united-states
Overview
The United States, largely as a matter of national constitutional law, has two separate systems of liability for prisoners (one for pre-trial detainees and another for inmates detained as punishment for a crime).
Generally speaking, this liability holds jailers to a much lower standard than employers.
Employer generally have strict liability without fault for on the job injuries and illnesses of their employees. this liability is ordinarily covered by worker's compensation, with more limited damages in an ordinary lawsuit between strangers who owe legal duties to each other.
The duties of employers and jailers are not analogous.
The primary sources of the applicable law
The duty of employers arises (mostly) as a matter of state statutory law (there are parallel obligations to federal employees and maritime employees arising under federal statutory law and the common law of admiralty respectively). The duty towards pre-trial detainees arises as a matter of due process rights of the detainee under the U.S. Constitution. The duty towards post-conviction detainees arises mostly under the 8th Amendment protections against cruel and unusual punishment under the U.S. Constitution.
Some states have additional legal protections for prisoners arising under state law.
For example, in Colorado it is a crime for a jail or prison guard to have sex with an inmate, even though it sexual contact is nominally consensual in the moment.
Liability to detainees awaiting trial
Once someone is detained, law enforcement can no longer avail itself of the complete lack of duty to rescue that it had to an ordinary citizen under the U.S. Supreme Court case of Castle Rock v. Gonzales, prior to detention. Once someone has been detained, a duty of care from law enforcement to the detainee arises.
Liability to prisoners who have been arrested and are in custody, but have not been convicted of a crime is greater, and there can be liability to prisoners who are not convicted for mere negligence. This said, a pre-trial detainee's greater legal rights are not entirely settled law. As this treatise explains (at pdf pages 26-28, citations omitted):
2. The Rights of Pretrial Detainees vs. The Rights of Convicted Prisoners: Medical Care, Protection from Violence, and Food and
Housing
This Section discusses the state’s affirmative obligation to provide
for your basic needs while you are detained. It covers your rights to
the following: (1) food and housing, (2) medical care, and (3)
protection from assault. Some courts have referred to these rights as
“conditions of confinement.” Others have described them as “basic
necessities” or “basic human needs.” It remains unclear whether
pretrial detainees have a right to higher standards than convicted
prisoners have.
(a) Introduction: Rights of Convicted Prisoners
Since pretrial detainees are entitled to at least the same standards
of food and housing, medical care, and protection from assault as
convicted prisoners, you should consult the relevant chapters of the
JLM to find out more about the law in each of these areas. . . .
Instead, this chapter will focus on the similarities and differences
between the rights that pretrial detainees and convicted prisoners
have to these basic necessities.
(b) Greater Protection for Pretrial Detainees?
As noted, the Eighth Amendment does not apply to pretrial detainees
who have not been convicted because pretrial detainees cannot be
punished for their alleged offenses. That suggests that pretrial
detainees might be entitled to better treatment than convicted
prisoners. For instance, in a detainee medical care case, the Supreme
Court stated that the “due process rights of a [pretrial detainee] are
at least as great as the Eighth Amendment protections available to a
convicted prisoner.” In City of Revere v. Mass. Gen. Hosp., the
Supreme Court left open the possibility that, even where a prison
official’s level of intent in treating the prisoner does not reach
“deliberate indifference,” which is the standard a convicted prisoner
must show to demonstrate an Eighth Amendment violation, the rights of
a pretrial detainee may nevertheless be violated. However, like most
of the cases that suggested the possibility of a higher standard for
pretrial detainees than for convicted prisoners, City of Revere did
not fully explain the different standards that should apply to
pretrial detainees. Instead, it found that, in that particular case,
the state had fulfilled its obligation by taking the injured detainee
to the hospital promptly after he was caught by the police. In
general, when making a claim that your constitutional rights have been
violated as a pretrial detainee, you will argue: (1) that the same
treatment would also violate the rights of a convicted prisoner and
(2) that you may have even greater rights than a convicted prisoner,
according to the cases cited in the footnotes of this paragraph.
