 Though its bid failed, CCA began to
purchase and build individual facilities, steadily increasing its market share
throughout the United States until the turn of the millennium.25 GEO was
founded in Boca Raton, Florida in 1984 and expanded along with CCA
throughout the 1990s.26 After increased public scrutiny of poor contract
performance damaged the industry’s reputation and relationships with many
governments, the industry experienced a resurgence, in large part due to its
increased role in immigration detention.27

21

Fathi, supra note 5, at 1460-61 (explaining that the adoption of a non-judicial
oversight model “would dramatically enhance transparency and accountability”); Stan
Stojkovic, Prison Oversight and Prison Leadership, 30 PACE L. REV. 1476, 1478, 1482-85
(2010) (indicating that prison oversight mechanisms can illuminate means by which prisons
can become more effective).
22 Fathi, supra note 5, at 1460.
23 See, e.g., Sarah Geraghty & Melanie Velez, Bringing Transparency and
Accountability to Criminal Justice Institutions in the South, 22 STAN. L. & POL’Y REV. 455,
477-80 (arguing the need for a “fully informed public to monitor our criminal justice
institutions” because judicial and other forms of oversight are insufficient to protect
prisoners in the southern United States from harm).
24 GRASSROOTS LEADERSHIP, THE DIRTY THIRTY: NOTHING TO CELEBRATE ABOUT 30
YEARS OF CORRECTIONS CORPORATION OF AMERICA 19 (2013), available at
http://grassrootsleadership.org/sites/default/files/uploads/GRL_Dirty_Thirty_formatted_for_
web.pdf, archived at http://perma.cc/Y3FA-TCGG.
25
PHILIP MATTERA, MAFRUZA KHAN & STEPHEN NATHAN, GRASSROOTS LEADERSHIP,
CORRECTIONS CORPORATION OF AMERICA: A CRITICAL LOOK AT ITS FIRST TWENTY YEARS
11-20
(2003),
available
at
http://www.goodjobsfirst.org/sites/default/files/docs/pdf/CCA%20Anniversary%20Report.p
df, archived at http://perma.cc/478E-5NBR (detailing CCA’s operating history from the
1980s through 2000).
26
E.g., History, THE GEO GROUP (last visited Aug. 19, 2014), archived at
http://perma.cc/38T3-2PVA.
27 See generally SCOTT D. CAMP & GERALD G. GAES, FEDERAL BUREAU OF PRISONS,
GROWTH AND QUALITY OF U.S. PRIVATE PRISONS: EVIDENCE FROM A NATIONAL SURVEY 3-5
(2001),
available
at

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CCA now controls 92,500 beds across 67 prisons;28 GEO controls more than
61,000 corrections beds in 56 facilities, as well as many community-based and
prerelease facilities.29 Based on the most recent data available, the private
prison industry houses more than 8% of the nation’s prisoners, nearly 18% of
federal prisoners,30 and nearly half of immigration detainees in the United
States.31 States use private prisons to varying degrees: some states do not house
any prisoners in private facilities, while others house over 40% of their
prisoners in private facilities.32 From 2000 to 2011, the number of federal
prisoners in private facilities increased almost 150%, while the number of state
prisoners in private facilities increased nearly 23%.33 GEO took in more than
$1.48 billion in revenue in 2012 from various government contracts, 36% of
which came from the federal government, and earned more than $208 million

http://www.bop.gov/resources/research_projects/published_reports/pub_vs_priv/oreprres_n
ote.pdf, archived at http://perma.cc/88RM-VFBX (discussing the history of the early
modern private prison industry to set context for analysis of industry performance); JUDITH
GREENE & ALEXIS MAZÓN, JUSTICE STRATEGIES, PRIVATELY OPERATED FEDERAL PRISONS
FOR IMMIGRANTS: EXPENSIVE. UNSAFE. UNNECESSARY 17-20 (2012), available at
http://www.justicestrategies.org/sites/default/files/publications/Privately%20Operated%20F
ederal%20Prisons%20for%20Immigrants%209-13-12%20FNL.pdf,
archived
at
http://perma.cc/337G-6HB8 (recounting the history of prison privatization in the United
States and discussing the effects of immigration detention).
28
CORR. CORP. OF AM., 2012 ANNUAL REPORT ON FORM 10-K, 5 (2013), available at
http://thomson.mobular.net/thomson/7/3368/4799/, archived at http://perma.cc/FSN8GZ2T.
29 Locations, THE GEO GROUP, archived at http://perma.cc/PC9A-7KY4 (last visited Jan.
18, 2014).
30 E. ANN CARSON & WILLIAM J. SABOL, U.S. DEP’T OF JUSTICE, PRISONERS IN 2011, at
13, 32 (2012), available at http://www.bjs.gov/content/pub/pdf/p11.pdf, archived at
http://perma.cc/S6TG-7UV3.
31 DETENTION WATCH NETWORK, THE INFLUENCE OF THE PRIVATE PRISON INDUSTRY IN
IMMIGRATION
DETENTION
BUSINESS
1
(2011),
available
at
THE
http://www.detentionwatchnetwork.org/sites/detentionwatchnetwork.org/files/PrivatePrison
PDF-FINAL%205-11-11.pdf, archived at http://perma.cc/SJ8S-LRN4 (“In total, private
corporations administer 49% of beds [for detained immigrants].”).
32 PAUL GUERINO ET AL., U.S. DEP’T OF JUSTICE, PRISONERS IN 2010, at 31-32 (2011),
available at http://www.bjs.gov/content/pub/pdf/p10.pdf, archived at http://perma.cc/JNQ54R46 (reporting that in 2010, Montana housed 40.4% of its prisoners in private facilities,
and New Mexico 43.6%). Interestingly, New Mexico and Mississippi, two of the top seven
states in terms of housing state prisoners in private jails, had the two lowest prisoners-tocapacity ratios in the country in 2011. CARSON & SABOL, supra note 30, at 13.
33 LEONARD GILROY, REASON FOUNDATION, ANNUAL PRIVATIZATION REPORT 2013:
CRIMINAL JUSTICE AND CORRECTIONS (2013), available at http://reason.org/news/show/apr2013-corrections-overview, archived at http://perma.cc/PML2-XCGR (“The number of
those state prisoners housed in private facilities rose from 75,291 in 2000 to 92,395 in 2011
over that same time period, a 22.7% increase.”).

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in profit.34 CCA received nearly $1.76 billion in revenue in 2012 (43% from
the federal government), and earned $156 million in net profit.35 Government
contracts contribute the vast majority of industry revenue in the form of
taxpayer dollars.36
C.

Obstacles to Private Prison Oversight

Restrictions on judicial oversight of private prisons have limited the role of
the courts in ensuring safe and adequate conditions. Seemingly routine
inability or unwillingness to identify and remedy deficient contract
performance has likewise resulted in private prisons potentially escaping
liability for problematic conditions.
1.

Litigation Reforms Restricting Judicial Oversight of Private Prisons

The viability of § 198337 claims, long a powerful weapon for individuals
challenging government misconduct, is less than clear in the private prison
context.38 Prisoners whose rights are violated in private facilities can try to
hold a number of parties liable: an individual guard, the private prison
company, a specific government actor (such as a monitor), or a government
entity that contracts out a core function. Courts have largely refused to
consider private prison companies to be the functional equivalent of
government entities for purposes of liability for harm stemming from treatment
or conditions in their facilities:
Federal prisoners may not sue private prison corporations for damages
under Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics . . . [and t]he Eleventh Circuit has recently held that private
prison operators are not “public entities” under the Americans with
Disabilities Act, and therefore, unlike publicly operated prisons, cannot
be sued under Title II of that statute.39
Prisoners in privately run facilities are also prohibited from suing individual
private prison employees for violations of their rights under Bivens v. Six

34

THE GEO GROUP, 2012 ANNUAL REPORT 1 (2013), available at
https://materials.proxyvote.com/Approved/36159R/20130314/AR_159415/, archived at
http://perma.cc/69PD-93FZ.
35 CORR. CORP. OF AM., supra note 28, at 7, 50.
36 AM. CIVIL LIBERTIES UNION, BANKING ON BONDAGE: PRIVATE PRISONS AND MASS
INCARCERATION
13
(2011),
available
at
https://www.aclu.org/files/assets/bankingonbondage_20111102.pdf,
archived
at
http://perma.cc/MGJ9-TB6S (“Government contracts [state, local, and federal] provide the
dominant source of private prison revenue.”).
37 42 U.S.C. § 1983 (2012).
38 Raher, supra note 11, at 234-46 (indicating that there is a “confused jurisprudence
regarding section 1983 and private prisons”).
39 Fathi, supra note 5, at 1462.

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Unknown Named Agents of Fed. Bureau of Narcotics40 when state tort
remedies exist to address their alleged injuries.41 Preclusion of such § 1983
claims against both individual guards and the companies that employ them
prevents prisoners from utilizing what could be a very effective litigation
tactic. As noted by Professor Jack Beermann, “[A § 1983 claim] is relatively
cheap to add to a set of other claims. The payoff . . . may be great, including
the availability of federal jurisdiction and the possibility of an award of
attorneys’ fees.”42 Within the prison context specifically, Beermann believes
that two primary distinctions between the nature of government and private
operations make § 1983 claims the best option to hold private parties liable for
harm.43 First, it may be easier to impose liability on a private prison company
than the government, as plaintiffs would have to meet the “municipal liability”
standard for local government, which does not allow for vicarious liability.44
Second, the Supreme Court has refused to extend qualified immunity to private
defendants under § 1983.45 Crucially, § 1983 claims could provide a federal
right of action where state law does not reach and give plaintiffs an effective
alternative to the forum of state courts, which are “oriented to support the state,
not to constrain state action.”46
Further, respondeat superior liability usually does not apply to private
corporations47 or to § 1983 claims.48 Prisoners suing in federal court under
40

403 U.S. 388 (1971) (allowing a federal cause of action when federal agents arrested
petitioner after a warrantless search of his apartment).
41 Minneci v. Pollard, 132 S. Ct. 617, 620 (2012) (holding that Bivens does not apply
where “state tort law authorizes adequate alternative damages actions . . . that provide both
significant deterrence and compensation”).
42 Jack M. Beermann, Why do Plaintiffs Sue Private Parties Under Section 1983?, 26
CARDOZO L. REV. 9, 33 (2004).
43 Id. at 23-26 (discussing numerous factors that might make plaintiffs pursue § 1983
claims instead of, or in addition to, available state law claims).
44 Id. at 24 (“Local governments are not immune but can only be held liable under the
Supreme Court’s ‘municipal liability’ test, a strict standard of causation and culpability
under which vicarious liability is not allowed.”).
45 Id. at 24-25 (“Second, the Supreme Court has decided that private section 1983
defendants are not entitled to the qualified immunity that applies in section 1983 litigation
against government employees.”).
46 Id. at 20.
47 See, e.g., Fresquez v. Minks, No. 11-CV-02712-REB-KMT, 2013 WL 452292, at *15
(Tenn. Ct. App. Feb. 26, 2013) (holding that private corporations may not be found liable
under the doctrine of vicarious liability), rev’d 2014 WL 2579899 (10th Cir. June 10, 2014);
Richard Frankel, Regulating Privatized Government Through § 1983, 76 U. CHI. L. REV.
1449, 1452-53 (2009) (“Currently, however, [§ 1983] encourages private entities to give
constitutional rights short shrift because it does not expose private entities that perform
public functions to the traditional tort principle of respondeat superior liability . . . .”).
48 Raher, supra note 11, at 235 (“It is settled law that the doctrine of respondeat superior
does not apply to section 1983 actions.”).

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Bivens may be likewise precluded from applying principles of respondeat
superior to hold private prison companies liable for employee actions.49 The
Supreme Court has held that guards at private facilities where state oversight is
weak cannot raise a qualified immunity defense to a § 1983 personal injury
claim,50 but “it is unclear whether the same result would follow in a state with
an aggressive monitoring program.”51 Prisoners seeking to hold state or local
governments accountable for harms imposed by a private contractor would
therefore need to prove vicarious liability by demonstrating a nexus between
some government actor’s conduct and the deprivation of a right.52 Most likely,
a prisoner would have to show that a government monitor’s actions caused a
violation of his or her rights, by failing to ensure compliance intentionally or
willfully.53 Extending liability to both private prison companies and
government actors could have important fiscal implications, for “if a contractor
and government supervisor can both be held liable, the government may have
to pay the employee’s judgment (through indemnification) and the contractor’s
judgment (by means of passed-through costs in future rate adjustments).”54
Therefore, under § 1983, prisoners in private facilities cannot sue
individuals or private prison companies when state tort remedies suffice, and
they cannot sue companies or governments for individual actions under a
respondeat superior theory. Essentially, these prisoners would either have to
prove vicarious liability or that the company operated as the functional
equivalent of a government agency to sue the company or its employees under
§ 1983.55 In any event, litigation challenging individual harms would only have
a limited impact on broader reform and may actually undermine such efforts
due to the paradoxical nature of § 1983 applicability.56 As Stephen Raher
explains,

49 Minneci v. Pollard, 132 S. Ct. 617, 625 (2012) (citing Ashcroft v. Iqbal, 556 U.S. 662,
676 (2009)) (“[A] Bivens plaintiff, unlike a state tort law plaintiff, normally could not apply
principles of respondeat superior and thereby obtain recovery from a defendant’s
potentially deep-pocketed employer.”).
50 Richardson v. McKnight, 521 U.S. 399, 401 (1997) (finding that prison guard
employees of a private management firm are not “entitled to a qualified immunity from suit
by prisoners charging a violation of 42 U.S.C. § 1983”).
51 Raher, supra note 11, at 235.
52 Id. at 235-36 (“[A] prisoner bringing a section 1983 claim against corrections officials
must prove that the defendants had personal involvement in the alleged deprivation of
rights.”).
53 See id. (hypothesizing how the Richardson supervision factor would apply to the
doctrine of respondeat superior).
54 Id. at 236.
55 See id. at 234-35 (recounting the questions of liability that have arisen from § 1983
claims).
56 Id. at 236 (“Ultimately, the application of section 1983 to private prisons presents a
policy paradox.”).

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If private operators are more susceptible to liability than their state
counterparts (under continued adherence to Richardson), then the
increased costs will presumably be passed on to contracting agencies,
thus raising the fiscal burden of privatization. On the other hand, if the
courts equalize treatment of public and private prisons, contractors will
have reduced incentive to improve conditions (and correspondingly
reduce profit margins) in an effort to avoid section 1983 liability.57
While litigation could help some individuals in private facilities (assuming
they successfully navigate the complexities described), as with litigation in
other arenas, many meritorious cases result in settlement. However,
settlements of prison conditions cases are increasingly rare and unlikely to lead
to larger systemic reform through deterrence.58
Transparency enhances accountability by permitting interested parties to
focus more attention on government operations. In the prison context,
information about things like staffing ratios, provision of medical and mental
health care, use of solitary confinement, rates of violence, and protection of
prisoners’ fundamental rights such as access to the courts59 and
correspondence with the outside world60 can shed much-needed light on prison
conditions and operations.61 When a government runs a prison, it must comply
with public records requests regarding an array of operational information.
Access to such information helps advocates identify deficiencies and improve
conditions without resorting to costly and increasingly difficult litigation.62
Private prisons, in contrast, are not so obligated, which creates unique
obstacles to the effective oversight necessary to address systemic deficiencies
and problems.

