The Implications of Prison Privatization on the Conduct of Prisoner Litigation Under 42 U.S.C. Section 1983

Abstract

Prisoners often seek redress in federal courts through causes of action brought under 42 U.S.C. Section 1983 for violations of their constitutional rights caused by the overall condition of their confinement or by one specific condition or incident. Although commentators disagree over the extent to which these cases burden federal district courts, They agree that prisoner litigation constitutes a large percentage of the civil rights litigation in district courts. One of the attractions of prison privatization for state and local governments is the belief that contracting prison management to private firms will relieve the government of the burden of defending the multitude of individual and class-wide civil rights actions and the expense of complying with comprehensive and often financially burdensome court orders. Several reasons may explain the inmates' choice to litigate constitutional claims in federal court rather than litigating them as tort actions in state court, but two reasons predominate. First, most state legislatures have immunized state officials from suit in state court for actions arising from their official conduct. Inmates either have no recourse in state court or are forced to proceed in a manner other than a trial before a jury. Second, and possibly even more important, prisoners perceive that federal courts possess an aura of justice and dignity that they find lacking in state courts. Because of this fascination with federal court, there is every reason to expect that if private contractors operate state or local correctional facilities, prisoners will continue to seek redress in federal court through Section 1983, despite an enhanced ability to bring a state court action against a prison operator occasioned by diminished immunity for a private contractor.