Private prisons to be phased out, Obama administration seeks higher goal

The Justice Department's turn away from private prisons points to a broader effort to hold the criminal justice system to better standards.

The United States Justice Department will begin phasing out its use of private prisons this year – with an eye to ending the practice entirely. The move comes amid growing public and governmental concern that the facilities are less secure and less safe, for both inmates and guards.

After decades of the war on drugs, mandatory minimum sentences, and three-strikes policies that saw prison populations skyrocket, there is now bipartisan consensus about the need to reform America’s criminal justice system. While private prisons hold only a fraction of federal inmates – which themselves are only a fraction of America’s world-leading 1.5 million prisoners – the Justice Department's turn away from private prisons is a significant marker of that shift.

“This is a huge deal,” says Carrie Pettus-Davis, an assistant professor at the Brown School of Social Work at Washington University in St. Louis.

“People are recognizing that who and how we incarcerate in the United States is inconsistent with the American value system,” she adds, “and that both who and how we incarcerate needs to change.”

Private prisons have been in operation since the early 1980s, and the industry has grown – both in size and political influence – in lockstep with the growth in America’s prison population. But studies, including one by the Justice Department itself, and media reports suggest private prisons are not as secure or as safe, for either inmates or guards, as public prisons. There is also evidence that they do not save substantially on costs, and prison reform advocates say they also directly and indirectly encourage policies that put more Americans and immigrants behind bars.

“Private prisons served an important role during a difficult period, but time has shown that they compare poorly to our own Bureau facilities,” wrote Deputy Attorney General Sally Yates in a memo to US Bureau of Prisons officials. She called on the officials to help begin “the process of reducing – and ultimately ending – our use of privately operated prisons.”

The announcement comes a week after the Justice Department's inspector general released a blistering report on the state of private prisons contracted by the federal government.

Comparing 14 private prisons contracting with the BOP with 14 comparable BOP prisons from 2011 through 2014, the report found that “in most key areas, contract prisons incurred more safety and security incidents per capita than comparable BOP institutions.”

Contract prisons saw higher rates of assaults by both inmates on other inmates and by inmates on guards, according to the report. They also saw eight times as many contraband cellphones confiscated each year. There were also a number of violent disturbances in private prisons during the study period, which led to “extensive property damage, bodily injury, and the death of a correctional officer.”

In response to the inspector general report, the contractors noted their inmate populations consist largely of noncitizens, offering challenges that government-run facilities do not have.

Comparing Bureau of Prisons facilities to privately operated ones was “comparing apples and oranges,”  wrote Scott Marquardt, the president of Management and Training Corporation, one of the firms, in a statement. “Any casual reader would come to the conclusion that contract prisons are not as safe as BOP prisons.”

Keeping costs down

While prison reform advocates have called for an end to the use of private prisons for years, two recent investigative reports helped bring broader attention to the subject. An exposé by a Mother Jones reporter who spent four months undercover at a private prison in Louisiana uncovered serious deficiencies, and the Nation reported on deaths under questionable circumstances at private prisons.

The need for private prisons to make money is an inherent source of their struggles, these reports have found. They are incentivized to keep salaries and staff numbers low (the Mother Jones reporter was paid $9 an hour), for example.

“As a result, the limited number of guards can’t handle, deter, or stop outbreaks of violence as effectively as a bigger staff, in, say, a public prison can,” wrote German Lopez for Vox.

In her memo, Ms. Yates added: “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 to reducing recidivism and improving public safety.”

Private prison companies have also encouraged, both directly in their contracts and indirectly through political campaign contributions, the incarceration of Americans and immigrants. Many unauthorized immigrants are held in privately run detention centers.

In a report for the Washington Post last year, Michael Cohen wrote that private prison companies have spent nearly $25 million on lobbying efforts since 1989, indirectly supporting punitive penal policies like California’s three-strikes rule. He also noted that private prison contracts often require the government to keep the facilities at maximum capacity.

“This outlook runs counter to what should be a rehabilitative mission of the nation’s criminal justice system,” he wrote.

The number of inmates housed in federal contract prisons is small. Only about 12 percent of the BOP population, roughly 22,660 inmates (a decline from a peak of nearly 30,000 in 2013), is held in private prisons, according to the Inspector General’s report.

A 'substantive and symbolic' decision

Still, Professor Pettus-Davis thinks the Justice Department announcement is “both substantive and symbolic.”

“Even though it’s just a small fraction of the total prison population, it’s still lot of people,” she adds, “but also by doing this the federal government sends a signal to states that private prisons aren’t the way to go.”

States have historically followed the federal government’s lead on criminal justice issues, notably during the tough-on-crime era where states replicated federal legislation imposing harsh mandatory sentences on violent criminals. States could do the same with reform efforts scaling back those policies now, Pettus-James says.

The turn away from private prisons could also cause states to question the privatization of other sectors of the criminal justice system, such as private probation and private prisoner transportation.

“I think we’re at the beginning of the end of private prisons,” says Pettus-Davis. “Now the [federal government] is pursuing reforms, I think the states will follow in line, especially if any of those reforms become financially incentivized.”

Yates, in an interview with The Washington Post, said that it was “hard to know precisely” when BOP contract prisons will be emptied of federal inmates. That would depend on “the continuing decline of the federal prison population.”

“The fact of the matter is that private prisons don’t compare favorably” she added, “and now with the decline in the federal prison population, we have both the opportunity and the responsibility to do something about that.”