Over the past few decades, corporate America has accrued influence and power in a most unlikely arena: the nation’s prison system. States and the federal government, citing economic and logistical advantages, have enlisted corporations to construct, staff, and operate their correctional facilities. As the federal inmate population skyrockets, the federal government’s reliance on prison corporations has become pronounced in recent years. The industry’s success produced controversy, as critics have argued that the corporations’ focus on profitability compromises inmate welfare. The news media reports of abusive conditions in private prisons corroborate these suspicions.
Coincident with the rise of private prisons, inmates began suing private prison employees for alleged constitutional violations. These inmates filed suit pursuant to Bivens, a cause of action that exposes “federal agent[s] acting under color of [their] authority” to monetary damages for violating an individual’s constitutional rights. The lower courts were divided on whether the inmates could maintain these suits, some allowing the claims and others barring them. The courts’ dissention appears inevitable given the Supreme Court’s tendency to “explain[] its approach to Bivens claims in a variety of ways” since it first implied the cause of action in 1971. Recently, in Correctional Services Corp. v. Malesko, the Supreme Court complicated matters further by drastically limiting the circumstances under which courts may extend the Bivens action. Divergent interpretations of this decision and its predecessors gave rise to the current split among lower courts.
This Note begins by surveying the history of private prisons and explaining the federal government’s recent move toward privatization. After reviewing various remedies available to inmates, this Note examines the evolution of the Bivens remedy. It then explores key decisions by three courts regarding whether inmates held in private prisons may sue prison employees under Bivens. Finally, this Note argues that courts should extend Bivens to privately-incarcerated federal inmates, but concludes that a recent Supreme Court decision regarding Bivens may foreclose this option. . . .