Document Type


Publication Date

January 1988


Introduction: The privatization of prisons raises important issues with respect to liability in suits brought by inmates. If a private company operates the prison, the state likely will be directly involved in some aspects of prison life, such as using force when necessary or making quasi-judicial decisions, but it may not be directly involved in the day-to-day operation of the institution. This dichotomy of involvement may lead to con- fusion over responsibility and accountability when a violation of rights is alleged to have occurred. When a private party, as opposed to a government employee, is charged with abridging rights guaranteed by the Constitution or laws of the United States, the plaintiff, in order to prevail under 42 U.S.C. section 1983, must show that the private party was acting "under color of state law"-that is, that there was state action. The reason for this is fundamental. The fifth and fourteenth amendments, which prohibit the government from denying federal constitutional rights and which guarantee due process of law, apply to the acts of state and federal governments, and not to the acts of private parties or entities. The ultimate issue in determining whether a person is subject to suit for violation of an individual's constitutional rights is whether "the alleged infringement of federal rights [is] 'fairly attributable to the State.' ", A person acts under color of state law "only when exercising power 'possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.' "' These concepts are crucial to prison privatization. One argument in favor of prison privatization is that it will reduce or eliminate government liability. Yet an examination of the state action issue indicates that this will not happen. If the state action requirement is not met, then the private company will not be liable under the Civil Rights Act. If the requirement is met, however, leading to the private company's liability, then the company's costs will increase, resulting in higher rates charged to the government.