The Prison Journal
Reviewed By Sam Torres
“Are All Correctional Officers Created Equal? An Analysis of the Supreme Court Decision in Richardson v. McKnight,” by D. Shichor (2005 Vol. 85, No. 4, 420-444).
In the case of Richardson v. McKnight (1997), the U.S. Supreme Court reached a narrow five to four decision, deciding that private correctional workers are not entitled to the same qualified immunity defense enjoyed by similar persons employed by governmental entities. The article by Shichor discusses issues surrounding both the majority and minority opinions of the Court.
Historically, through the 1970s, the federal courts followed a “hands off” policy in regard to prisons and prisoner due process rights, deeming prisoners to be “slaves of the state.” The courts, recognizing that they were not trained or knowledgeable in penology, chose to allow wardens the freedom and discretion to operate their institutions without outside interference. Judges were likewise reluctant to interfere for fear of undermining the structure and discipline of the prison. However, in the 1980s, during a conservative resurgence in criminal justice administration, an interest in private prisons emerged. A major uncertainty that immediately surfaced as private companies sought to expand their operations revolved around the legal status of private correctional officers working for companies under contract with state and federal agencies.
The operation of private jails and prisons continues to be controversial, primarily because critics contend that the administration of punishment generally, and the operation of jails and prisons specifically, is the sole responsibility of the government. Private correctional workers, however, fulfill a function similar to public agency employees, and thus private companies believe their employees are deserving of qualified immunity similar to that enjoyed by government workers. Qualified immunity, in contrast to absolute immunity, protects government workers from liability so long as they do not violate “clearly established” (p. 424) rights. Richardson v. McKnight (1997) addresses the daily operation of correctional facilities, and in doing so differentiates between public and private employees regarding qualified immunity.
In Richardson v. McKnight (1997), Ronnie Lee McKnight, a Tennessee prison inmate serving his sentence in a facility run by the private corrections company of Corrections Corporation of America (CCA), filed a constitutional tort action against two CCA correctional workers, claiming that they injured him by placing him under excessive physical restraints. The two workers claimed to enjoy qualified immunity because they were acting under the color of the state. The U.S. District Court judge ruled against the workers, finding that they were not entitled to immunity from lawsuits. The Sixth Circuit likewise upheld the District Court’s ruling that private prison workers are not entitled to the same immunity enjoyed by government employed correctional officers. The Supreme Court affirmed the Circuit Court in a 5–4 decision.
Justice Breyer addressed several issues in writing the majority opinion. He noted that that there has been no clearly established tradition of immunity for workers employed by a private prison company. Furthermore, the majority opinion concluded that the immunity doctrine’s main purpose was to maintain the government’s ability to perform its traditional function. Correctional workers employed by the government possess qualified immunity as a result of their status as public employees. Qualified immunity, Justice Breyer wrote, protects “the public from unwarranted timidity on the part of public officials.” The majority opinion notes that the Court has never granted any kind of immunity to private persons who perform the same or similar functions as a government worker.
The majority also determined that the two private correctional workers overlooked certain differences between the functions and statuses of private and governmental workers, including the belief that private companies carry sufficient insurance to protect individual employees in the case of lawsuits. The Supreme Court concluded that the differences between public and private prisons indicate that private companies are free of many civil law restraints and are not compelled to operate exactly like government agencies.
The minority opinion written by Justice Scalia was based on a “functional” analysis of the correctional officer’s tasks. The minority felt that immunity should be determined on the basis of the public function being performed by the employee. Judge Scalia felt that the lack of qualified immunity for private workers would negatively impact their performance because of the greater exposure to lawsuits, and that immunity is needed for the same reasons that the majority gave for workers in government prisons. The authors also review the legal literature and conclude that more legal scholars support the “functional” approach of the minority over the “traditional” approach of the majority that feels immunity should be determined on the basis of the public function being performed by employees.
Shichor then provides a criminological analysis of the decision, addressing the issues of government monitoring, free market and free competition, employee motivation, and the functional approach. As noted, the minority opinion uses the “functional” approach to support their conclusion that correctional workers perform the same tasks whether they are in private or public prisons, and thus are also entitled to qualified immunity. Shichor concludes that although Richardson v. McKnight can be viewed as a setback for the private prison industry, the justifications are a mixed bag of pro and con arguments for privatization in corrections. A 1998 U.S. Department of Justice study, according to the author, has resulted in negligible financial consequences and higher insurance premiums have been marginal. Shichor concludes that it is unclear whether this case will have a major impact on the privatization of corrections.
In this article, Shichor has presented an excellent analysis of Richardson v. McKnight, citing justifications for both the majority and minority opinions. He presents the theoretical, penological, and legal issues concerning the arguments presented by the majority and minority opinions and concludes that thus far the impact of this decision on private corrections has been minimal, and that more legal scholars support the “functional” approach of the minority opinion over the “traditional” approach of majority.