Only a little less than a year ago, the second-ranking official in the Department of Justice was declaring that the federal government planned to reduce and eventually eliminate the housing of federal inmates in privately owned prisons.
Last August, the DOJ unveiled an Inspector General’s report purporting to show privately run prison facilities are inferior to those operated by the federal Bureau of Prisons in performance categories including security and inmate safety. Private prison operators disputed the accuracy and completeness of the study. However then-deputy attorney general Sally Yates unveiled with great fanfare a five-year plan to downsize or—in what the Obama team at DOJ would view as the ideal outcome—eliminate the BOP’s use of private prisons.
By the time Obama’s team exited, the BOP had cut the number of private prisons with which it contracted from 14 to 12, although in their final days, they did renew contracts with two private prisons. But soon after Obama’s DOJ team departed, Trump’s Attorney General Jeff Sessions made unmistakably clear his disagreement with his predecessors on federal use of private prisons.
In a single-paragraph letter to BOP acting director Thomas Kane on Feb. 21, Sessions said the Yates memo had announced as having altered BOP’s “long-standing policy and practice” in a way that in fact “impaired… [the agency’s] ability to meet the future needs of the federal correctional system.” Pulling the plug on Yates’ announced policy, Sessions directed Kane to return BOP to its previous approach to private prison use.
Just a few months later, BOP began soliciting bids for more than 1,600 additional spaces in privately-managed prisons, for use as “criminal alien requirement” (CAR) facilities holding primarily non-citizens convicted of drug or immigration crimes. And with the new administration’s determination to stiffen immigration enforcement by ending prior policies they deride as “catch and release,” and cutting federal funds to sanctuary cities, the business prospects of private prisons are definitely looking up.
Even so, it’s important to keep federal use of private prisons in perspective. In the first place, BOP began contracting out to private penal facilities in 1997, simply because there were not enough spaces in BOP facilities, due in part to the toughened drug laws signed into law by President Bill Clinton. The number of federal prisoners has been declining in recent years, but as recently as the end of 2015, the total federal inmate population was still 20% greater than the rated capacity of all federal prisons.
In addition, BOP isn’t the main customer for private prisons. Even if 1,600 more detainees are added to CAR private facilities, the total would still be under 23,000 people. Only about 12% of other BOP inmates—or about 22,00—are held in privately run prisons. But city, county and state governments combined account for about 90,000 inmates in privately-owned prisons. Other parts of the federal government, notably the Department of Homeland Security’s Immigration and Customs Enforcement (ICE), also use privately-owned detention facilities.
Finally, although abolishing private prisons was a plank in last year’s Democratic presidential platform, and activists keep busy with boycott and disinvestment campaigns, the key issues ought to be whom we incarcerate, and under what conditions—not who holds title to the facility.
Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com and PrisonerResource.com.