Federal Incarceration by Contract in a Post-Minneci World: Legislation to Equalize the Constitutional Rights of Prisoners

In the 2012 case Minneci v. Pollard, the United States Supreme Court held that federal prisoners assigned to privately-run prisons may not bring actions for violations of their Eighth Amendment right against cruel and unusual punishment and may instead bring actions sounding only in state tort law. A consequence of this decision is that the arbitrary assignment of some federal prisoners to privately-run prisons deprives them of an equal opportunity to vindicate this federal constitutional right and pursue a federal remedy. Yet all federal prisoners should be entitled to the same protection under the United States Constitution-regardless of the type of prison to which they are assigned. This Note discusses the national trend toward prison privatization and the current asymmetry in legal protections and remedies available to prisoners depending on whether they are assigned to federally-run or privately-run prisons. It concludes by proposing federal legislation that would provide uniformity in the protection of federal prisoners against cruel and unusual punishment.