Sessions memo: Reversal on private prisons could portend shift on justice, observers say

The federal government will not phase out its contracts with private prisons, Attorney General Jeff Sessions indicated in a memo on Thursday, highlighting the Trump administration's contrasting approach on criminal justice after Obama-era reforms.

Private prisons could be here to stay, Jeff Sessions signaled on Thursday.

In a memo to the Bureau of Prisons Thursday, the attorney general rolled back Obama-era guidance in which then-Deputy Attorney General Sally Yates directed the BOP not to renew contracts with private prisons. Attorney General Sessions wrote that Ms. Yates’ August order “impaired the Bureau’s ability to meet the future needs of the federal correctional system.”

The move may not have a significant impact immediately: The BOP has contracts with just 12 private facilities, housing only about 21,000 of the nearly 190,000 inmates in federal prisons, according to the Justice Department. But for observers, the rethink on private prisons from one administration to the next is indicative of their very different values – and may foreshadow the future of criminal justice under President Trump. 

“It’s not going to be that impactful – but it is symbolic,” explains Lauren-Brooke Eisen, senior counsel for the justice program at the Brennan Center for Justice, based at New York University, in a phone interview with The Christian Science Monitor. The memo, she says, “hints that there might be an expansion of prison privatization under this administration.”

Private prisons exist “because government didn’t have capacity at various points in our history,” explains Ms. Eisen, who is working on a book about private prisons. The Bureau of Prisons began contracting out to private prisons in 1997, following ‘tough on crime’ policies that had led to prison overcrowding. Private prisons, which didn’t require the government to construct new facilities and with which contracts could be terminated if demand fell, were considered a cost-effective way to ease the burden. States that had begun the practice earlier generally seemed satisfied with the approach, as the Monitor reported in 1987.

For the Obama administration, ending contracts with these prisons played a dual role. First, it responded to public concerns about the treatment of inmates in private facilities. These concerns were heightened by an August 2016 Office of the Inspector General report about private prisons, which found they offered poor quality food, poor medical care, and had more safety incidents than publicly run prisons. (Those findings have been contested by private prison operators.)

Second, bringing these contracts to an end highlighted that the extra prison space was no longer necessary, possibly a testament to the Obama administration’s efforts to end mandatory minimum sentences and reduce incarceration. In 2015, the federal prison population dropped by 7 percent, or 14,000 inmates, Eisen says, which is, “partly why Sally Yates was able to issue that guidance last year.”

The Trump administration’s contrasting approach was hardly unexpected, observers say. For one thing, Mr. Trump is a businessman, and therefore more likely to support privatization.

“I really think this is a philosophy issue,” says Carrie Pettus-Davis, an assistant professor at the Brown School of Social Work at Washington University in St. Louis, explaining that to this administration, “Privatization of just about everything is considered to be better.”

Privatization has also found bipartisan Congressional support in the past, explains Daniel Mears, a professor of criminology at Florida State University.

“A large part of the impetus for privatization among both Republicans and Democrats is this notion of efficiency – it just sounds really appealing,” says Professor Mears. 

And with a lack of "apples-to-apples" comparative research on similar inmates at the two prison types, politicians' ideology may be the guiding force behind their determination of whether private prisons offer a way to house inmates that is equally as humane, secure, and cost-effective as publicly-operated facilities, he says.

“At the end of the day, it comes down to a belief system,” Mears states.

Campaign donations may also have helped inform the Trump administration’s decision, some suggest. GEO Group, one of the largest for-profit prison operators in the country, gave $250,000 to support Trump's inauguration events, Pablo Paez, the company's vice president of corporate relations told USA Today. CoreCivic, another major private prison operator, gave $250,000 to the inauguration as well.

“Private prison companies were major donors to the President’s campaign.... No doubt there was an expected policy shift in exchange for their support,” writes Michele Deitch, a longtime attorney who is a senior lecturer at the University of Texas at Austin’s Lyndon B. Johnson School of Public Affairs, in an email to the Monitor.

Private prisons with government contracts lauded Sessions’ memo.

“Our company welcomes the memorandum by the Attorney General reinstating the continued use of privately operated facilities,” Mr. Paez, of the GEO Group, said in a statement emailed to the Monitor. 

Issa Arnita, a spokesman for Management and Training Corporation, which operates private prisons, said in an emailed statement that the prisons “provide a valuable service to the federal government” and “it makes sense for governments to contract with private prison operators when there is a need.”

As long as prison populations continue to decline, however, this need appears limited. In view of Trump’s ties to private prison companies, as well as his law-and-order focus on the campaign trail, some observers have suggested that the memo could foretell increased incarceration.

“It appears that this administration is deeply committed to increasing incarceration, particularly of immigrants, and has very close ties to the private prison industry,” says Bob Libal, the executive director of Grassroots Leadership, a criminal justice reform group based in Austin, Texas.

That approach may put the Trump administration at odds with Americans as a whole, Professor Pettus-Davis indicates. There is a growing consensus that the criminal justice system is racially biased and perpetuates social inequity, she says, summarizing that “criminal behavior does not predict criminal justice involvement.” It’s an argument reflected by the number of bipartisan efforts to reform the system over the past few years.

“I do not think that the Trump administration is in line with the momentum for major criminal justice reform,” she says.

The memo may also indicate “a shift in how these inmates are housed,” with a greater share of prisoners being sent to private facilities under this administration, Eisen of the Brennan Center suggests.

Much of the increase in incarceration in private prisons would likely come from increased immigration enforcement, however. Private prisons already run half of detention facilities, Eisen says, and they weren’t covered by Yates’ memo – underscoring that Sessions’ memo is likely more indicative of a change in approach than in immediate logistics.

“While this shift is significant – and certainly indicative of the administration’s plans to increase the federal prison population through increased law enforcement and enhanced sentencing – it is not going to result in any major changes (at least in the near future) for private prisons,” writes Professor Deitch of University of Texas-Austin.

This report includes material from the Associated Press.