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

Geo’s opponents say private companies do not benefit from government immunity from prosecution. Instead, they argue that if contractors act legally and properly follow government instructions, they can use that as a defense. The difference between an immunity and a defense is key: an immunity would mean that contractors could avoid prosecution altogether – if someone sued them, they could get away with it immediately – while a defense would generally mean that the contractor, like anyone else, could be sued and would have to go through litigation, possibly including discovery and trial, before a court ultimately decides whether their defense would prevail. If the contractor only has a defense rather than immunity, then plaintiffs could still argue their case in court.

Geo’s opponents argue that granting immunity to contractors misses the primary purpose of immunity — 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 constantly being brought to court. But a for-profit company acts in its private interest and not in the public interest. Geo’s “drastic expansion of sovereign immunity,” the group wrote in a court filing, is “contrary to the public interest in responsive and effective government driven solely by the need to serve the American people.”

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