As the number of prisoners in private lock-ups continue to increase, lawsuits filed by them, not unexpectedly, are also on the rise. While that is no surprise to corrections professionals and litigators, what is new are some of the legal theories being pressed and the entities named as defendants. This brief article will review these developments and suggest legal strategies for plaintiffs and defendants in prisoner civil rights lawsuits involving privately owned and operated facilities. The class action brought by the Youngstown, Ohio prisoners at Correction Corporation of America's (CCA) Northeast Ohio Correctional Center (NOCC) will be used as a case study to demonstrate some of these theories in action.

I. Youngstown Case Study The Problem
Youngstown, Ohio is a classic "rust-belt" community. Formerly the center of a thriving group of steel mills, the city now struggles to find meaningful jobs for a blue collar workforce. The region already had three public prisons either open or under construction in 1996 when CCA proposed construction of a 1500 bed facility. Guard positions, as they are in so many depressed areas, were viewed as good jobs so an economic development package was quickly negotiated with the city. The agreement transferred 100 acres and granted tax abatements for ten years to CCA in exchange for a "medium security" prison that would employ approximately 350 local residents with an estimated annual payroll of eight million dollars. The forty-seven million dollar prison was constructed in approximately nine months.

No Ohio state law regulated private prisons at the time. The Ohio Department of Rehabilitation and Correction (ODRC) had no role in siting, designing, or establishing standards for the prison's operation. In restricting most hires to local residents, the resulting workforce proved to be very inexperienced. The doors opened on May 15, 1997 following the signing of a temporary contract between CCA and the Government of the District of Columbia. The first 900 D.C. prisoners were transferred to NOCC in just seventeen days. Although, the employees had participated in a four week training program, most had never seen an prisoner before the prison opened. Those employees would have a rude awakening.

The prisoners who arrived were not all "medium security" men. In fact, the D.C. government used the opening of NOCC as an opportunity to transfer nearly 200 of its most disruptive prisoners from the troubled complex in Lorton, Virginia. Moreover, hundreds more were transferred directly to NOCC from the Maximum Security Facility at Lorton. The contract between CCA and D.C. called for a "transfer packet" to be provided to CCA seven days before a prisoner was presented in Ohio for incarceration. This was intended to serve as a vehicle by which CCA could check classification.

No packets were sent; no one checked the classification of the men to insure that they were medium security; and CCA did not complain. By the end of October, the prison had 1700 D.C. prisoners. Nearly 200 of those men were subject to separation orders. CCA did not protest or complain about the "separatees". Rather, the company welcomed all arrivals from D.C.

The Youngstown development agreement did not call for any monitoring by local officials of activity in the prison. D.C. had no regular monitor at the prison during the initial months. The host state of Ohio did not monitor NOCC. Meanwhile the experienced D.C. prisoners discovered a great deal of shank material in the new facility and violence soon erupted. Numerous prisoners and one guard were stabbed in the initial months. The staff responded with chemical agents, including one episode at the end of May, 1997 when four cellblocks had chemical agents dropped on them from openings in the roof.

The prison was filling so rapidly that necessary records, including medical records, often failed to be delivered with the men. At one point in September, 1997, 400 prisoners were incarcerated at NOCC without any medical records from the sending agency. Many of these men suffered from complicated, chronic conditions including HIV/AIDS, hypertension, diabetes, and mental conditions requiring psychotropic medications. Chronic care prisoners remained underserved for months.

As of March, 1998, twenty men had been stabbed and two were murdered by predatory prisoners. Five prisoners died of medical conditions. In the Spring of 1998, the facility was locked down and the men underwent a series of degrading strip and body cavity searches. In July, 1998, six prisoners, including five murderers escaped. One remained at large for nearly a month. The national media gravitated to the scene and reports were made on NPR, All Things Considered; Fox Files; Dateline and Sixty Minutes. Articles appeared in The New York Times, The Wall Street Journal and The Washington Post as well as in the local Ohio papers. Following the escapes, Republican Governor George Voinovich (whose brother's construction company built the facility) called for the prison to be shut down.

