Correctional Services Corporation v. Malesko: Boss, “They Can’t Hurt You Now”

Abstract

Over the past 20 years, issues surrounding the privatization of various services within correctional settings have been revisited in the United States and internationally. Almost without question, the motivation for implementing privatization of various services within a correctional setting (if not the entirety of an institution, for example) is by nature fiscal. The area of corrections has been the subject of much debate and growth regarding privatization. Yet the newest dawn of the private prison has left many questions unanswered. The answers will likelybe found through litigation on the federal level, and most of the questions will likely deal with issues of liability and culpability. This article focuses on the recent Supreme Court case ofCorrectional Services Corporation v. Malesko (2001). This case addressed the use of afederal civil rights remedy, a Bivens action, against a private correctional facility. As such,the case opinion helps to settle some of the issues surrounding the liability of private correctional institutions as well as generate policy considerations significant to correctional management.