57

Id.
Schlanger, supra note 15, at 1680 (“The rarity of substantial judgments, or even
substantial settlements, poses a major challenge to any defense of inmate litigation based on
its deterrent effect.”).
59 Bounds v. Smith, 430 U.S. 817, 817 (1977) (declining to overrule precedent holding
that prisoners have access to the courts).
60
Procunier v. Martinez, 416 U.S. 396, 407-14 (1974) (formulating a standard of review
for prisoner mail censorship), overruled on other grounds by Thornburgh v. Abbott, 490
U.S. 401, 413-14 (1989).
61 JOHN J. GIBBONS & NICHOLAS DE B. KATZENBACH, COMM’N ON SAFETY AND ABUSE IN
AMERICA’S PRISONS, CONFRONTING CONFINEMENT 97-99 (2006), available at
http://www.vera.org/sites/default/files/resources/downloads/Confronting_Confinement.pdf,
archived at http://perma.cc/784H-MYFT (advocating for greater transparency in the prison
system); Raher, supra note 11, at 243-47 (discussing the ubiquity of reduced access to
information in the industry of prison corrections).
62 Stojkovic, supra note 21, at 1482, 1488-89 (indicating that there has been diminishing
transparency in prison oversight).
58

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States’ Failures to Hold Private Prison Companies Accountable for
Contract Violations

Absent public oversight through enforcement of public records laws,
regulation of the private prison industry becomes more difficult. Transparency
for the sake of general public information is an important dynamic of oversight
in its own right, but the lack of transparency makes legal reform and contract
monitoring more difficult as well.63 Aside from litigation, the impact of which
is limited for prison oversight purposes,64 private prison oversight could come
primarily from governments who contract with these companies. Insofar as
such contracts contain oversight provisions and enforcement mechanisms,
governments can theoretically employ them to improve private prison
operations.65 However, both the history of contract enforcement and the
current state of affairs seem to indicate that contractual obligations are an
insufficient oversight mechanism to ensure accountability in the private prison
industry.66
Private prison contracts often require compliance with standards
promulgated by independent professional organizations such as the American
Correctional Association (“ACA”) or National Commission on Correctional
Healthcare (“NCCHC”).67 These bodies conduct inspections of government

63 See CHRISTOPHER HARTNEY & CAROLINE GLESMANN, NAT’L COUNCIL ON CRIME AND
DELINQUENCY, PRISON BED PROFITEERS: HOW CORPORATIONS ARE RESHAPING CRIMINAL
JUSTICE
IN
THE
U.S.
15-16
(2012),
available
at
http://nccdglobal.org/sites/default/files/publication_pdf/prison-bed-profiteers.pdf, archived
at http://perma.cc/DR-4XXT (“Oversight and monitoring provide a way for the government
to measure contract compliance, and must concentrate on the contractor’s adherence to
contract terms as well as its success in securing the safety of the public, inmates, and
staff.”). The ABA Standards for Treatment of Prisoners also recognizes the importance of
transparency – as David Fathi appropriately summarized, “[w]hen private facilities are used,
the Standards require multiple means of oversight, including applicability of freedom of
information laws; contract provisions for oversight; and on-site monitoring by the
contracting agency.” Fathi, supra note 5, at 1462; see also ABA CRIMINAL JUSTICE
STANDARDS ON THE TREATMENT OF PRISONERS, §§ 23-10.5(a), (d), (f), (g).
64 See supra Part I.C.1.
65 Mary Sigler, Private Prisons, Public Functions, and the Meaning of Punishment, 38
FLA. ST. U. L. REV. 149, 161 (2010) (“[C]ontract terms are likely to be imprecise, providing
an insufficient basis for gauging contractor performance. This problem is exacerbated in the
prison setting, where the quality of performance––from the provision of medical care to the
use of force––can mean the difference between life and death for inmates. . . . [O]bstacles to
public accountability suggest the challenges to effective oversight in precisely those
circumstances that call for special vigilance.”).
66 Id. at 161-62.
67
David W. Miller, The Drain of Public Prison Systems and the Role of Privatization: A
Case Study of State Correctional Systems, in PROQUEST SOCIAL SCIENCES DISCOVERY GUIDE
6 (2010), available at http://www.csa.com/discoveryguides/prisons/review.pdf, archived at
http://perma.cc/46XV-F564 (“[A]ll private prisons are either accredited or must become

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PRIVATE PRISONS, PRIVATE RECORDS

1701

and private prisons to see how they comply with each organization’s respective
standards regarding conditions, treatment, and facilities.68 Despite this
ostensible source of external oversight and simple metric for determining
contract violations, these bodies have not ensured that prisoners in private
facilities receive constitutionally adequate treatment.69 The objectivity of these
organizations has also been questioned, as the private prison industry has spent
thousands of dollars sponsoring conferences held by each.70
A recent report by the National Council on Crime and Delinquency
(“NCCD”) found significant problems in contract enforcement pervasive
throughout the industry.71 The NCCD identified three major concerns
regarding contract-based oversight: transparency, guaranteed payments, and
monitoring.72 The lack of transparency results from the industry’s exemption
from reporting requirements, its obstruction of monitors, and the fact that the
companies “are [not] even aware of the documentation and reporting
requirements intrinsic to the operation of public agencies.”73 The NCCD also
identified bed quotas, or “minimum-occupancy guarantees,” as a common
component of contracts favorable to the private prison industry.74 Finally, it
discussed how privatization incentives discourage transparency and
accountability, creating obstacles to effective monitoring beyond that seen in
the realm of public prisons.75 The NCCD concluded,
[t]he experience of various jurisdictions has demonstrated that contracts
executed with private prison companies are often poorly drafted and may
minimize or omit key provisions, which can lead to numerous problems
accredited to remain open, unlike public prisons which only voluntarily seek accreditation,
leading to a lower percentage meeting accreditation standards.”).
68
Id. at 6-7.
69 See, e.g., Morales Feliciano v. Rosello Gonzalez, 13 F. Supp. 2d 151, 158 & n.3
(D.P.R. 1998) (finding medical care unconstitutionally deficient despite recent accreditation
by NCCHC); LaMarca v. Turner, 662 F. Supp. 647, 655 (S.D. Fla. 1987) (affirming the
magistrate’s finding that ACA accreditation is of “virtually no significance” in determining
whether prisoners receive adequate treatment because constitutional violations have been
found in accredited facilities).
70 Press Release, Private Corr. Working Grp., American Correctional Association Meets
in Tampa – Organization Tainted by Conflicts of Interest, Private Prison Influence,
Financial Incentives (Jan. 31, 2014), archived at http://perma.cc/HBM2-CDJ5.
71 HARTNEY & GLESMANN, supra note 63, at 15-16 (citing contracting, oversight, and
monitoring issues in prison contracting).
72 Id.
73 Id. at 15.
74 Id. at 16 (“Contracts often guarantee a minimum occupancy rate—usually 90% or
more . . . .”).
75 Id. at 15-16 (“Further, from a financial perspective, it is in the contractor’s best interest
to minimize the reporting of data that could provide important—though potentially
negative—information about conditions of confinement, such as the number of assaults that
take place in the facility, incident reports, and grievances filed.”).

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including inadequate contractor performance, absence of transparency,
abuse of prisoner rights, and an overall lack of accountability. Oversight
and monitoring has also proven to be difficult and tends to be lax and
ineffective.76
Numerous states have recently found deficient contract performance upon
reviewing private prisons, often identifying transparency concerns as obstacles
to effective enforcement of such contracts.77 Even when state governments
utilize specific oversight mechanisms for the private prisons with which they
contract, many have found internal oversight inadequate to address systemic
problems and deficiencies.
Idaho. Idaho’s experience with private prison oversight is demonstrative of
government inability to effectively monitor private prisons. The State had been
made aware of contract violations years before those problems resulted in
litigation from prisoners whose constitutional rights were violated by extreme
violence.78 A supervising officer at the Idaho Correctional Center (“ICC”)
informed superiors of staffing irregularities months before the litigation was
filed, detailing staffing positions for which the State paid but no officers were
actually on duty.79 Further, the officer claimed that superiors at the facility
intentionally misrepresented staffing reports to the State, deceiving officials as
to the existence and extent of CCA’s contract noncompliance.80
Following the problems at ICC and the subsequent protracted litigation,
Idaho sought bids to take over operations at the facility following the
automatic termination of CCA’s contract. Interestingly, CCA declined to even
bid on the new contract, apparently no longer interested in operating the
facility.81 Eighty percent of Democratic state legislators opined that private
operation of the facility no longer seemed a viable option and recommended
the state take control of ICC.82 In January 2014, the state began its official
takeover of ICC when the legislature voted to remove the facility from private
76

Id. at 15 (footnote omitted).
See infra notes 90-94, 142-48, and accompanying text.
78 Staffing Issues Known for Years at Idaho’s Private Prison, BOISE STATE PUBLIC
RADIO, Oct. 23, 2013, archived at http://perma.cc/NQX2-9XA5 (“Administrators and staff
at Idaho’s prison agency knew since at least 2010 that private prison contractor [CCA] was
understaffing the state’s largest prison in violation of the state contract.”).
79 Rebecca Boone, Documents Unsealed in Private Prison Contempt Case, IDAHO
STATESMAN, Aug. 20, 2013, archived at http://perma.cc/GPU9-FL3W (“All three [of the
former and current CCA employees] described what they said was a well-known
understaffing problem that prison officials routinely tried to hide.”).
80 Id. (stating that CCA employees regularly falsified staffing logs and staff rosters).
81 GEO Group, CCA Won’t Bid on Idaho Prison Contract, TIMES FREE PRESS, Nov. 8,
2013, archived at http://perma.cc/7WG9-DQ5Y (stating that both CCA and GEO declined
to bid on the contract to operate ICC).
82 Democrats to Idaho Prisons Board: Let State Run ICC, IDAHO STATE J., Oct. 15, 2013,
archived at http://perma.cc/RY8F-7UVJ (observing that sixteen out of twenty Democrats
signed on to a letter in favor of the State taking over ICC).
77

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PRIVATE PRISONS, PRIVATE RECORDS

1703

hands after failing to find an adequate partner.83 A subsequent investigation by
a private firm found extensive misreporting of staff hours, and CCA reached an
agreement to pay the state $1 million to remedy the deficiencies.84 The State,
however, failed to launch a criminal investigation as the Department of
Corrections had claimed it had.85
New Mexico. Most contracts with private prison companies contain
enforcement mechanisms, such as financial penalties for noncompliance.86 But
some states have failed to utilize these provisions, missing out on opportunities
to both encourage important reforms and collect potential sources of additional
revenue. New Mexico’s former Secretary of Corrections declined to collect
nearly $20 million dollars in fines from GEO and CCA for repeated contract
violations.87 His actions were particularly questionable because GEO had
previously employed him as a warden at one of its prisons.88 The State had
known for years it was paying more for private prisons than government
facilities and that it had paid for vacant staff positions at private facilities.89 Of
all the states, New Mexico also houses one of the largest percentages of its
prison population in private prisons – more than 40%90 – therefore, a
83 Idaho to Begin Process of Taking Over Private Prison, BOISE STATE PUBLIC RADIO,
Jan. 10, 2014, archived at http://perma.cc/79ZU-ALEA (“The Idaho Board of Correction
has officially ordered the state’s prison department to begin the process of taking over
operations at the privately run Idaho Correctional Center.”); Editorial, Our View: Otter’s
Plan for State-Run Prison a Good Step, IDAHO STATESMAN, Jan. 4, 2014, archived at
http://perma.cc/G4SU-24L2 (“Gov. Butch Otter and Idaho took a step in the right direction
Friday when Otter announced that the state will take over management of a prison that has
been operated by Corrections Corporations of America for several years.”).
84 Rebecca Boone, Idaho Attorney General Seeks Prison Investigation, WASH. TIMES,
Feb. 7, 2014, archived at http://perma.cc/3S8T-FT36.
85 Press Release, Leo Morales, Am. Civil Liberties Union, ACLU Files Open Record
Request to Government Agencies Relating to CCA “Criminal Case” (Feb. 6, 2014),
archived at http://perma.cc/77QQ-TFTS (explaining that no criminal investigation was
conducted and advocating that “a complete audit and disgorgement of all profits made from
the ICC be returned to the state”).
86 Susan Turner et al., Changing Prison Management: Strategies in Response to VOI/TIS
Legislation 112 (Jan. 2003) (unpublished manuscript), archived at http://perma.cc/R7YF44Z6 (explaining that monetary sanctions may be imposed to enforce contract
requirements).
87 Deborah Baker, Ex-Prison Official Back at Firm, ALBUQUERQUE J., Nov. 11, 2011,
archived at http://perma.cc/WDQ9-98MP; Zaid Jilani, NM Corrections Secretary Refusing
to Penalize Contract-Breaching Private Prison Company He Used to Work for, THINK
PROGRESS, Sept. 7, 2010, archived at http://perma.cc/9WED-VCJ7.
88 Baker, supra note 87.
89 New Mexico Pays More For Private Prisons, Report Says, ALBUQUERQUE TRIB., May
24, 2007, archived at http://perma.cc/U8ZD-5ANJ (indicating that New Mexico not only
tried to justify higher operating costs in 2007, but it also had been paying for services that it
never received).
90 GUERINO ET AL., supra note 32, at 31 (using figures from 2010).

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significant portion of New Mexico’s prisoners rely almost exclusively on their
government to ensure fair treatment through enforcing contracts with private
prisons. When the former Secretary went back to work for GEO, his successor
began to use the penalty provisions more aggressively, levying millions of
dollars in penalties against the industry for staffing and other violations.91
Vermont. Vermont contracts with a private company to provide medical care
to its prisoners. A recent report by the state auditor found that the State was not
saving any money by contracting out medical care to a private company and
that the State paid more than $4.2 million beyond its prison healthcare budget
between 2010 and 2012.92 Performance guarantees were built into the contract,
allowing the State to penalize the company for failures to meet certain
benchmarks or provide certain services, with a provision that such penalties be
applied in the first payment period after a violation is discovered.93 However,
the State took years to assess penalties against the company for known
violations, and failed to collect more than $11,000 worth of penalties.94 In so
doing, “[the Vermont] DOC lost the opportunity to offer a monetary incentive
for [Correct Care Solutions] to correct its deficiencies in a timely manner.”95 In
fact, the Vermont auditor identified failures in oversight as among the most
significant factors in the company’s failure to save money: “[M]onitoring was
lacking because [the company] did not provide complete and accurate reports
in a timely manner and [the Vermont Department of Corrections] did not
assess penalties until many months after the performance period in which the
deficiency occurred.”96
Ohio. Ohio recently found that private prisons struggle to offer the same
quality of services and care as the government while saving money. Ohio
became the first state to sell a state-owned facility to a private corporation for
ownership and management when it sold the Lake Erie Correctional Institution
91 Deborah Baker, Bouncing Between Private, Public, ALBUQUERQUE J., Nov. 20, 2011,
archived at http://perma.cc/P2K8-UV86 (“The administration of Republican Gov. Susana
Martinez, who took office in January, has decided to collect some penalties for this year.”).
92 DOUGLAS R. HOFFER, OFFICE OF THE STATE AUDITOR, STATE OF VERMONT,
CORRECTIONAL HEALTH CARE: ANNUAL COST OVERRUNS, BUT CONTRACT OVERSIGHT HAS
IMPROVED
2
(2013),
available
at
http://www.leg.state.vt.us/reports/2013ExternalReports/294178.pdf,
archived
at
http://perma.cc/WRP3-2QLB (stating that the Vermont Department of Corrections’
monitoring of its contracts with Correct Care Solutions “has not ensured that costs are
minimized, and the State paid $4.2 million more than the $49.1 million that was budgeted in
the first three years of the contract”).
93 Id. at 18 (“The policy goes on to state that penalties should generally be assessed and
reflected in the next invoice payment. Performance guarantee penalties were included in the
[Correct Care Solutions] contract for times when the contractor failed to meet certain
requirements, but assessment of penalties was at the discretion of DOC.”).
94 Id. at 19.
95 Id.
96 Id. at 22.

