NCJ Number
108951
Journal
Vanderbilt Law Review Volume: 40 Issue: 4 Dated: (May 1987) Pages: 983-1021
Date Published
1987
Length
39 pages
Annotation
If private prisons are to remain viable, courts and legislatures must provide liability protection for the excessive use of force against inmates beyond what the law presently affords.
Abstract
The private prison corporation's exposure to liability for the use of force against inmates is greater than that of the State, even though both are engaged in the same activity and address the same situations. The private prison corporation, though engaged in State action when it manages prisons, is not regarded by the courts as the State for the purposes of 11th amendment immunity. Also, the corporation may not be able to use a qualified immunity defense. The exposure of the corporation to the low standards required in common law tort suits for assault and battery would undermine the prison corporation's authority to use force in disciplining inmates. This authority, however, is necessary in the management of prison disturbances and the orderly maintenance of the prison regimen. If the State legislatures and courts do not provide greater liability protection for private prison corporations, the threat of liability will be a disincentive to the proliferation of private correctional facilities. 326 footnotes.