This article by Sonya Levitova, a ’20-’21 Justice Catalyst Fellow at Emery Celli Brinckerhoff Abady Ward & Maazel LLP, was originally published by the Law and Political Economy (LPE) Project. Levitova’s fellowship focuses on holding federal officials accountable for their violations of incarcerated people’s constitutional rights. The article is available at https://lpeproject.org/blog/on-using-private-law-to-shut-down-private-prisons/ and is reproduced below.
From selling detailed personal data to ICE to operating prisons across the country to directing and facilitating torture at Abu Ghraib, privately owned companies’ participation in the United States federal government is a hallmark of the modern era. This practice of outsourcing governmental functions to private entities, also known as government by contract, permits corporations not just to participate in but to administer governmental systems.
The government frequently contracts out its systems of surveillance, exclusion, and punishment to private companies in the name of sensible-sounding rationales like lowering costs and increasing efficiency (insofar as mass incarceration can or should be “efficient”). However, privatization also conveniently insulates the government from accountability for its proxies’ actions. If something goes wrong—and it often does—the government can blame the contractor’s ineptitude or brutality, never naming the underlying truth that these systems are the result of the government’s inherently cruel mandate regardless of who has the winning bid to perpetuate them.
How can we fight for accountability when privatization is designed to allow the government and private contractors to evade just that? A recent lawsuit—and the campaign behind it—points to one underexplored answer.
On May 3, 2021, Portview Properties LLC sued CoreCivic in New Jersey state court for breach of contract. Portview owns a warehouse in Elizabeth, New Jersey, which it had leased since 1993 to CoreCivic, one of the nation’s most well-known private prison corporations, to operate an ICE detention facility. Portview seeks a judgment declaring that CoreCivic is in default of its lease agreement, which requires CoreCivic to abide by the terms of its contract with ICE and follow ICE detention standards and CDC guidelines for the prevention and control of infectious and communicable diseases like COVID-19. However, CoreCivic’s facility design and operation make it “impossible” for CoreCivic to comply with CDC COVID-19 guidelines, as people detained at the Elizabeth facility are housed together in large, open rooms where social distancing is impossible. This judgment would result in CoreCivic’s eviction.
Portview did not simply wake up and decide to sue. Organizers have long pressured Portview’s affiliate corporation, Elberon Development Group, which owns the building in question, to end its contract with CoreCivic. People protested Elberon’s relationship with CoreCivic outside the Elizabeth facility, at galas, and on campus. In March 2020, people detained at the facility went on a hunger strike to protest the deteriorating conditions inside and failure to prevent the potential spread of COVID-19, and in May 2020, sued the facility’s warden and other federal officials for their failure to safeguard the health of those inside. This collective effort, led by people in detention and over a dozen organizations, led to Elberon’s July 2020 announcement that it would move to terminate CoreCivic’s lease. (CoreCivic predictably resisted, responding to Elberon’s announcement by claiming a unilateral right to extend its lease through 2027.) Now, almost a year later, Elberon affirmatively seeks to end its private legal relationship with CoreCivic.
A company like Elberon, which bills itself as a third-generation family business with local expertise, clearly values community trust and involvement. This is precisely what local organizers seized on in their calls for the removal of Elberon’s chairperson from local nonprofit and college boards, emphasizing the dissonance between Elberon’s reputation and business practices. (It should also be noted that Elberon decided to end its CoreCivic contract during a “summer of racial reckoning” when it was reputationally costly for companies to stay silent.)
With private prison corporations like CoreCivic and GEO dodging state and local efforts to limit or end private immigration detention through litigation and contracting schemes that may circumvent federal law, the pressure campaign against Elberon and Portview’s ensuing lawsuit suggest a viable strategy for organizers and attorneys fighting privatized immigration detention. Unlike the criminal legal system, private prisons make up the overwhelming majority of facilities for immigrant detention. As of January 2020, 81 percent of people in ICE custody were incarcerated in facilities owned or managed by private prison corporations. And these privately owned facilities are infamous for human rights abuses: widespread medical neglect during the COVID-19 pandemic, use of tear gas and solitary confinement, and non-consensual hysterectomies and sterilizations, to name a few.
As pressure builds at the federal level to shut down privately managed criminal detention facilities, some of it may be released by inadvertently increasing privatized immigration detention. In late January, the Biden Administration released an executive order instructing the Attorney General not to renew Department of Justice contracts with privately operated criminal detention facilities. As advocates have pointed out, Biden’s executive order excluded DHS contracts altogether. It is no surprise that, after the U.S. Marshals Service refused to renew a contract with GEO, GEO said that it plans to market the now shuttered facility to other federal agencies—like ICE. Indeed, before the warehouse in question was used by the U.S. Marshals Service, it was an ICE detention center.
Organizers and attorneys have long grappled with how we can most effectively disempower private contractors like CoreCivic and GEO, which perpetrate abuse while operating in a legal and political system that largely shields them from scrutiny. Despite acting for all intents and purposes in the government’s stead, private contractors are frustratingly immune from liability for civil rights violations. Their relationships with the government are governed by private law. And who should organizers and attorneys target? The list of parties involved in furthering private contractors’ abuses is essentially endless given that contractors enter into all manner of agreements with other private parties to facilitate their conduct. Finally, contractor corporations answer first and foremost to their shareholders, not the public, and make decisions based on profit, not service.
But Portview’s lawsuit and the ongoing fight against immigration detention point to a potential way to leverage corporations’ relationship to their stakeholders for good: targeting their reputation. Scholars have long emphasized the value of public shaming as a way to push otherwise reluctant corporate actors into motion. There is a close relationship between a company’s perceived reputation and its economic well-being, and corporations habitually manage their reputational risk to preserve and grow their market value. Public shaming puts companies at risk of losing consumer goodwill and social capital, and companies are thus incentivized to avoid public shaming whenever possible—or, once shamed, to timely respond to the underlying cause.
Public shaming has been highly effective in other contexts as well. Take, for instance, the Sleeping Giants Twitter account, which pressured dozens of companies to remove their advertisements from Bill O’Reilly and Laura Ingraham’s Fox News shows. Or consider the years-long campaign to pressure Thomson Reuters into ending its contracts to share aggregated public records with ICE: last month, a majority of Thomson Reuters’ independent shareholders voted to review the company’s ICE contracts.
When it comes to the Elizabeth detention center, there is no way to know how Portview’s lawsuit against CoreCivic will end, but its existence suggests a workable strategy for people fighting privatized immigration detention and privatized government writ large. Private-law relationships are an important and manipulable link in the chain of quasi-governmental systems of punishment and exclusion. Making it financially risky for companies to act immorally can leverage corporate thirst for profit in service of social change, even if the company in question would otherwise not be legally liable for the consequences of its decisions. Where the executive branch drags its feet, organizers and attorneys may be able to stem private contractors’ abuses not only by pressing the government’s hand but by insisting that private third parties who facilitate those abuses (whether through leases, subcontracts, or other private law agreements) stop participating in contractors’ cruelty, and by working with them to bring lawsuits to end their contractual relationships with contractors like CoreCivic and GEO.
Creative organizing and private law causes of action thus provide a complementary means to challenge private contractors’ abuses—and, more broadly, the all-too-frequently bitter consequences of government by contract.