The Private Prison Problem: Finding Pathways to Justice in Hawaiʻi

Authors

Nathan Lee

Abstract

This article considers the many obstacles in place to challenging private prison operation. Given decades of meaningful scholarship and legal activism on the “private prison problem”, it is puzzling that successful challenges to privatized incarceration remain elusive. This article seeks to introduce the lengthy and tragic history of Hawaiʻi’s use of out of state private prisons, stretching from 1995 to the present. For 30 years, people have been sent thousands of miles from home, effectively banished. Worse, Hawaiʻi has failed to take appropriate action to implement oversight or to bring individuals back home. Moreover, despite Hawaiʻi’s prominent involvement in private, out of state imprisonment, it is noticeably absent from the literature.

The article begins with a detailed history of past and present harms that have been inflicted on people from Hawaiʻi in these facilities, noting the disproportionate and accentuated harms borne by Native Hawaiians. The article then considers: 1) the moral argument against using private prisons and 2) the significant legal barriers to justice that have been erected by case law. Hawaiʻi is an illustrative case study to explore existing and novel considerations for private prison law more generally. First, the article considers arguments that distinguish between private and government run prison facilities. This is an approach that has some merit, but is hampered by the fact that all prisons subject incarcerated to immoral treatment. Second, the article considers legal argument against out of state private prisons that focuses on the extreme distances that individuals from Hawaiʻi are sent. Arguments against such drastic out of state transfer include First Amendment claims, Due Process arguments, banishment as a form of unconstitutional ex post facto punishment, and cruel and/or unusual punishment. Finally, the article concludes by asking if alternatives to private and government imprisonment is possible, and suggests community-based justice as an alternative.

Recommended Citation

Nathan Lee, The Private Prison Problem: Finding Pathways to Justice in Hawaiʻi, 23 UC Law SF Race & Econ. Just. L.J. 87 (2026).
Available at: https://repository.uclawsf.edu/hastings_race_poverty_law_journal/vol23/iss1/6