Private Prisons and Prisoner Litigation: A Wheat and Chaff Problem

The Alaska Supreme Court decided today in Perotti v. Corrections Corporation of America that a prisoner in a private prison doesn’t have a right to recover damages from the private prison for violation of his or her rights. Bryan Perotti sued Corrections Corporation of America after CCA put him in solitary and, in his view, harassed him for “investigation of possible possession of escape paraphernalia.” The case was wrapped around the Cleary Settlement , a 1990 settlement of a class action lawsuit brought by Alaska prisoners against the Alaska Department of Corrections.

Part of the Cleary Settlement involved overcrowding in state prisons. The Alaska Department of Corrections’ solution to the overcrowding problem was to contract with private prison companies to house Alaska prisoners. Which is why, in 2004, DOC contracted with CCA to house prisoners, including Perotti, in CCA’s facility at Eloy, Arizona. Which is how a private company like CCA got to place Perotti in “segregation” for something as vague as “investigation of possible possession of escape paraphernalia.”

Now prisoner litigation is a serious nuisance in the legal system, including Alaska’s. Prisoners as a class are bored, unhappy and annoyed. They file any number of absolutely stupid, frivolous lawsuits. But it doesn’t follow that all of the lawsuits are frivolous. There are a few kernels of wheat in the bushels of chaff. Perotti’s claim may have been one of them.

By determining that an Alaska prisoner doesn’t have the right to recover money from a private prison contractor, the court has cut off the best single way to get a private prison contractor’s attention: by nibbling at their bottom line. In effect, the court is deciding that all prisoner litigation is chaff.

The mistake the court makes, WC thinks, is in treating public prisons and private prisons the same. They are not. As WC has argued before, a public prison has no motivation to keep a prisoner any longer than necessary. A private prison, paid a fixed amount per prisoner per day, has every incentive to keep the private prison census high, because it maximizes revenue. A private prison, for example, might be inclined to impose more discipline on prisoners because, under the system for credit for “good behavior,” it means the prisoners stay longer. And the private prison gets more money.

If Perotti’s “segregation” for  “investigation of possible possession of escape paraphernalia” results in Perotti serving more time, even if the “investigation” was baseless, CCA is a net winner. Perotti – and the State of Alaska, which is paying CCA – are net losers. By failing to take into account or even to acknowledge the different situation presented by a private prison contractor.

Sure, prison inmates don’t deserve immense amounts of sympathy. Sure, prison inmate litigation is a pain in the ass. But that doesn’t mean you can treat the two kinds of prisons the same. There are kernels of wheat in all that chaff. And there is such a thing as intellectual honesty.