Can North Carolina counties hire private companies to run their county jails, force their sheriffs to accept jail privatization, or combine two existing county jails into a 'district confinement facility' run by a private contractor with non-certified guards?

Plain-English summary

In the mid-1990s, county officials in Wake and Durham counties explored whether North Carolina law allowed them to bring private contractors into their jail operations, either as full privatization of an individual county jail or as the operator of a multi-county "district confinement facility." Chief Counsel John R. McArthur, Special Deputy AG John R. Corne, and Assistant AG John J. Aldridge, III, analyzed the questions in a detailed advisory opinion.

The bottom line: no, not under existing law. Specific legislative authorization would be required to allow private companies to operate county jails or to step into the sheriff's statutory role.

The statutory framework starts with N.C.G.S. § 162-22, which says the sheriff "shall have the care and custody of the jail in his county; and shall be, or appoint, the keeper thereof." Section 162-24 adds that "the sheriff may not delegate to another person the final responsibility for discharging his official duties." Reading those provisions together, the AG concluded that the General Assembly assigned to each sheriff a non-delegable statutory duty to operate the county jail. The sheriff cannot give that duty away. Neither can the county take it away from the sheriff and assign it to a private contractor.

The general county-contracting authority in § 153A-449 ("A county may contract with and appropriate money to any person, association, or corporation, in order to carry out any public purpose that the county is authorized by law to engage in") does not override the sheriff's specific statutory role. Cansler v. Penland, 125 N.C. 578, 34 S.E. 683 (1899), is the leading case on the public-interest rule that prevents impairment of official duties. The AG also cited a 1988 formal opinion to Judge Frank W. Snepp, Jr. (58 N.C.A.G. 30), which had concluded that authority over a Mecklenburg criminal intake center could not be transferred from the sheriff to the county.

The opinion went through the questions methodically:

Can a county unilaterally privatize its jail? No. The sheriff cannot be cut out of the picture.

Can the sheriff and county agree together to privatize the jail? No. The duty is non-delegable. Even with both sides willing, the General Assembly has reserved the role to the sheriff.

Can the sheriff be forced to privatize? No. No statute allows compulsion.

What about combining jails into a district confinement facility? Two or more counties can establish a district confinement facility under § 153A-219, but they must actually consolidate operations rather than simply call two existing jails a "district facility." A district confinement facility is "a separate and independent facility from that of a county jail which must be operated under the authority of the sheriff." If counties create a district facility, one of the two original county jails must close. Otherwise the operations remain county jails subject to the sheriff's non-delegable duty.

Could a private contractor administer a district confinement facility? The opinion gave a more nuanced answer here. Section 153A-219 does not require the administrator to be the sheriff or any other local-government official. So a private contractor might be eligible to serve as administrator. But the responsibility and liability for ensuring constitutional and statutory standards remain with the operating units of government, citing Parnell v. Waldrep, 538 F. Supp. 1203 (W.D.N.C. 1982). And a district confinement facility cannot be turned over for independent operation by a private enterprise, because § 153A-217(5) defines such facilities as those "operated by a local government." So private administrative management is theoretically possible, but private operation is not.

Detention officer certification. Under § 153A-216(4), entry-level employment standards for jailers and supervisory personnel of local confinement facilities require certification under Chapter 17C or 17E. The certification framework contemplates employees of local government or the sheriff. Private-company employees in a hypothetical privatized facility would not fit those categories, so a specific statutory modification would be required.

Wake/Durham district confinement facility. Two counties could form a district facility, but the existing Wake and Durham county jails could not both continue as separate operations under that label. One must close. The sheriff retains responsibility for any continuing county jail.

Could the City of Durham join with Durham County? Yes. Section 153A-217(7) and § 153A-219 allow two or more cities or counties to form a district confinement facility together. Chapter 160A, Article 20, governs the interlocal cooperation procedures.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The North Carolina General Statutes governing jails and district confinement facilities have been amended multiple times since 1995, and the broader debate over correctional privatization has continued at both the state-prison and county-jail levels. The non-delegable nature of the sheriff's care-and-custody duty under §§ 162-22 and 162-24 has continued to be the bedrock principle, but counties and sheriffs considering current privatization arrangements should verify the current statute, any new authorizing legislation, and recent appellate decisions.

Background and statutory framework

The 1990s saw a national wave of interest in correctional privatization. Companies like CCA and Wackenhut (now GEO Group) marketed private jail and prison operations as cost-saving alternatives to government operation. Several states allowed private prison contracts at the state level; the question of county-jail privatization was being explored separately. North Carolina was a relative latecomer; before 1995, there were essentially no privately operated correctional facilities in the state.