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PRIVATE PRISONS, PRIVATE RECORDS

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to CCA in 2010.97 The State, which employs one of the most vigorous prison
oversight programs in the nation,98 conducted inspections of the facility in
2011 and 2012; the 2011 inspection was not disclosed prior to its execution.99
Two years after the transition, the State’s audit revealed lingering deficiencies
in many areas of institutional operations.100 CCA struggled to prevent inmate
drug use and to protect inmates from assault.101 The rate of prisoners logging
grievances against staff actions increased dramatically after CCA assumed
operations.102 The audit curiously omitted a review of medical care and
recreation,103 two issues that tend to be among the most prone to grievances,
making Lake Erie’s grievance rate even more troubling.
Arizona. Following the escape of three men from a private prison in
Arizona, the State conducted a comparison of costs and conditions at state and
private prisons for the first time, though it had ostensibly been required to do
so for over twenty years.104 The state auditor found that private prisons may
97 Ohio Becomes First State to Sell State Prison to Private Company, TOLEDO BLADE,
Sept. 1, 2011, archived at http://perma.cc/7QHP-PSRZ (explaining that the Lake Erie
Correctional Institution “has become the first state prison in the nation to be sold to a private
company”).
98 Fathi, supra note 5, at 1461 (explaining that in Ohio, “the Correctional Institutions
Inspection Committee of the legislature, aided by a full-time professional staff, conducts
oversight of the state prison system”).
99 German Lopez, Audit: Private Prison Retains Increased Levels of Violence,
CINCINNATI CITY BEAT (Oct. 24, 2013), archived at http://perma.cc/3W2-A8N9 (explaining
that the CCA had time to prepare for its 2012 inspection, a potential explanation for its
mixed improvements from 2011 to 2012).
100 Id. (“But for all the improvements, [the Correctional Institution Inspection
Committee] found issues of safety, security and inmate discipline linger.”).
101 JOANNA E. SAUL, CORR. INST. INSPECTION COMM., REPORT ON THE INSPECTION AND
EVALUATION OF LAKE ERIE CORRECTIONAL INSTITUTION 3 (2013), available at
http://www.scribd.com/doc/178705366/Lake-Erie-Correctional-Institution-Re-inspection2013, archived at http://perma.cc/9DH3-RTSA (“[T]he percentage of inmates reporting that
they feel unsafe or very unsafe is still high. The rate of assaults and disturbances appears
unchanged from the prior inspection and the number of inmates testing positive for drugs
remains high.”).
102 Id. at 27 (indicating that while there were only 11 reported grievances in 2011, in
2012, the number rose to 29, and as of the time of the report in 2013, there have already
been 50 incidents).
103 Id. at 19, 24.
104 CHARLES L. RYAN, ARIZ. DEP’T OF CORR., BIENNIAL COMPARISON OF “PRIVATE
VERSUS PUBLIC PROVISION OF SERVICES” REQUIRED PER A.R.S. § 41-1609.01(K)(M) 6
(2011),
available
at
https://corrections.az.gov/sites/default/files/ars41_1609_01_
biennial_comparison_report122111_e_v.pdf, archived at http://perma.cc/V7XU-CHHB
(explaining that the department undergoes a systematic review in order to compare the costs
associated with public and private prison facilities); Bob Ortega, Arizona Prisons Slow to
Fix Flaws in Wake of Kingman Escape, ARIZ. REPUBLIC, June 26, 2011, archived at
http://perma.cc/CS98-KT2V (stating that in the wake of three inmates escaping Arizona’s

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actually cost the State more than it would spend by operating prisons itself.105
Rather than reconsidering the State’s experiment with prison privatization,
Arizona legislators passed a law eliminating the requirement to conduct the
comparisons,106 and the State continues to rely on private prisons to house
thousands of its prisoners.
While the Bureau of Justice Statistics and the Arizona State Auditor have
both found that private prison savings may be illusory,107 a recent study from
Temple University, funded in part by the private prison industry, found prison
privatization to offer substantial savings for governments.108 CCA and GEO
have cited the Temple study extensively on their websites and in publications,
and the report authors wrote multiple op-eds supporting the study in
mainstream newspapers.109 Many of these references omitted discussion of the
industry funding, and the companies and authors only acknowledged it after an
advocate filed an ethics complaint with Temple.110 Other research finding that
private prisons save money compared to government operation has also been

Kingman prison, the Arizona Department of Corrections and the Management and Training
Corporation, which manages that facility, “have made sweeping changes meant to prevent
another escape”).
105 RYAN, supra note 104, at 60-61.
106 Compare Sasha Abramsky, Arizona’s Private Prisons: A Bad Bargain, THE NATION,
Apr. 23, 2012, archived at http://perma.cc/NY5P-BHE6 (“Since 1987, Arizona’s
Department of Corrections has been legislatively mandated to produce cost and quality
reviews for its private prisons, in part to judge how they compare with state-run facilities.”),
with Jason Barry, State Lawmakers Look to Ease Oversight on Private Prisons, KPHO CBS
5 ARIZ., (May 17, 2013), archived at http://perma.cc/9W4A-T6W9 (explaining that Arizona
has eliminated its annual review of how private prisons operate).
107 See JAMES AUSTIN & GARY COVENTRY, EMERGING ISSUES ON PRIVATIZED PRISONS 29
(2001) (“[T]he cost benefits of privatization have not materialized to the extent promised by
the private sector. Although there are examples of cost savings, there are other examples in
which such benefits have not been realized. Moreover, it is [unclear whether] initial cost
savings can be sustained over a long time period.”); DEBRA K. DAVENPORT, ARIZ. OFFICE OF
THE AUDITOR GENERAL, DEPARTMENT OF CORRECTIONS⎯PRISON POPULATION GROWTH 19
(2010) (“[D]epartment analysis of private prison and state prison costs indicated that it may
be more costly to house inmates in private prisons.”); Richard A. Oppel, Private Prisons
Found to Offer Little in Savings, N.Y. TIMES, May 18, 2011, archived at
http://perma.cc/FVJ8-Z5C3 (recounting the research done by Arizona suggesting that
privately run prisons may be more costly than state-run prisons).
108 Matt Stroud, Study Funded by Private Prison Dollars Praises Private Prisons; No
Comment, Says Public University, The Prison Complex, IN THESE TIMES (Jan. 9, 2014, 8:00
AM), archived at http://perma.cc/E8SH-H3KY.
109 Id. (“Both CCA and GEO have cited the study extensively; both have published info
about the study and links to the study press release on their website and/or [Facebook]
pages; CCA also launched a Twitter campaign when the study was released.”).
110 Id. (explaining that following an advocate’s complaint, CCA, while still repeatedly
citing the Temple University study, now makes note of that study’s “industry funding”).

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1707

questioned due to industry funding and connections.111 Cost comparisons
between public and private prisons are far from straightforward,112 but greater
public access to information could help illuminate both sides of the debate.
Prisoners, a uniquely disempowered political population, are ill-equipped to
convince their representatives to increase scrutiny of private prison
companies.113 Prisoners’ inability to advocate for legislative reform or increase
government oversight stands in stark contrast to the industry’s substantial
political influence, generated by a complex approach involving lobbying,
campaign contributions, and fostering close relationships between the industry
and government.114 A significant aspect of the general failure of governments
to strictly enforce contracts against private prison operators is the practical
difficulty of housing so many prisoners. As Professor Mary Sigler notes,
“[p]ublic officials dissatisfied with a contractor’s performance—or rate
increases—cannot realistically cancel the contract before finding alternative
placements for hundreds of inmates.”115 Additionally, legislatures would not
necessarily have the same authority to demand change from private
corporations as they would over a department of corrections.116
Regardless of where prisoners are housed – in public or private facilities –
states are ultimately responsible for providing for their fair treatment and
preventing them from suffering cruel and unusual punishments.117 Some states,
111

Id. (identifying a “pattern of specious academic research into prison privatization that
is funded by the private prison industry,” including a study by Vanderbilt University and
one by the University of Florida).
112 See HARRIS KENNY & LEONARD GILROY, REASON FOUNDATION, THE CHALLENGE OF
COMPARING PUBLIC AND PRIVATE CORRECTIONAL COSTS 4-6 (2013), available at
http://reason.org/files/comparing_correctional_costs.pdf, archived at http://perma.cc/GZE877XW (identifying numerous reasons why cost comparisons are difficult to ascertain by
type and indicating that the actual costs of operations among prisons are also extremely
varied).
113 Fathi, supra note 5, at 1453 (“Prisons also house a uniquely powerless population. . . .
[N]o other group in American society is so completely disabled from defending its rights
and interests.”); Sigler, supra note 65, at 160 (stating that inmates “are virtually powerless
to effect change in the face of unsatisfactory prison conditions. Most lack the basic right to
vote; and in any case, they constitute an unpopular minority without political influence or
efficacy”).
114 See generally, PAUL ASHTON, JUSTICE POLICY INST., GAMING THE SYSTEM: HOW THE
POLITICAL STRATEGIES OF PRIVATE PRISON COMPANIES PROMOTE INEFFECTIVE
INCARCERATION POLICIES 3, (2011), available at http://www.justicepolicy.org/
uploads/justicepolicy/documents/gaming_the_system.pdf, archived at http://perma.cc/
U8RV-4LSF (identifying the for-profit strategy triangle undertaken by private prison
companies).
115 Sigler, supra note 65, at 160.
116 Raher, supra note 11, at 231 (“The legislature is able to demand immediate change
from a state corrections agency. In contrast, the legislature is constitutionally prohibited
from impairing an existing contract with a private operator.”).
117 See Farmer v. Brennan, 511 U.S. 825, 832 (1994) (reiterating that the Eighth

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including Tennessee, either have provisions in their constitutions or have
enacted statutes that require the state to provide certain levels of care for their
prisoners.118 While the evidence on private prison performance is not
conclusive, recent criticism of contract compliance and concerns about human
rights seem justified. State governments have largely failed to hold private
prison companies accountable for contract violations, including staffing
deficiencies and inability to reduce prison spending.
D.

The Heightened Need for Transparency in Private Prisons

Increasing public access to operational information could help to develop
more effective oversight and ensure contract compliance and humane treatment
in private prisons. Despite holding hundreds of thousands of prisoners, “private
prisons are subject to even less scrutiny than their public counterparts. As
private corporations, they are typically not subject to open meeting and
freedom of information laws that apply to state and local departments of
corrections.”119
Heightened oversight of private prisons is essential for two reasons: the
drive to generate profit gives private prison operators incentives to “cut corners
on staffing, medical care, and other essential services”;120 and private prisons
receive billions of taxpayer dollars from government contracts, reaping
hundreds of millions of dollars annually in profits from these contracts.121
Governments are obliged to protect prisoners from cruel and unusual
punishment.122 Additionally, taxpayers have the right to know that government
revenue is spent appropriately. In the private prison context, taxpayers deserve
to have an accounting of how and why private corporations are able to earn
such enormous profits by performing an inherently governmental function – a
function that, in the public context, produces no profit and is by its nature often
restricted to operate on the lowest possible budget.123
Amendment does not allow for inhumane prisons and “places restraints on prison officials,
who may not, for example, use excessive physical force against prisoners”).
118 See, e.g., TENN. CONST. art. I, § 32 (requiring “[t]hat the erection of safe prisons, the
inspection of prisons, and the humane treatment of prisoners, shall be provided for.”).
119 Fathi, supra note 5, at 1462; Geraghty & Velez, supra note 23, at 475 (“Proponents of
the [federal Private Prison Information Act] recognized that accountability must begin with
transparency. . . . The companies that run private prisons have maintained they are not
subject to FOIA because they are not public agencies.”).
120 Fathi, supra note 5, at 1461.
121 See supra Part I.B.
122 See supra note 117 and accompanying text.
123 See GIBBONS & KATZENBACH, supra note 61, at 99 (“[Public records] laws should
apply equally to private companies that operate prisons or jails under government
contract . . . .”); Geraghty & Velez, supra note 23, at 481 (“Another reason to insist on
transparency in the criminal justice system is the system’s enormous cost. We can no longer
afford to rely on prisons as the only solution to the problem of crime. Our current overreliance on prison has come with crippling financial tolls.”).

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The limited information available to the public concerning private prison
operations, revealed through litigation, investigative reporting, and oversight
entities, indicates that private prisons commonly suffer from a host of
operational issues that harm prisoners and deprive them of basic constitutional
rights.124 Information from various sources also indicates that the industry
often fails to provide a valuable return on investment for taxpayers.125
Although the industry certainly has some “incentive[] to develop innovative
corrections strategies and streamline [its] operations in order to win and retain
government contracts,”126 that motivation in and of itself has not sufficed to
ensure that the industry performs, by and large, on a level equivalent to many
governments.
To be fair, any true comparison between public and private facilities is
exceedingly difficult due to differences in populations and facility design.127
The limited information available from private prison companies renders such
comparisons nearly impossible:
The impact of reduced access to information is ubiquitous in the private
corrections industry. Private prison operators are exceedingly protective
of information regarding their operations . . . making informed analysis of
the policy successes (or failures) of correctional privatization difficult to
conduct. One recurring issue . . . is data on personnel recruitment and
retention.128
1.

Staffing Information

The difficulty of obtaining information from the private prison industry has
left a sparse record on crucial information concerning staffing levels and ratios
at private prisons.129 Though the industry claims publicly that its staffing levels
mirror those in government facilities, or alternatively that particular design
124

See infra Parts I.D.2.a-I.D.2.b.
See supra notes 90-112 and accompanying text.
126 Sigler, supra note 65, at 159.
127 See Christopher Petrella, The Color of Corporate Corrections, Part II: Contractual
Exemptions and the Overrepresentation of People of Color in Private Prisons, RADICAL
CRIMINOLOGY,
Winter
2014,
at
82,
available
at
http://journal.radicalcriminology.org/index.php/rc/article/download/44/pdf, archived at
http://perma.cc/6DAD-6ZF8 (describing how a study comparing private and public
prisoners is difficult because the design and population of the prisons differ greatly).
128 Raher, supra note 11, at 243.
129 See, e.g., id. at 243-47 (explaining that information on contract performance,
compensation of personnel, and number of staff in private prisons is not publicly available);
AM. CIVIL LIBERTIES UNION, supra note 36, at 40-41 (observing that requests for even the
most basic information about private prisons are not acknowledged); HARTNEY &
GLESMANN, supra note 63, at 15-16 (“[F]rom a financial perspective, it is in the contractor’s
best interest to minimize the reporting of data that could provide important—though
potentially negative—information about conditions of confinement, such as the number of
assaults that take place in the facility, incident reports, and grievances filed.”).
125

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aspects largely absent from government institutions allow for equivalent
treatment with fewer staff,130 reports in the media tend to indicate that these
claims are not well founded. The most recent comprehensive analysis took
place nearly fifteen years ago, finding private prisons use significantly fewer
staff than public ones.131
For staffing issues in particular, the industry regularly argues that its staffing
models should be granted a “trade secret” exemption from disclosure under
public records statutes.132 But, “shielding such information under a claim of
trade secret protection unnecessarily hinders independent evaluation of
whether the government has received a fair bargain under the contract.”133
Staffing is the most expensive component of a prison budget,134 and it is
arguably the most critical factor in ensuring institutional security, violence
prevention, and program success.135 Thus, a strong public interest in access to
such information exists, particularly when private companies operate prison
facilities at such enormous profits.
The private prison industry used to release information on staffing ratios and
turnover in an industry compendium, but it no longer does so.136
“Compensation and other personnel information is of particular interest when
measuring the effectiveness of correctional privatization,” and the public’s
inability to access such information deprives taxpayers of valuable information
about institutional security and the efficiency of government services.137
Because approximately sixty-five to seventy percent of a typical prison
budget is spent on labor, the key to a contractor’s profit margin lies in
controlling personnel costs. This is done either through reducing staff or
reducing compensation⎯an approach that the industry says it can do
without sacrificing quality of operations. But there is good reason to
doubt the private industry’s claims because compensation effects [sic]
staff turnover, which in turn impacts facility safety.138

130

See Facility Design and Construction, CORR. CORP. OF AM. (last visited July 20,
2014) http://cca.com/facility-design-and-construction, archived at http://perma.cc/D2SVG5AE.
131 AUSTIN & COVENTRY, supra note 107, at xi (“Privately operated facilities have a
significantly lower staffing level than publicly operated prisons . . . .”).
132 Raher, supra note 11, at 237-38 (arguing that the logic of trade secrets does not easily
apply to private prisons).
133 Id. at 238.
134 Id. at 244.
135 Id.
136 Id. at 244-45 (“Industry-wide staff-turnover data used to be included in a privately
published statistical compendium . . . [but] [m]ore recent editions . . . do not contain
turnover data.”).
137 Id. at 244.
138 Id. (footnotes omitted).

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In 2005, private prisons had an average of 4.7 inmates per staff member and
7.1 inmates per correctional officer, both ratios higher than the averages in
state prisons.139 These numbers are also higher, in some cases significantly
higher, than the ratios in five of the largest state prison systems in 2013.140 No
more recent nationwide figures exist,141 but Governor Jerry Brown of
California recently revealed some interesting, yet vague information as the
State continues to expand its use of private prisons. Brown plans to send
prisoners to out-of-state correctional facilities, mainly private ones, in response
to a depopulation order.142 The state’s official 2014-2015 budget indicates that
these private facilities have higher inmate-to-staff ratios than California
prisons.143 While California employs one individual for every two prisoners,
out-of-state facilities cited in the report only employ one staff person per
thirty-six inmates.144 The budget authors do not disclose which facilities were
analyzed, but this discrepancy is troubling both for advocates and for the
prisoners who may be sent to these private prisons.
The situation at the ICC provides an instructive example both of how
important proper staffing levels are for maintaining security, and how the
private prison industry is able to conceal staffing information, even when
under pressure from litigation to accurately report it. Guards at the facility
would permit, and sometimes encourage, prisoners to fight each other, often as
a means of maintaining internal discipline through violence, to the point where

139

JAMES STEPHAN, U.S. DEP’T OF JUSTICE, CENSUS OF STATE AND FEDERAL
CORRECTIONAL FACILITIES, 2005,
app.
at
tbl.15
(2008),
available
at
http://bjs.gov/content/pub/pdf/csfcf05.pdf, archived at http://perma.cc/9ESQ-FQP8 (listing
the average inmate per employee at 3.8 and inmate per correctional officer at 5.6 in public
prisons).
140 NATHAN JAMES, CONG. RESEARCH SERV., R42937, THE FEDERAL PRISON POPULATION
BUILDUP: OVERVIEW, POLICY CHANGES, ISSUES, AND OPTIONS 24-25 (2013), available at
https://www.fas.org/sgp/crs/misc/R42937.pdf, archived at http://perma.cc/XBZ-2EWX
(listing the ratios of inmates to staff and inmates to correctional officers in California,
Texas, Florida, New York, and Georgia).
141 The Bureau of Justice Statistics conducts this census every five to seven years and
publishes results approximately two to three years after the census itself. Thus, the next
figures may not be released before 2015. Census of State and Federal Adult Correctional
Facilities, U.S. DEP’T OF JUSTICE, archived at http://perma.cc/J4Z7-QP4C (last visited Jan.
18, 2014).
142 California is still in the process of reducing its prison population as a result of the
Supreme Court’s decision in Brown v. Plata, in which it found that the California prison
system violated prisoners’ constitutional rights because of deficiencies in medical care
stemming from overcrowded prisons. See Brown v. Plata, 131 S. Ct. 1910, 1947 (2011).
143 CAL. GOVERNOR’S BUDGET, BUDGET OF THE DEPARTMENT OF CORRECTIONS AND
REHABILITATION 6 (2014-2015), available at http://www.ebudget.ca.gov/201415/pdf/GovernorsBudget/5210.pdf, archived at http://perma.cc/C5P-LPQ2 (last visited Jan.
18, 2014).
144 Id. at 6.

