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Lawsuit: Arizona's Use Of Private Prisons Violates The U.S. Constitution

A group of incarcerated people have filed a complaint in federal court alleging their confinement in private, for-profit prisons is unconstitutional.

Attorneys for those five Arizona prisoners, as well as the Arizona State Conference of the NAACP, argue that the state has delegated its “sovereign power of incarceration” to prison corporations that in turn treat prisoners as “economic assets.”

“The prisoners themselves become commodities and commerce. They become property,” said John Dacey, an attorney and executive director of the nonprofit Abolish Private Prisons. “And in our view, that is the kind of slavery that violates the Constitution.”

“Let me be real clear about one thing: We’re not saying that prison privatization is like slavery. We’re saying it is slavery, and that it violates the 13th Amendment,” he added.

The complaint, filed in the U.S. District Court in the District of Arizona, seeks class-action status for prisoners of the state Department of Corrections, Rehabilitation and Reentry — any inmate who is currently in a private prison, or may be transferred to one. 

It names department Director David Shinn as the sole defendant. A spokesman for the department declined to comment.

Plaintiffs Larry Hilgendorf, Terry Brownell, Joseph Bulen and Brian Boudreax are incarcerated in Arizona State Prison - Florence West. Plaintiff Jeffrey Nielsen is incarcerated in Arizona State Prison - Phoenix West. Both facilities are operated by the GEO Group.

If successful, Dacey said Arizona’s contracts with private prisons would be invalid.

“We are asking the federal court to declare state laws and state contracts with private prison vendors to be violations of the United States Constitution, and to prohibit them going forward,” Dacey said.

For that to occur, the courts will have to address the meaning of slavery.

“The (United States) Supreme Court has never defined slavery. So this will be new ground we’re breaking,” Dacey said.

Dacey said slavery is typically associated with cruel, involuntary labor. But he said it also includes ownership of another human being, or a property interest in that human.

For example, Dacey pointed to the value of private prison corporations traded on the New York Stock Exchange, CoreCivic and The GEO Group. In 2016, their stock plummeted when the U.S. Justice Department announced they would no longer utilize private prisons.

After President Trump’s election in 2018, the Justice Department reversed course, and so, too, did the fate of those corporations’ stock.

“So what was affecting the value of the stock shares was projections of the number of people that would be incarcerated in private prisons,” Dacey said. “The auction of human beings, if you will, through what we call public procurement and the government sector ties the value of an individual in a prison cell to the value of the stock shares of the corporations.”

Dacey said the relationship between profits and prisoners can have a “perverse” effect on one of the stated goals of the Department of Corrections: To rehabilitate prisoners and prepare them for reentry into society.

The lawsuit in Arizona may just be the first step. Dacey said his organization could file similar lawsuits in other states.

“It is our intention to get this issue before the United States Supreme Court,” he said. “And we think it’s important to do that sooner rather than later, before the government becomes overly dependent on private prison vendors.”

KJZZ"s Jimmy Jenkins contributed to this report.

Ben Giles is a senior editor at KJZZ.