The sheriff's office is a constitutional office in North Carolina (N.C. Const. art. VII, § 2). The sheriff is independently elected, not appointed by county commissioners, and exercises duties defined by statute rather than at the county's will. The non-delegable-duty principle in §§ 162-22 and 162-24 reflects this constitutional independence: the sheriff's statutory responsibilities cannot be shifted away by general county-contracting authority.

The district confinement facility option in § 153A-219 was a 1980s-era cost-saving mechanism. The idea was that small or under-resourced counties could pool resources to build a single, larger, professionally managed jail facility, reducing per-county capital costs. By 1995, only two multi-county district confinement facilities existed in North Carolina. The infrastructure existed for more, but counties had been slow to consolidate.

The 1988 Snepp opinion (58 N.C.A.G. 30) referenced in the opinion was about a Mecklenburg County criminal-intake center: Could the county take supervisory authority over the intake center away from the sheriff? The 1988 AG had said no. The 1995 opinion built on that conclusion to extend the same logic to jail privatization.

The detention-officer certification analysis was significant for two reasons. First, it identified another structural obstacle to privatization beyond the sheriff's duties. Even if you got around §§ 162-22 and 162-24, your jail's officers would still have to be certified under Chapter 17C or 17E, and those chapters contemplated government employees. Second, it explained the regulatory tradeoff: privatization advocates often pointed to lower personnel costs, but those costs were partly driven by reduced certification requirements that the General Assembly had explicitly chosen to mandate for public-jail operations.

The opinion was carefully written to leave a path forward through legislative action. If the General Assembly wanted to allow privatization, it could amend Chapters 162, 153A, 17C, and 17E to expressly authorize private contractor operations and the relevant certification provisions. The AG opinion just made clear that under existing law, that path had not been taken.

Common questions

Could the sheriff voluntarily hand off jail operations to a private company?

No. The duty under §§ 162-22 and 162-24 is non-delegable. Even with the sheriff's consent, the statute doesn't allow it. The sheriff can hire deputies and jailers as employees of the sheriff's office, but cannot transfer the underlying statutory responsibility to a private company.

What if the sheriff just hired a private company as the "jailer" with the sheriff still in charge?

That arrangement would still violate § 162-24 if the private company exercised final responsibility for any of the sheriff's official duties. A management contract that left genuine final responsibility with the sheriff might be permissible in narrow ways, but ordinary "we run the jail" privatization is not.

Could counties contract with the state Department of Correction to operate their jails?

That question was outside the 1995 opinion's scope. The Department of Correction is a different statutory framework, and any such arrangement would have to be reviewed against both the sheriff's duties and the state corrections statutes.

Was Wake or Durham able to consolidate?

The 1995 opinion did not say what the counties ultimately did. The legal framework allowed a true consolidation: one new district confinement facility, with one of the existing county jails closing. Whether the counties had the political and budgetary will to make that happen is a different question.

Source

• Landing page: https://ncdoj.gov/opinions/private-operation-of-county-jails/

Citations

• N.C.G.S. §§ 162-22, 162-24, 153A-216(4), 153A-217, 153A-219, 153A-221, 153A-449
• N.C.G.S. §§ 17C-2, 17E-2
• Chapter 160A, Article 20
• Cansler v. Penland, 125 N.C. 578, 34 S.E. 683 (1899)
• State v. Jones, 41 N.C. App. 189, 254 S.E.2d 234 (1979)
• Parnell v. Waldrep, 538 F. Supp. 1203 (W.D.N.C. 1982)
• 58 N.C.A.G. 30 (1988)

Original opinion text

• Under existing North Carolina law, can an essential governmental function such as law enforcement or the care and custody of a jail be "privatized" [by] utilizing the services of a nongovernmental private company?
• Can the sheriff be forced to privatize the county jail?
• Can the sheriff and county agree to privatize the county jail?

The answer to each of the foregoing questions is no.

N.C.G.S. § 162-22 states that the sheriff "shall have the care and custody of the jail in his county; and shall be, or appoint, the keeper thereof." N.C.G.S. § 162-24 provides that "the sheriff may not delegate to another person the final responsibility for discharging his official duties . . . ." Reading these two statutes together, it is clear that the General Assembly has established as the policy of this State that the sheriff has the non-delegable duty and responsibility for the care and operation of county jails.

The provisions of N.C.G.S. § 153A-449 do not alter the foregoing conclusion. N.C.G.S. § 153A-449 provides that "[a] county may contract with and appropriate money to any person, association, or corporation, in order to carry out any public purpose that the county is authorized by law to engage in." This statute does not in any way modify the sheriff's statutory responsibilities and duties specifically assigned by the General Assembly and, therefore, is not authority for a county to unilaterally "privatize" a local confinement facility. Given the General Assembly's express statutory scheme and intent, it necessarily follows that since the sheriff cannot delegate to another his responsibility and duty to be the keeper of the jail, the county is similarly limited.

