Private Prisons on Trial

By Andy Andrianantoandro

Last month, the Supreme Court heard the oral argument regarding Minneci v. Pollard, a case questioning whether private prison employees contracted by the federal government can be sued for Eighth Amendment violations under a Bivens action. The result of Bivens v. Six Unknown Named Agents, a Bivens action allows individuals in prison to sue federal employees for damages from unlawful conduct when no other remedy is available. Minneci v. Pollard is about how Richard Lee Pollard, housed in the Taft Correctional Institution (TCI) in California run by The GEO Group, was subjected to painful conditions at the hands of prison employees. Pollard broke both of his elbows from a fall and was forced into labor by prison employees before he healed and was denied of the splints doctors recommended for his injuries. Pollard first brought the case to a district court and after they rejected it, appealed to the 9th Circuit Court of Appeals which ruled in his favor. Based on what happened in the oral argument, Pollard may not be as lucky once the justices come to a decision which could spell disaster for constitutional rights and victory for the private prison industry.

The oral argument was mired with confusion as well as indifference towards the constitutional rights abuses Pollard had encountered. Most of the justices seem to have favored the petitioners in the case since the petitioners’ attorney Jonathan Franklin and amicus curiae Pratik Shah were asked softer questions about their misleading argument. Justice Antonin Scalia even went so far as to trivialize the allegation that Pollard had been denied food by prison employees. According to the petitioners, a Bivens action makes no sense since the prison employees are contracted by the federal government and Pollard had state law remedies available to address his grievances. The petitioners claimed in their amicus brief that their facility has sufficient standards and is regularly monitored by the Bureau of Prisons (BOP). Such BOP oversight is a questionable safeguard, especially when former BOP Director Harley Lappin was hired less than a month after leaving his post as Executive VP and Chief Corrections Officer at Corrections Corporate of America (CCA) in June.

Though the petitioners’ argument was organized but limited in scope, the respondent’s could have been delivered more poignantly The respondent’s attorney John Preis presented a well intentioned argument but it was still poorly constructed and lacking. He was consistently interrupted by a litany of questions from the justices he was not entirely prepared for. When asked by Justice Elena Kagan why this case was not brought as a state law claim accusing the employees of negligence, Preis told her that his client did not know any better since he only had access to federal law books. However, Preis mentioned correctly that Pollard was in a federal prison so relying on federal law seems appropriate. Preis could have elaborated on why the 9th Circuit Court ruled in their favor instead of almost appearing like Lionel Hutz from "The Simpsons."

Preis could have focused on the fact that the private prison industry are only concerned about their profit margins, “…at the expense of institutional and public safety.” As the federal government increases its reliance on private prisons, they are placing the constitutional rights of individuals in tremendous jeopardy due to the substandard conditions of private facilities. The 9th Circuit ruled in Pollard’s favor because the prison employees who were contracted operated under “color of federal law,” an important deciding factor no one mentioned during the oral argument. Although they were not official federal employees, these people were contracted to fulfill the very same duties as a federal employee; therefore, they must be held to the same level of accountability. As the economy continues its collapse, federal and state governments are being swooned by the private prison industry with promises of lower costs (proven false in JPI’s Gaming The System) and having lawmakers do their bidding under the guise of fiscal responsibility.


Andy Andrianantoandro is a Fall Intern at JPI and a student at the University of Maryland