Ninth Circuit Affirms Dismissal of Arizona Challenge to Private Prisons
In 2020, the Arizona chapter of the National Association for the Advancement of Colored People (NAACP) and two state prisoners filed a federal class-action suit, challenging the state’s use of privately-operated prisons on a variety of constitutional grounds. The district court dismissed the case for failure to state a claim in January 2022. Plaintiffs appealed, but a panel of the U.S. Court of Appeals for the Ninth Circuit affirmed the decision on May 21, 2024, rejecting each of the Plaintiffs’ claims.
After first determining that the NAACP had organizational standing to sue, the appellate court summarized the arguments raised in the complaint: “That private prisons are inferior to state-run prisons because they are motivated by profit, leading them to cut costs and resulting in diminished safety and security as well as reduced programing and services.” The profit motive also provided a financial incentive “to keep prisoners incarcerated longer … by manipulating disciplinary proceedings.”
Around 20% of Arizona state prisoners are held in privatized facilities, but the appellate Court found that the Plaintiffs had not “plausibly alleged” that incarceration in private prisons violates their due process rights. Serving time in for-profit facilities did not constitute an “atypical and significant hardship” in relation to the ordinary incidents of prison life, as required by Sandin v. Conner, 515 U.S. 472 (1995). Unsupported allegations that private prisons have fewer programs, more lockdowns and higher rates of violence were insufficient to support a due process claim. Nor were claims that private prison guards had a “financial bias” when charging prisoners with disciplinary offenses to keep them in prison longer and generate more profit for their employer. Such allegations were “vague and implausible,” the Court declared.
Eighth, Thirteenth and Fourteenth Amenment Claims
The Plaintiffs’ claims under the Thirteenth Amendment also failed, the Court continued, because being held in a private prison “does not remotely approximate chattel slavery”—and even if it did, the Thirteenth Amendment expressly allows slavery and involuntary servitude as punishment for people convicted of crimes. Moreover, the Ninth Circuit noted, private prisons do not own, buy or sell the prisoners they house.
In addition, the Court found, the Eighth Amendment does not prohibit imprisonment in for-profit facilities. The Plaintiffs argued that private prisons “commodify prisoners,” which is degrading, dehumanizing and violates their “human dignity.” But the appellate Court held that “inchoate allegations of an intangible offense to dignity—at least as asserted here—cannot support an Eighth Amendment claim.” Nor did the lawsuit credibly allege that conditions in private prisons constituted “a dramatic departure from accepted standards for conditions of confinement” that presented a “serious threat to prisoners’ physical well-being.”
The Court of Appeals further found that incarceration in private prisons did not violate due process protections under the Fourteenth Amendment. Citing Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022)—the Supreme Court of the U.S. (SCOTUS) decision that invalidated a woman’s right to an abortion—the Ninth Circuit wrote that the due process clause protects fundamental rights that are “deeply rooted in [our] history and tradition”—something the Court found was not true about the claimed right not to be held in a for-profit prison. The equal protection clause was not applicable either, since prisoners held in private prisons did not constitute a suspect class for discrimination purposes.
“Efficiency” Called Rational Goal
Lastly, the Ninth Circuit held that there was a rational basis for Arizona’s use of private prisons: the state’s goal of efficiency. State law, A.R.S. § 41-1609.02(8), requires that privately operated lockups must “provide at least the same quality of services as [those provided by] this state at a lower cost … [or] at essentially the same cost.” The appellate court noted that the state has a “legitimate interest in increasing the efficiency of its operations, and privatization is a rational attempt to achieve this goal.”
Circuit Judge Jacqueline Nguyen issued a separate opinion concurring in the judgment but also noting that the ruling was “limited only to the deficiencies in this particular case,” so “[o]ther inmates in private prisons may be able to allege viable constitutional claims, and we do not prejudge them.” Circuit Judge Daniel P. Collins dissented from the majority, arguing that the Court lacked jurisdiction to hear the case because the NAACP chapter should not have been granted organizational standing and the two prisoner plaintiffs had since been released, mooting their claims.
Essentially, the Plaintiffs raised numerous claims in their complaint but failed to support them with sufficient evidence, the Court said. Had they presented evidence about higher rates of violence, prisoner deaths, overdoses, weapons and other contraband, and prisoners serving a higher percentage of their sentences at private prisons in Arizona in comparison to state-run facilities, the outcome of the case may have been different.
The Court of Appeals wrote that the “plaintiffs’ arguments are better directed to Arizona’s representatives and the citizens who elect them—not the courts.” The Ninth Circuit in September 2022 also voided part of a California law that would have banned federal private prisons there, as PLN reported. [See: PLN, Apr.2023, p.46].
The Plaintiffs in the Arizona case were represented by attorneys John R. Dacey and Robert E. Craig III with Abolish Private Prisons in Phoenix; former Arizona Supreme Court Chief Justice Thomas A. Zlaket; and Fredrikson & Byron PA in Bismark, North Dakota. See: Nielsen v. Thornell, 101 F.4th 1164 (9th Cir. 2024), rehearing and rehearing en banc denied. An amended ruling entered on July 8, 2024, did not change the case outcome.
Related legal case
Nielsen v. Thornell
| Year | 2024 |
|---|---|
| Cite | 101 F.4th 1164 (9th Cir. 2024) |
| Level | Court of Appeals |
| Appeals Court Edition | F.4th |