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Case Comment:  Qualified Immunity - Privatized Governmental Functions

  • Author(s): Dolovich, Sharon
  • et al.
Abstract

With prison populations increasing rapidly, more and more states are turning to privatization to trim their corrections budgets. Riding the crest of this trend are the private sector prison providers, whose combined business has grown more than fifty percent since 1996 and currently generates revenues of over a billion dollars a year. Industry spokespeople and other advocates claim that prison privatization also benefits the taxpayer by saving states millions of dollars annually in incarceration costs. Civil libertarians, however, fear that placing responsibility for prisoners in private hands may lead to violations of inmates' constitutional rights. In Richardson v. McKnight, the Supreme Court held that private prison guards are not entitled to qualified immunity from liability under 42 U.S.C. § I983. Finding that competitive market forces operate to discourage private prison guards from displaying unwarranted timidity in the performance of their duties, the Court saw no need to extend qualified immunity in this case." It did not, however, address the further question whether qualified immunity applies in the more likely situation in which private parties perform government contracts in the absence of competitive market forces. Lower courts should resist the temptation to conclude from this silence that an extension of qualified immunity is appropriate in such cases. As the private prison example - incorrectly characterized by the Court as a competitive market - illustrates, the profit motive animating private firms may mean that qualified immunity for private parties is inappropriate even, and especially, when competitive market forces do not obtain.

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