On Thursday the Department of Justice announced a sudden and major shift in policy: The agency will soon stop contracting with private prisons.
If all goes according to plan, the DOJ intends to have the 12 percent of U.S. prisoners housed in private facilities transferred out within five years. While that’s not much in a country with the highest prison population worldwide, it’s a big step towards better criminal justice reform nationwide.
The announcement isn’t much of a surprise: President Obama also made criminal justice reform a priority for his administration, pushing for shorter sentences for non-violent crimes and regularly reducing the sentences for large groups of non-violent offenders. Deputy Attorney General Sally Yates, the Justice Department, and the Bureau of Prisons have been talking for a few months about discontinuing use. Just last week, the inspector general released a report concluding that private prisons have more security issues than those run by federal officials. And it comes on the heels of a couple major shifts in public perception of private prisons, after Mother Jones released a 35,000 word story on a reporter who went undercover as a correctional officer at a private prison and detailed serious deficiencies, while The Nation magazine wrote earlier this year about questionable circumstances surrounding inmates’ deaths in privately operated facilities. All conclusions to this point seem to be pointing the same way: Private prisons aren’t up to snuff.
“They simply do not provide the same level of correctional services, programs, and resources; they do not save substantially on costs; and as noted in a recent report by the Department’s Office of Inspector General, they do not maintain the same level of safety and security,” Yates wrote in a memo instructing officials to decline to renew or “substantially reduce” the contracts’ scope. “The rehabilitative services that the Bureau provides, such as educational programs and job training, have proved difficult to replicate and outsource – and these services are essential in reducing recidivism and improving public safety.”
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Although stocks for private prison companiesdeclined a sharp 50 percent following the announcement, the move won’t happen overnight. Yates indicated that the 13 private facilities in the Bureau of Prisons system would likely close as part of a process, where instead of terminating existing contracts they would review them when they came up for renewal. According to Yates, all of the contracts will be up for review over the next five years.
The majority of U.S. prisoners are held in state-run facilities. But the move comes as a big win for those pushing for criminal justice reform in the U.S. As a country, we incarcerate more people per capita than any analogous country, accounting for a quarter of the world’s total prisoners. During a period of overcrowding in the 1990s the government began to rely on private prisons in order to compensate. Though they’ve been around for nearly two decades, the way the law applies to them is often uneven and almost always unclear.
“Private prison contractors often find themselves in a gray area legally: treated like a government entity for some purposes (for example, liable for constitutional violations under § 1983), but not always for others (such as immunity),” said Larisa Vaysman for the Sixth Circuit Appellate Blog.
Many have argued that the entire atmosphere around the private prison system has created a conflict of interests that can’t be remedied with mere criminal justice reform.
“To help fill this gap in space, the United States is starting to shift towards private prisons. As incarceration rates skyrocket, the private prison industry expands at exponential rates, holding even more people in its prisons and jails, and generating massive profits,” a Canna Law Blog article explained last year. “Since private prisons are private for profit businesses, the more people incarcerated, the greater their profits. Putting profits into incarceration incentivizes increasing inmate numbers, regardless of the sentence they actually deserve.”
Nowadays there are about 2.3 million prisoners in the U.S. prison system, helping to make up for the multi-billion dollar industry. Private prisons have become one of the most powerful lobbies in the country to help keep their facilities full and profitable. And with the average prison population aging up, the expense seemed like it would only grow.
After the population peaked in 2013 (increasing 800 percent from 1980), the Justice Department started moving towards the decision to cut private facilities. Of that 2.3 million, only about 22,600 federal inmates are in private prisons that will be affected. But the Justice System, at least at this point, seems fairly committed to mediating where they can here. According to the memo, private facilities account for more safety and security incidents than federally-run prisons, with increased rates of assault (both between inmates and against staff) and an average of eight times the average number of contraband cellphones confiscated.
“For all these reasons, lam eager to enlist your help in beginning the process of reducing–and ultimately ending-our use of privately operated prisons,” wrote Yates. “When a higher proportion of America’s prison population benefits from those efforts, we will improve outcomes for them, for law enforcement, and for the wider community we serve.”
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