Vanderbilt Law Review

First Page



Privatization of correctional institutions has emerged in response to the growing problem of prison overcrowding and the increasing cost of providing correctional services. Although it offers solutions to pressing social and financial problems, privatization raises two significant legal questions. First, how much force may a prison guard, hired by a private corrections corporation, use against a prisoner; and second, who will be liable when that guard uses excessive force?

This Note analyzes the issues surrounding the liability of both state and private corrections corporations for the excessive use of force by private prison guards. Part II examines the imposition of Section 1983 liability on private actors through the state action doctrine. Part III addresses the constitutional limitations on the use of force against incarcerated individuals, focusing on three is-sues that affect the liability of state and corporate officials: the basis for supervisory liability, the availability of immunity defenses,and the ability of a state to delegate its responsibility for prisoner safety. Part IV examines the United States Supreme Court's prohibition of federal adjudication of pendant state law claims against state officials. Part V examines the liability of state officials and corporate managers for excessive use of force by private prison employees and suggests a rationale for treating private corrections corporations similarly to state corrections agencies. Finally, Part VI concludes that the viability of private prisons may depend on a determination that a private entity which is a substitute for the state with respect to liability should also stand in the state's shoes with respect to common law immunity.