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Phasing Out Private Prisons Is an Important Symbolic Gesture

December 6, 2016

PHASING OUT PRIVATE PRISONS IS AN IMPORTANT SYMBOLIC GESTURE

By: Claire Williams, Volume 101 Staff Member

On August 18th, the Department of Justice (DOJ) announced that it would begin to phase out its use of private prisons, “either declin[ing] to renew that contract or substantially reduc[ing] its scope in a manner consistent with law and the overall decline of the bureau’s inmate population.”[1] The DOJ began relying on private prisons during the 1980s when many government tasks were being privatized and there was a dramatic increase in the number of people being incarcerated.[2] Now, the number of federal prisoners has declined and the DOJ has recognized the failings of many private prisons.[3] While most prisoners are actually under the control of local or state facilities, the decision by the DOJ could prompt other departments and levels of government to reevaluate their use of private companies to house prisoners.[4] There is a chance that the DOJ’s decision will begin to minimize the incentive for private companies to profit from incarceration. The future of private prisons cannot be fully known given the non-binding nature of the DOJ’s announcement, the role of the states, the incoming Trump administration and the practices of the Department of Homeland Security (DHS), but the decision by the DOJ rests on sound reasoning and is an important symbolic step forward for the criminal justice system.

I. THE USE OF PRIVATE PRISONS

Privatization initially arose as an effort to find alternative options for juvenile offenders so fewer of them would end up in institutions.[5] In 1974, Congress passed the Juvenile and Delinquency Prevention Act,[6] with the goal “to develop and conduct effective programs to prevent delinquency, to divert [juveniles] from the traditional juvenile justice system and to provide critically needed alternatives to institutionalization.”[7] The Act incentivized private participation in the criminal justice system in an attempt to develop alternatives for vulnerable juvenile populations.[8]

The use of private prisons expanded to adult facilities in the 1980s.[9] The privatization of prisons was partly driven by the general trend of privatization of government services during the 1980s. In response to “declining federal grant monies, and general economic malaise” the government tried to reduce costs by shifting government services to private entities.[10] For prisons, the general thought was that contracting with private companies would lead to less expensive and faster construction as well as reduced operating costs.[11]

The other motivator for the privatization of prisons was severe overcrowding as a result of new “tough on crime” legislation.[12] In 1988, the Reagan Administration found that “[f]ederal prisons operated at 127 percent and 159 percent of their highest and lowest capacities, respectively.”[13] The dramatic increase in population and the inadequacy of the facilities in operation at the time left the federal government “turn[ing] to the private sector for long-term and stopgap solutions.”[14]

II. THE MOVE AWAY FROM PRIVATE PRISONS

The Inspector General released a report in August 2016, detailing the various failings of private prisons in comparison to facilities operated by the Bureau of Prisons.[15] The study examined fourteen privately run and fourteen publically run prisons, looking at contraband, reports of incidents, lockdowns, inmate discipline, telephone monitoring, selected grievances, urinalysis drug testing, and sexual misconduct.[16] In all of the categories, except positive drug tests and sexual misconduct, the privately-run facilities have more safety and security reports per capita than the Bureau of Prison facilities.[17] Following the report from the Inspector General, the DOJ noted that private facilities “simply do not provide the same level of correctional services, programs, and resources; they do not save substantially on costs; and . . . they do not maintain the same level of safety and security.”[18]

In addition to the findings of the Inspector General, there has been a cultural shift in views about criminal justice practices.[19] “[C]onservatives and liberals have found common ground on such issues as cutting back mandatory-minimum sentences; using probation, treatment, and community service as alternatives to prison for low-level crimes.”[20] Those reforms have started reducing the prison population: 2010 saw the first decline in four decades.[21] A decline in the number of people incarcerated is likely to decrease the demand for prisons in the same way that an increase in incarceration rates drove up the demand for prisons.

III. A SYMBOLIC GESTURE

While the DOJ’s decision will only directly affect a narrow group of people, it is still an important symbolic gesture. However, it is a narrow decision. First, this decision is not binding—it “did not shut the door on demand for private contract facilities in the future, however, and a new presidential administration could handle the issue differently.”[22] Second, the decision to phase out private prisons will not affect many people who are currently incarcerated. According to the Bureau of Prisons, 191,579 people are incarcerated in federal prisons.[23] Of that total, 21,879 people are in privately managed facilities (about eleven percent).[24] In comparison, state facilities held 1,350,958 people in 2014,[25] and the DHS apprehended 406,595 people per year[26] and detains 33,676 people per day.[27] The DOJ made an important step but there are many millions of people in prisons and only a small fraction of them could feel the impact of this decision.

