Minneci v. Pollard and the liability of federal private prisons

The Reason Foundation’s Annual Privatization Report 2013, which has been released in chunks over the last few months, is now all out. In the Criminal Justice and Corrections section, you’ll find my article on Minneci v. Pollard, a Supreme Court decision from last year on federal private prisons’ Bivens liability. Here’s an excerpt:

Early in 2012, the Supreme Court handed down its decision in Minneci v. Pollard, denying a money damages remedy against employees of a private prison firm for alleged violations of a federal inmate’s constitutional rights. The Minneci decision has been generally criticized by those who believe in the wide availability of money damages for federal civil-rights claimants. While Minneci is indeed the culmination of a long evolution toward restricting federal civil-rights lawsuits against federal actors, its effects will, overall, probably be somewhat modest. . . .

What is the upshot of Minneci? Various commentators have been quick to charge that Minneci shuts the federal courthouse doors to private-prison inmates, creates new obstacles for civil rights plaintiffs, radically reduces the scope of relief, and allows the federal government to extinguish the Bivens remedy through privatization. Yet these concerns may be somewhat overblown.

It is true that the Court’s concern with nationally uniform rules for constitutional torts is gone. It is true that any hint of an insistence that only federal alternate remedies could displace Bivens is likewise gone. It is true that Minneci is in substantial tension with Carlson, though it is perhaps premature to say that Carlson has by now been implicitly overruled: recall that Carlson rested on factors other than an unwillingness to rely on state law, such as the inadequacy of the FTCA remedy and its unavailability against individual defendants.

Most importantly, though, it is true that, in federal private-prison cases, Bivens is unavailable—but only because there is an alternate remedial regime, which is quite attractive. Privatization may eliminate a Bivens remedy in many cases, but it will open up state tort remedies that, on balance, may be at least as advantageous to plaintiffs. Moreover, the Court left open the possibility of Bivens suits continuing to exist for those Eighth Amendment violations that don’t fall squarely within tort law, like, for instance, the failure to provide sufficient hygiene. It also left open the possibility of Bivens suits existing for violations of, say, the First Amendment or Equal Protection Clause, which quite often have no tort analogue, not even a rough one. And perhaps Bivens suits might exist in the odd state that is systematically less generous to its private-prison plaintiffs, though unfortunately the Court was less than crystal-clear on this issue.

As a result, for all the doctrinal innovation that Minneci represents, the main story of this case may be that of the counter-revolution against inmate rights that didn’t happen. This may be a decision with surprisingly modest effects on private-prison civil-rights litigants.

You can click here to read the whole thing. I also have a symposium piece on Minneci forthcoming in the Akron Law Review; that will be posted here in due course.