Under 'Color of Federal Law'

The Supreme Court ruled three decades ago in Carlson v. Green that a federal prisoner could sue for money damages from prison employees who abused his constitutional rights. On Tuesday, in Minneci v. Pollard, the court heard the government and others contend that a prisoner held in a facility operated by a private contractor cannot bring this kind of action.

The court should reject this argument. If not, it will allow the government to contract away prisoners’ constitutional rights — and contract away its own responsibility to protect individuals imprisoned under the law.

While incarcerated for 20 months in a privately run facility, Richard Lee Pollard fell and broke his elbows, a serious injury. When he sought medical treatment, he was refused a splint to help repair his arms and forced to wear a handcuff-like device that caused him tremendous pain.

If he had been in a government-run prison, he clearly could have sued those who mistreated him for damages. The private facility where Mr. Pollard was imprisoned was different only in ownership. It operated under federal authority and functioned as a government facility. Those who worked there or provided services for it were operating “under the color of federal law,” a critical test.

The government and others also contend that such actions are reserved for extraordinary circumstances where the person alleging injury has no other basis for suing because, for example, state law provides no remedy and that Mr. Pollard could have brought a civil action under tort law in state court. But after the court held that is no substitute because of the vagaries of state laws, Congress twice affirmed the right to sue officials for redress in federal court.

The Pollard case matters so much because one of every six federal prisoners is now held in a privately run facility, compared with none two decades ago. Private facilities also house half the federal immigration detainees.

Bad as many government-run prisons are, some privately run prisons may well be worse. There is mounting evidence that private prisons pay guards less, have smaller staffs and give limited training, reducing the level of care and oversight and exposing prisoners to greater threats to health and safety. The prisons and the people who work there must be held accountable when they badly perform this role of government.