Correctional Services Corp. v. Malesko, 534 U.S. 61, 21 (2001)

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Cite as: 534 U. S. 61 (2001)

Stevens, J., dissenting

employees. As the Court has previously noted, the "organizational structure" of private prisons "is one subject to the ordinary competitive pressures that normally help private firms adjust their behavior in response to the incentives that tort suits provide—pressures not necessarily present in government departments." Richardson v. McKnight, 521 U. S. 399, 412 (1997). Thus, the private corporate entity at issue here is readily distinguishable from the federal agency in Meyer. Indeed, a tragic consequence of today's decision is the clear incentive it gives to corporate managers of privately operated custodial institutions to adopt cost-saving policies that jeopardize the constitutional rights of the tens of thousands of inmates in their custody.9

The Court raises a concern with imposing "asymmetrical liability costs on private prison facilities," ante, at 72, and further claims that because federal prisoners in Government-run institutions can only sue officers, it would be unfair to permit federal prisoners in private institutions to sue an "officer's employer," ibid. Permitting liability in the present case, however, would produce symmetry: both private and public prisoners would be unable to sue the principal (i. e., the Government), but would be able to sue the primary federal agent (i. e., the Government official or the corporation). Indeed, it is the Court's decision that creates asymmetry—between federal and state prisoners housed in private correctional facilities. Under 42 U. S. C. 1983, a state prisoner may sue a private prison for deprivation of constitutional rights, see Lugar v. Edmondson Oil Co., 457 U. S. 922, 936-937 (1982) (permitting suit under

9 As amici for respondent explain, private prisons are exempt from much of the oversight and public accountability faced by the Bureau of Prisons, a federal entity. See, e. g., Brief for Legal Aid Society of the City of New York as Amicus Curiae 8-25. Indeed, because a private prison corporation's first loyalty is to its stockholders, rather than the public interest, it is no surprise that cost-cutting measures jeopardizing prisoners' rights are more likely in private facilities than in public ones.


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