Privately operated prisons should be held to the same constitutional standards as publicly operated prisons, protecting inmates from civil rights violations.

The Eighth Amendment's protections against cruel and unusual punishment are a lifeline to the men and women incarcerated in our jails and prisons. Under court interpretations of this constitutional guarantee, prisoners must be treated humanely and given food, medical attention, shelter, recreation and freedom from abuse by guards and fellow inmates. If state or federal detention facilities don't meet these constitutional minimums, an inmate may bring an action in court.

Now the U.S. Supreme Court has excused federal prisons operated by private companies from any suit in which the inmate claims his or her constitutional rights have been violated. The 5-to-4 decision, split along the ideological fault lines of the court, effectively absolved federal private prisons contractors from being held to the same constitutional standards that apply to government officials.

The case was brought by John Malesko, who was sentenced to 18 months for securities fraud. At the tail end of his term, he was moved to a halfway house operated by Correctional Services Corporation, a for-profit company under contract with the Federal Bureau of Prisons. Due to Malesko's heart problems, he was given special permission to use the elevator to get to his fifth floor room. However, one night an employee of CSC blocked Malesko's use of the elevator, directing him to climb the stairs. During the climb, Malesko had a heart attack and fell, suffering injuries.

Malesko brought a damages action against CSC, implying that the company had violated his Eighth Amendment rights. CSC countered that as a private company it was not subject to such a suit. The Supreme Court agreed, saying that even when a private corporation is performing a fundamental governmental function, such as incarcerating individuals, it is not liable for constitutional violations.

The decision places a highly vulnerable population in a more precarious spot. As the dissent written by Justice John Paul Stevens noted: "(A) tragic consequence of today's decision is the clear incentive it gives to corporate managers of privately operated custodial institutions to adopt cost-saving policies that jeopardize the constitutional rights of the tens of thousands of inmates in their custody."

Private prison corporations exist to serve their stockholders, not their charges. Inevitably, there are pressures to generate profits by cutting services to inmates. In fact, CSC facilities have been the subject of numerous allegations of abuse, often directly due to an unwillingness to spend money for proper services or personnel. In 1999, the Chicago Tribune reported that CSC increased revenues seven-fold while complaints of poor treatment piled up, including allegations that guards staged gladiator-like events using the teenage boys held at the facility, not providing basic medical care and keeping children locked up after they were supposed to be released in order to pad revenues.

Federal prisons are not open to the general public or the press, meaning there is little accountability. Often the only way a prisoner can draw attention to an abusive situation is through a lawsuit. But the court's majority has closed off a significant route for legal action. By drawing a false distinction between publicly and privately operated prisons, the court has said there are some constitutional violations that prisoners unlucky enough to be sent to a private prison will just have to grin and bear.

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