Abstract

Excerpted From: Nathan Lee, The Private Prison Problem: Finding Pathways to Justice in Hawai’i, 23 University of California Law Journal of Race and Economic Justice 87 (March, 2026) (134 Footnotes) (Full Document)

Challenging the use of private prisons is an area that has been considered a legal dead end of sorts. Legal theorists have been writing about issues tied to privately owned or managed prison facilities for some time, and yet little legal progress has been made. The plethora of issues that appear to persist at private facilities, unfortunately, still remain. Part of the difficulty, as this article will consider, is that many legal arguments against the use of private prisons have had difficulty finding solid ground in courtrooms. However, another difficulty is that scholarship has failed to engage with lived realities of people incarcerated in private prisons. For example, what should we make of reports that some individuals prefer to be in private prisons? Moral arguments against the principle of private prisons are meaningful, but some believe that treatment in government run prisons is even more inhumane.

What this article seeks to contribute is a thorough examination of Hawai’i’s practice of sending incarcerated individuals to out of state private prison facilities. By dealing with a concrete example, the various links between theory and practice can be more carefully considered and new directions for private prison scholarship might be spurred. Hawai’i itself has curiously not been featured in the private prison literature. Perhaps this is because many are not aware that Hawai’i sends people to such facilities. However, for better or worse, Hawai’i is a worthy case study for private prison scholarship.

Hawai’i currently incarcerates almost 1,000 people at Saguaro Correctional Facility, a private prison operated by CoreCivic. The practice of sending adults in custody (AIC) out of state began in 1995 due, in part, to concerns about overcrowding in Hawai’i facilities. Since then, however, exporting individuals far from home has become a regular practice. In 2007, CoreCivic built the Saguaro facility specifically to house Hawai’i individuals. The systemic harms that have occurred at Saguaro since its opening include incidents of violence, murders and deaths, abuse of solitary confinement, allegations of unsafe drinking water, and lack of meaningful oversight and staffing that has led to issues with drug smuggling and solitary confinement.

Sending Hawai’i individuals to Arizona and placing them outside the direct supervision or reach of the Hawai’i government imposes a unique hardship to incarcerated individuals. Hawai’i has failed to guarantee basic conditions of fairness, like fair commissary pricing, and health. Worse, the lack of funding for oversight, the great distance between Hawai’i and Saguaro, and the use of a private intermediary make it very difficult to respond quickly to serious issues (such as overflowing sewage, chlorinated and unsafe water, violence, and spread of disease). It also makes it difficult for Hawai’i citizens and/or relatives of incarcerated individuals to report on conditions inside of the private prison. Relying on reports by private prison operators and employees is insufficient, especially given the economic incentive to not report problems. A lack of transparency and communication is baked into the nature of contracting with CoreCivic in Arizona. Making matters worse, Native Hawaiians are disproportionately represented at the Saguaro facility (and in all prisons within Hawai’i’s carceral system). The transfer of Native Hawaiians to Arizona is an additional punishment that serves as a form of “reverse colonization,” exposing individuals to new diseases and gang practices from the continent and separating them from their homelands.

This article first outlines some of the harms that have occurred at Saguaro, and then considers two different pathways for legal challenge. The first is arguing that private prisons are inherently different from government-run prisons, and therefore subject to relevant legal arguments. The second pathway does not focus on the public-private distinction, but instead on the practice of transferring individuals out of state. The article then briefly considers how the Hawai’i state constitution might open up a challenge to Hawai’i prison practices as cruel or unusual. In each of these three sections, it immediately becomes clear is that the existing law is largely hostile to achieving justice for people incarcerated out of state. While there are many potential doorways by which the use of private prisons might be challenged, many are seemingly shut while others might still be ajar. The task of this article is to knock on each and see which might open.

[ . . . ]

This article has described an array of different challenges to Hawai’i’s usage of out of state private prisons in its carceral system. It is not exhaustive. For example, one might consider that Hawai’i’s current practice of out of state transfers raises issues of gender discrimination. In 2009, following multiple instances of sexual assault, Hawai’i decided to discontinue the practice of sending women out of state. While this was a positive development, it also means that men are subjected to more punitive confinement, far from home, on the basis of sex. In short, there is significant need for creative legal argumentation, given the significant barriers to successful litigation that courts have created. Many of the arguments that have been raised for Hawai’i, including quirks of state cruel and/or unusual punishment laws, are applicable to other states. However, Hawai’i presents an unusually persuasive case study for legal scholars given the grievous harm that is occurring and the long distances that individuals are sent.

A practice so ethically fraught as private prison contracting and incarceration so far from home as to be banishment should be able to find its opposition in the law. Unfortunately, the private prison problem reveals the limits of law as is. Legal challenges, although morally sound and constitutionally plausible, may still be treated unfavorably. Simply put, much of the doctrine has developed to allow incarcerated individuals to be treated far worse than others. Further, many of these limitations have arisen from legal challenges raised on behalf of Hawai’i individuals. This does not necessarily mean that the discussion must end. While some of the approaches outlined in this Article may prove useful, there is also a pressing need to reimagine what legal structures might look like.

The distinction between government prisons and private prisons, while arguable, are often hard to prove in a court of law. But why must we accept a binary view of understanding prisons? It may be necessary to consider a third category of justice: communal. Many aspects of society cannot fit neatly into the private or the governmental, existing in a space that is non-governmental but belonging to the public. Community land trusts, co-operatives, and even public trust principles reflect the possibility of recognizing alternative justice systems that operate alongside, or replace, current models. The notion that the government could hand over its dominion over something so fundamental as justice is not far-fetched, because it has already been happening. If the State is willing to contract with private corporations to incarcerate people, why could it not contract with community-run groups to do the same? If even justice can be privatized, why should we not take seriously the possibility of communal justice? Again, the existence of groups like CoreCivic and GeoGroup suggest that this is not utopian, but rather that we might make use of the dystopian practice of private imprisonment to suggest better forms of justice.

Hawai’i has shown that it is willing to send individuals thousands of miles from home to the care of a corporation with a disastrous track record of keeping people safe. Further, it imposes scant oversight despite deaths, disease, and violence that regularly occur at Saguaro and across CoreCivic facilities. It does not seem so unreasonable to conceive of non-profit justice centers, located in Hawai’i, that could house individuals as an alternative to incarceration in a private or government run facilities. These centers might even have similar contracts and guarantees that CoreCivic or other private operators make with states, but would not be motivated by profit. Given the failures of both the Department of Corrections and Rehabilitation at its Hawai’i facilities and CoreCivic in Saguaro, Hawai’i may as well look to other alternatives. While it is critical to continue looking for new ways to address the private prison problem using existing law, it is just as important to insist that better, more compassionate, and more communal systems are possible.

Ph.D. candidate, NYU Political Science and Fellow, ACLU of Hawai’i.