(In)voluntary Submission to Authority: Duty of Care & the Incarcerated 

I. Introduction

For centuries, societies across the world have created and utilized various prison systems and corrections techniques to confine and rehabilitate persons charged with, or convicted of, a crime. The United States has a unique history relating to this practice. From time to time, different communities have raised their voices to pose the question, is the current system of dealing with crime working for us? Puritans utilized religious doctrines to place a heavy emphasis on reforming the offender, shifting the meaning of imprisonment from punishment toward rehabilitation.1 Wide-spread skepticism about the efficacy of corrections methodology led many in the 1960’s to call for abolition of the imprisonment practice in favor of restorative justice.2 Today many more are suspicious of racial discrimination as a motivating factor in promulgating substantive law and sentencing schemes.3 This suspicion is eroding public faith in criminal justice institutions. 

Corrections systems are not always safe, and not always successful. Within the corrections system today, over-population, assault, and sexual assault are rampant and well-known realities.4 Constitutional and Tort law have provided relief for some victims of crimes perpetrated within the criminal justice system, allowing prisoners to bring suit against authorities with a duty to protect the prisoners' well-being.5 Nevertheless it is increasingly difficult to secure justice from inside—to secure relief from such dangerous conditions. These conditions (among others) give rise to abnormally high rates of PTSD symptoms among the incarcerated and formerly incarcerated communities,6 making successful re-entry into society even more difficult. 

Additionally, chronic recidivism is a well-known fact. “Two-thirds of prisoners reoffend within three years of leaving prison, often with a more serious and violent offense.”7Indeed, pop culture has even demonstrated awareness of this important issue: 

Believe white supremacy think I won't see everything they tryna bring down on me 

Like the stop and frisk, mass incarceration, that perpetuation of recidivism 

That mean they create a system hard to break, that's why millions still behind bars today…8 

Systems purporting to correct, rehabilitate, and reintegrate offenders are demonstrably, repeatedly, and predictably failing to deliver what they promise. Rather than delivering rehabilitated former offenders who can successfully re-enter society as a law-abiding citizen, these systems often deliver populations who are likely to have PTSD and more likely to reoffend. 

The occurrence of PTSD and recidivism among formerly incarcerated people is troubling, but it is particularly disturbing given the more recent trend toward a privatized corrections scheme. President Trump consistently reiterates a deep concern for American tax-payers getting ripped off by bad deals. It is therefore imperative that the States take a hard look at the rehabilitative services they are purchasing, to ensure that the several States are receiving what they bargained for, and to protect the citizens who consume the rehabilitative service. Market solutions must be governed by market laws. 

II. Issues

Consumer Protection laws can facilitate private prison reform. Turning to Texas, this article will investigate state legislation and common law concerning consumer protection. Next, we will take a look at the State and the incarcerated person, to determine if either would fall under the definition of “consumer”. Finally, we will examine key concepts necessary to protect the most vulnerable segments of consumers of rehabilitative services. 

A. Deceptive Trade Practices-Consumer Protection Act 

Texas’ Deceptive Trade Practices-Consumer Protection Act (DTPA) states that “false, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.”9 The statute defines “false, misleading, or deceptive acts and practices,” to include “representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have”10 (emphasis added). The statute allows for consumers to bring a claim seeking relief, providing in relevant part: 

(a) A consumer may maintain an action where any of the following constitute a producing cause of economic damages or damages for mental anguish: 

(1) the use or employment by any person of a false, misleading, or deceptive act or practice that is: (A) specifically enumerated in a subdivision of Subsection (b) of Section 17.46 of this subchapter; and 

(B) relied on by a consumer to the consumer's detriment; 

(2) breach of an express or implied warranty;11 

The Texas Legislature provided guidance to the courts for interpreting this statute, namely that the Act “shall be liberally construed and applied to promote its underlying purposes, which are to protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty”12 (emphasis added). However, the DPTA does not define “warranty” or create any standard terms. Thus the Texas courts have defined and application of “warranty” over time.13 

B. Common Law—Implied Warranty 

In Melody Homes, the Texas Supreme Court laid the foundation for finding an implied warranty for services. After examining several public policy and strict liability considerations14 and noting the lack of protection afforded to consumers through either common law or statute, the Court extended the contract law theory of implied warranty to service transactions. The Court concluded that extending implied warranty would protect Texas consumers, reasoning “an implied warranty arises by operation of law when public policy so mandates.”15 This precedent clears a path for consumers to bring claims, by way of breach of express or implied warranty of fitness for a particular purpose, against service providers who fail to meet their contractual obligations. 