(c) Courts’ Retreat from Greater Protection for Detainees
The Supreme Court has not ruled on whether pretrial detainees are
entitled to a higher standard of care than convicted prisoners with
respect to food and housing, medical treatment, and protection from
assault. Some lower courts have considered the possibility that there
is a higher standard for pretrial detainees than for convicted
prisoners. However, most of the federal circuits have abandoned trying
to describe this difference and have found instead that the same
standards for conditions of confinement, medical care, and protection
from violence apply to convicted prisoners and pretrial detainees
alike.
See also the abstract of this 2015 law review note (i.e. a short law review article written by a third-year law student who is a law review editor):
In 2015, the Supreme Court held in Kingsley v. Hendrickson that 42
U.S.C. § 1983 excessive force claims brought by pretrial detainees
against state prison officials are measured by an objective
reasonableness standard. Pretrial detainees bring § 1983 claims under
the Fourteenth Amendment’s Due Process Clause because they are
detained but are not yet convicted. Thus, constitutional violations
under § 1983 are viewed as an infringement of their due process
rights. Since Kingsley, circuit courts have split on whether the
objective reasonableness standard extends to other kinds of pretrial
detainee claims. These claims include conditions of confinement,
failure-to-protect, and inadequate medical care claims. Some circuits
apply the objective reasonableness standard articulated by the Court
in Kingsley to these additional claims. The objective standard
requires that an official should have known of a risk to the pretrial
detainee and did nothing to abate the risk. Other circuits, however,
apply a subjective standard, also known as deliberate indifference.
The subjective standard requires that the official actually knew of
the risk to the pretrial detainee and did nothing to mitigate the
risk. The practical consequence of the split is that a pretrial
detainee will face drastically different standards depending on where
the claim is brought. This Note argues that the Supreme Court should
extend the objective standard to all pretrial detainee claims, not
just those of excessive force. The objective standard is more
consistent with the demands of the Fourteenth Amendment and Supreme
Court precedent. Circuits that continue to apply the subjective
deliberate indifference standard rely on circuit precedent that is
inconsistent with Kingsley and conflicts with the guarantees of due
process.
Liability to convicted prisoners
Liability to prisoners who have been convicted and are being detained pursuant to that conviction is much lower and arises not under the 5th and 14th Amendment due process clause protections, but under the 8th Amendment cruel and unusual punishment protections of the Bill of Rights.
Generally, the threshold for liability in these cases is an intentional violation of civil rights, or deliberate indifference to the prisoner's well-being. For example, the U.S. Supreme Court held in the case of Estelle v. Gamble, 429 U.S. 97 (1976) that the Eighth Amendment of the United States Constitution applies when prison officials manifest “deliberate indifference to serious medical needs of prisoners.”
With respect to the use of force against an inmate by a correctional officer, corporal punishment intended as punishment is generally not allowed and otherwise there is a multi-factor test set forth in Lombardo v. City of St. Louis, 594 U.S. ____ (2021) to determine if the use of force was objectively unreasonable.
As explained in a law review article from 2007 entitled "Civil Liability for Prisoner Assault by Inmates":
The current legal standard for federal civil rights liability against
correctional officials and employees in the context of failure to
prevent prisoner on prisoner assault was established by the U.S.
Supreme Court in Farmer v. Brennan , No. 927247, 511 U.S. 825 (1994).
In that case, a preoperative transsexual with feminine characteristics
was confined with other males in federal prisons, and was sometimes
placed in the general prison population, but more often in
segregation. The prisoner claimed to have been beaten and raped by
another prisoner after a transfer from a correctional institution to a
penitentiary and placement in the general population.