A class action lawsuit was filed by the prisoners ten weeks after the facility opened. The action alleged that the prison was unauthorized under Ohio law, and that CCA and Washington D.C. failed to protect the prisoners; authorized the use of excessive force by staff; provided inadequate medical care; and failed to provide programming as promised in the contract between D.C. and CCA. Eventually the host community, Youngstown, Ohio, took the unprecedented step of joining the prisoners as plaintiffs alleging that the defendants violated the terms of the development agreement by not establishing a medium security prison.

All of the six theories of liability or legal issues summarized next in this article were either briefed or debated during the course of the lawsuit and the related effort to secure state legislation. The case was settled before any judge gave a definitive ruling on these issues. A summary of the class action settlement and the related state legislation appears near the end of this article. These legal doctrines or issues are being pressed in a number of lawsuits against private prisons that have been filed around the country.

II. Theories of Liability & Legal Issues
#1 Was a "Private Prison" Authorized by State Law?
The Youngstown prisoners argued that a local municipality is without authority to establish a private prison. Although Ohio is a home rule state, an issue is not deemed "local" and therefore a subject for local government if it is a "matter of statewide concern." Bucyrus v. State Dept. of Health, 120 OS 426 (1929); Kettering v. State Employment Relations Board, 26 OS 3d 50 (1986). The security of the Youngstown area citizens with respect to felons transported from out of state necessarily required coordination among law enforcement agencies well beyond the city limits. State wide issues arguably were implicated.

This position was bolstered by the fact that state law at the time authorized local governments to establish only jails, not prisons. Further, even under that authorizing law, local government was expressly prohibited from housing prisoners from out of state. See ORC §9.06(A). See also ORC §§1.05 and 753.03.

In addition to challenging the basic authority for the facility, the prisoners also challenged the staff's authority to use force or even detain them since the staff were not law enforcement guards under Ohio law. See ORC §§2901.01(11); 109.78. They also noted that the criminal escape statute did not make it a crime to escape from a private prison. ORC § 2921.34. See also Kentucky Attorney General Opinion(90-115)(county may not lease prison for use by out of state prisoners since operation of prisons constitutionally mandated to state).

United States District Judge Sam Bell did not rule on this issue, preferring instead to wait for the state legislature to act. He did express his frustration:

"I am most appalled, however, with the fact that this facility, 60 percent of whose population has been convicted of some form of homicide, is erected, put into operation without the slightest thought of how the possibilities which flow from the erection of this place impact on the citizens of OhioI cannot imagine that we find ourselves in a position where we do not know how to handle, legally, lawfully, those who escape from this prison, if that's what this is. I cannot imagine that although the notice has been given to the legislature, that we don't have any action on this at all."

CCA argued that the prisoners had no standing to challenge the legality of the prison and that the prison was authorized under existing law. Further, while debating potential legislation in the statehouse, CCA urged that any attempt to bar private prisons in Ohio would violate both the Commerce Clause and the Contract Clause of the United States Constitution.

As a general legal proposition, a plaintiff must suffer injury based on a legally protected interest in order to have standing to challenge that deprivation. Accordingly, CCA argued that prisoners have no liberty interest in determining the place of their incarceration. Olim v. Wakinekona, 461 U.S. 238 (1983); Meachum v. Fano, 427 U.S. 215 (1976). These cases involved involuntary transfers between government facilities and did not involve a challenge to detention in a private prison. The prisoners rebuttal was that if there is no legal authority to hold them in a facility in the first place then caselaw involving only authorized, public facilities is irrelevant.

CCA and similar private operators claim that the private commercial status of these ventures actually provides these prisons with special protection under the Constitution. This issue has been raised in state legislatures outside Ohio where laws banning or regulating private prisons have been debated.

