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Introduction
This Note seeks to explain how practitioners and advocates can ensure that private prisons provide cost-effective services of sufficient quality when they contract to incarcerate individuals on behalf of government entities. It focuses primarily on the two largest industry competitors, Corrections Corporation of America ("CCA") and the GEO Group ("GEO"), who together control the vast majority of the private prison ownership and management market.1 These companies are the only publicly traded entities in this field, and both are engaged in a broad range of correctional services, including facility management and ownership, prisoner transportation, and community supervision.2 There are also many smaller companies that manage hundreds of thousands of prisoners, probationers,3 and parolees for profit in the United States.4
Preserving human rights in prison is valuable both as a distinct goal and as it relates to reducing recidivism, improving public health, and providing meaningful opportunities for former prisoners to reintegrate. At a more basic level, governments are ultimately responsible for the treatment of their prisoners. The goal of regulating prison operations should be primarily to promote the well-being of prisoners; while luxurious conditions are neither warranted nor advisable, governments must provide some level of humane treatment and basic rights to all prisoners.
Part I evaluates the current state of law and practice regarding access to information from private prisons. The need for greater oversight is especially pronounced for private prisons, which have incentives to cut comers and are funded primarily by tremendous taxpayer investments.5 In seeking to offer mechanisms to enhance oversight, Part II analyzes how litigants have utilized "functional equivalency" standards for public records suits and § 1983 liability to require private prisons to comply with public records requests. Part II also evaluates how attorneys in states with favorable statutory frameworks could use these tests to similarly bind private prisons. Part III concludes with a set of modest recommendations for increasing private prison transparency and oversight, including litigation-oriented approaches, legislative reforms, and improved contract drafting and enforcement.
I. The Value of Transparency in Private Corrections
Effective oversight is a challenge for both public and private prisons. While attorneys and advocates have developed some successful methods of prison oversight, privatizing prison operations limits the effectiveness of these methods. As oversight through litigation has diminished...