II. (a) State of Texas as “Consumer” 

The issue is whether the Texas state government can sue a private corrections corporation for breach of implied warranty of fitness for a particular purpose, when the corporation’s rehabilitation service demonstrably, repeatedly, and predictably fails to rehabilitate offenders, evidenced by chronic recidivism. DTPA defines “Consumer” as “an individual, partnership, corporation, this state, or a subdivision or agency of this state who seeks or acquires by purchase or lease, any goods or services…”16 DTPA also allows consumers to bring a claim for economic damages.17 The question then becomes, what kind of service is the State of Texas acquiring; what kind of implied warranty does the corrections corporation as service provider make regarding the characteristics, uses, and benefits18 of the services marketed; and what kind of economic damages does the State suffer if the private corporation’s service fails to provide the benefits they advertised. 

The criminal justice system operates on several theories, including utilitarianism, retributivism, and denunciation.19 With these theories in mind the State seeks private corrections corporation services. One such corporation is Management & Training Corporation (MTC). MTC markets its services as rehabilitative, “operating safe and secure correctional facilities and preparing offenders for successful reintegration into their communities.”20 When MTC fails to provide a service with the benefits of safe and secure correctional facilities (evidenced by assault or sexual assault) or successful offender reintegration (evidenced by specific recidivism), Texas as a consumer should bring a suit for breach of implied warranty of fitness for a particular purpose to recover economic damages. 

II. (b) Convicted Person as “Consumer” 

The issue is whether the person convicted and incarcerated in Texas can sue a private corrections corporation for breach of implied warranty of fitness for a particular purpose, when the rehabilitative service demonstrably fails to rehabilitate the person remanded to their custody, evidenced by PTSD resulting from incarceration experience. The Texas Supreme Court has not only expanded the domain of implied warranty, but has also clarified the definition of a consumer,21 holding “that a person need not seek or acquire goods or services furnished by the defendant to be a consumer as defined in the DTPA.”22 

This “consumer" motif was picked up and modulated in Nelson v. Schanzer. There, the Court of Appeals found that an evicted tenant, though not them self seeking the services of a bailee, nevertheless acquired the bailee’s services via court order.23 As such the evicted tenant “became such a consumer upon his involuntarily becoming a bailor under due process and operation of law,”24 causing even involuntary consumers to fall under the protection of DTPA. 

The precedent above strongly suggests that a person may become a consumer, even though they indirectly acquire the services of another through involuntary means via State-ordered action.25 DTPA allows a consumer to bring damages for mental anguish caused by breach of warranty.26 Convicted persons who contracted PTSD through their privatized incarceration experience should seek damages for mental anguish caused by breach of implied warranty of fitness for a particular purpose. 

III. Key Concepts for Crafting Solutions 

One major approach of consumer protection agencies is “the perpetrator perspective via direct enforcement of consumer protection and fraud laws and the combat of specific schemes.”27 This effort is maximized when agencies utilize a “hyper-protected” definable consumer group.28 Typically agencies will choose a sub-group of consumers with special susceptibility to fraud, and give those consumers preferential protection.29 This targeted protection tends to yield a heightened level of quality across the board (via the “LoJack effect”),30 while keeping costs down. Transgender individuals constitute one such group which has historically been especially susceptible to abuses of all kinds in corrections facilities.31 An act specifically targeting the Trans population for hyper-protection in private prisons would not only shield a vulnerable population; it would heighten the level of service provided to all prisoners. 

