The Case That Could Rein in Private Prison Abuses—or Turn Them Loose

Geo’s opponents say that private companies don’t get the government’s immunity from being sued. Instead, they say that if contractors act legally and follow the government’s instructions properly, they can raise that as a defense. The difference between an immunity and a defense is key: An immunity would mean that contractors could avoid lawsuits entirely—if someone sues them, they could get out of it right away—while a defense would usually mean that the contractor, like anyone else, could be sued and would have to go through litigation, possibly including discovery and a trial, before a court would ultimately decide whether its defense would win the day. If the contractor only has a defense rather than immunity, then the plaintiffs could still make their case in court.

Geo’s opponents argue that giving contractors immunity misses the point of immunity in the first place—which, according to Citizens for Responsibility and Ethics in Washington, is to let the government do what it believes is in the public interest without being constantly hauled into court. But a for-profit company acts in its private interest, not in the public interest. Geo’s “drastic expansion of sovereign immunity,” the group wrote in a court filing, is “contrary to the public’s interest in a responsive and efficient government animated solely by the need to serve the American people.”

Even the Trump administration has come out against Geo, although in a more limited way. It argues that contractor immunity should be decided by Congress or a special rulemaking body, not in a court decision.