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prisoners called the facility “gladiator school.”145 There were more assaults at
the facility in 2008 than at all other prisons in Idaho combined.146 Violence
continued to intensify throughout litigation brought by prisoners alleging
Eighth Amendment violations.147 The case settled in 2011, with CCA agreeing
to a two-year monitoring period to ensure compliance with certain staffing
benchmarks, designed to increase supervision and reduce violence at the
facility.148 By early 2013, enough information had surfaced indicating CCA’s
noncompliance with the staffing requirements that the Idaho state police began
an investigation.149 This investigation revealed that CCA had significantly
overrepresented staffing hours at the facility to the court, in violation of the
agreement.150 The plaintiffs successfully petitioned the court to hold CCA in
contempt, taking advantage of what may have been the only enforcement
mechanism able to prevent further harm and potential future litigation.151
In holding CCA in contempt of court for violating the staffing provisions of
the settlement agreement, the Idaho Supreme Court laid bare the company’s
lack of transparency in its provision of staffing records to the Plaintiffs:
[CCA] had compelling reasons to regularly and thoroughly check that
they were complying with the staffing requirements in the IDOC contract
and Settlement Agreement. They had promised the state to improve
record-keeping to make it easier to track staffing assignments. And yet it
is clear that there was a persistent failure to fill required mandatory
positions, along with a pattern of CCA staff falsifying rosters to make it
appear that all posts were filled. Defendants did not keep clear
records . . . .152
The Court chastised CCA for failing to rectify staffing deficiencies that
existed for years even prior to the settlement and about which senior staff had
been warned by multiple employees, and for withholding information from its
145 Amended Complaint at 2, Riggs v. Valdez, No. 1:09-cv-00010-BLW (D. Idaho Mar.
11, 2010), archived at http://perma.cc/MAT3-J3GQ.
146 See Rebecca Boone, CCA-Run Prison Remains Idaho’s Most Violent Lockup,
YAHOO! NEWS (Oct. 9, 2011), archived at http://perma.cc/KCY5-EVKG.
147 Nathaniel Hoffman, Assaults at ICC Accelerate, BOISE WEEKLY, June 2, 2010,
archived at http://perma.cc/R4HQ-D3G2 (“The prison, which is also mired in a pending
class-action prisoner civil rights lawsuit, reported a reduction in assaults in March, but
increased violent incidents in April and May, earning a rebuke from IDOC.”).
148 Rebecca Boone, Idaho Inmates Settle Prison Lawsuit, SPOKESMAN-REV., Sept. 20,
2011, archived at http://perma.cc/CCM8-BQNX (explaining that as a part of a settlement
agreement, CCA agreed to increase staffing, investigate all assaults, and make other changes
at the prison).
149 See Kelly v. Wengler, No. 1:11-cv-00185-EJL, 3 (Sept. 16, 2013) (Memorandum
Decision).
150 Id.
151 Id. at 9.
152 Id. at 2.

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1713

report to the court on its internal investigation of staffing deficiencies and
improperly portraying that report as “extensive.”153 Plaintiffs showed staffing
deficiencies were “a problem from the beginning of the settlement
period . . . .”154 The Court went on to extend the monitoring period for two
more years and appoint an independent monitor to check compliance.155
Public disclosure of staffing information is crucial for private prisons –
governments are the industry’s only consumers; “this private interest [in
protecting staffing information] is almost always outweighed by public
disclosure, except in cases of bona fide sensitive security information (e.g.,
facility architectural drawings).”156 The industry’s ability to restrict access to
staffing information in response to public records requests and litigation has
hampered the efforts of scholars and advocates to study the industry and its
performance.157
2.

Conditions, Treatment, and Security

Staffing implicates other significant concerns, including rates of violence
among prisoners and between prisoners and staff; security measures, which can
reduce escapes; and responsiveness to prisoners’ health needs. While staffing
levels at private prisons are arguably the most important information that the
public could gain access to through broader application of public records laws,
the industry has likewise eluded scrutiny in other areas. The federal
government last comprehensively analyzed the performance of the private
prison industry more than a decade ago.158 Further, the majority of private
prison beds are not contracted to the federal government,159 so oversight must
come primarily from state and local governments, which have relatively
limited resources. Difficulties in gaining access to information from private
prisons have severely limited analysis of the industry’s performance.
a.

Rates of Assaults, Escapes, and Other Security Metrics

Given the importance of staffing to all aspects of prison operations, reports
of understaffing at private prisons implicate far more than a straightforward
computation of man-hours to determine contract or settlement compliance.
153 Id. at 7-9, 11 (discussing CCA’s failures prior to and following the settlement
agreement).
154 Id. at 14.
155 Id. at 20-21.
156 Raher, supra note 11, at 237-38.
157 Id. at 238 (“To the extent that such data is kept secret due to the inapplicability of
public records statutes to private contractors, policymakers will never receive adequate
information to determine the operational success or failure of the prison privatization
experiment.”).
158 See generally CAMP & GAES, supra note 27.
159 GUERINO ET AL., supra note 32, at 31 (indicating that only 16.1 percent of all federal
prisoners are housed in private facilities).

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As of 1999, the rate of escape from private prisons was substantially higher
than from Bureau of Prisons (“BOP”) prisons. In fact, “[t]aken together,
private prisons had 18 inmates escape from inside of secure prisons . . . and 5
inmates [escaped during transfer],” while only 1 prisoner had escaped from a
secure BOP prison in the past three years, despite the fact that BOP prisons
house 17% more prisoners.160 Unfortunately, more recent comprehensive
information is not available. Escapes from prisons of all sorts are rare, but
stories about violence and security issues in private prisons from lawsuits and
news reports seem to indicate that security remains a significant concern at
many private facilities. One high-profile incident in 2010 involved two
convicted murderers and a third man escaping a private prison in Arizona
where staff routinely ignored alarms.161 The prison took hours to notify state
officials; meanwhile, the escapees carjacked and murdered an elderly couple,
eluding capture for weeks.162 High staff turnover and limited training were
cited in a subsequent audit as factors contributing to the escape.163
CCA’s management of ICC provides another example of the relationship
between inadequate prison staffing and violence. In settling the case, the
parties agreed to a staffing schedule, recognizing the vital role of staffing in
facility management.164 Understaffed prisons are more difficult to manage. The
more prisoners any particular guard must supervise, the less attention that
guard can pay to any individual prisoner. Arguably, ICC was rife with violence
precisely because staffing was inadequate. Guards used gangs to establish and
keep order because they could not do so themselves.165
Available information indicates that rates of violence, both among inmates
and between inmates and staff, may be higher at private prisons than
government facilities. An independent state commission in Ohio recently
found that rates of violence soared after it sold a state prison to a private
company.166 Audits of the facility following the sale revealed that violence
160

CAMP & GAES, supra note 27, at 7.
Ortega, supra note 104.
162 Id.
163 Id.
164 See Settlement Agreement at 4, Kelly v. Wengler, No. 1:11-cv-00185-EJL (D. Idaho
Sept. 20, 2011), archived at http://perma.cc/WH6F-NL32 (listing the requirements of the
settlement agreement, including CCA agreeing to comply with a staffing pattern in order to
enhance overall security at the facility).
165 Idaho: Federal Court Unseals Pleadings, Holds CCA in Contempt for Violating
Settlement Agreement, PRISON LEGAL NEWS (Oct. 2013), archived at http://perma.cc/FYT6GTYU (“The underlying class-action lawsuit, litigated by the American Civil Liberties
Union (ACLU), alleged excessive levels of violence at ICC that were in large part due to
understaffing.”).
166 GREGORY GEISLER, CORR. INST. INSPECTION COMM., LAKE ERIE CORRECTIONAL
INSTITUTION
34-36
(2013),
available
at
http://big.assets.huffingtonpost.com/lakeeriereport.pdf, archived at http://perma.cc/4DLPUD7F; SAUL, supra note 101, at 13 (showing that the number of assaults at Lake Erie
161

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among inmates and between inmates and staff increased significantly under
private control.167 Information on rates of violence at private facilities is
generally very difficult to ascertain given the industry’s exemption from public
records requirements. However, a 2011 investigation by National Public Radio
concluded that prisoners in private facilities are more likely to suffer violence
at the hands of guards or other prisoners than prisoners in government
facilities.168
These rates of violence and other security issues are far more troubling than
they appear at first glance. Most offenders housed in private prisons are
classified as lower custody and are generally less costly to house relative to the
general prison population.169 Logically, the rates of assaults, escapes, and other
security issues should be lower among this population; the nature of these
prisoners’ classifications demonstrates their lower relative risk to institutional
security.170 Indications that these sorts of security concerns appear at a higher
rate in many private prisons highlight the need for greater oversight of industry
operations.
b.

Medical Care

Medical care, like staffing, comprises a substantial percentage of a prison’s
budget and can impact prisoners’ rights even more directly than staffing issues.
Deficient medical care violates prisoners’ rights under the Eighth Amendment
Correctional Institution increased significantly in 2012); Chris Kirkham, Lake Erie Prison
Warden Replaced After Reports Detail Deteriorating Conditions at Private Prison,
HUFFINGTON POST, Mar. 27, 2013, archived at http://perma.cc/Y6DK-UUC3 (explaining
that Corrections Corporation of America took over the Lake Erie Correctional Institution in
January 2012).
167 SAUL, supra note 101, at 13 (discussing the number of inmate-on-inmate assaults and
the number of inmate-on-guard assaults).
168 Who Benefits When a Private Prison Comes to Town?, NAT’L PUBLIC RADIO (Nov. 5,
2011), archived at http://perma.cc/WBL2-F6PT (“[S]ome studies have found that the level
of violence is actually higher in private prisons.”).
169 KEVIN PRANIS, PRIVATE CORR. INST., COST-SAVINGS OR COST-SHIFTING: THE FISCAL
IMPACT OF PRISON PRIVATIZATION IN ARIZONA 3 (2004), available at
http://www.justicestrategies.org/sites/default/files/publications/Cost-saving_or_costshifting.pdf, archived at http://perma.cc/AQ4Q-CTVN (“Prisoners housed in private
facilities were far less likely to be convicted of serious or violent offenses, or to have high
medical and mental health needs, than prisoners housed in public facilities used to generate
cost comparisons.”); see also PEW CHARITABLE TRUSTS, ONE IN 100: BEHIND BARS IN
AMERICA
2008,
at
12
(2008),
available
at
http://www.pewtrusts.org/~/media/legacy/uploadedfiles/wwwpewtrustsorg/reports/sentencin
g_and_corrections/onein100pdf.pdf, archived at http://perma.cc/5EJZ-U895 (“[M]edical
care is one of the principal cost drivers in corrections budgets today.”).
170 See Malcolm M. Feely & Van Swearingen, The Prison Conditions Cases and the
Bureaucratization of American Corrections, 24 PACE L. REV. 433, 464 (2004) (“[I]nmates
are now assigned to specific institutions, units, and cells according to their propensity for
violence, length of sentence, criminal history, and the like.”).

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and often leads to § 1983 litigation against prison officials.171 Many private
prisons typically house prisoners with fewer and less costly medical needs, and
despite the importance of providing medical treatment, private medical care
companies have struggled to deliver their services at the costs required by
contracts.172
A report by the American Friends Service Committee details the disturbing
history of medical care privatization in Arizona. A 2010 request for proposals
(“RFP”) required bidding companies to provide services at a reduced cost but
received no viable bids on the contract.173 Following this failed RFP, the state
issued a second, without a cost savings requirement.174 Wexford Correctional
Services bid on and won this contract – despite mainstream reports of its poor
track record – and began providing “treatment” in 2012.175 Within the first six
months, more than 100 prisoners were exposed to hepatitis C, resulting in a
$10,000 fine; Wexford itself declared the Arizona Department of Corrections’
medical care system “broken,” and the state severed its contract.176
Facing litigation over deficient medical care, the state turned to Corizon, a
private correctional healthcare provider, to manage its healthcare.177 Rather
than improving, however, medical care appears to have deteriorated further
under Corizon’s control.178 More deaths were reported in Arizona prisons after
171

See Estelle v. Gamble, 429 U.S. 97, 103-05 (1976) (explaining that the government
has an “obligation to provide medical care for those whom it is punishing by incarceration,”
and that “deliberate indifference to serious medical needs of prisoners constitutes the
‘unnecessary and wanton infliction of pain,’ proscribed by the Eighth Amendment”)
(quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)) (citation omitted); see also Brown v.
Plata, 131 S. Ct. 1910, 1947 (2011) (finding extreme overcrowding was the primary and
irremediable cause of medical care deficiencies resulting in Eighth Amendment violations,
and upholding an injunction ordering drastic population reduction).
172 PRANIS, supra note 169 at 3 (“Prisoners housed in private facilities were far less likely
. . . to have high medical and mental health needs, than prisoners housed in public
facilities . . . .”); Petrella, supra note 127, at 83-85 (describing private prisons’ treatment of
prisoners with medical conditions and explaining how private prisons often exempt
themselves from housing prisoners with severe medical conditions).
173 See CAROLINE ISAACS, AM. FRIENDS SERV. COMM., DEATH YARDS: CONTINUING
PROBLEMS WITH ARIZONA’S CORRECTIONAL HEALTH CARE 7-8 (Oct. 2013), available at
http://www.afsc.org/sites/afsc.civicactions.net/files/documents/DeathYardsFINAL.pdf,
archived at http://perma.cc/ST7E-R2W9 (discussing the bidding requirement; but few, if
any, bids were received).
174 Id. at 8 (“A second RFP was issued in December of 2011, stipulating that the contract
be awarded to the ‘most qualified bidder.’”).
175 Id. at 8-9 (“The contract was finally awarded to Wexford Health Sources Inc. in July
of 2012. It is unclear why this particular corporation was chosen, given their well-published
history of problems in other states.”).
176 Id. at 8-10.
177 Id. at 10.
178 Id. at 13-16 (“According to reports from prison medical staff, inmates, and their
families, the quality of medical care . . . has actually gotten worse.”).

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litigation had commenced than in the years prior, including suicides, which
occur at a rate sixty percent higher than the national average.179 One facility,
the Tucson Complex, which deals with prisoners who have complex health
issues, has seen the greatest spike in its death toll, possibly reflecting years of
mismanaging chronic conditions.180 An advocacy organization representing
Arizona prisoners noticed a significant increase in its complaints regarding
medical care after the state began using private companies to provide
treatment.181 Given the difficulties in obtaining information from private
companies, there seems to be little benefit and a rather substantial disadvantage
to privatizing medical care without saving money.
c.