While previous court cases had established that it takes "deliberate
301indifference" to a substantial risk of serious harm to an inmate to
violate the Eighth Amendment's prohibition on cruel and unusual
punishment, see Helling v. McKinney , 91-1958, 509 U.S. 25
(1993), Wilson v. Seiter , 89-7376, 501 U.S. 294 (1991), and
Estelle v. Gamble, No. 75-929, 429 U.S. 97 (1976), Farmer makes it clear that deliberate indifference in the sense meant is based on
subjective awareness — i.e., that the prison official knows that an
inmate or inmates face a substantial risk of serious harm and
disregard that risk by failing to take reasonable measures to abate it
or prevent it.
Such deliberate indifference is more than negligence, but can be less
than acts or omissions "for the very purpose" of causing harm or with
knowledge that harm will result, and is the equivalent of acting
recklessly. Such recklessness, however, for liability, must be
"subjective recklessness," as used in criminal law. The Eighth
Amendment, the Court commented, outlaws cruel and unusual
"punishments," not "conditions," and the failure to remedy a
significant risk that a prison official or employee should have
perceived but did not, while not praiseworthy, cannot be called the
infliction of punishment.
Post-script regarding private prisons
The federal government and many U.S. states outsource the task of detaining some inmates to detention facilities run by private corporations on a contractual basis.
The liability of private prisons to inmates in the U.S. is a technical and complex area of law that is not fully developed.
In part, this is because public prisons and jails have been around since the earliest days of the U.S. legal system, while private prisons are a relatively recent development and were very rare in the early days of private prisons, even when they existed.
Also, private prisons tend to be lower security facilities for lower risk inmates serving shorter terms, so the likelihood of any given prisoner bringing suit is smaller. But private prisons are rarely used for pre-trial detention in criminal cases so there is little legal guidance available regarding liability to those inmates in private prisons.
This area of law is further complicated by the fact that many federal private prisons are used for detaining immigrants awaiting possible deportation, whose legal status is not strictly analogous to pre-trial criminal detainees, or to convicted criminals.
There are not any major U.S. Supreme Court rulings on the question of which I am aware, and the lower appellate courts are not entirely consistent on the question. Individual state and federal laws authorizing private prisons are important with regard to private prison liability and aren't entirely consistent with each other.
The abstract of a 1987 law review article on the topic (which is probably partially out of date and not fully accurate) states:
The private prison corporation's exposure to liability for the use of
force against inmates is greater than that of the State, even though
both are engaged in the same activity and address the same situations.
The private prison corporation, though engaged in State action when it
manages prisons, is not regarded by the courts as the State for the
purposes of 11th amendment immunity. Also, the corporation may not be
able to use a qualified immunity defense. The exposure of the
corporation to the low standards required in common law tort suits for
assault and battery would undermine the prison corporation's authority
to use force in disciplining inmates. This authority, however, is
necessary in the management of prison disturbances and the orderly
maintenance of the prison regimen. If the State legislatures and
courts do not provide greater liability protection for private prison
corporations, the threat of liability will be a disincentive to the
proliferation of private correctional facilities.
There are leading U.S. Supreme Court cases on the topic since 1987, which are discussed here.
In Richardson v. McKnight, 521 U.S. 410 (1997), a prison inmate sued two guards at a prison in Tennessee that had been privatized. The plaintiff alleged that the guards had deprived him of a right secured by the Constitution. Hence, the plaintiff alleged, the guards were liable to him under 42 U.S.C. Section 1983. Ultimately, it held that employees of private firms could not invoke the immunity defense available to state government actors.
As the article at the link above explains:
In Correctional Service Corporation v. Malesko, 122 S.Ct. 515
(2001). The case involved a federal inmate and a private contractor
with the U.S. Bureau of Prisons (BOP). Malesko, the inmate was housed
on the fifth floor of the Le Marquis Community Correctional Center, a
halfway house operated by Correctional Service Corporation (CSC). A
CSC policy required inmates that lived below the sixth floor to use
the stairs to reach their rooms. Malesko was exempted from this policy
because he suffered from a heart condition limiting his ability to
climb stairs. But when a CSC employee forbade respondent to use the
elevator, he was forced to use the stairs, had a heart attack, and
fell.
