Each day this week, Amicus will feature an editorial post written by one of CRCL’s new General Board members. Today’s post discusses the future of the right of federal prisoners to sue prison officials for eighth amendment violations in the era of prison privatization.

The Eighth Amendment guarantee against “cruel and unusual punishment” has been a primary source of protection for prisoners objecting to their conditions of confinement. In 1980, the Supreme Court enhanced this protection by establishing an implied damages action against federal prison officials for violating the Eighth Amendment. Since its decision in Carlson v. Green, 446 U.S. 14 (1980), inmates have been able to sue individual prison officials for violating their Eighth Amendment rights.

Carlson marked one of the few times that the Supreme Court has extended its decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In Bivens, the Court allowed a victim of a Fourth Amendment violation to sue individual federal officers. This groundbreaking decision essentially created an implied private action for damages against federal agents who violated a citizen’s constitutional rights where there had been no statutory creation of one. The Court reasoned that because federal officials acting under “color of law” possess a far greater capacity for harm, constitutional restrictions should apply to them in ways they may not apply to normal citizens. Though the Court has been cautious to extend this judicially created cause of action to other situations, in Carlson the Court ruled that a Bivens remedy is available to inmates claiming violations of the Eighth Amendment.

A recent trend in federal prisons is threatening to destroy this cause of action for prisoners. The National Capital Revitalization and Self-Government Improvement Act of 1997 authorized the Attorney General to act through the Bureau of Prisons and contract with private entities to house federal prisoners. Since that time, thirteen privately run facilities have opened and are currently housing more than 25,000 federal prisoners. Since private prison employees are not government actors, these prisons call into question whether Bivens applies to privately owned prisons as well.

Several circuits have considered this question and have come to different conclusions. Relying on the Supreme Court’s historic reluctance to extend Bivens, the Fourth Circuit in Holly v. Scott, 434 F.3d 287 (4th Cir. 2006), ruled that inmates could not sue private prison employees directly under the Constitution for Eighth Amendment violations. Similarly, in Peoples v. CCA Detention Centers, 422 F.3d 1090 (10th Cir. 2005) the Tenth Circuit held that a pretrial detainee in a private prison could not sue under Bivens when alternative state or federal remedies existed. Recently, however, the Ninth Circuit came to the opposite conclusion. Reasoning that private prisons are engaged in a “public function,” the Ninth Circuit held in Pollard v. GEO Group, Inc., 629 F.3d 843 (9th Cir. 2009) that Bivens should and does apply to private prison employees the same way that it applies to government employees.

Now it is up to the Supreme Court, who granted certiorari this past May, to clear up this controversial question and resolve the circuit split. Many inmates, prison rights advocates, and private prison corporations are anxiously awaiting this decision, which will have enormous implications in the area of prison litigation in this country.