Private Prisons Are Unconstitutional

A new report by In the Public Interest, available at, documents the increased use of private prisons to house the large and growing population of incarcerated Americans.  We have the highest incarceration rate in the world, five to seven times that of comparable countries.  See my article “Lawyers, Jails, and the Law’s Fake Bargains,”  The use of private prisons raises an entirely new set of issues.

The ITPI report tells us that Corrections Corporation of America — the largest private prison contractor — offers to run a state’s prison system provided that the state guarantees a 90% occupancy rate for the prison facilities.  Yes, you read that correctly.  Many if not most contracts provide that the state promises to send enough people to prison to fill 80% and up to 100% of the prison beds.

In an essay published at 7 Ohio State Journal of Criminal Law 849 (2010), I told the story of two judges in Pennsylvania who sent juveniles to a private prison and were paid off for doing so.  The judges went to jail.  The private prison officials did not.

The influence of contractual occupancy requirements is more subtle, but equally odious.  In Tumey v. Ohio, 273 U.S. 510 (1927), the Supreme Court invalidated a system whereby the mayor who presided as a judge of minor offenses received a percentage of fines and fees that he levied on defendants.  In Ward v. Monroeville, 409 U.S. 57 (1972), the fines assessed in the “mayor’s court” provided a significant share of the town’s financial resources.  The mayor had a major role in the administration of town finances.  The Court held this arrangement violated due process.

The due process evil of occupancy guarantees works on two branches of government.  The judge who sentences a defendant is an agent of the state, and awareness of the contractual obligation inevitably skews her judgment.  It is but a small step from Tumey and Monroeville to such a conclusion.

However, there is an additional evil here.  The prosecutors who choose whom to prosecute and for what offenses, and to advocate for particular sentences, have the most direct influence on incarceration, given that 90% or more criminal cases are resolved with guilty pleas.  One must assess the influence — direct and indirect — on prosecutors to make sure that those prison beds are filled.  We understand in a general way that the prosecutor

is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.  Berger v. United States, 295 U.S. 78 (1935).

A case more directly on point is Young v. U.S. ex rel. Vuitton et fils, S.A., 481 U.S. 787 (1987).  In New York, there was a federal injunction against sellers of fake Vuitton merchandise.  Courts would allow Vuitton to select and pay special prosecutors, who would conduct contempt cases against violators.  There are several opinions in the case, but the upshot is that without strict judicial supervision, the “Vuitton system” posed too great a danger that the special prosecutors would pay more attention to Vuitton’s interests than to their ethical obligation to prosecute fairly.

Young is one case among many that result from the movement away from private prosecution to the system that prevails today in the United States.  Prosecutors are public officials, and while their choices of defendants and charges are entitled to considerable deference, influences other than the impartial public interest in punishing and deterring crime are suspect.

I do not pretend, in this post, to explore all the relevant case-law.  I simply express a hope that somebody will start to litigate these issues.

Michael E. Tigar is Emeritus Professor of the Practice of Law at Duke University School of Law, and Professor Emeritus of Law at Washington College of Law, American University, Washington, D.C.  Among his publications is Law and the Rise of Capitalism (Monthly Review Press, 2000).  Read his blog TigarBytes at <>.

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