In Nielsen v. Thornell, published May 21, 2024, a divided panel of the 9th Circuit Court of Appeals affirmed a district court's dismissal of a lawsuit brought by the NAACP and two former prisoners alleging that Arizona's private prisons violate various federal constitutional rights. The majority ruled that imprisonment in private prisons does not violate inmates' procedural due process right to a protected liberty interest, because only prisons that impose an atypical or significant hardship beyond ordinary prison conditions violate this right. None of the conditions of the private prisons alleged meet that high bar. The court deemed the prisoners' allegations that private prisons have a profit motive in keeping prisoners longer, by manipulating disciplinary proceedings, to be speculative, particularly because Arizona law bars private prisons from disciplining prisoners or making decisions affecting their sentence credits or release dates. The majority rejected the argument that the 13th Amendment bars imprisonment in private prisons. The 13th Amendment expressly excludes punishment for a crime of which the party has been duly convicted. Further, imprisonment in a private prison does not remotely approximate chattel slavery. Private prisons do not own, buy, or sell prisoners, the majority reasoned; instead, the state determines where prisoners are incarcerated. The 8th Amendment does not prohibit incarceration in a private prison, and the complaint did not allege conditions in private prison that constitute a dramatic departure from accepted standards for conditions of confinement. The 14th Amendment's Equal Protection and Due Process clauses do not bar imprisonment in private prisons. There is no fundamental right against incarceration in a private prison; there is no deeply rooted historical tradition against using such prisons. The private prison system does not discriminate against a suspect class. Therefore, the equal protection and due process challenges are reviewed for rational relation to some legitimate end. The system is rationally related to furthering the goal of efficiency.
One judge wrote a concurring opinion to emphasize that the decision is limited only to the facts of the particular case, not whether every use of private prisons passes constitutional muster. Another judge dissented, opining that the plaintiffs lacked standing and that the court should not be determining the merits of their case.
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