Programs and Services

Ensuring successful outcomes for those released from correctional facilities
will have substantial benefits for society as a component of an efficient and
comprehensive criminal justice system. Access to programs that can provide
education, life skills, and mechanisms for coping with trauma or addiction can
have many positive impacts on individual prisoner outcomes and crime rates
overall. Unfortunately, due to extremely limited information, little research has
focused on the availability or efficacy of programs offered to prisoners in
private facilities. To the private prison industry’s credit, the last comprehensive
national figures indicate that the industry widely offers educational, vocational,
and drug treatment programs, and prisoners in private facilities may have
greater access to such benefits than their counterparts in government prisons.182
But this information is nearly fifteen years old.183 Current information relating
to private prisons is incomplete at best, and given the industry’s dramatic
expansion over the past two decades, more current information is needed in
order to properly evaluate the accessibility and quality of private prison
programming. One recent study, comparing public and private facilities in
Minnesota and their effects on recidivism, found that the state private prison
offered fewer of these types of programs and services to prisoners.184
179 Id. at 13 (“[T]here were 37 deaths in Arizona prisons between 2011 and 2012.
Nineteen of them were suicides—a rate of suicide 60% higher than the national average.”).
180 Id. at 13-14 (observing that the Tucson Complex, which houses prisoners with
ongoing medical and mental health needs, reported 15 deaths, which may be a result of the
“cumulative effect of the poor and worsening quality of medical care over the past three
years”).
181 Id. at 13 (observing that since the prison began using private medical services, “the
American Friends Service Committee has observed a marked increase in the number of
letters from prisoners and phone calls and emails from family members complaining of
issues with medical care in state prisons”).
182 AUSTIN & COVENTRY, supra note 107, at 43-45, 55 (discussing “the impressive record
of programming activities” at private institutions compared to those at private prisons).
183 Id. at ix.
184 See Grant Duwe & Valerie Clarke, The Effects of Private Prison Confinement on
Offender Recidivism: Evidence from Minnesota, 38 CRIM. JUST. REV. 375, 389 (2013) (“We

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The authors of this study further found that prisoners in private facilities
may be more likely to re-offend within four years of release than those housed
in public prisons.185 The authors noted that research on recidivism rates from
public and private prisons is extremely limited.186 Of the few studies that exist,
recent ones have compared larger numbers of prisoners than early studies, and
they have indicated that private prisons may have a moderate negative effect
on offender recidivism.187 Even rarer are cost comparisons that accurately
account for differences in offender populations housed at the facilities, but the
available information indicates that private prisons may also be more
expensive than government operated facilities.188 Without passing much
judgment on the exact causes, the authors essentially found that longer stays in
private prisons may increase one’s chances of committing new offenses upon
release.189 Lower visitation rates at private prisons and less prisoner access to
rehabilitation programs appeared to correlate with higher rates of recidivism.190
Further, in focusing on a private prison in Minnesota that houses an offender
population that should be cheaper than the mean, the authors found that the
state did not save any appreciable amount of money by contracting with a
private prison company.191 Most troubling, however, was the indication that
“private prisons produce slightly worse recidivism outcomes among the

posit that the recidivism results observed for private prisons may be attributable to a lack of
visitation and rehabilitative programming in comparison to state-operated facilities.”).
185 Id. at 378 (citing a variety of studies with mixed findings; one conducted by Spivak
and Sharp in 2008 found that “in most of the models they tested, inmates released from
private prisons were more likely to return to prison compared to inmates released from
public prisons”).
186 Id. at 376-78 (explaining that studies comparing recidivism rates between private and
public prisons have not received enough scholarly attention).
187 Id. (“In the most recent study that compared the recidivism rates between public and
private prisons, Spivak and Sharp (2008) found that inmates released from private prisons
had higher rates of recidivism compared to releases from public prisons.”).
188 Id. at 378 (“None of the above studies compared the costs of private prisons to that of
public prisons.”); PRANIS, supra note 169, at 3 (“[I]t is impossible using the available
evidence [to determine] whether privatization has delivered cost-savings or merely shifted
costs from the private sector onto the public sector.”).
189 Duwe & Clarke, supra note 184, at 389 (“Total private prison time served (i.e., 12
months or more) significantly increased the hazard of reconviction . . . .”).
190 Id. at 389 (“We posit that the recidivism results observed for private prisons may be
attributable to a lack of visitation and rehabilitative programming in comparison to stateoperated facilities.”).
191 See id. at 389-90 (“As such, [Prairie Correctional Facility (“PCF”)] did not
incarcerate these offenders less expensively than the [Minnesota Department of Corrections
(“MnDOC”)]. Yet, due to PCF eligibility criteria, the MnDOC confined offenders who are,
compared to those placed at PCF, generally more expensive to incarcerate (i.e., older, less
healthy, and more likely to have behavioral problems).”).

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healthiest and best-behaved inmates for the same amount of money [as staterun prisons].”192
Like higher rates of assault and escape in private prisons, higher rates of
recidivism for prisoners returning from private facilities should raise
significant concern. Many prisoners come out of private facilities more likely
to re-offend than those housed in public facilities.193 Because the vast majority
of prisoners will eventually be released into society, it behooves every
government to ensure these individuals have the tools to refrain from crime
and become productive citizens.194 The limited access to information from
private prisons frustrates attempts to generate informed analysis of industry
performance. Stories of prisoner “disturbances” over issues involving abuse,195
medical care,196 and substandard conditions197 in private facilities should raise
concern among governments that contract with private prison companies.
E.

The Need for Greater Transparency and Accountability in Immigration
Detention

The federal government has drastically expanded its use of immigration
detention in the past decade.198 About 32,000 immigrants are detained on any
given day, and more than 400,000 cycle through some form of detention

192

Id. at 391.
Duwe & Clarke, supra note 184, at 389-91 (finding that “private prison incarceration
was associated with a greater risk of recidivism,” and charting data indicating that prisoners
in private prisons are more likely to re-offend than public prisoners following release).
194 Correctional
Facts and Figures, AM. CORR. ASS’N, http://archiveorg.com/page/3547233/2014-01-17/http://www.aca.org/government/population.asp,
archived at http://perma.cc/VB6E-RGGD (last visited Jan. 18, 2014) (“At least 95 percent
of those currently incarcerated will be released from custody.”).
195 Seth Freed Wessler, What Started a Mississippi Prison Riot? Depends on Who You
Ask,
COLORLINES,
May
22,
2012,
http://colorlines.com/archives/2012/05/corrections_corp_of_america_prison_riot_mississipp
i.html, archived at http://perma.cc/53HZ-DHM9 (describing a fight at a Mississippi jail in
which the prisoners explained that the violence was a result of abuse at the prison).
196 Adriana Gomez Licon, Inmate’s Death Focus of Lawsuit, EL PASO TIMES, Dec. 9,
2010, archived at http://perma.cc/C7KR-AHST (“The ACLU and the lawyers claim that
prison administrators and health workers denied appropriate medical care to Galindo, 32,
who suffered from epilepsy. Instead, administrators segregated him from the inmate
population in solitary confinement for complaining of being sick . . . .”).
197 GRASSROOTS LEADERSHIP, supra note 24, at 9 (“In many cases, protests have been
explicitly aimed at the substandard conditions in CCA’s prisons . . . . In July 2004, guards at
Colorado’s Crowley County Correctional Facility ignored prisoners’ requests to speak with
the warden over conditions, resulting in a quickly escalating riot with over 400 prisoners.
Prisoners began to destroy property, setting fires and smashing furniture, and using steel
weights and dumbbells from the exercise yard to smash doors, windows, and walls.”).
198 DETENTION WATCH NETWORK, supra note 31, at 1 (“Since the late 1990’s, the number
of people held in immigration detention has exploded.”).
193

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annually in the United States.199 Private prison companies have helped the
government accommodate this rapidly growing population.200 The industry’s
ability to quickly expand bed capacity made it an attractive partner for both
Immigration and Customs Enforcement (“ICE”) and the U.S. Marshals
Service.201 Private prisons now house nearly half of the immigration detainees
in the United States.202
Immigration detention is still widely seen as the biggest potential growth
market for private prisons, despite its already huge market share.203 In 2013,
the industry benefitted from an extensive lobbying and campaign financing
effort when Congress passed a mandatory quota for immigration detention
beds.204 Up to two-thirds of immigration detainees on a given day are held by
ICE, which contracts extensively with CCA and GEO.205 Almost a quarter of
CCA’s revenue comes from incarcerating non-citizens.206 Despite claims to the
199 NAT’L IMMIGRATION FORUM, THE MATH OF IMMIGRATION DETENTION 3 (2013),
archived at http://perma.cc/X2F8-62YY.
200 GREENE & MAZÓN, supra note 27, at 15-20 (discussing how private prisons have
housed more illegal immigrants since 9/11).
201 Id. (explaining that private prisons were able to increase their number of beds in order
to accommodate individuals that are to be detained).
202 DETENTION WATCH NETWORK, supra note 31, at 1 (“In total, private corporations
administer 49% of beds.”).
203 See, e.g., Raher, supra note 11, at 224-28 (stating that ICE continues to utilize “a
growing network of private facilities”); Lee Fang, How Private Prisons Game the
Immigration System, THE NATION, Feb. 27, 2013, archived at http://perma.cc/73M2-JAN2
(detailing extensive lobbying by the industry, particularly of congresspersons likely to
support strict immigration legislation that could provide a substantial expansion of
immigration detention).
204 William Selway & Margaret Newkirk, Congress Mandates Jail Beds for 34,000
Immigrants as Private Prisons Profit, BLOOMBERG, Sept. 24, 2013, archived at
http://perma.cc/UBC6-H6CZ (“Congress has pressed to ensure the beds are full, and
lawmakers say it forces U.S. Immigration and Customs Enforcement to find and deport the
millions who are in the country illegally.”); Patrick O’Connor, Private Prisons are Likely to
Benefit from Rewrite of Immigration Laws, WALL ST. J., July 5, 2013, archived at
http://perma.cc/69G8-EYED (detailing political influence exerted by the private prison
industry vying for up to 80% of an additional 14,000 inmates and $1.6 billion in revenue,
including how “[t]he two companies have spent millions lobbying Congress and the
administration on prison-related issues . . . [in] the 2012 election season, CCA and its
executives contributed more than $950,000 in campaign donations to governors, candidates
for federal office and the two main political parties . . . [t]he GEO Group and its executives
contributed $418,500”).
205 See id. (indicating that GEO, CCA, “and other for-profit prison operators, hold[]
almost two-thirds of all immigrants detained each day in federally funded prisons as they
face deportation”).
206 Fang, supra note 203 (“Last year, [CCA] brought in $1.7 billion in revenues, about a
quarter of which came from contracts with the Immigration and Customs Enforcement
(ICE) and federal Bureau of Prisons to incarcerate non-citizens in the United States.”).

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contrary, lobbying disclosure forms reveal that the industry spends tens of
millions of dollars annually (essentially, taxpayer dollars) lobbying, including
on immigration reform.207
Critics have argued that the imposition of a bed quota detracts from
meaningful reform and focuses precious resources on arresting immigrants,
primarily those who only commit status offenses.208 Reform may be
particularly pressing for immigration detainees; some of the most egregious
abuses and violations within the realm of private prisons have affected
incarcerated immigrants.209 Although immigration detention facilities hold
mostly those charged with or convicted of status offenses, rather than criminal
offenses, the facilities used to house them largely resemble prisons.210
Conditions at immigration detention facilities became so dire and unwieldy
that, in 2009, President Obama promised comprehensive reform of the
system.211 Despite this promise, significant systemic problems with conditions
still exist in many facilities.212 Increasing public access to information from
207 Id. (stating that CCA and other private prison companies spent roughly $45 million
over the last ten years to influence state and federal governments).
208 William Selway & Margaret Newkirk, Congress’s Illegal-Immigration Detention
Quota Costs $2 Billion a Year, BLOOMBERG BUS. WEEK, Sept. 26, 2013, archived at
http://perma.cc/8AVP-4GWN (“Without the mandate the agency could free low-risk
offenders and put them on supervised release to ensure that detainees show up in court for
deportation hearings . . . [w]e ought to be detaining according to our priorities, according to
public-safety threats, level of offense, and the like . . . .”).
209 See HEARTLAND ALLIANCE NAT’L IMMIGRANT JUSTICE CTR. ET AL., YEAR ONE REPORT
CARD: HUMAN RIGHTS & THE OBAMA ADMINISTRATION’S IMMIGRATION DETENTION
REFORMS
14
(Oct.
6,
2010),
available
at
http://www.lawolaw.org/images/stories/icereportcard2010.pdf,
archived
at
http://perma.cc/A36E-CWS2 (explaining that a guard had sexually assaulted females in an
ICE facility, and that such repeated assaults indicate a clear failure by ICE to monitor the
facilities); NAT’L IMMIGRATION FORUM, supra note 199, at 7-9 (“The influence of private
prison corporations is even more troubling given persistent and numerous complaints by
detainees held at private facilities, including sexual abuse, inadequate access to translators,
prolonged detention, and insufficient medical treatment.” (footnote omitted)).
210 See DETENTION WATCH NETWORK, supra note 31, at 1-2 (“For immigrants, this
expansion has meant weeks, months, and sometimes years in jails often under inhumane
conditions, with little or no access to counsel, to family, or to the outside world.”).
211 Nina Bernstein, U.S. To Reform Policy on Detention for Immigrants, N.Y. TIMES,
Aug. 5, 2009, archived at http://perma.cc/Z5LB-RFBU (“The Obama administration intends
to announce an ambitious plan on Thursday to overhaul the much-criticized way the nation
detains immigration violators, trying to transform it from a patchwork of jail and prison
cells to what its new chief called a ‘truly civil detention system.’”).
212 See generally HEARTLAND ALLIANCE NAT’L IMMIGRANT JUSTICE CTR. ET AL., supra
note 209; Albor Ruiz, Even as President Obama Promises U.S. Immigration Detention
Reform, Human Rights Atrocities in Detention Jails Persist, N.Y. DAILY NEWS, Nov. 30,
2012, (“Despite Obama’s promise in October 2009 to radically reform the system, little has
changed: Immigration and Customs Enforcement (ICE) continues to subcontract the

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private immigration detention facilities, possibly through enacting the Private
Prison Information Act,213 could help advocates work to make this promise a
reality.
If nothing else, available evidence indicates that existing forms of private
prison oversight have been ineffective in many instances to ensure fair
treatment and contract compliance. Increasing public access to information
would permit greater scrutiny of an industry that receives billions of dollars
annually in government revenue, but is largely exempt from disclosure
requirements by which government entities performing the same work must
abide.
II.

THE STATE OF PRIVATE PRISON LAW AND PUBLIC RECORD COMPLIANCE

Government prisons are required to comply with requests by the public for
access to information under public records laws. Private prisons are typically
not so bound, in part because most state courts have yet to even face the
question of whether private prisons should be considered the functional
equivalents of government entities. Applying public records laws to private
prison companies will directly enhance industry transparency by allowing the
public, particularly the media, to obtain vital operational information.214
Transparency, in turn, should translate into greater accountability for the
industry.215
A.

Most States and the Federal Government: Not Expressly Applied
[Public records laws] spring[] from one of our most essential principles: a
democracy works best when the people have all the information that the
security of the [n]ation permits. No one should be able to pull curtains of
secrecy around decisions which can be revealed without injury to the
public interest.216

These laws are often utilized by members of the press and private
organizations, who report on the documents produced or use them in
detention of individuals to county jails and private detention centers and to hold in them
more than 400,000 immigrants a year across the country.”).
213 H.R. 74, 112th Cong. (2011), archived at http://perma.cc/E75K-R9T7; see also infra
Part III.B (explaining the proposed reform for private prisons contracting with the federal
government).
214 See Feiser, supra note 8, at 25-27 (“The public should provide the necessary oversight
by classifying private operators as agencies and their records as agency records, for the
purposes of the FOIA.”).
215 See id. (“[P]rivate prison operators should at least be as accountable as government
officials . . . [t]he FOIA, if applied to private contractors, would help accomplish this
oversight.”).
216 Feiser, supra note 8, at 22 (quoting Presidential Statement on Signing the Freedom of
Information Act, 2 WEEKLY COMP. PRES. DOC. 887, 895 (July 11, 1966)).

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advocacy.217 Public access to information is crucial to effective government
operations and democratic functioning.218
Public records laws have been especially powerful tools for prison reform
advocates, who struggle to bring change to large institutions housing some of
society’s least popular or sympathetic individuals.219 As legislative and judicial
actions weakened more traditional forms of prison oversight,220 states
increasingly relied on private prisons to help manage burgeoning prison
populations. In almost every jurisdiction in which they operate, private prisons
have not been expressly required to comply with public records laws,
depriving the public of a vital source of oversight for an increasingly relied
upon segment of correctional systems.221
In reviewing the transparency of the private prison industry generally, the
National Council on Crime and Delinquency noted that “private prison
contractors, unlike government agencies, are not typically required to report on
the inmates housed in privately run prisons, do not make these data easily
accessible to monitors, or are even aware of the documentation and reporting
requirements intrinsic to the operation of public agencies.”222 Private prisons
effectively elude two of the traditional oversight mechanisms: contract
enforcement and public access to information.223
B.

Private Prisons as Functional Equivalents of Government Agencies

Arguments could be made in favor of increasing public access to private
prison information by focusing on the nature of either the function performed
or the records held.224 While both approaches could prove valuable in this
context, because the industry arguably performs such a core governmental
function, requiring compliance through a functional equivalency or agency test
may be the preferred route. Such a requirement would symbolically connect
the industry to the government, and avoid potential loopholes that could be
created in a regime focusing on specific types of records. Two states – Florida
and Tennessee – have expressly held that private entities performing core
217

Id. at 24-27.
Stojkovic, supra note 21, at 1479, 1488-89 (“The essence of democracy is that
sunlight can get into institutional settings, especially those that have a history of being
hidden.”).
219 See Fathi, supra note 5, at 1461-62 (“In particular, the prospect of unannounced visits
and comprehensive record reviews by an independent agency would be a powerful deterrent
to prisoner abuse and mistreatment as well as other forms of misconduct.”).
220 See supra Parts I.C-I.D.
221
Raher, supra note 11, at 240-47 (detailing the private prison industry’s refusal to
comply with open records requests, hostility to such requests as reflected in litigation, and
the consequences of limiting access to operational and personnel information).
222 HARTNEY & GLESMANN, supra note 63, at 15-16.
223
See supra Part I.A.
224 See Feiser, supra note 8, at 59-63.
218

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governmental functions relating to incarceration must comply with public
records requests. The “functional equivalency” tests utilized by litigants in
these states offer valuable models for advocates to challenge the inapplicability
of public records statutes to private prison companies.
1.