In Texas, the AG’s Consumer Protection Division is the primary protection agency.32 The Texas AG should give special priority to prosecuting cases for breach of warranty, both for the State and for a hyper-protected group. New hyper-protection mechanisms triggered by recidivism or contraction of PTSD would provide new tools to assess corrections corporations' performance of the rehabilitative service contract. 

IV. Conclusion 

In Texas, consumer protection laws are uniquely poised to combat ineffective rehabilitative service by private corrections corporations through litigation. The State of Texas as a consumer, and the incarcerated person as an involuntary consumer, should review their contracts with private corrections corporations with heightened scrutiny, to ensure that each is getting the rehabilitative service for which they bargained. If the service is failing to yield the benefits it purports to provide to either consumer, the Texas AG should bring a case for breach of warranty.

___________________________________

1 Lynch, Jack, “Cruel and Unusual: Prison and Prison Reform” (2011). 

http://www.history.org/foundation/journal/summer11/prison.cfm (last visited Jan 27, 2018). 

2 Yadin, Daniel, “More Than Reform: Prison Abolition” (2017). http://thepolitic.org/more-than-reform-what-is-prison-abolition/ (last visited Jan 27, 2018). 

3see Michelle Alexander’s The New Jim Crow. 

4“Despite more than a decade of federal legislative efforts and oversight by the U.S. Department of Justice—including the Prison Rape Elimination Act (PREA)—the prevalence of sexual assault remains high in Texas prisons. Several prisons in Texas have among the highest rates of sexual victimization in the nation. Regardless of claims that PREA standards are being implemented in Texas prisons, reports from prisoners themselves indicate that sexual assaults in Texas correctional facilities remain a serious problem. The alarming frequency of sexual assault in Texas prisons not only contributes to conditions in Texas facilities that are abhorrent to human dignity, but also violates the constitutional and human rights of prisoners in the TDCJ.” Erica Gammill & Elia Inglis, A Texas-Sized Failure: Sexual Assaults in Texas Prisons. The Texas Association Against Sexual Assault (2016), 

http://taasa.org/wp-content/uploads/2016/11/BK_A-Texas-Sized-Failure-SA-in-TX-Prisons-Final.pdf (last visited Jan 24, 2018). 5 Liability of Prison Authorities for Injury to Prisoner Directly Caused by Assault by Other Prisoner. 41 A.L.R.3d 1021 (Originally published in 1972). 

6see Murphy, Daniel Shawn, "Pre-Prison, Prison, Post-Prison: Post Traumatic Stress Symptoms" (2004). Retrospective Theses and Dissertations. 806. 

7James Gilligan, Punishment Fails. Rehabilitation Works. NY Times Online (2012), 

https://www.nytimes.com/roomfordebate/2012/12/18/prison-could-be-productive/punishment-fails-rehabilitation-works (last visited Jan 23, 2018). 

8 Harris, “T.I.” Clifford. I Believe. 

9 Tex. Bus. & Com. Code Ann. § 17.46(a). 

10 Id. at § 17.46(b)(5). 

11Id. at § 17.50 (emphasis added). 

12Id. at § 17.44(a). 

13 Luker v. Arnold, 843 S.W.2d 108, 115-116 (Tex. App. 1992). 

14 “First, the public interest in protecting consumers from inferior services is paramount to any monetary damages imposed upon sellers who breach an implied warranty. Second, a service provider is in a much better position to prevent loss than is the consumer of the service. Many services are so complicated and individually tailored that a consumer is unable to independently determine quality and must depend on the experience, skill, and expertise of the service provider. Third, a consumer should be able to rely upon the expertise of the service provider. The application of implied warranty to services would encourage justifiable reliance on the service providers who would have more incentive to increase and maintain the quality of the services they provide. Fourth, a service provider is better able to absorb the cost of damages associated with inferior services through insurance and price manipulation than is the individual consumer.” Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 353–54 (Tex. 1987). 

15Ibid. 

16 Tex. Bus. & Com. Code Ann. § 17.45(4). 

17Id. at § 17.50. 

18Id. at § 17.46(b)(5). 

19 pp. 14-19. Dressler, Joshua, Understanding Criminal Law (7th ed. 2016). 