It is possible that states and other government agencies housing people will consider phasing out the use of private prisons since “[t]he federal prison system is traditionally seen . . . as the gold standard, as embodying best practices, as an example to follow.”[28] So, while “[t]he Justice Department announcement will not touch the vast majority of prisoners in the country . . . federal officials hope their decision will be a model across the correctional field.”[29] That hope, however, was not supported by a “financial incentive for states to follow its lead on private prisons.”[30] The federal government is trusting states to follow its lead in a federalist system that values states making their own choices. Some states have begun or had already begun to close private facilities.[31] There is a strong likelihood that the DOJ decision will impact some states.

The bigger problem is DHS. Following the DOJ pronouncement, it indicated that it had no plans to eliminate or even decrease its use of private prisons.[32] DHS detains 400,000 people each year[33] and, unlike other federal facilities where about eleven percent of the prison population is housed in private facilities,[34] about seventy percent of the detainees are housed in private facilities.[35] So, DHS has a greater reliance on private prisons and seems unlikely to follow the lead of the Bureau of Prisons.

Whether or not this move prompts changes in any other institutions, it is significant because it starts the process of decoupling punishment from profit. In addition to lucrative prison construction contracts, private prisons and companies that work with them benefit from cheap labor of the prisoners.[36] The fact that these private prisons profit off of incarceration and depend upon the continued supply of labor creates an incentive for them to lobby for increased sentences and the criminalization of more acts.[37] The Corrections Corporation of America acknowledged in its 2014 annual report that “[t]he demand for [its] facilities and services could be adversely affected by the relaxation of enforcement efforts, leniency in conviction or parole standards and sentencing practices or through the decriminalization of certain activities that are currently proscribed by our criminal laws.”[38] In addition to the general incentive to support laws that would increase the number of incarcerations, many private prison contracts have occupancy guarantee clauses that require between eighty and ninety percent occupancy.[39] That pressure can create an atmosphere that encourages authorities to incarcerate people in return for monetary gains; in return for sentencing people, judges have been caught accepting kickbacks from organizations that run the detention facilities.[40] These attitudes and incentive structures can further dehumanize the people caught up in the criminal justice system. The monetary gains run counter to the idea that incarnation is a specific response and a means of facilitating rehabilitation because it changes the focus from the individual wrongdoing to the need for a constant stream to maintain profits.[41]

As an influential governmental body, the DOJ is making steps toward decoupling the criminal justice system from the idea of private companies profiting off of incarceration. Right now that decision may only impact a narrow group of current prisoners but it sends a strong signal to states and other government entities that private prisons are ineffective and should not be a part of the criminal justice system.