Florida

Florida was the first state to expressly apply its public records law to private
prisons, when more than two decades ago a newspaper company sued CCA for
refusing to produce records under the state’s public records law. In Times
Publishing Company v. Corrections Corporation of America,225 the court used
a functional equivalency determination to find that CCA performed an
inherently governmental function on behalf of Hernando County.226 In a
decision that included detailed findings of fact, the court found that the state
public records law’s applicability to “‘any . . . private agency, person,
partnership, corporation, or business entity acting on behalf of any public
agency’” bound CCA to disclose records under the law.227
The court could not “conceive of a function more integrally related to the
purpose and responsibility of a county government than that of holding in
custody, caring for, and controlling persons arrested by county and other duly
authorized law enforcement authorities and persons serving post-conviction
sentences.”228 In its analysis, the court relied upon a “‘totality of the factors’”
test to find that CCA’s relationship with the county was so closely aligned that
the company acted on behalf of the county for purposes of the public records
law.229
The court specifically found that CCA performed a function inherent to
government operations by incarcerating individuals, and that its contract with
the county demonstrated a “significant level of involvement.”230 This
involvement, which included allowing CCA to use county-owned land, sharing
resources with CCA, and allocating tax dollars to CCA, created a situation in
which CCA was “vested with stewardship and control over both a substantial
amount of public assets and the County’s prisoners.”231
Also significant to the analysis were the similarity of employees’
responsibilities to the operations government employees would perform, and
the complex nature of the contract CCA signed – in which the county gave

225

No. 91-429 CA 01, 1991 WL 384136 (Fla. Cir. Ct. Dec. 6, 1991), aff’d 611 So. 2d
532 (Fla. Dist. Ct. App. 1993) (per curiam).
226 Id.
227 Id. at *1 (quoting Fla. Stat. § 119.011(2) (1989) (emphasis removed)).
228 Id. at *2.
229 Id. (quoting Sarasota Herald-Tribune Co. v. Community Health Corp., 582 So. 2d 730
(Fla. Dist. Ct. App. 1991)).
230 Id.
231 Id.

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CCA powers that normally inhere in government bodies.232 The level of
involvement between CCA and the county was substantial enough that the
court considered the remaining factors in the test insufficient “to outweigh the
other factors” showing CCA performed an inherently governmental
function.233 Although it would take a few years, subsequent decisions from
Florida helped clarify the scope of that state’s public records law as it pertains
to private prisons.
The second such decision, Prison Health Services, Inc. v. Lakeland Ledger
Publishing Company,234 came in 1998 when Prison Health Services (“PHS”),
which provided “total health care services” for inmates of Polk County through
a contract with the sheriff, refused to comply with public records requests.235
After being sued for noncompliance, PHS was required to disclose information
relating to prisoner health care.236 However, the scope of this decision’s
application was limited because PHS had agreed to such compliance in its
contract with the sheriff.237 While governments could include compliance
provisions in their contracts with private prison companies, many
arrangements seem to omit this requirement.238
More recently, Panno v. Liberty Behavioral Health Corporation239 went
beyond the holding in Prison Health Services to require a private corporation
that had not expressly agreed to comply with public records laws in its contract
to respond to a prisoner’s public records requests.240 The court relied upon a
nine-part test, developed shortly after Times Publishing, to determine whether
the defendant, Liberty Behavioral Health Corp., acted as the functional
equivalent of a government agency:
1) the level of public funding; 2) commingling of funds; 3) whether the
activity was conducted on publicly owned property; 4) whether services
contracted for are an integral part of the public agency’s chosen decisionmaking process; 5) whether the private entity is performing a
governmental function or a function which the public agency otherwise
would perform; 6) the extent of the public agency’s involvement with,
regulation of, or control over the private entity; 7) whether the private
232

Id. at *3-4.
Id. at *4.
234 718 So. 2d 204 (Fla. Dist. Ct. App. 1998).
235 Id. at 205.
236 Id.
237 Id.
238 See HARTNEY & GLESMANN, supra note 63, at 15 (“The experience of various
jurisdictions has demonstrated that contracts executed with private prison companies are
often poorly drafted and may minimize or omit key provisions, which can lead to numerous
problems including inadequate contractor performance, absence of transparency, abuse of
prisoner rights, and an overall lack of accountability.”).
239 No. 2005-CA-420; 2005-CA-1117 (Fla. Cir. Ct. Nov. 13, 2006).
240
Id. at *5, *11.
233

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entity was created by the public agency; 8) whether the public agency has
a substantial financial interest in the private entity; and 9) for who’s
benefit the private entity is functioning.241
Many of the factors weighed in favor of finding that Liberty Behavioral
Health Corp. essentially acted as a government agency.242 Of particular
relevance among these factors were the level of public funding and the extent
to which the private entity performed “a governmental function or a function
which the public agency would otherwise perform.”243 Because the state’s
Department of Children and Families “delegated a responsibility that it
otherwise would have assumed,” the private company running the civil
commitment center “perform[s] a governmental function.”244 The court went
on to require the private contractor to disclose a closed litigation file to the
prisoner, along with information on staffing levels at the facility.245
Finally, Prison Legal News (“PLN”), a non-profit human rights news
publication that focuses on the U.S. prison system and especially prisoners’
legal rights, reached a settlement in 2010 with GEO regarding a public records
request with which the company had repeatedly refused to comply.246 The
court ordered the company to produce litigation-related documents pursuant to
PLN’s public records request four times before it finally complied, on the eve
of a summary judgment hearing.247 After GEO dragged out the litigation for
five years, the court ordered the company to pay $40,000 in attorneys’ fees.248
Even under these rulings, the types of records that the public can access
using public records requests might be limited by statutory or privacy
protections. The private prison industry has invoked trade secret exemptions to
prevent the disclosure of certain types of information, even where the industry
is ostensibly bound by public records laws.249 So while private prisons may be
considered government agencies for purposes of public records laws, their
status could offer more protection from disclosure than the government could
take advantage of. Such an inherent limitation on the efficacy of oversight
would have to be addressed through broader legislative reform targeting
241 Id. at *3 (citing News and Sun-Sentinel Co. v. Scwhab, Twitty, & Hanser
Architectural Group, Inc., 596 So. 2d 1029 (Fla. 1992)).
242 Id. at *6 (“Based on the above analysis [involving the nine factors], the Court finds
that Liberty acted on behalf of DCF and is, thus, subject to the Public Records Act.”).
243 Id. at *3, *5.
244 Id. at *5.
245 Id. at *11.
246 Press Release, Prison Legal News, PLN Prevails in Public Records Suit Against GEO
Group (June 15, 2010), archived at http://perma.cc/RMX2-CN9A.
247 Id.
248 Prison Legal News v. The GEO Group, Inc., No. 50 2005 CA 011195 AA (Fl. Cir. Ct.
Apr. 16, 2010), archived at http://perma.cc/3DWT-SRDL.
249 Raher, supra note 11, at 237-38 (discussing how private prisons attempt to use the
trade secret logic to prevent records from being disclosed).

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1727

disclosure exceptions, which is beyond the scope of this Note. Regardless,
Florida courts established the first real regime applying public records laws to
private correctional services providers, delivering a comprehensive test that
could be replicated in other jurisdictions.
2.

Tennessee

Tennessee has also expressly applied public records statutes to private
prison companies. Friedmann v. CCA (Friedmann I)250 arose in 2009 when an
editor of PLN sought records of staffing levels and settlement agreements,
among other information, from CCA concerning its operations in Tennessee
under Tennessee’s public records law.251 CCA refused to release the
documents, claiming it was not bound by the law as a private corporation; PLN
then filed a petition to compel production.252 PLN sought documents including
information on litigation CCA was engaged in, settlements they had reached,
and state investigations and audits of CCA facilities.253
Applying the public records law liberally, the trial court granted Plaintiffs’
petition to force CCA to produce the requested documents.254 The Tennessee
Supreme Court had previously framed the goal of the state’s public records
laws:
[T]he public’s fundamental right to scrutinize the performance of public
services and the expenditure of public funds should not be subverted by
government or by private entity merely because public duties have been
delegated to an independent contractor. When a private entity’s
relationship with the government is so extensive that the entity serves as
the functional equivalent of a governmental agency, the accountability
created by public oversight should be preserved.255
Reviewing the trial court’s decision de novo, the Tennessee Court of
Appeals was “at a loss as to how operating a prison could be considered
anything less than a governmental function . . . conclud[ing], without

250 Friedmann v. Corr. Corp. of Am. (Friedmann I), No. M2008-01998-COA-R3-CV,
2009 Tenn. App. LEXIS 539 at *12 (Tenn. Ct. App. Aug. 5, 2009) (“The Supreme Court of
the State of Tennessee has interpreted the Act such that the definition of public records also
includes records made and received in connection with the transaction of official business in
the hands of any private entity which is the functional equivalent of a governmental
agency.”).
251 See id. at *2.
252 Id. at *8 (“CCA claimed: (1) it was not subject to the Public Records Act; (2) CCA
was not the functional equivalent of a state agency . . . .”).
253 Id. at *5-8 (summarizing a list of demands made by the plaintiffs to CCA).
254 Id. at *11-12 (“Following a hearing, the Trial Court entered a detailed final order
concluding that CCA was subject to the Public Records Act.”).
255 Memphis Publ’g Co. v. Cherokee Children & Family Servs., 87 S.W.3d 67, 78-79
(Tenn. 2002).

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difficulty, that . . . CCA is the functional equivalent of a state agency . . . .”256
In reaching its decision, the court relied upon a test devised by the Tennessee
Supreme Court, declaring the following factors relevant in a totality-ofcircumstances analysis after reviewing the functional equivalency law of
multiple jurisdictions: “(1) the level of government funding of the entity; (2)
the extent of government involvement with, regulation of, or control over the
entity; and (3) whether the entity was created by an act of the legislature or
previously determined by law to be open to public access.”257
The court in Friedmann I succinctly stated the most important reason public
records statutes should apply with equal force to private prison companies:
“[t]he providing of prisons is a responsibility that the state cannot delegate
away to a private entity. . . . [T]he ultimate responsibility to provide for its
prisoners belongs to the state of Tennessee.”258 The court also relied upon the
state constitution, which expressly requires the state to provide “safe and
comfortable prisons, the inspection of prisons, and the humane treatment of
prisoners . . . .”259 The court was particularly concerned about permitting the
state to delegate such functions, which it considered among the core
responsibilities of the state.260
The ruling is limited, however, in some important respects; the
“functional equivalency determination” only applies to one correctional
facility, which has a contract exclusively with the state of Tennessee, and CCA
was only required to disclose certain inmate records delineated in the
Tennessee Private Prison Contracting Act of 1986.261 Thus, CCA is only
required to disclose a very limited amount of information responsive to public
records requests under the holding. Further, the holding “does not affect
whether the State or local governments contracting with [private prison
companies] must supply these documents in their possession, if so
requested.”262 Finally, the court noted that many of the documents requested
were available from other sources,263 but this did not dissuade it from holding
that private prisons are the functional equivalent of government agencies.
Some commentators have criticized the holding’s narrow focus and potentially

256

Friedmann I, 2009 Tenn. App. LEXIS 539 at *21-22.
Cherokee, 87 S.W.3d at 79.
258 Friedmann I, 2009 Tenn. App. LEXIS 539 at *23-24 (emphasis added).
259 Id. at *14.
260 Id. at *23-25.
261 TENN. CODE ANN. § 41-24-117 (2010); Raher, supra note 11, at 242 (“[T]he
functional equivalency determination . . . applies only to the South Central Correctional
Center.”). In 1998, Tennessee amended the Private Prison Contracting Act of 1986 to
include an express provision granting the public access to inmate records in private prisons
“to the same extent such records are public if an inmate is being housed in a department of
correction facility.” 1998 Tenn. Pub. Acts 686.
262 Friedmann I, 2009 Tenn. App. LEXIS 539 at *30-31.
263 Id. at *31.
257

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misguided statutory interpretation,264 but a subsequent decision in the same
course of litigation seems to indicate that the court intended a somewhat
broader interpretation.
This analysis is similar to a previous federal court decision regarding PHS,
which provides another potentially useful test for other litigants to replicate. In
Buckner v. Toro,265 the Eleventh Circuit drew an important, if somewhat vague
distinction based on the nature of the activity performed.266 Private entities that
perform a function “within the exclusive prerogative of the state,” rather than
merely contracting to perform some service, “become[] the functional
equivalent[s] of . . . municipalit[ies].”267 The court described providing
medical treatment to prisoners as within that prerogative; although not at issue,
surely this logic could be extended to apply to companies that operate entire
prison facilities.268
Public oversight is a crucial component of government regulation, and is
particularly important in the private prison context, where other forms of
regulation, due to inherent limitations or industry (in)action, have proven
insufficient to ensure that private prisons both treat prisoners humanely and
deliver on the promise of cost savings.269 Recent developments in litigation in
Vermont, Texas, and Kentucky, and favorable statutory schemes in other states
could present opportunities for advocates to expand application of their state’s
public records laws to private prison companies.
C.

Recent Developments in Litigation – Vermont, Texas, and Kentucky

Using functional equivalency analyses similar to the test in Cherokee, PLN
has continued to request information under public records laws from private
prisons and medical providers in other states and to challenge denials of access
to those records in court. So far, they have succeeded in convincing two trial
level courts that public records laws should apply to these private operations.
264

See, e.g., Raher, supra note 11, at 242-44 (“Because there is no ambiguity in either
statute, nor are the two statutes inherently contradictory, the court’s use of PPCA to carve
out an exception to Cherokee is misguided.” (footnote omitted)).
265 116 F.3d 450 (11th Cir. 1997).
266 Id. at 452.
267 Id.
268 Cf. id. (“When a private entity like PHS contracts with a county to provide medical
services to inmates, it performs a function traditionally within the exclusive prerogative of
the state.”).
269 See id. (“Commentators worry that private prisons will allow operators to take
liberties with prisoners that would not be allowed by the government.”); Fathi, supra note 5,
at 1453-54, 1461-62 (“The combination of these factors––the closed nature of the prison
environment and the fact that prisons house politically powerless, unpopular people––
creates a significant risk of mistreatment and abuse.”); Raher, supra note 11, at 237-38
(“[S]hielding such information under a claim of trade secret protection unnecessarily
hinders independent evaluation of whether the government has received a fair bargain under
the contract.”).

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Although the decisions seem likely to be appealed, they are important first
steps toward increasing transparency. PLN has also requested legal documents
from settlements reached by private prison companies in a third state, as
government agencies must disclose.
A recent decision in Vermont made that state the third to recognize the
identity between public and private corrections by applying a functional
equivalency test to hold that private prison operators must comply with public
records requests.270 PLN again brought suit against CCA seeking public
records under state law, and has so far successfully convinced the trial court
that CCA is the functional equivalent of a government agency.
Relying on both the Cherokee test and the Friedmann I analysis, the
Vermont Superior Court similarly focused much of its opinion on the
“governmental function factor” enumerated in those decisions.271 The court
limited its analysis to four fundamental criteria, creating a workable test of
functional equivalency that considered (although not exclusively) the type of
activity performed, the amount of government funding, the extent of
regulation, and whether the government created the entity.272
After describing the liberal application of the state public records law in the
interest of promoting transparency and accountability in government, the court
properly characterized the potential consequences of an alternative finding. It
recognized that accepting the argument that CCA is not subject to the public
records law “would enable any public agency to outsource its governmental
duties to a private entity and thereby entirely avoid, intentionally or
unintentionally, the fundamental interests in transparency and accountability
that the Act is designed to protect and that has become a normalized quality
and function of government.”273
The court’s emphasis on the governmental function factor is crucial because
it reflects the core of many advocates’ concerns. “CCA holds Vermonters in
captivity; disciplines them; pervasively regulates their liberty, and carries out
the punishment imposed by the sovereign. These are uniquely governmental
acts. CCA could have no lawful basis for such an undertaking except on

270 Prison Legal News v. Corr. Corp. of Am., No. 332-5-13 Wncv, 2014 WL 2565746, at
*6 (Vt. Sup. Ct. Jan. 10, 2014) (“The court predicts that the Vermont Supreme Court [will]
. . . give the Act the meaning it is intended to have, would construe it to reach private
entities that are the functional equivalent of a public agency and the records that are within
the scope of that equivalency.”).
271 Id. at *6-7 (“The court . . . predicts that it would adopt a functional equivalency test
along the lines of the analysis that has developed in Connecticut and Tennessee.”).
272 Id. at *6 (“The non-exclusive factors are: (1) whether the entity performs a
governmental function; (2) the level of government funding; (3) the extent of the
government involvement or regulation; and (4) whether the entity was created by the
government.”).
273 Id. at *5.