20 MTC Supports Corrections Reform, MTC Trains (2015), 

http://www.mtctrains.com/wp-content/uploads/2017/06/MTC_Corrections_Position_Statement.pdf (last visited Jan 28, 2018). 

21 “We find no indication in the definition of consumer in section 17.45(4), or any other provision of the Act, that the legislature intended to restrict its application only to deceptive trade practices committed by persons who furnish the goods or services on which the complaint is based. Nor do we find any indication that the legislature intended to restrict its application by any other similar privity requirement. In contrast, privity requirements have been dispensed with altogether in negligence suits, in implied warranty suits for economic loss, and, for the most part, privity requirements have also been abolished in strict liability suits. The Act is designed to protect consumers from any deceptive trade practice made in connection with the purchase or lease of any goods or services. To this end, we must give the Act, under the rule of liberal construction, its most comprehensive application possible without doing any violence to its terms. Consumer is defined in section 17.45(4) only in terms of a person's relationship to a transaction in goods or services. It does not purport to define a consumer in terms of a person's relationship to the party he is suing. Section 17.45(4) does nothing more than describe the class of persons who can bring a suit for treble damages under section 17.50. It does not say who a consumer can sue under section 17.50 for a deceptive trade practice violation. With respect to whom a consumer can sue, section 17.50(a)(1), the subsection under which this suit was tried, expressly states that a consumer can bring a suit if he has been adversely affected by “the use or employment by any person of an act or practice declared to be unlawful in section 17.46.”” (citations omitted) Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540–41 (Tex. 1981). 

22Ibid. 

23 “A tenant failed to pay rent. The landlord filed an eviction action and recovered. Subsequently, the landlord had the tenant's possessions removed from the premises by the bailee. When the tenant went to claim the items, he noticed several items missing. The court stated that to qualify as a "consumer" under [DTPA], the individual must have "acquired" the services. The court affirmed the judgment of the trial court in favor of the tenant, reasoning that the tenant had "acquired" the services, even if it was involuntary.” Who is a "Consumer" Entitled to Protection of State Deceptive Trade Practice and Consumer Protection Acts? 63 A.L.R.5th 1 (Originally published in 1998). 

24 Nelson v. Schanzer, 788 S.W.2d 81, 86–87 (Tex. App. 1990), writ denied (Sept. 12, 1990). 

25 One critical difference between Nelson v. Schanzer and the case of an incarcerated person is the matter of payment. In Schanzer, the bailor eventually had to pay to get their possessions back. Countering this defense, I would argue those convicted persons who voluntarily surrender to private corrections corporations offer their bodies as consideration for the rehabilitative service contract. 26 Tex. Bus. & Com. Code Ann. § 17.50. 

27 David Adam Friedman, Reinventing Consumer Protection, 57 DePaul L. Rev. 45, 46-47 (2007). 

28Id. at 75-77. 

29Ibid. 

30Ibid. 

31 “Trans populations are disproportionately poor because of employment discrimination, family rejection, and difficulty accessing school, medical care, and social services. These factors increase our rate of participation in criminalized work to survive, which, combined with police profiling, produces high levels of criminalization. Trans people in prisons face severe harassment, medical neglect, and violence in both men’s and women’s facilities. Violence against trans women in men’s prisons is consistently reported by prisoners as well as researchers, and in court cases, testimony from advocates and formerly imprisoned people reveal trends of forced prostitution, sexual slavery, sexual assault, and other violence. Trans people, like all people locked up in women’s prisons, are targets of gender-based violence, including sexual assault and rape, most frequently at the hands of correctional staff. Prisoners housed at women’s facilities who are perceived as too masculine by prison staff are often at significantly increased risk of harassment and enhanced punishment, including psychologically damaging isolation, for alleged violations of rules against homosexual contact. These prisoners also face a greater risk of assault motivated by an adverse reaction to gender nonconformity.” pp. 89-90. Dean Spade, Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of Law (2011). 

32 A. Texas Attorney General, 28A Tex. Prac., Texas Consumer Law Ch. 6 A