422
Scalia, J., dissenting
that the overall caliber of the services provided to prisoners has actually improved in scope and quality. Matters Relating To The Federal Bureau Of Prisons: Hearing before the Subcommittee on Crime of the House Committee on the Judiciary, 104th Cong., 1st Sess., 110 (1995).
* * *
In concluding, I must observe that since there is no apparent reason, neither in history nor in policy, for making immunity hinge upon the Court's distinction between public and private guards, the precise nature of that distinction must also remain obscure. Is it privity of contract that separates the two categories—so that guards paid directly by the State are "public" prison guards and immune, but those paid by a prison-management company "private" prison guards and not immune? Or is it rather "employee" versus "independent contractor" status—so that even guards whose compensation is paid directly by the State are not immune if they are not also supervised by a state official? Or is perhaps state supervision alone (without direct payment) enough to confer immunity? Or is it (as the Court's characterization of Alamango, see n. 2, supra, suggests) the formal designation of the guards, or perhaps of the guards' employer, as a "state instrumentality" that makes the difference? Since, as I say, I see no sense in the public-private distinction, neither do I see what precisely it consists of.
Today's decision says that two sets of prison guards who are indistinguishable in the ultimate source of their authority over prisoners, indistinguishable in the powers that they possess over prisoners, and indistinguishable in the duties that they owe toward prisoners, are to be treated quite differently in the matter of their financial liability. The only sure effect of today's decision—and the only purpose, as far as I can tell—is that it will artificially raise the cost of privatizing prisons. Whether this will cause privatization to be prohibitively expensive, or instead simply divert state funds
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