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authority of a government. It is no ordinary government contractor.”274 CCA is
likely to appeal the decision.
PLN also recently succeeded in litigation against CCA in Texas, when it
demanded access to operational information under the state’s public records
law.275 The court issued a one-page opinion decreeing that CCA “is a
‘governmental body’ under Chapter 552 of the Texas Public Information
Act . . . and subject to Act’s [sic] obligations to disclose information.”276 In its
claim for declaratory relief, PLN had relied upon a determination by the Texas
Attorney General that private entities performing inherently governmental
functions are subject to public records laws.277 The Attorney General
interpreted the statute to extend to entities that provide general support, rather
than those that contract to perform specific services.278 The relevant factors for
this determination – receiving public funds to cover a variety of services,
incorporating the contract into long term budgets and planning, and annual
renewals279 – all weigh in favor of extending public records laws to private
prison companies.280
The Attorney General also considered relevant both the “overall nature of
the contract,” including receiving public funding and creating an agency-type
relationship, and whether a service is one “traditionally provided by

274

Id. at *11.
Prison Legal News v. Corr. Corp. of Am., No. D-1-GN-13-001445, Order Granting
Plaintiff’s Motion for Summary Judgment (Mar. 19, 2014) (on file with author) (“It is
therefore ordered adjudged and decreed that Defendant Corrections Corporation of America
is a ‘governmental body’ under Chapter 552 of the Texas Public Information Act . . . and
subject to Act’s obligations to disclose public information.”); Press Release, Human Rights
Defense Center, Texas Court Holds Private Prison Company is Considered Governmental
Body for Purposes of State’s Public Information Act (Mar. 20, 2014) (on file with author)
(“[A] Travis County District Court held that Corrections Corporation of America (CCA) . . .
is a ‘governmental body’ for purposes of the Texas Public Information Act and therefore
subject to the ‘Act’s obligations to disclose public information.’”).
276 Prison Legal News, No. D-1-GN-13-001445 at 1.
277 Petition for Writ of Mandamus at 3, Prison Legal News v. Corr. Corp. of Am., No. D1-GN-13-001445 (May 1, 2013), archived at http://perma.cc/68FG-LB85 (“CCA is a
‘government body,’ as defined by the PIA. It is supported by public funds and performs a
function ‘traditionally provided by governmental bodies’ – incarceration.”).
278 Tex. Attorney Gen. Op., JM-821 (Nov. 17, 1987), archived at http://perma.cc/774HRA6U (“The receipt of public funds for the general support of the activities of a private
organization brings that organization within the definition of a ‘governmental body.’”).
279 Id. (listing the relevant factors for determining if an entity is to be considered one that
provides “general support”).
280 Petition for Writ of Mandamus, supra note 277, at 1 (“Privately-operated prisons and
jails are notorious for their abhorrent conditions . . . Prison Legal News seeks to enforce its
rights under the Public Information Act to investigate details about these facilities in
Texas.”).
275

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government bodies.”281 Again, applied to the private prison context, the
connections are rather obvious: private prisons are funded mostly by public
funds, are responsive to state legislatures or other departmental oversight, and,
as a growing body of case and statutory law appear to be recognizing, perform
a service traditionally provided by the government. Further, because the public
records law is to be liberally construed,282 the Travis County District Court was
not reluctant to apply the requirement to private prisons.
In Kentucky, PLN has asked a federal judge to unseal information from a
settlement CCA reached with former employees over alleged labor law
violations and withholding overtime pay.283 The state’s public records law
applies to any entity receiving twenty-five percent or more of its funding from
the government.284 This would seemingly encompass private prisons, which
derive the vast majority of their funding from the government.
PLN’s challenges to the private prison industry’s position that public
records laws do not apply to privately run prisons can provide important
inroads and blueprints for advocates in other states. Statutory schemes across
the country, particularly in some states that send a sizeable portion of their
prisoners to private facilities, could allow litigants to use variations of the
Cherokee test, at times supplemented by the more comprehensive analyses
used in Panno and Friedmann I, to argue that the industry acts as the
functional equivalent of the government. If successful, these litigants can help
bring greater transparency to the industry and allow advocates to better
evaluate it.
D.

Other States Whose Public Records Laws Could Be Applied to Private
Prisons

Existing statutory regimes in other states could permit litigants to argue that
private prisons should be subject to public records laws under a functional
equivalency test akin to those used in Tennessee and Vermont.285 Among
281

Tex. Attorney Gen. Op., supra note 278 (“The primary issue in determining whether
certain private entities are ‘governmental bodies’ under the act is whether they are supported
in whole or in part by public funds or whether they expend public funds.”).
282 TEX. GOV’T CODE ANN. § 552.001(a)-(b) (West 2012) (“This chapter shall be liberally
construed in favor of granting a request for information.”).
283
Iulia Filip, Details Sought on Private Prison Settlement, COURTHOUSE NEWS SERV.,
Feb. 11, 2014, archived at http://perma.cc/Y7YH-RYW9 (“Employees at two prison
facilities CCA ran in Kentucky sued the company in May 2012, alleging it violated
Kentucky and federal labor laws by misclassifying them and withholding overtime
compensation.”).
284 KY. REV. STAT. ANN. § 61.870(1)(h) (West 2013) (“‘Public Agency’ means . . . [a]ny
body which derives at least twenty-five percent (25%) of its funds expended by it in the
Commonwealth of Kentucky from state or local authority funds . . . .”).
285 See generally Open Government Guide, REPORTERS’ COMMITTEE FOR FREEDOM OF
THE PRESS, archived at http://perma.cc/VWJ3-L3YD (last visited Dec. 20, 2013) (providing
links to state open government and open meeting laws).

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states that hold ten percent or more of their prison populations in private
prisons,286 five (Idaho, Mississippi, New Jersey, New Mexico, and Wyoming)
do not seemingly have statutory frameworks that could easily accommodate a
successful functional equivalency challenge.287 Of the remaining states that
have ten percent or more of their prison populations in private prisons, a few
patterns emerge from the statutory frameworks that could be used to increase
public access to settlement agreements and other information from private
prisons. These laws are often based on either funding arrangements or
proximity to government operations.
For purposes of the following analysis, the twenty states that did not house
any prisoners in private prisons, and those with less than ten percent of their
populations in private facilities as of 2010 are excluded.288 Additionally, this
analysis only focuses on a functional equivalency determination for private
prisons as a singular entity, rather than attempting to discern whether particular
types of records potentially held by private prisons would be subject to public
records laws, even absent a finding of functional equivalency. Finally, litigants
have yet to bring before courts in each of these states the specific question of
whether private prisons should be subject to the public records law.
Some statutory schemes provide that private entities supported at least in
part by public funds can be required to report under public records laws. In
these jurisdictions, the Cherokee test, relying principally on the funding or
contracting arrangement, could be used by litigants to extend application of
public records laws to private prisons. For example, in Arizona, private prisons
could be considered public bodies under the state’s public records laws,
because they are “supported in whole or in part by monies from the
state . . . .”289 Likewise, Kentucky’s public records law expressly applies to
private entities that receive at least twenty-five percent of their funding from
the government.290 Hawaii’s public records law extends to cover any company
that performs a service on behalf of the government.291 Oklahoma’s law
286

Id.
See IDAHO CODE §9-337(13) (2010) (“‘Public record’ includes, but is not limited to,
any writing containing information relating to the conduct or administration of the public’s
business prepared, owned, used or retained by any state agency . . . .”); MISS. CODE ANN. §
25-61-3(a) (West 2014) (applying only to bodies created by the state constitution, law,
executive order, resolution, or ordinance); N.J. STAT. ANN. § 47:1A-1 (West 2014)
(applying to government agencies, bodies, and officers); N.M. STAT. ANN. § 14-2-6(D)
(LexisNexis 2014) (applying only to bodies created by the state constitution or any branch
of government); WYO. STAT. ANN. §§ 16-4-201(a)(v), 9-2-405 (2011).
288 GUERINO ET AL., supra note 32, at 31.
289 ARIZ. REV. STAT. ANN. § 39-121.01(A)(2) (2011).
290 KY. REV. STAT. ANN. § 61.870(1)(h) (West 2013) (“‘Public Agency’ means . . . [a]ny
body which derives at least twenty-five percent (25%) of its funds expended by it in the
Commonwealth of Kentucky from state or local authority funds . . . .”).
291 HAW. REV. STAT. § 92F-3 (West 2012) (“Agency means any . . . corporation or other
establishment owned, operated, or managed by or on behalf of this State or any county.”).
287

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provides that entities “supported in whole or in part by public funds” must
disclose public records pursuant to requests.292 In South Carolina, bodies that
receive or expend public funds are subject to the public records act.293
Other schemes focus more substantively on the types of services provided
and the nexus between the private party and government bodies. In these
states, the most substantive factor identified in the Cherokee test, the extent of
government regulation or control, weighs in favor of finding functional
equivalency. But litigants in these states should attempt to incorporate some of
the factors from the Panno and Friedmann I cases to establish a more
substantial connection. Specifically, factors concerning public funding, the
centrality of the function to public agency prerogative, and on behalf of whom
the services are provided, all could support findings of functional equivalency.
For example, private prison companies could be subject to Alaska’s public
records law, which covers records held or created by a private contractor on
behalf of a government agency.294 In Colorado, private entities performing
core governmental functions are subject to the state’s public records law, at
least where the state retains substantial control over the entity.295 Particularly
where a private entity performs a public function and is subject to state
oversight, those entities must respond to public records requests in
Colorado.296 Whether the public records law in Indiana applies to private
prisons depends on the terms of contracts; if private prisons are subject to
regular audits, they might be considered a government agency.297
Wider application of these functional equivalency tests to bind private
prison operators to public records requirements could prove crucial to
members of the public seeking to improve prison conditions. Litigation has
historically been the most effective and utilized means of prison oversight, but
inherent limitations in scope and geography limit its capacity to remedy many
significant problems. These limitations necessitate a more comprehensive and
multifaceted form of oversight, including public access to information through
public records laws.

292

OKLA. STAT. tit. 51, § 24A.3.
S.C. CODE ANN. § 30-4-20(a) (“‘Public Body’ means . . . any organization,
corporation, or agency supported in whole or in part by public funds or expending public
funds . . . .”); see also Weston v. Carolina Research & Dev. Found., 401 S.E.2d 161, 163
(S.C. 1991) (“In order to be subject to the FOIA, a Foundation must fall within the FOIA’s
definition of a ‘public body.’”).
294 ALASKA STAT. § 40.25.220(3) (2010).
295 COLO. REV. STAT. § 24-72-202(6) (2008); see also Denver Post Corp. v. Stapleton
Dev. Corp., 19 P.3d. 36, 37 (Colo. App. 2000).
296 See Denver Post Corp., 19 P.3d. at 38-41 (“[W]e conclude that SDC is effectively an
instrumentality of Denver with regard to the development of the Stapleton site.”).
297 IND. CODE § 5-14-3-2(3) (2014) (applying to government bodies and entities subject
to budgetary review or regular audits).
293

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III. RECOMMENDATIONS FOR REFORM
Advocates and journalists increasingly call for greater transparency in the
operations of private entities that contract to perform inherently governmental
services.298 Among these calls have come recommendations for specific ways
to increase access to such information.299 Specifically, state legislators should
first look to strengthen existing public records laws. This includes expanding
the reach of current laws, decreasing existing exemptions in laws, and creating
new disclosure requirements.300 Lawmakers are encouraged to work to repeal
laws that hinder transparency.301 Government agencies should also routinely
incorporate transparency provisions into contracts they sign with private
entities to improve data collection and make more information available to the
public via the Internet.302
A.

Utilize Functional Equivalency Tests to Access Information on
Operations and Conditions Through Settlements and Regular Reporting

An effective method for enhancing private prison oversight might be
developing confluence between two of the traditional prison oversight
mechanisms: the courts and public access to information.303 Historically,
settlements between private prison operators and individual litigants have been
exempt from public scrutiny; as private entities, these companies routinely seal
the terms of settlements.304 Government agencies, meanwhile, must disclose
298
See, e.g., IN THE PUBLIC INTEREST, supra note 9, at 7-10 (describing how increased
government reliance on the private sector implicates financial, social, and political concerns,
and calling for greater transparency from companies that contract with governments); DIANE
DI IANNI, THE LEGAL FRAMEWORK OF TRANSPARENCY AND ACCOUNTABILITY IN THE
PRIVATIZATION CONTEXT, LEAGUE OF WOMEN VOTERS 11 (2011), available at
http://www.lwv.org/files/BP_PrivStudy_LegalFramework.pdf,
archived
at
http://perma.cc/L8S7-4SHM (“The privatization of government function is of such weight
and import that special attention must be given to ensuring full transparency both in advance
of the consideration and approval of any such proposal, and with respect to the subsequent
operations of the private entity performing such government services or functions in the
event a privatization proposal is adopted.”).
299
IN THE PUBLIC INTEREST, supra note 9, at 18-19 (listing changes that should be made
in order to effect reform).
300 Id.
301 Id. at 19 (“Laws, like the Georgia statute that exempts all records and documents
related to the supervision of probationers by private corporations from state’s open records
act, should be repealed.” (footnote omitted)).
302 Id. at 19-20 (“[G]overnment contracts should all include specific provisions explicitly
describing what contractor information will be made public.”).
303 See supra Part I.D.
304 See, e.g., Rebecca Boone, Inmate Settles ‘Gladiator School’ Lawsuit with Idaho
Prison, KBOI2, Sept. 19, 2011, archived at http://perma.cc/Y4DM-PUSV (“The settlement
between Riggs and CCA was filed under seal . . . and both sides reached a confidentiality
agreement . . . .”); Emma Perez-Trevino, Beating Death Lawsuit Ends in Settlement,

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terms of settlements under most public records laws. Expanding public access
to information from settlement agreements – by applying a functional
equivalency test to establish the role of private prisons as government agencies
– could help other litigants and advocates study and understand some of the
more severe harms that occur inside private prisons, and industry valuations of
liability.
In Tennessee, the battle between CCA and PLN over releasing business
records pursuant to public records requests led to a second ruling by the state
court of appeals that both settlement agreements and settlement reports (insofar
as such reports were not produced in anticipation of litigation) are not exempt
from disclosure under the state’s public records laws.305 The court reiterated
the liberal thrust of the public records statute and its applicability to CCA, as
the functional equivalent of a government agency.306 Following extensive
discovery on remand, the parties narrowed their dispute to “two categories of
documents: 1) releases, settlement agreements, and other documents reflecting
the settlement and/or payment of claims and/or litigation against CCA facilities
in Tennessee (‘the settlement agreements’), and 2) spreadsheets or summaries
of claims and/or litigation concluded against CCA in Tennessee (‘the
settlement reports’).”307 CCA argued on appeal that settlement agreements and
settlement reports were not public records under Tennessee’s Public Records
Act, and that the settlement reports in any event should be “protected from
disclosure because they are attorney work product.”308
The court, disagreeing, recognized a “consistent[]” line of precedent
requiring government entities to produce settlement agreements under the
Public Records Act.309 Rejecting CCA’s argument that the court had
“‘implicitly’ limited [its] finding regarding CCA as a government entity,” the
court found no credence in CCA’s attempt to distinguish documents produced
in its litigation department from those produced in facilities operations.310
The settlement reports, simplified internal documents used by CCA’s
litigation department to evaluate “areas . . . of concern and to be able to give
advice on cases going forward,” were not protected under the work product
BROWNSVILLE HERALD, Jan. 7, 2010, archived at http://perma.cc/V8LE-ERLM (“The
monetary settlement reached between the private prison group, former warden, insurers and
de la Rosa’s family is being kept confidential . . . .”).
305 Friedmann v. Corr. Corp. of Am. (Friedmann II), No. 08-1105-I, 2013 WL 784584 at
*4 (Tenn. Ct. App. Feb. 28, 2013) (“We affirm the finding that the settlement agreements
are public records and that CCA is required to produce the settlement agreements and
reports . . . .”).
306 Id. at *3 (“The court then, again recognizing the liberality of construing the Public
Records Act, held ‘that this included records in the hands of any private entity which
operates as the functional equivalent of a state agency.’”).
307 Id. at *2.
308 Id. at *3.
309 Id. at *5-7.
310 Id. at *6-8.

