Private Prisons Are Unconstitutional

We have been asked several times about why Abolish Private Prisons (“APP”) will not challenge private prisons on their quality (or lack thereof) including, for example, lack of programs, poor medical care, increased taxpayer costs and overall conditions. This blog post provides our summary rationale.

First, private prisons have not cornered the market on bad prison conditions. Public facilities have so many long-standing problems of their own. Any comparison of public to private prisons invites never-ending, expensive studies and monitoring where the facts on the ground change constantly. Comparative challenges would be very fact-intensive and the preliminary questions would include “between which facilities?”, “on which day?”, and “in which year?”. Yes, there have been state and federal government reports that are very critical of private prisons. The same criticisms can be levied against many public prisons, and have been.

Second, APP was established to meet an unmet need. When it was founded there already existed a number advocacy groups around the country that advocate for improved prison conditions in both public and private facilities. These efforts include education campaigns, grassroots advocacy, and civil rights lawsuits, such as the Parsons class action litigation against the Arizona Department of Corrections over medical care. Generally, the law regarding prison conditions has been well-established for a long time. Prison condition lawsuits are mostly about the facts on the ground and they last for many, many years, first to reach a court decision or settlement, and then more years of enforcement activity. APP will not duplicate these worthy efforts.

APP instead will focus on the law. We seek to establish that private prisons are unconstitutional and must be abolished. Given APP’s mission, spending our efforts to reform the conditions inside private prisons, in our view, would be like rearranging the deck chairs on the Titanic – it’s a futile gesture when the ship is going down.

The United States Supreme Court has not decided whether private prisons are lawful because the Court has not been presented with that question. We intend to change that. Our goal is to reform the system, similar to when that Court was presented with the constitutionality of segregated, “separate but equal” schools in Brown vs. Board of Education. The preliminary assumption should not be that private prisons are constitutional, but instead “Why would anyone assume that they are constitutional?”

We have a real opportunity to create lasting change, which is to eliminate profit incentives in the system of criminal justice. No one should ever be in prison for violating a law that was enacted to create corporate profits, or be denied early release from prison to enhance corporate profits. Our criminal justice system should not tolerate even the appearance of such improprieties. Please join us and spread the good word.