Generally, Congress and not the individual states, has the plenary power to regulate commerce among states. Thus, it is argued that a state needs no particular law authorizing private prisons since the very attempt at regulation of the enterprise allegedly violates the Commerce Clause. Commerce Clause arguments, however, can be trumped by laws that invoke a state's police power designed to protect the health and safety of its citizens. In these instances, courts find the incidental burden on interstate commerce is acceptable. See: Maine v. Taylor, 477 U.S. 131 (1986)(state ban on bait fish does not violate Clause). But see United States v. Lopez, 514 U.S. 549 (1995)(prohibition on gun possession in school zone exceeded Congressional power under Commerce Clause) and C&A Carbone, Inc. v. Clarkstown, 511 U.S. 383 (1994)(state cannot ban import of garbage).

Does regulation of private prisons violate the commerce clause? Probably not. States have a recognized legislative interest in protecting the security and safety of its citizens. A law that regulates prisoner classification in order to insure that predatory prisoners are not mixed with medium prisoners would probably survive a Commerce Clause challenge. But what about a state law that bans private prisons? This obviously would be a closer issue.

The debate is even more complicated when as in Ohio - the proposed ban would have interfered with a private prison that has commenced operations. The Contract Clause in the Federal Constitution, or relevant state constitution provisions, are then implicated.These provisions generally prevent a state from interfering with preexisting contracts. The factors considered in determining whether a law violates the contract clause include the severity of the impairment, the history of regulation in the relevant field, the public purpose behind the regulation, whether there is a rational relationship between the means chosen for regulation and the purpose of the regulation.

No court appears to have decided whether a state may ban private prisons after they are already operating in a state.

#2 - §1983 Do the Old Principles Apply?
The statutory foundation for most prisoner civil rights cases is 42 U.S.C. §1983. Through this law prisoners can sue those who act "under color of law" for violations of constitutional and federal statutory rights. Most courts have held that private prison operators who contract with governments to confine state prisoners are acting under color of law and therefore are subject to suit. See e.g., Street v. Corrections Corporation of America, 102 F. 3d 810 (6th Cir. 1996). Over the years a number of principles have been established that provide protection for state defendants sued under §1983. However, these principles either may not apply or not fully apply to private defendants.

a) Qualified Immunity. A state defendant is liable in damages under 42 U.S.C.§1983 only if his or her conduct toward the prisoner violates a clearly established constitutional right. The United States Supreme Court has held that this aspect of "qualified immunity" does not extend to private prison operators. Richardson v. McKnight, 117 S. Ct. 2100 (1997). The Court reached this conclusion by studying the history and purpose of the qualified immunity defense and found no basis to extend it to private prison employees. The Court reasoned that qualified immunity serves to protect the government employees from lawsuits and thereby insure that government officials will not be timid in the performance of their officials duties. The defense helps insure that good people will not be driven from public service by litigation and also serves to keep litigation from interfering with the ongoing business of governance.

The Supreme Court found no similar rationale present with respect to private operators. Competitive market pressures provide sufficient resistance to the impact of litigation. Insurance is available and compensation packages can be structured to keep the pool of talent available to the prison company. Thus, qualified immunity was not extended to private prison operators.

However, the Court did leave open the possibility that a "good faith" defense may provide private operators some measure of protection. This presumably would not serve as an immunity; that is, a bar from suit. It might, e.g., protect those who use force in a good faith belief that the private prison comports with existing law even though that is ultimately held to be incorrect. See Duncan v. Peck, 844 F. 2d 1261 (6th Cir. 1988)(defendant had good faith defense on suit based on property attachment statute eventually declared unconstitutional). Whether this defense will apply to discretionary acts by a private prison has not yet been explored by the courts.