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doctrine.311 The court refused to protect the reports because CCA failed to
establish a dispositive factor of the work product analysis: that the documents
were “‘prepared in anticipation of litigation or trial.’”312 Because the
documents were produced for purposes of business that is the functional
equivalent of a government operation in Tennessee, CCA is required to
disclose settlement reports.313
In addition to its lawsuit against CCA, PLN settled a public records suit with
PHS in Vermont in 2012.314 PLN had argued that PHS performed an inherently
governmental function because it provided medical care to Vermont prisoners,
which would be exclusively within the prerogative of the state had it not
contracted with the company.315 PHS agreed to turn over records relating to the
resolution of six legal claims regarding medical care that totaled nearly $2
million, as a state-run prison would have to do.316 Once this information was
disclosed, PLN was able to report details on the claims and how they were
resolved, allowing advocates to get a better understanding of the incidents and
the company’s legal responses. An accurate accounting of this information is
crucial in this context, where Vermont uses taxpayer dollars to pay the
company to perform a government function.
The lawsuit over conditions at ICC further showed just how important
public access to staffing information can be. The settlement outlined terms that
included specific staffing levels to be maintained at the facility and to address
longstanding violence and security issues.317 However, during the monitoring
period, CCA misrepresented the number of staff by thousands of man-hours
during a period of a few months.318 This information only came to light
because an investigator on another matter took action, alerting CCA to
discrepancies in its reports.319 To its credit, CCA conducted an internal
investigation and collaborated with the state on a separate one; the
311

Id. at *10.
Id. at *9-10.
313 Id. at *10 (“We, therefore, affirm the trial court’s ruling that the settlement reports
requested pursuant to the Public Records Act at issue herein are public records and the
reports do not qualify as attorney work product. Accordingly, CCA must disclose the
settlement reports.”).
314 PLN Settles Public Records Suit Against PHS in Vermont, Obtains Settlement Payout
Information, PRISON LEGAL NEWS, Dec. 15, 2012, archived at http://perma.cc/FT29-RY72.
315 Id.
316 Id.
317 See Kelly v. Wengler, No. 1:11-cv-00185-EJL, 4 (Sept. 16, 2013) (Memorandum
Decision) (“This case . . . had alleged constitutional violations at ICC because of high levels
of inmate-on-inmate violence, inadequate staffing and training, inadequate investigation of
assaults, and various other defects.”), archived at http://perma.cc/LZ77-EKUV.
318 See id. at 3-5.
319 Id. (“CCA began investigating falsified shift records in December 2012, after an
investigator on an unrelated case, a harassment allegation, received information about
mandatory posts going unfilled.”).
312

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investigations revealed facility staff had over-reported staffing levels by
thousands of man-hours.320 Had an informant not tipped off the independent
investigator, the monitoring period would have concluded within a few months
and the court would have had no authority to impose sanctions, regardless of
compliance with the settlement. The court, while crediting CCA’s “newfound
transparency in record keeping,” recognized that the revelation of deficient
staffing levels was “long overdue.”321 The court then extended the monitoring
period by two years and appointed an independent monitor to ensure future
compliance with the settlement terms.322
Litigation has been a very effective tool for bringing accountability to
prisons throughout the history of the United States.323 Arguably, if CCA had to
release such information pursuant to public records requests, the staffing
deficiencies could have come to light earlier, and prisoners in ICC would have
benefitted from the level of external supervision the Idaho Supreme Court
eventually granted. However, even when prisoners are able to successfully
litigate and reach settlements in cases designed to improve conditions at a
given facility, real world change may not be immediately forthcoming. When
private actors can obfuscate judicial oversight to the point that only
happenstance prevents injustice, it is clear that such enforcement suffers from
weaknesses that render it incapable of wholly remedying severe structural
problems.
B.

Enacting The Private Prison Information Act and State Replicas

In addition to litigation, advocates have worked to make private prisons
subject to public records laws in many state legislatures. While a
comprehensive review of such activity is beyond the scope of this Note, an
example from the federal system demonstrates why legislative advocacy is
often a more difficult route to enact such a requirement.
The need for greater private prison oversight is particularly pressing at the
federal level, where nearly eighteen percent of federal prisoners and half of
immigration detainees are housed in private facilities.324 Further, immigration
detention is still widely considered the largest potential growth market for the
industry.325 Despite consistent attempts to apply FOIA to the industry when the
industry contracts to hold federal prisoners, tens of thousands of individuals
320 Id. (“[T]here were nearly 4,800 hours over seven months where records indicated a
correctional officer was staffing a security post but the post was actually vacant.”).
321 Id. at 17.
322 Id. at 21, 23.
323 Fathi, supra note 5, at 1454.
324 CARSON & SABOL, supra note 30, at 13 (“On December 31, 2011, 6.7% of the state
and 18% of the federal prison populations were incarcerated in private facilities.”).
325 Raher, supra note 11, at 224-26 (discussing how federal authorities increasingly turn
to private facilities to house the growing number of immigration detainees brought on by
tougher immigration policy and enforcement).

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incarcerated by the federal government are in facilities beyond the reach of this
form of oversight.
Over the past decade, prison reform advocates have repeatedly attempted to
enact a bill called the Private Prison Information Act (“PPIA”).326 The
legislation would require “non-Federal prisons and correctional facilities
holding Federal prisoners under a contract with the Federal Government to
make the same information available to the public that Federal prisons and
correctional facilities are required to make available.”327 Due largely to
extensive lobbying efforts by the private prison industry,328 the bill has
repeatedly failed, and despite holding nearly one of every five federal
prisoners,329 the industry still need not comply with FOIA.330
A version of the PPIA was first introduced in the House in 2005 and in the
Senate in 2006.331 Since then, an iteration of the bill has been proposed once
more in the Senate and three more times in the House.332 In the House, the bill
never made it beyond the Judiciary Subcommittee on Crime, Terrorism, and
Homeland Security; only two hearings were ever held on the bill.333 At the first
hearing, the sponsor testified about oversight problems arising from the lack of
industry transparency.334 The fact that “CCA did not submit any operational
reports to federal agencies so there was no meaningful information accessible
to FOIA requesters” compounded the issue of FOIA’s inapplicability to private
prison companies.335 Neither legislators nor the media were able to obtain

326

H.R. 74, 112th Cong. (2011), archived at http://perma.cc/EVJ3-PSMH.
Id.
328 IN THE PUBLIC INTEREST, supra note 9, at 16-17 (“Between 2007 and 2009, CCA
employed five sets of lobbyists assigned to several federal issues, including defeating
PPIA.”).
329 CARSON & SABOL, supra note 30, at 13.
330 See Feiser, supra note 8, at 23 (“[T]he Act does not define the term ‘agency records,’
and private entities may not be holding records with a sufficient nexus to the government to
qualify as agency records under judicial analysis.”).
331 H.R. 1806, 109th Cong. (2005); S. 4031, 109th Cong. (2006).
332 S. 2010, 110th Cong. (2007); H.R. 1889, 110th Cong. (2007); H.R. 2450, 111th
Cong. (2009); H.R. 74, 112th Cong. (2011).
333 Private Prison Information Act of 2007: Hearing on H.R. 1889 Before the Subcomm.
on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary, 110th
Cong. (2008); Private Prison Information Act of 2007, and Review of the Prison Litigation
Reform Act: A Decade of Reform or an Increase in Prison and Abuses? Hearing on H.R.
1889 Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm.
on the Judiciary, 109th Cong. (2007); Raher, supra note 11, at 239.
334 Raher, supra note 11, at 239 (“According to Representative Holden’s testimony, state
legislators and the media had been unsuccessful in obtaining information on the problems
occurring at the NOCC.”).
335 Id.
327

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information on recurrent problems at private facilities; in other words, effective
oversight was curtailed by restrictions on information.336
CCA campaigned aggressively against the legislation in 2008, arguing that
government oversight of private prison contracts is sufficient to ensure good
performance.337 Facing further opposition from both the Reason Foundation
and the Department of Justice, the bill died in the subcommittee.338 A similar
bill was brought in each of the next two sessions of Congress by
Congresswoman Sheila Jackson-Lee, but neither she nor any other
Congressperson has attempted to revive the legislation in the current session.339
The bill could have a substantial impact on transparency and public
oversight of private prison facilities.340 Requiring compliance with FOIA
would bring these prisons – as well as tens of thousands of prisoners, citizen
and immigrant alike – into an existing oversight regime, allowing advocates
and journalists already familiar with the FOIA process to begin requesting vital
information immediately.341 Private prison companies can seek guidance from
their government counterparts, who are already familiar with the process of
responding to FOIA requests. Further, such legislation could also set an
example for state governments wary of the political fallout of requiring private
prisons to comply with public records laws.342 Legislation modeled on the

336

Id.
Id. (“In its statement, CCA claimed that government oversight is sufficient to allay
any problems with access to information . . . .”).
338 Id. at 240 (“[T]he Reason Foundation . . . testified against House Bill 1889 at the
2008 hearing, and the U.S. Department of Justice expressed concerns about the bill’s
potential costs. The committee took no action on House Bill 1889.”).
339 Mel Motel, Reintroducing the Private Prison Information Act: An Interview, PRISON
LEGAL NEWS, Feb. 15, 2013, archived at http://perma.cc/H9US-RMEZ (observing that there
was a “coalition of organizations urging U.S. Representative Sheila Jackson Lee (D-TX) to
reintroduce the Private Prison Information Act during the 113th Congress.”).
340 Feiser, supra note 8, at 25-27 (“[P]rivate prison operators that are not subject to
public oversight could operate against the public’s interest . . . .”).
341 See id. at 26 (“The public should provide the necessary oversight by classifying
private operators as agencies and their records as agency records, for purposes of the
FOIA.”).
342 See id. at 30 (“Some argue that the appropriate method for ensuring that private
entities follow legal prescriptions is through a concept of state action, which effectively
makes private operators responsible as if they were the government.”); see also CITIZENS
FOR RESPONSIBILITY AND ETHICS IN WASH., PRIVATE PRISONS: A BASTION OF SECRECY 20-22
(2014) (“Members of Congress often use oversight as a means to develop the record to
support legislation, as well as to release information to the public . . . [t]his could be an
effective method of obtaining greater information on the operation of the private
prisons . . . .”),
available
at
http://www.citizensforethics.org/page//PDFs/Reports/CREW_Private_Prisons_FOIA_secrecy_report_02_18_2014.pdf?nocdn=1,
archived at http://perma.cc/9P2F-J9DT.
337

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PPIA could also be used in states where public records laws seemingly would
apply to private prisons to increase public access to vital information.343
C.

Improve Existing Forms of Contract Drafting and Oversight

When private prisons enter into a contract to operate all or part of a
correctional facility on behalf of a government entity, that contract becomes
the blueprint for enforcing compliance with performance standards.
Government agencies are thus the first, and best, potential lines of defense for
prisoners suffering from individual or systemic harm in private facilities. These
agencies also have obligations to ensure public resources are wisely invested,
particularly given the substantial revenues the industry earns. Unfortunately,
many of these agencies have failed to hold the private prison industry
accountable for often significant contract violations.344 Improving contract
drafting and oversight could provide a valuable means of ensuring humane and
cost effective treatment.
Enhancing public access to information by incorporating and enforcing
transparency provisions in contracts would create additional resources to
ensure contract performance. Whether contracts come from a department of
corrections, a legislature itself, or some other government agency, government
officials should consistently include public records compliance requirements in
contracts. Officials can then augment their own oversight with expertise from
advocates who will be able to properly evaluate industry performance by
analyzing regular information on staffing, medical care, security, violence, and
other issues. Compliance with independent professional organizations has
proven insufficient to ensure prisoners are protected from deprivations of their
constitutional rights.
Ultimately, regardless of a state’s ability to directly monitor private prison
performance, applying public records statutes to private prison companies
serves an important interest: independent public scrutiny of government
operations.345 The history of private prisons indicates that states struggle to
ensure that the industry complies with the terms of their contracts. However,
even if it were the case that states experience few or no problems with private
prison contract compliance, that alone would not ensure prisoners receive
constitutionally adequate treatment while incarcerated. Public oversight
therefore represents an important independent check on the industry.
D.

Why Access to Information Via Public Records Laws is Crucial

There is no meaningful distinction between prisoners in public facilities and
those in private facilities for the purpose of determining the types of rights

343

See supra Part II.D.
See supra Parts I.C-I.D.
345 Raher, supra note 11, at 247 (“Public records laws are designed to counteract agency
hesitancy by allowing interested parties to independently analyze government operations.”).
344

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granted by the federal Constitution.346 However, the different oversight
regimes that govern public and private facilities make private prisons more
difficult for the public to monitor and improve than public ones. Hopefully it
has become apparent that increasing the public’s access to operational
information from private prisons would represent a vital step in improving
industry oversight. As researchers and practitioners have attempted to evaluate
and compare private prisons to government-operated ones, they have met
consistent and formidable obstacles to accessing information.347 Without this
access, analyses of private prison efficiency, prisoner treatment, and service
delivery are hindered by poor information, more than thirty years after the
genesis of the modern industry.348
Restrictions on litigation have weakened this traditional oversight
mechanism, for prisons generally and private prisons specifically.349 Despite
contractual obligations to comply with certain benchmarks, many states,
particularly those with higher proportions of their prisoners in private facilities,
have failed to consistently or firmly enforce these provisions.350 Therefore, the
best available means of improving oversight comes from turning to a third
traditional mechanism: scrutiny by an informed and motivated general public,
ideally led by practitioners and other experts.351 Extending the application of
public records laws to private prisons would seemingly not invoke traditional
criticisms of increased transparency, such as reduced security, less efficient
government operations, or increased costs.352 Issues of national/state security
would not be implicated, and debate regarding government action and
policymaking could be improved, by increasing transparency. Governments
could hedge against efforts by the industry to pass on increased costs by
managing contract terms, soliciting competition, or providing other incentives
to companies to subsume the expenses.353
346

See Minneci v. Pollard, 132 S. Ct. 617, 623 (2012) (explaining that while the Court
was denying the plaintiff a federal remedy, there was adequate state law protection of the
Eighth Amendment liberties at issue).
347 CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASH., supra note 342, at 10-14
(discussing the significant problems raised by the lack of publicly available data regarding
private prisons).
348 Id. (“The lack of data on how private prisons are performing also makes it impossible
to evaluate the studies issued by the private prison industry itself, which proclaim the
superior efficiency and safety of private prisons compared to those publicly operated.”).
349 See supra Part I.C.1.
350 See supra Part I.C.2.
351 CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASH., supra note 342, at 23-25 (“To
date, public interest organizations and other groups have not done enough to use the tools
they possess to shine a light on private prisons.”).
352 See Mark Fenster, The Opacity of Transparency, 91 IOWA L. REV. 885, 906-09
(2006).
353 See Douglas McDonald & Carl Patten, Governments’ Management of Private Prisons
vii-ix, 13-16 (Sept. 15, 2003) (unpublished research report submitted to the DOJ), available

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Different methods can be used to increase public access to information:
applying functional equivalency standards to private prisons in states with
amenable statutory frameworks, and requiring the disclosure of information
generated by companies for internal purposes related to operations and
functions;354 applying that same test to access information from settlement
agreements, as government agencies are required to disclose; and convincing
legislators to both directly increase transparency by statute and to hold
government bodies accountable for incorporating and enforcing transparency
provisions in contracts with private prisons.355 Without more information on
the industry, it is impossible to tell if the massive taxpayer investment in
private prisons has paid off.
CONCLUSION
Private prisons should no longer be permitted to evade public scrutiny due
to an essentially meaningless distinction concerning their legal status. The
industry’s opacity presents a fundamental obstacle to effective oversight by
depriving the public of the ability to properly and empirically assess industry
performance.
The need for greater public oversight appears especially pronounced in the
context of private prisons. Available research suggests that private prisons
struggle to provide adequate care and supervision of prisoners. In some
instances, private prisons have escaped sanctions for contract violations. Some
states have found that government operation of prisons is more or equally cost
effective when compared to private operation. Without access to operational
and personnel information, practitioners and advocates are unable to determine
with any reasonable degree of confidence whether many private facilities are
operated in humane, productive, and cost effective ways.
Effective, humane prison management is challenging for even the most
creative and dedicated governments; it requires a multifaceted approach, at
both governmentally and privately operated facilities. This approach must
include direct supervision by governments and professional organizations,
advocacy from informed and interested citizens, and, where necessary,
litigation to address systemic deficiencies. The functional equivalency tests
applied in Friedmann I and Panno can serve as models for legal reform leading
to greater transparency and oversight of the private prison industry. In states
where existing statutory schemes could provide the basis for claims that private
prisons are functional equivalents of government agencies, litigants can use the
at https://www.ncjrs.gov/pdffiles1/nij/grants/203968.pdf, archived at http://perma.cc/B75T3GR4.
354 CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASH., supra note 342, at 20-22
(“Hearings with witnesses from GAO and groups that attempt to monitor private prisons
could establish a factual record for the value of the missing data . . . and help pave the way
for legislation.”).
355 See supra Part III.B-C.

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tests propounded in those cases. In states where such application is less
explicit, advocates will have a more difficult, but not impossible task.
Creating access to private prison records through functional equivalency
tests can only go so far. Legislative reforms in the spirit of the PPIA would
permit advocates to avoid costly litigation and begin the more important task
of evaluating the industry’s performance and comparing it to that of various
governments. Governments themselves must also shoulder significant
responsibility for oversight by setting performance standards and increasing
transparency in contracts they sign with private prison companies. Thus,
litigation, legislative reform, and improvements to the contracting process
could all generate greater transparency for the industry. This transparency will
aid both advocates and opponents as they evaluate and debate the private
prison industry.

 

 

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