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Access to Qualified Immunity by Private Defendants in 42 U.S.C. Section 1983 Damage Suits: the Implications for Correctional Privatization

NCJ Number
C W Thomas
Date Published
57 pages
This analysis of the role of qualified immunity in defending against inmate lawsuits brought against private correctional employees concludes that the United States Supreme Court will ultimately join the emerging consensus of lower courts in supporting the qualified immunity defense.
Evidence from privatization of corrections in several States indicates that privatization reduces or at least controls correctional costs. However, a significant component of total costs reflects the nature and degree of the legal liability exposure of private corrections firms and their employees. Starting with the 1977 decision in Procunier v. Navarette, courts have given correctional officials a qualified immunity from civil damage suits brought under 42 U.S.C. Section 1983. Several factors suggest that private correctional employees will also receive this immunity. Among these factors are the contract provisions that specify their discretionary powers, the fact that their functions are indistinguishable from those of public employees for whom a qualified immunity defense has already been established, and the lack of a public purpose for exposing private correctional employees to a greater risk of suit than is confronted by public correctional employees. Despite some critics' ideological objections to correctional privatization, these and other factors make the granting of the immunity defense likely. 155 reference notes