The Richardson rationale may well prove to be a slippery slope for prison entrepreneurs as the courts reexamine the history and purpose of other judicially created protections in the context of suits against private operators.

b) Vicarious Liability/Entity Liability. Under the common law, an employer is liable for the acts of its employee-agents that are performed within the scope of the agents' duties. This doctrine of respondeat superior does not apply to local governments sued under §1983. In fact, government entity liability under §1983 was only recently recognized by the Supreme Court. Monell v. Department of Social Services, 436 U.S. 658 (1978). In Monell the Court made it clear that simply employing a government worker was not enough to create governmental liability. Rather, the plaintiff must show that the violation was caused by a government custom or policy; that is, that the entity itself was linked to the harm.

Should private prison operators also enjoy defense? At least one court has said, "no". In Moore v. Wyoming Medical Ctr., 825 F. Supp. 1531, 1549 (D. Wyo. 1993), the defendant was a private hospital that contracted to detain potentially dangerous mentally ill patients. Noting that the Supreme Court had not extended qualified immunity to such defendants, the court employed similar reasoning to conclude that the hospital would "not receive Monell-type immunity, and the plaintiff need not prove that the defendants acted pursuant to a policy, custom or practice." Most courts, however, have extended "Monell-type immunity" to private defendants.

Even if courts choose to extend to private operators the same protection against vicarious liability that is enjoyed by government, questions arise as to the application of current doctrine to both the private company and its government contracting partner. Who is the policymaker in a private prison company? Does it depend on the facts of each case or can state laws designating a contract representative be used to determine this issue? See, for example, Fla. Stat Ann. §951.062(1); Milonas v. Williams, 691 F.2d 931 (10th Cir. 1982)(Operator of private facility liable for unconstitutional practices).

c) Hands-off Doctrine. It is well established that the "problems of prison administration are peculiarly for resolution by prison authorities and their resolution should be accorded deference by the courts." Bazzetta v. McGinnis, 14 F. 3d 774, 779 (6th Cir. 1997)(emphasis added). Like qualified immunity, deference, manifested by the courts keeping their hands-off, is based on principles that are unique to government workers that do not easily apply to private prison operators.

That is, deference to governmental decision-making is based on the separation of powers. The Supreme Court first expressed these principles in Procunier v. Martinez, 416 U.S. 396, 405 (1974). In Bell v. Wolfish, 441 U.S. 520, 548 (1979), the Court stated that "judicial deference is accordedbecause the operation of our correctional facilities is peculiarly the province of the Legislative and Executive branches of our government, not the Judicial." One reason for this deference is that the other two branches of government have the "expertise, comprehensive planning, and commitment of resources" necessary to administer the prison system. Procunier v. Martinez, 416 U.S. at 405.

What if a private company claimed that same expertise? The expertise shared by the executive and legislative branch includes a state's decision on priorities, funding, and objectives for various types of sentences. Expertise here, in other words, is not simply competence in one compartment of the criminal justice system and that is all that a private operator fairly may claim. A company that simply built and operated secure facilities, therefore, would be hard pressed to claim the same level of expertise as a state government.

Courts that have examined private prison defendants have not identified any rationale resembling the separation of powers that would support any judicial deference being shown to these defendants. If anything, the forces motivating private companies to enter the prison field may well support more, rather than less, scrutiny of their conduct:

" Unlike public officials, corporate guards and employees are hired to serve the interest of a corporation, and more specifically, its stockholders, whose principal interest is earning a financial return on their investmentespecially when a private corporation is hired to operate a prison, there is an obvious temptation to skimp on civil rights whenever it would help maximize shareholder's profits." Manis v. CCA, 859 F. Supp. 302, 305 (M.D. Tenn. 1994).

d) Deliberate Indifference and the Role of Profits. Under a typical Eighth Amendment analysis a prison operator is not responsible for a violation unless the deprivation is sufficiently serious and the prison operator imposed that deprivation with deliberate indifference to the health or safety of the prisoner plaintiff. Wilson v. Seiter, 501 U.S. 294, 298-99 (1991). Many times an objectively inhumane condition exists because the warden of a public prison simply lacks the funds to correct the problem. Courts have held that a prison official who is sued and who lacks the public funds to fix the problem is not deliberately indifferent and therefore not financially liable under the Eighth Amendment. See e.g., McCord v. Maggio, 927 F. 2d 844 (5th Cir. 1991).