The District Court treated the complaint as raising a “cruel and
unusual punishment” (Eight Amendment) claim under Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), in which the
Court recognized “an implied private action for damages against
federal officers alleged to have violated a citizen’s constitutional
rights.” In dismissing the suit the district court, relied on the
Supreme Court’s decision in FDIC v. Meyer, 510 U.S. 471 (1996)-“a
Bivens action may only be maintained against an individual” and thus
cannot be brought against a corporation. . . . The [U.S. Supreme]
Court concludes that Malesko’s claim is fundamentally different from
any other application of Bivens. . . . “Whether it makes sense to
impose asymmetrical liability costs on private prison facilities alone
is a question for Congress, not us, to decide.” . . . In sum, the
respondent seeks an extension of Bivens. The Court concludes that
the extension will not advance Bivens’ core purpose of deterring
individual officers from violating prisoners’ constitutional rights.
There have, however, been piecemeal legislative efforts in particular states and particular federal private prison programs affording private prison operators and employees some immunity from, or limitation of liability, in some circumstances.
A 2020 article on private prison liability at the federal government level stated in its introduction that:
How does the government protect the rights of private prison inmates?
As it stands, private prison inmates may not sue their prison or its
guards based on a Constitutional violation. On the other hand, public
prison inmates enjoy this right. Whether this difference accounts for
an increase in abuse in private prisons will be the focus of this
paper. The potential for a difference in prisoner treatment between
public and private institutions is significant because the 14th
Amendment guarantees equal protection for all citizens under the law.
If private prisons can abuse inmate rights without recourse, then
private prisons, as an institution, violate the 14th Amendment. This
would set a precedent that the government can avoid Constitutional
responsibility through privatization. As such, the growth of private
prisons pits corporate interest against inmate rights.
Private prisons have significant lobbying power and influence laws to
further profit motives. According to Bertrand Russell: “Those who
enjoy irresponsible power will inevitably further, if not their own
pecuniary interests, at least their own creed and their own
prejudices” (Russell 64). It is not far fetched to say that private
prisons have a stake in who has political control. One private prison
company, Correctional Corporation of America (CCA), admitted in their
2012 Securities and Exchange Commission report that: “The demand for
our facilities and services could be adversely affected by the
relaxation of enforcement efforts, leniency in conviction... or
through the decriminalization of certain activities that are currently
proscribed by criminal laws” (SEC 28). Corporations such as CCA will
lobby Congress for their own interests (OpenSecrets), and even file
amicus curiae briefs to federal courts (ACLU). Private prisons are a
powerful lobby solely interested in maximizing profit through
increased incarceration.
Given the influence of private prisons and their possible threat to
inmate rights, this paper will discuss whether inmates in private and
public prisons receive similar protections. Essentially, this paper
will compare the different legal routes public and private prison
inmates must take and how this difference affects prisoners. Public
prison inmates may sue on a Constitutional basis through a “Bivens
tort,” whereas private prison inmates do not have this option and must
sue on the basis of personal injury. If a Constitutional (Bivens)
lawsuit is better for recovering inmate damages, it means that public
prisons are better at protecting inmate rights, and vice versa. First,
this paper will ask if it is reasonable for private prison inmates to
have a different litigative route in the first place. Then, this paper
will argue that though in theory, private prisons may have greater or
equal protections against abuse, evidence suggests that practically,
private prisons are significantly worse at protecting inmate rights.
Similar issues have arisen when a public prison outsources some of its responsibilities, e.g., medical care, to a private contractor, but in these cases, agency law further complicates the analysis. The two big issues are whether a government agency can absolve itself of its legal duties to inmates by delegating responsibility to a private third-party, and whether the private third-party, when acting as basically a deputized prison guard at a public prison, is entitled to immunity from liability.