The public has an interest in the proper performance of their duties by public officers, and would be prejudiced by agreements tending to impair a public officer's efficiency or in any way to interfere with or disturb the due execution of the duties of the office. See Cansler v. Penland, 125 N.C. 578, 34 S.E. 683 (1899). This office, in a formal opinion addressed to the Honorable Frank W. Snepp, Jr., Senior Resident Superior Court Judge for Mecklenburg County, concluded that the transfer of supervisory authority over a criminal intake center from the sheriff to the county was not permissible. See 58 N.C.A.G. 30 (1988). Absent specific legislative authorization, the essential law enforcement function of the care and custody of a county jail cannot be "privatized."

Therefore, neither the sheriff nor the county may delegate to a private entity the obligation for discharging the responsibilities and duties of providing the care and custody of the county jail nor can the county force the sheriff to privatize the jail. Accordingly, the county and the sheriff could not, under the present statutory scheme, enter into an agreement to "privatize" the Wake County jail.

2. If the counties of Wake and Durham entered into an agreement to call the Wake and Durham County jails a district confinement facility, would this actually be a district confinement facility subject to the appointment of a district confinement administrator as contemplated by the enabling statute, N.C.G.S. § 153A-219?

No.

N.C.G.S. § 153A-219 permits two or more units of local government to enter into and carry out an agreement to establish, finance, and operate a district confinement facility. An existing facility may be designated as a district confinement facility. It is clear from the language of this statute that the General Assembly chose to permit two or more units of government to establish a single district confinement facility in order to minimize the expenditure of resources by such units. If the Wake and Durham county jails were to continue to be operated as independent entities, and were in fact district confinement facilities in name only, then certainly the General Assembly's intent would be contravened. Additionally, the scenario set forth above could be construed to constitute an unlawful delegation of authority vested in the sheriff in violation of N.C.G.S. §§ 162-22 and 162-24. While a county is not required by statute to maintain a county jail, to the extent one is established, the General Assembly has specifically delegated the operation of such jail to the sheriff.

3. Currently there are apparently no privately operated jails and only two multi-county district confinement facilities in North Carolina. Jails which are staffed by employees of a sheriff are required to have those employees certified by Sheriffs' Standards Division as detention officers. District confinement facilities which are staffed by an "administrator and other custodial personnel" are also currently required to have those employees certified by the Criminal Justice Standards Division as detention officers. Given the apparent requirement of certified detention officers in both county jails and district confinement facilities, could a private company operate a jail or district confinement facility employing civilians who are not certified detention officers?

• N.C.G.S. § 153A-216(4) provides, in pertinent part, that the State "shall establish entry level employment standards for jailers and supervisory and administrative personnel of local confinement facilities to include training as a condition of employment in a local confinement facility pursuant to the provisions of Chapter 17C [North Carolina Criminal Justice Education and Training Standards Commission] and Chapter 17E [North Carolina Sheriffs' Education and Training Standards Commission] and the rules promulgated thereunder." N.C.G.S. § 17C-2(c) sets forth those personnel subject to the certification standards under that Chapter. These personnel, denominated "criminal justice officers," include, among others, "officers, supervisory and administrative personnel of local confinement facilities" of criminal justice agencies. Criminal justice agencies are defined as state and local law enforcement agencies, state correctional agencies, and other correctional agencies maintained by local government. N.C.G.S. § 17C-2(b).
• N.C.G.S. § 17E-2(3) sets forth those personnel subject to the certification standards of that Chapter. These personnel, deemed justice officers, include persons who have been duly appointed as jailers by the sheriff. Those subject to the certification standards of N.C.G.S. Chapters 17C and 17E are contemplated to be employees of the local units of government. Employees of a private enterprise hired to oversee the operations of a legitimate district confinement facility would not, in our opinion, fall within the scope of either Chapter 17C or Chapter 17E.

It is clear that the General Assembly by enacting N.C.G.S. § 153A-216(4) intended to require certification of all persons working in a confinement facility. A specific statutory modification would be required to include any confinement facility personnel employed by a private entity.

4. Can a non-governmental private company be appointed as the "keeper . . ." of the jail within the meaning of N.C.G.S. § 162-22 or as a district confinement facility administrator within the meaning of N.C.G.S. § 153A-219?

No.

As set forth above, the sheriff is assigned by statute the "care and custody of the jail . . . and shall be, or appoint, the keeper thereof" and may not delegate to another person the final responsibility for discharging his official duty. N.C.G.S. §§ 162-22; 162-24.