This doctrine would not seem to protect a defendant seeking a profit. Protecting shareholder earnings hardly matches the public policy behind respect for the budget allocation decisions that a legislature with limited tax revenues must make. In fact, the role played by profits may create new examples of deliberate indifference. For example, in Bowman v. CCA, No. 3:-96-1142 (U.S.D.C., M.D. Tenn. Order, 8/29/98) the court refused to grant a summary judgment to CCA in a case alleging deliberate indifference in the delivery of medical care. At issue was a decision by a doctor not to hospitalize a patient with sickle cell anemia. Under the terms of the doctor's compensation package, the physician was awarded a substantial financial incentive in exchange for reducing non-personnel prisoner health care costs at the prison. By not placing the plaintiff in the hospital, the doctor substantially increased his compensation. The patient, however, died. The jury may well find that such lucrative financial incentives are evidence of deliberate indifference to the health of prisoners under the care of private vendors.

#3 Does the PLRA Apply?
The Prison Litigation Reform Act may not apply to private prisons. The definition of "prison" in §802(g)(5) of the Act seems to exclude private facilities. In that section a prison is "any Federal, State or local facility that incarcerates or detains juveniles or adults accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law." A private, free standing prison does not fit that description.

This definition section is in the portion of the Act limiting lawsuits regarding prison conditions. Similarly, the definition of "civil action with respect to prison conditions" is "any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison" §802(g)(2). There is no discussion of private prisons in the legislative history of the act.

Another section of the PLRA, however, imposes limits on damage actions filed by a "prisoner" and in that section the term is defined as "any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program." See §803(g)(4). That definition may be sufficiently broad to include private facilities. However, consideration of the objectives of the PLRA may not support that result. The Act is primarily designed to reduce the number of frivolous lawsuits filed by state prisoners and reduce the judicial intrusion on state prison systems. Hadix v. Johnson, 143 F. 3d 246 (6th Cir.), aff'd in part, Martin v. Hadix, 119 S.Ct. 1998(1999).

There is no documented history and no congressional findings with respect to frivolous lawsuits by prisoners of private facilities. Courts likely will demand proof that the incidence of supposedly frivolous cases is the same with private facilities. Moreover, courts may not be so eager to step back from such cases in private facilities and assume that the private vendors are addressing the concerns at the facility level in the same manner as with government prison operators. Without more explicit direction from Congress there simply is no clear basis for extending the PLRA to private facilities. In fact, however, the protections of the PLRA are routinely extended to private facilities because most prisoner cases are pro se and the argument for exclusion is not being presented. Thus, as courts attempt to formulate PLRA implementation orders, private prisons become included simply because no one argues for their exclusion. See e.g., McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997)(setting procedures for in forma pauperis applications) and Brown v. Toombs, 139 F. 3d 1102 (6th Cir. 1998)(setting procedures for determining compliance with administrative exhaustion requirements).

#4 Are Prisoners the Third Party Beneficiaries of the Contract Between the Sending State and the Private Company?
A third party beneficiary is one for whose benefit a promise has been made in a contract, but who is not a direct party to the contract. In appropriate situations, third party beneficiaries can sue to enforce their rights under contracts. Hill v. Sonitrol of Southwestern Ohio, Inc., 36 Ohio St. 3d 36 (1988). A prisoner may claim that he is one of the intended beneficiaries of the contract between the sending state and the private prison company. There may be other contracts with the host state or local government (such as a development agreement) which could also be the basis for this claim by a prisoner.

