The Supreme Court granted certiorari last week almost assuredly to reverse a Ninth Circuit ruling creating a Bivens action for prisoners wanting to sue prison personnel at privately-run correctional facilities. The case is Minneci, et al., v. Pollard, No. 10-1104.

After having read the lower court decision and cert-stage briefs, I am of the opinion that there is a .001 percent chance the Supreme Court will uphold the Ninth Circuit’s judgment.



Not only does the current Court take a dim view of creating implied causes of action, some members of the Court also generally discount claims that prisoners who suffer abuse are entitled to any Eighth Amendment protection, and they would prefer that the federal judiciary stay out of squabbles over prison conditions, period. So I am not hopeful that the Court will give federal prisoners another forum to sue prison employees.

But even I—someone who advocates for holding prisoner personnel accountable for their wrongdoing—acknowledge that a Bivens action in this case makes little sense. The prisoner in this case was serving federal time in a privately-owned prison and had a superior state negligence remedy; one that would not involve navigating the difficult “deliberate indifference” standard or qualified immunity. If I was a prisoner plaintiff, I would much rather bring my claim in state court.

Since the prisoner had an alternative remedy, there is no chance (oh, wait, there is a chance!) the Court will allow an extension of Bivens. Let’s just hope the Court doesn’t feel the need to retreat or overrule Bivens because that would have drastic consequences for the growing federal prison population.

The privatization of prisons has become a recent news item. It appears that Florida is closing a deal to privatize the entire state prison system. The private prison industry is touting the deal as “an important milestone,” most likely because Florida has the nation’s third largest prison system.

I wonder what the incentive is for private companies to provide job training and rehabilitation programs which would help prevent inmates from returning to very prisons that make them money.

In Maine, there is a debate over a bill that would allow a private prison company to construct a 100 million dollar prison. When one of the State Senators was asked to defend the bill, he forthrightly pronounced:

“I don’t know much about prisons, but I do know about jobs and I know that the people I represent need more and better jobs. I could pretend this bill is all about prisons, but it is really a jobs bill. It is time those of us in Augusta stopped pretending that everything is all right and started doing more to create a climate where the jobs we need can be created.”

Creating jobs by incarcerating his constituents? It sounds like a solid policy to me.

Thankfully there are two sides to this argument: “Opponents argued that a prison should not be used as an economic development tool and cited studies that reportedly show private prisons do not save states money. Religious leaders opposed the bill on moral grounds.”

Even the number one argument for privitizing prisons is being questioned, this time in a story by the New York Times.

“There’s a perception that the private sector is always going to do it more efficiently and less costly,” said Russ Van Vleet, a former co-director of the University of Utah Criminal Justice Center. “But there really isn’t much out there that says that’s correct.”