By John L. Badalamenti, Law Research Assistant & Charles W. Thomas, Director, Private Corrections Project, University of Florida. From the The Privatization Channel, 12-20-98, copyright by the Privatization Channel 1998, all rights reserved.
It is a fact that little more than a decade ago there was no state in the United States within which one would have found a statute that expressly authorized a state correctional agency to contract for the full-scale private management of a prison.
It is a fact that fundamental changes in statutes reflecting equally major changes in public policy generally come slowly, so few in the early 1980s imagined that the correctional privatization movement would gather momentum very swiftly---if, indeed, at all.
It is a fact that critics of correctional privatization repetitively articulated their legal opinion that any contract award would be swiftly invalidated on such legal grounds as, first, the absence of statutory authority and, second, unavoidable constitutional defects which would necessarily undermine the viability of any statutes legislatures might enact.
It is a fact that today finds the United States with nearly 151 full-scale privatization contract awards in place---and another 24 contract awards if one considers privatization initiatives in Australia, Scotland, South Africa, and the United Kingdom---that will provide an aggregate prisoner housing capacity which is now approaching 125,000.
It is a fact that, while federal agencies and local units of government routinely award facility management contracts, the vast majority of contracts in force today authorizes the housing of prisoners in fully privatized state prisons.
Our litany of "it-is-a-fact" introductory phrases, of course, is somewhat deceptive. Not all introduce a simple factual statement. In particular, the third item, while factual, contains a prediction by privatization opponents that is now necessarily recognized as being invalid. No court has yet held that the award of a prison management contract is unconstitutional on either federal or state constitutional grounds. No court has yet held that the award of such a contract is a violation of a state statute. Still, up-to-date legal research on privatization remains exceedingly scarce.
An Overview of Our Research Objective and Findings
Although most know that state prison contract awards have become commonplace, it is interesting that there has been no comprehensive identification of the legal authority on which contracting jurisdictions have relied. Indeed, one of the most common questions we receive at the Private Corrections Project at the University of Florida involves quests for such a compilation.
The absence of a review of enabling legislation, however, is understandable. Reviewing such a large body of law is far from a trivial undertaking. Worse yet, what one finds at a given point in time can change dramatically the next day with the stroke of a legislative pen. Problems aside, however, policy makers, researchers, and various others (e.g., the media and those in the financial world) have a pressing need for a reasonably straight-forward means of identifying and accessing the rapidly growing body of law that makes privatization a legal possibility and shapes the contours of privatization initiatives. Thus, we agreed to review the statutes of each American jurisdiction for the purpose of ascertaining the legal status of full-scale prison privatization in each.
Our approach was multi-faceted. Building on research reported in multiple previous editions of the Private Adult Correctional Facility Census, we first attempted to bring the earlier research up-to-date via a computerized search of all state statutes as well as those of the District of Columbia and Puerto Rico. We then reviewed the relevant "hard copy" portions of the statutes of each jurisdiction to assure ourselves that we were interpreting each statute in its broader context. Finally, when questions arose we felt we could not address with confidence, we contacted representatives of the Attorney General and/or the legal counsel for the correctional agencies of individual jurisdictions.
The value of our research, of course, is that it identifies specific statutory provisions in those jurisdictions in whose statutes we found what we interpreted to be adequately clear statutory authority to contract for the full-scale management of state prisons. On a statistical level, suffice it to say that we identified twenty-eight jurisdictions (including the District of Columbia and Puerto Rico) which have enacted specific legislation, eleven jurisdictions which are believed by us to construe their general statutes as providing adequate legal authority to contract, two jurisdictions within which statutes appear to prohibit contracting, and ten jurisdictions regarding which we were unable to identify statutory language either authorizing or prohibiting prison privatization initiatives and could find no in-state official who was in a position to provide a legal opinion.
To say the very least, the fact that thirty-seven states plus the District of Columbia and Puerto Rico now appear to have the legal authority to contract for the private management of state prisons represents a very impressive change in legislative perceptions of the value of correctional privatization. It is no less impressive that the recent history of privatization, which began with the award of a modest prison management contract by Kentucky to the U.S. Corrections Corporation in the mid-1980s, now finds prisoners from such a large proportion of these states actually being housed in privatized prisons.
Limitations on the Utility of Our Analysis
It is appropriate and necessary that we emphasize that this preliminary research product is very much a work in progress. It reflects our best professional judgment, and there necessarily is a risk of error whose magnitude we simply cannot estimate. An important source of possible error is that there are broad variations across the states in how detailed a statute must be if it is to provide a firm legal foundation for prison management contract awards. Judicial interpretations of the requirements of state constitutional law in some states presuppose a rather detailed statutory scheme (e.g., Florida and Virginia. In other states, however, it is arguably the case that very broad and non-specific language like "the Director of the Department of Corrections shall provide for the care and custody of the prisons of this state" would provide adequate statutory authority. The core cause of this involves the differing role played by what is commonly referred to as the delegation doctrine. At least some discussion of this doctrine is necessary here.
The Troublesome Contours of the Delegation Doctrine
The delegation doctrine exists in the area of state and federal constitutional law. It is most easily understood in relation to the more familiar separation of powers doctrine.
The separation of powers doctrine, of course, prohibits any co-equal branch of government from exercising a power vested by the constitution in another branch of government. Thus, the Legislative Branch may not exercise powers vested in the Judicial Branch, the Executive Branch may not exercise powers vested in the Legislative Branch, and so on.