Before a third party beneficiary can sue to enforce a contract he must show that he is the "intended" beneficiary and not an "incidental" beneficiary. In addition, the performance of the promise must satisfy a duty owed by the promisee to the beneficiary. Norfolk & Western Co. v. United States, 641 F. 2d 1201, 1208 (6th Cir. 1980). If the contract is silent on these issues, the court may look to evidence outside the four corners of the contract to determine whether prisoners are intended beneficiaries. See Anderson v. Olmsted Utility Equipment, Inc., 60 Ohio St. 3d 124 (1991). Sending states clearly have duties to provide minimally safe and healthy care to prisoners committed to their custody. A contract with a private vendor to care for these prisoners could easily satisfy these two requirements.

Many private prison contracts, however, now purport to deny third party enforcement to prisoners. This preclusionary term in the contract may be subject to a challenge on public policy grounds if the sending state refuses to enforce the contract itself. Moreover, prisoners may argue that any transfers between states first must comply with the Interstate Corrections Compact. In that event, a contract term denying third party beneficiary status to prisoners may also violate Article IV of the Interstate Corrections Compact which states that "The fact of confinement in a receiving state shall not deprive any prisoner so confined of any legal rights which said prisoner would have had if confined in an appropriate institution of the sending state." ORC §5120.50(D)(6).

#5 Do Consumer Laws Apply?
In some form, all fifty states have consumer laws prohibiting "unfair or deceptive acts or practices." Violations covered by such acts can trigger specific performance, rescission, damages and awards of attorney fees. See e.g., ORC §1345.09. These statutes also authorize investigations and enforcement actions by state attorneys general and even criminal prosecution. See e.g., ORC §1345.06. The Ohio statute forbids suppliers from engaging in unfair, deceptive or unconscionable acts or practices. ORC §1345.02, .03. A claim under the statute requires a "supplier", a "consumer," and a "consumer transaction." The provisions of the act are to be liberally construed. Mermer v. Medical Correspondence Services, Inc., 115 Ohio App. 3d 717 (6th Dist. Ct. App. 1996).

The prison company is a "supplier" under the Act since it qualifies as a, "seller or other person engaged in the business of effecting consumer transactions." ORC §1345.01(C). The prisoner arguably is a consumer since he qualifies as a "person who engages in a consumer transaction with a supplier." ORC §1345.01(D). The provision of food, shelter, clothing, education, medical and other personal services, by the private prison company to prisoners held in the host state is arguably a "consumer transaction." That term is defined, in relevant part, as (1) a sale or other transfer of a service to (2) an individual (3) for purposes that are primarily personal. ORC § 1345.01(A). Nothing could be more personal than the delivery of food, shelter and clothing to a person. Moreover, the delivery of these services in the prison setting is not one of the excluded businesses in the act. See generally, Elder v. Fischer, 1998 WL 412423 (Ohio App. 1 Dist., 1998)(Billing practices of residential treatment facility were consumer transactions).

Consumers who are not parties to the contract have been able to secure relief under the act. Garner v. Borcherding Buick, Inc., 84 Ohio App. 3d 61 (1992). Thus, even if a third party enforcement action is not possible, a consumer claim may secure the same result enforcing contract terms that are important to prisoners.

One example of how this theory could be applied is present in the Youngstown experience. CCA and D.C. agreed to the following terms in the contract:

"C.1.2.1.1 The Contractor shall have sufficient programming to allow every general population prisoner to participate in programs of occupational training and industrial or other work

"C.1.2.4 The Contractor agrees to provide sufficient programs to allow every general population prisoner to participate in meaningful educational, vocational, drug treatment or work programs"

Clark Report, Chapter VI, p. 1 (emphasis added). The company never met these terms and D.C. never enforced these terms. Had the case continued the prisoners were prepared to seek specific performance of these terms, damages and attorney fees due to the failure of the prison company to honor its commitments.

