Lawsuit Addresses Prison Contractors’ Immunity

Tuesday June 29, 2004

A lawsuit recently filed in Federal Court in San Diego on behalf of nine male and female detainees in the now infamous Abu Ghraib prison has legal and political implications that extend far beyond allegations of torture in Iraq. The suit addresses one of the most important issues of contemporary governance: Are prison contractors, working for the U.S. government, beyond the reach of law?  

Filed on June 9 by a major New York civil rights organization and a prominent Philadelphia law firm, the suit and the questions it raises have become critical as larger and larger governmental functions are turned over to private contractors, including the incarceration of individuals and the use of force here in America. 

As irrational as it may sound, private companies, cloaked in the full authority of the United States government, are not subject to the same legal constraints as government personnel. In a 5-4 vote in Malesko v. Correctional Services Corporation, the U.S. Supreme Court in 1999 specifically exempted government contractors from a substantial degree of liability.  

Justice Stevens, writing in the minority, prophetically noted that “ 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.”  

The global scale of government contracting also requires new thinking about controlling contractor abuse. The prison “ interrogators” contracted in Abu Ghraib were primarily naturalized Americans of Arab origin, and one of the two contractor company defendants is a wholly-owned subsidiary of a Dutch corporation. To deal with the special privileges afforded government contractors, the plaintiffs based their claims on the Alien Tort Claims Act of 1789 and the Geneva Conventions—causes of action in tort not generally available to U.S. citizens—as well as on the federal racketeering statute of 1970.  

The Abu Ghraib suit deals with the tip of an iceberg. There is a vastly larger class of alien prisoners incarcerated by American corporations. A recent study by the University of Houston Center for Immigration Research reveals that many of the issues raised by the Abu Ghraib lawsuit are also present in the network of immigrant prisons run by private companies and local governments under contract to the United States government. 

It is hard to determine the exact number of immigrants detained under various provisions of the Immigration and Nationality Act, the basic body of U.S. immigration law. Approximately 202,000 aliens were detained during fiscal year 2002, the Congressional Research Service recently estimated. The average daily immigrant population in detention has increased from 6,785 in 1994 to 22,812 in 2004, largely because of the mandatory removal provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. 

Almost certainly, a majority of detained immigrants are held under some form of contractual arrangement in contractor-managed facilities or in state and local jails. 

Privately run prison facilities vary widely in quality and in the services they provide. Consequently, the likelihood of abuse is considerable. In 1998, Human Rights Watch investigators documented extensive abuse in the large sample of facilities they visited. The report found, among other abuses, that the INS was placing its administrative detainees in jails with criminals, even though they were not serving criminal sentences. Those detained included asylum seekers and individuals picked up on the street or during workplace raids. 

“This practice violates international standards, and it must stop,” reported Human Rights Watch. 

Unfortunately, government reliance on third parties to manage immigrant prisons has increased. With the lack of oversight and accountability that accompanies government outsourcing, a corresponding growth in abuse is almost certain. 

In recent years, the privatization issue in American public policy was resolved—without serious public debate—in favor of greater government reliance on contractors. Today, will the question of government contractor liability for abuses occurring during incarceration be similarly resolved without serious consideration, and outside the democratic process? The fate of the Abu Ghraib prisoners and hundreds of thousands of detained immigrants may presage the shape of our own democratic institutions. 


Charles Munnell is a research associate at the University of Houston Center for Immigration Research and an immigration attorney. Nestor Rodriguez is professor of sociology, co-director of the Center for Immigration Research and chair of the sociology department at the University of Houston. He is co-author (with Cecilia Menjivar) of the forthcoming When States Kill: Latin America, the U.S., and Technologies of Terror, to be published by the University of Texas Press.