  1. Memorandum from Sally Yates, Deputy Attorney General, to the Acting Director of the Federal Bureau of Prisons (Aug. 18, 2016) (available at https://www.justice.gov/opa/blog/phasing-out-our-use-private-prisons). ↑
  2. andré douglas pond cummings, “All Eyez on Me”: America’s War on Drugs and the Prison-Industrial Complex, 15 J. Gender Race & Just. 417, 417–20 (2012); Matthew Mulch, Crime and Punishment in Private Prisons, 66 Nat’l Law. Guild Rev. 70, 73 (2009). ↑
  3. U.S. Inspector General, e1606, Review of the Federal Bureau of Prisons’ Monitoring of Contract Prisons i-iii (2016), https://oig.justice.gov/reports/2016/e1606.pdf. ↑
  4. Joe Davidson, Will States Follow DOJ’s Private Prison Move? Some Are Ahead of the Feds, Chi. Trib. (Aug. 26, 2016), http://www.chicagotribune.com/news/nationworld/ct-justice-department-private-prisons-20160826-story.html. ↑
  5. Mulch, supra note 2, at 72–73. ↑
  6. Juvenile and Delinquency Prevention Act of 1974, Pub. L. No. 93-415, 88 Stat. 1109, § 102. ↑
  7. Id. ↑
  8. Patrick Bayer & David E. Pozen, Economic Growth Center, The Effectiveness of Juvenile Correctional Facilities: Public Versus Private Management 4 (Econ. Growth Ctr., Discussion Paper No. 863, 2003), http://ageconsearch.umn.edu/bitstream/28484/1/dp030863.pdf. ↑
  9. Mulch, supra note 2, at 73. ↑
  10. Nicole B. Casarez, Furthering the Accountability Principle in Privatized Federal Corrections: The Need for Access to Private Prison Records, 28 U. Mich. J.L. Reform 249, 254–55 (1995). ↑
  11. Id. at 254. ↑
  12. Id. at 254–56; Mulch, supra note 2, at 73; John F. Pfaff, The Complicated Economics of Prison Reform, 114 Mich. L. Rev. 951, 951 (2016) (“[T]he incarceration rate [rose] from around 120 per 100,000 to 510 per 100,000 (and to over 700 per 100,000 when counting those locked up in jails as well as prisons).”). ↑
  13. President’s Comm’n on Privatization, PN-ABB-472, Privatization: Toward More Effective Government 146 (1988), http://pdf.usaid.gov/pdf_docs/PNABB472.pdf. ↑
  14. Mulch, supra note 2, at 74. ↑
  15. U.S. Inspector General, supra note 3 (discussing the safety and security incident rates at private contract prisons). ↑
  16. Id. at ii. ↑
  17. Id. at ii, 14–27. ↑
  18. Sally Yates, Phasing Out Our Use of Private Prisons, United States Dep’t of Just. (Aug. 18, 2016), https://www.justice.gov/opa/blog/phasing-out-our-use-private-prisons. ↑
  19. Bill Keller, Prison Revolt: A Former Law-and-Order Conservative Takes a Lead on Criminal-Justice Reform, New Yorker, (June 29, 2015), http://www.newyorker.com/magazine/2015/06/29/prison-revolt; Pfaff, supra note 12, at 951. ↑
  20. Keller, supra note 19; Pfaff, supra note12, at 951–52. ↑
  21. Pfaff, supra note 12, at 951–52. ↑
  22. Carrie Johnson, Justice Department Will Phase Out Its Use of Private Prisons, NPR (Aug. 18, 2016 1:15 PM), http://www.npr.org/sections/thetwo-way/2016/08/18/490498158/justice-department-will-phase-out-its-use-of-private-prisons. ↑
  23. Statistics, Federal Bureau of Prisons, https://www.bop.gov/about/statistics/population_statistics.jsp (last visited Nov. 28 2016). ↑
  24. Id. ↑
  25. E. Ann Carson, NCJ 248955, Prisoners in 2014 1–2 (2015), http://www.bjs.gov/content/pub/pdf/p14.pdf. ↑
  26. Press Release, Department of Homeland Security, End of Fiscal Year 2015 Statistics (Dec. 22, 2015), https://www.dhs.gov/news/2015/12/22/dhs-releases-end-fiscal-year-2015-statistics. ↑
  27. Alice Speri, The Justice Department Is Done with Private Prisons. Will ICE Drop Them Too?, Intercept (Aug. 18, 2016 2:53 PM), https://theintercept.com/2016/08/18/justice-department-done-with-private-prisons-will-ice-drop-them-too. ↑
  28. Davidson, supra note 4. ↑
  29. Johnson, supra note 22. ↑
  30. Davidson, supra note 4. ↑
  31. Colorado, Mississippi, Washington, D.C., Kentucky, Texas (which actually closed its facilities in 2013), and Idaho have all begun the process of closing privately run prison. Id. ↑
  32. Id. ↑
  33. U.S. Gov’t Accountability Off., GAO-15-153, Immigration Detention: Additional Actions Needed to Strengthen Management and Oversight of Facility Costs and Standards 1 (2014), http://www.gao.gov/assets/670/666467.pdf. ↑
  34. Federal Bureau of Prisons, supra note 23. ↑
  35. Speri, supra note 27. ↑
  36. Angela Davis, Masked Racism: Reflections on the Prison Industrial Complex, Colorlines (Sept. 10, 1998), http://www.colorlines.com/articles/masked-racism-reflections-prison-industrial-complex; Mike Elk and Bob Sloan, The Hidden History of ALEC and Prison Labor, The Nation (Aug. 1, 2011), https://www.thenation.com/article/hidden-history-alec-and-prison-labor. ↑
  37. Michael Cohen, How For-Profit Prisons Have Become the Biggest Lobby No One Is Talking About, Wash. Post (Apr. 28, 2015), https://www.washingtonpost.com/posteverything/wp/2015/04/28/how-for-profit-prisons-have-become-the-biggest-lobby-no-one-is-talking-about. ↑
  38. Id. ↑
  39. How Lockup Quotas and “Low-Crime Taxes” Guarantee Profits for Private Prison Corporations, In the Public Interest (Sept. 19, 2013), https://www.inthepublicinterest.org/criminal-how-lockup-quotas-and-low-crime-taxes-guarantee-profits-for-private-prison-corporations. ↑
  40. Pa. Judges Accused of Jailing Kids for Cash, NBC News (Feb. 11, 2009), http://www.nbcnews.com/id/29142654/ns/us_news-crime_and_courts/t/pa-judges-accused-jailing-kids-cash/#.WCHoq-ErLkJ. ↑
  41. Cohen, supra note 37; cummings, supra note 2, at 440–46. ↑
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