#6 Are REITS Proper Defendants?
Private prison companies have taken advantage of various corporate forms in order to maximize profits and reduce taxes. Many private prisons are now owned by real estate investment trusts (REITS) which, under the IRS code, generate nontaxable income. See generally 26 U.S.C. §856. The ownership of these facilities normally has been transferred to the trust after an initial development agreement, and after the original agreement to receive prisoners was signed. REITS, under the IRS code, cannot participate in the actual operation of activities on real estate owned by the REIT.

Prisoners and others argue that, in fact, the original development agreements to which the REITS have succeeded, impose responsibility for the safe operation of the facility on the REIT. Thus, the REITS cannot both own the prison and disclaim responsibility for its operation. If this argument prevails, then a REIT has responsibility for operations that extend beyond what is appropriate under the IRS code. That is a problem for the private prison companies that can be exploited by the prisoners or other plaintiffs seeking compliance. That is, rather than putting the tax status of the REIT at risk, the private prison operators may rather comply with the demands of the host community, host state, sending state, prisoners or others challenging conditions. If a REIT is named as a defendant in a civil rights case there will certainly be a motion to dismiss by the REIT. Since losing such a motion could put the tax status of the REIT in jeopardy, the parties in this situation may well have an added incentive to solve their underlying problem.

#7 Nuisance Actions by Neighbors and Nearby Governments
Common law nuisance theory may support actions by neighbors and nearby government jurisdictions to abate an ongoing problem at a private prison. Plaintiffs in such cases must show an invasion of their private interest in the use and enjoyment of land due either to intentional and unreasonable conduct or due to unintentional but negligent, reckless or abnormally dangerous conduct. Precedent provides some support for the use of nuisance theory but recent litigation has not relied on this theory. See Brown v. Cty. Commissioners of Scioto Co., 87 Ohio App. 3d 704, 712 (Scioto Co. App. 1993), citing Restatement of the Law 2d, Tort (1979) 100, §§821D, 822. See generally, District of Columbia v. Totten, 5 F. 2d 374 (D.C. App. 1925)(Lorton Prison Complex); City of Atlanta v. Carroll, 194 Ga. 172 (1942)(prison farm); Hughes v. McVay, 113 Wash 333 (1920)(children's detention home). Thus, nuisance theory need not be abandoned by plaintiffs but it is not among the strongest of the legal theories mentioned here.

III. Youngstown Case Study The Solution
After prevailing in the early rounds of the litigation, CCA and the D.C. Government were finally subjected to a court order in March, 1998 that was designed to reduce the violence at NOCC by requiring that all of the prisoners to be reclassified. Earlier that month the Ohio legislature passed ORC §9.07, a compromise piece of legislation that would impose state regulation on private prisons in Ohio. Finally, late in 1998 and early 1999, comprehensive settlement talks were pursued that resulted in a resolution of the class action lawsuit.

The reclassification order soon resulted in many of the most violent prisoners being transferred from NOCC. That action alone dramatically improved safety in the prison. The new state law which by its terms did apply to the existing CCA prison added additional regulations. First, it required the prison to contract with the local municipality. Second it required that contract to contain terms requiring American Correctional Association (ACA) accreditation, disclosure of unusual incidents and reports to the Ohio Department of Rehabilitation; insurance protecting the state and local government; an appropriate classification system; an exclusion of prisoners with histories of escape or violence against staff and visitors; access to local law enforcement guards; background and drug tests for staff; provisions for reimbursing Ohio and local governments for incarcerating and holding prisoners who commit crimes in the private prison; and a schedule of fines for noncompliance. The new law also requires minimum training for staff, including firearms training and review by Ohio's watchdog agency, the Corrections Institution Inspection Committee.