While a sheriff may employ a deputy or deputies to assist him, he may not delegate this authority to another. Cansler v. Penland, 125 N.C. 578, 34 S.E. 683 (1899). The phrase "or appoint the keeper thereof" refers to the authority of the sheriff to appoint assistants in his employ and under his supervision to carry out the operations of the jail. These assistants, or jailers, are of common law origin, and are recognized as public officers. State v. Jones, 41 N.C. App. 189, 254 S.E.2d 234 (1979). Since private contractors would not be in the employ or under the supervision of the sheriff, the sheriff could not appoint them consistent with N.C.G.S. §§ 162-22 and 162-24.

The administrator of a district confinement facility need not be the sheriff or any other official of a participating local governmental unit. N.C.G.S. § 153A-219. Therefore, it appears that a private contractor would not be precluded from serving as an administrator of a district confinement facility. However, it should be noted that the responsibility and liability for ensuring that minimum statutory and constitutional standards exist at such a facility remains with the operating unit(s) of government. Parnell v. Waldrep, 538 F.Supp. 1203 (WDNC 1982).

A district confinement facility could not be turned over for independent operation by a private enterprise since N.C.G.S. § 153-217(5) defines such facilities as those "operated by a local government." Therefore, the General Assembly has made no statutory allowance for facilities operated by a private contractor.

5. Can a private company operating a jail in North Carolina employ detention officers certified under either Sheriffs' Standards or Criminal Justice Standards?

No.

As set forth above, a private company may not independently operate a jail or district confinement facility in North Carolina under the present statutory provisions. Detention officers certified under either Chapter 17C or Chapter 17E are defined as employees of either a unit of local government or a sheriff. Specific statutory authority would have to be granted by the General Assembly in order for a private company to operate a local confinement facility.

6. Would the North Carolina Department of Human Resources, Division of Facility Services, rules, standards and regulations for the operation of local and district confinement facilities apply to privately operated jails?

Yes, if the General Assembly authorizes private companies to operate Jails.

Absent statutory authorization, it is our opinion that county jails and district confinement facilities cannot be independently operated by private companies. However, if the General Assembly authorized such operations, absent a specific exemption, the minimum standards promulgated by the Department of Human Resources would be applicable. See N.C.G.S. § 153A-221.

Sheriff Hill's Request

1. Considering the fact that the City of Durham does not have a municipal lock-up and now uses the Durham County Jail facility, are Durham County and Durham City two units of local government within the intent and meaning of N.C.G.S. § 153A-219 so that they could enter into, and carry out, an agreement to establish, finance, and operate a district confinement facility?

Yes.

Two or more counties or cities may enter into and carry out an agreement to establish, finance, and operate a district confinement facility. N.C.G.S. §§ 153A-217(7); 153A-219. Durham County and Durham City constitute two units of local government and could enter into an agreement to operate a district confinement facility. We emphasize that a district confinement facility is a separate and independent facility from that of a county jail which must be operated under the authority of the sheriff. In exercising the powers to enter into such an agreement, the units are required to proceed under the procedures and provisions of Chapter 160A, Article 20.

2. Should Wake and Durham Counties enter into an agreement to operate a district confinement facility, could both the existing Wake and Durham facilities be used for this purpose or would either Durham or Wake be forced to close its existing facility so that there is only one jail in either Wake or Durham Counties?

Either the Wake or Durham County Facility would have to be closed. N.C.G.S. § 153A-219 provides that an existing facility may be designated as a district confinement facility. Reading this statute as a whole leads to the conclusion that the establishment of a district confinement facility is intended to minimize the expenditure of resources by units of local government. Once a district confinement facility has been established, any other confinement facility operated by the participating units of local government must be closed.

If the Wake and Durham County jails were to continue to be operated as independent entities and were district confinement facilities in name only then certainly the intent of this legislation would be contravened. While a county is not required to maintain a county jail, to the extent one is established, the General Statutes specifically delegates its operation to the sheriff. N.C.G.S. §§ 162-22; 162-24.

3. Should Durham County along with another unit of local government establish a district confinement facility, would the Durham County Sheriff be then relieved of any and all responsibility for a jail in his county?

No, unless the county jail is abolished.

If Durham County and another unit of local government establish a district confinement facility, the sheriff would still maintain his responsibilities for the operation of the county jail so long as it is in existence. If a separate district confinement facility is established, the units of local government may, but are not required to appoint the sheriff to operate the facility pursuant to N.C.G.S. 153A-219.

John R. McArthur Chief Counsel

John R. Corne
Special Deputy Attorney General

John J. Aldridge, III Assistant Attorney General