Conceptualized as what amounts to the flip-side of this constitutional coin, the delegation doctrine imposes limitations on the degree to which one equal branch of government may authorize (i.e., delegate) another branch of government to exercise some portion of the powers the authorizing branch alone could exercise under typical circumstances. For example, it has become increasingly common to find Congress and state legislatures (obviously the Legislative Branch) enacting legislation that creates an almost bewildering array of regulatory agencies one finds within the Executive Branch. These agencies, in turn, are empowered to develop rules (i.e., administrative law) the violation of which can result in civil and sometimes even criminal penalties.
A problem with such delegations of power is that, for example, they can authorize the exercise of a specific power which cannot constitutionally be delegated by one branch of government to another or involve such broad and mandates that they are subject to constitutional challenge. Thus, the courts are rather routinely asked to determine whether, as a matter of constitutional law, the nature of the delegation violated the delegation doctrine. Decided cases long have recognized the relationship but also the distinctions between the separation of powers and delegation doctrine (e.g., Field v. Clark, 143 U.S. 649 (1892); Butterfield v. Stranahan, 192 U.S. 470 (1904); and United States v. Grimaud, 220 U.S. 506 (1911)).
In the privatization arena, of course, the delegation doctrine issue is at least somewhat different. There the delegation of power is made to a private entity (i.e., a management firm) by an Executive Branch agency (e.g., a department of corrections) in a manner presumably in compliance with statutes enacted by the Legislative Branch.
Ten years ago one of us examined that issue in a monograph prepared for the Florida House Committee on Corrections, Probation and Parole and entitled The Privatization of American Corrections: An Assessment of Its Legal Implications. Then and now it seemed clear that a delegation doctrine challenge to a privatization initiative might be construed to be unconstitutional if and only if a plaintiff could offer persuasive proof that one or more of three basic flaws characterized the contract-based delegation of power to a private entity:
We believe this decade-old interpretation of this feature of constitutional law is as viable today as it has proven to be over the course of ten years of legal experience across the nation. There is, however, an unavoidable uncertainty when one seeks to apply this legal interpretation to the law of individual states. The problem is easily stated but not easily resolved. In the many states that have enacted specific privatization enabling legislation (e.g., Arizona, Florida, Kentucky, Louisiana, Texas, Virginia, etc.), we believe the delegation doctrine is largely irrelevant. These states have enacted rather comprehensive legislative that we believe would survive even the most demanding delegation doctrine requirements. Consider, however, Missouri. We were unable to find any specific legal authority to contract with the private sector for the housing of state prisoners. We know, however, that Missouri was housing state prisoners in private facilities located in Texas in the recent past. Clearly, therefore, Missouri appears to have relied on a legal opinion that non-specific language in its general statutes provided all the authority which was needed.
We choose to neither agree nor disagree with the legal opinion that appears to have been offered by attorneys working within or on behalf of the Missouri Department of Corrections. Our point is simply that you will find multiple entries in our table of legal authorities which indicate either "none identified" or "permissive statutory interpretation of general statutes." The "none identified" entry indicates that we could find no expressed statutory language authorizing contract awards and spoke to no qualified attorney in the jurisdiction who asserted that existing general statutes were deemed either to meet or not to meet the demands of the delegation doctrine in the jurisdiction. The "permissive statutory interpretation of general statutes" entry indicates either that a presumptively valid privatization contract had been executed or that we spoke to an attorney representing the jurisdiction who was confident that existing statutory provisions would satisfy the constitutional requirements of the jurisdiction.
Putting to the side the possibility of flaws in our research, it should be obvious why we are troubled by the "none identified" and "permissive statutory interpretation of general statutes" entries. The former cannot be interpreted to mean that a privatization initiative would necessarily be unlawful; the latter cannot be interpreted to mean that a delegation doctrine-based challenge to a privatization initiative would necessarily fail. Both mean that the viability of a contract award would depend in large measure on the demands imposed by the delegation doctrine as that doctrine has evolved over time in the contracting jurisdiction. Advancing a legal opinion on a jurisdiction-by-jurisdiction basis would require a far more thorough analysis on principles of the constitutional law of each jurisdiction that we have attempted to date. Indeed, although no enabling legislation in the jurisdictions for which we provide specific citations to statutory authority has been successfully challenged in the courts, the absence of judicial decisions cannot be taken as proof positive that a challenge based on the delegation doctrine would necessarily fail.
Conclusions
At least in some regards, the table of legal authorities that accompanies this article speaks for itself. What it says is that the legal context without which the full-scale privatization of state prisons would be impossible has changed quite fundamentally and remarkably swiftly during the course of roughly the past fifteen years. Approximately three-quarters of the states either clearly have or perceive themselves to have adequate statutory authority to enter into prison management contracts. More than half already have entered into such contracts.
Importantly, however, there is much that the table of legal authorities does not reveal. It does not, for example, reveal the striking differences one finds in the level of sophistication and thoughtfulness that continues to characterize legislative drafting efforts. Some of the statutes are quite impressive. Others are at best awkward and inadequate. Further, both as a matter of law and of prudent public policy, reasonable questions can and perhaps should be raised regarding states that have contracted or believe they have the legal authority to contract but that have not developed any specific enabling legislation. States that contract in the absence of statutes akin to any number of thoughtful statutory formulations that have proven their viability do so at their own and an altogether unnecessary risk.
Limitations of what we are providing aside, we hope it is at least a useful beginning point for those who are interested in correctional privatization. Our intent is to maintain this information in an up-to-date format on our web site at the University of Florida as well as on The Privatization Channel. We very much hope that multiple readers from each jurisdiction will verify the accuracy of our information and alert us to any errors they may find or to any changes we need to take into account.