The settlement of the class action, went even further and established an independent monitor for the facility. A medical monitor was also appointed. Under the settlement the prison must abide by the standards established by the National Commission on Correctional Health Care (NCCHC) and the medical and other policies already drafted for the facility, which were quite specific and tough. Additional terms were negotiated to cover staffing, classification and programming. The parties granted considerable power to the monitor -- even the power to trump decisions of the warden if such decisions were deemed to violate the settlement agreement. Detailed enforcement provisions were hammered out. The settlement agreement is to last three years. Most of the provisions, however, were incorporated into a renewable contract between the City of Youngstown and the company which will be ongoing. Independent monitoring from the host community will therefore be a fact of life at NOCC.

CCA paid, on behalf of itself and the District Government, $1,650,000.00 in damages to the 2000 members of the prisoner class. That represents the highest class action recovery by prisoners in any prison conditions lawsuit. Families of the deceased prisoners are permitted under the settlement to file their own lawsuits. Additional sums were negotiated to cover the expenses of litigation and fees for both the litigation and monitoring by class counsel ($756,000) and by Youngstown ($47,000). Finally, CCA agree to pay annual fees to Youngstown for its ongoing monitoring work. The agreement specifically provides that the PLRA does not apply to its terms. This permits the monetary awards in the case to be free of the limits imposed by the PLRA.

Pending at the time of the settlement were motions for summary judgment on several of the issues described above. More important than the interesting legal issues, however, were the facts. After two murders, numerous medical deaths, six escapes; with criminal prosecutions proceeding on numerous crimes committed in the facility the local, state and federal authorities were all calling for a permanent fix. The lawsuit was poised to serve as a vehicle for negotiating that solution. Through the class action lawsuit, the Clark Investigation and Report (see n. 4) and the CIIC Investigation and Report all of the structural defects in the existing contractual relationships had been exposed. The settlement terms greatly increased accountability and oversight so the chances of the old problems resurfacing are substantially reduced.

In a decision filed on May 11, 1999, Federal District Judge Dan Aaron Polster approved the settlement and outlined the facts as well as the legal and policy issues presented by this challenging case. The court approved the settlement noting both the urgent need for the solution as well as the comprehensive nature of the solution:

A national debate is underway about privatization generally and about the growth of private prisons in particular. While the debate continues, NOCC is up and running and in control of over 1000 men. The residents of Youngstown cannot wait for the results of this national debate. Nor can the people of the City of Youngstown and the State of Ohio. It is now a matter of public record that serious problems followed the rapid opening of NOCC in 1997. Injuries were inflicted and lives were lost.The Clark report tracked the problems and noted the progressIt concluded with the following warning: 'Long-term success can be achieved only if there is a strong commitment to improvement and accountability by CCA and the District Government, along with close public scrutiny in the District [of Columbia] and Ohio.' Clark Report Chap. 12, p. 4. This settlement achieves that scrutiny and that commitment.

IV. Conclusion
NOCC is now a much safer prison. Health care has improved and the entire facility is better off than when it opened. The issues reviewed in this article were instrumental in helping the parties negotiate a solution to the violence and inadequate health care that existed at NOCC. Advocates for all parties can learn from this and hopefully, design controls on future facilities that will insure safe and healthy operation from the outset. The Youngstown model settled the Youngstown case. It can, should and will be improved. Important questions remain. Does it make sense to impose on municipalities with no prison experience the job of regulating multinational prison companies? Would state licensing and regulation work better than contracts? What classification system should be used when a facility has prisoners from multiple jurisdictions? Should there be separate controls on medical care? What level of delegation should be permitted with respect to discipline and other matters that could affect the length of sentence? Let's hope we can tackle all of the problems posed by speculative prisons in a manner that does not put lives needlessly at risk.

[Editor's Note: PLN reported extensively on events at the NOCC as they were unfolding. The author of the article was lead counsel in the case against the CCA. This article originally appeared in the Correctional Law Reporter and is reprinted here with the author's permission. End notes were removed due to space restrictions.]

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