Well, that didn’t last long.

You’ll remember the fanfare with which the Obama administration last Aug. 18 announced its plan to phase out all use of private-run prisons by the Federal Bureau of Prisons (BOP). The campaign was kicked off a week earlier with the unveiling of a study from the DOJ Inspector General, which purported to prove BOP-run facilities outstrip the private counterparts in performance categories like inmate safety and security.

The plan itself, which set a five-year timeline for BOP to drop or downsize contracts with private prison companies and to use only public-sector facilities, barely lasted even half a year. On Feb. 21, recently-installed Attorney General Jeff Sessions wrote a single-paragraph letter saying the Obama private-prison phase-out plan “changed long-standing policy and practice” at BOP and in fact “impaired…[its] ability to meet the future needs of the federal correctional system.” So Sessions ordered BOP’s acting director Thomas Kane to reverse course and “return to its previous approach.”

Perhaps the understated treatment Sessions took is better suited to reality than the somewhat overhyped, legacy-staking announcement that came late in Obama’s second term. After all, private prisons make up a relatively small part of BOP corrections facilities: there were only 14 private prisons contracting with BOP, and that number dropped further, to 12, by the time Sessions acted. As the population of BOP prisons continues declining, only about 12 percent of their inmates are currently held in privately run facilities. State and local detention facilities make far greater use of private prisons and jails. Of course, this isn’t a statement in support of private prisons. It is merely a statement of the size and scope of the problem

Further, as was briefly acknowledged in the August 2016 plan to phase out BOP use of private prisons, the practice started, of necessity, in 1997, as the headcount for federal inmates climbed, in large part due to new “get-tough” policies on drugs and crime adopted during the Clinton administration. This adds a large dash of irony to the pledge to stop federal government use of private prisons made last year by Democratic standard bearer Hillary Clinton, added to the party platform, and trotted out during one presidential debate.

As recently as December 2015, the DOJ inspector general’s report noted, the total federal inmate population exceeded the combined rated capacity of all federal prisons by 20 percent. To the surprise of almost no one, following DOJ’s high-sounding pronouncements August about abolishing BOP use of private prisons, it soon quietly renewed contracts with two private prisons. And any private prisons that stop dealing with BOP are unlikely to go out of existence, but instead pick up new clients, whether state or local governments or other federal agencies (hint: think immigration).

The real question that needs to be faced would seem to be more about who gets incarcerated, under what conditions, and with what prospects for release and re-entry into society. So while it may keep activists busy to focus on who owns and operates a federal detention facility or to campaign for colleges to divest stocks of private prison firms, in one very real sense doing so detracts needed attention from the more important issues of what the criminal law defines as offenses and penalties, and how well facilities are managed and supervised. But even with this in mind, the idea that a corporation should ever profit from warehousing humans still remains beyond offensive and should not be tolerated in a civil and just society.

Christopher Zoukis is the author of the Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (Prison Legal News Publishing, 2016) and College for Convicts(McFarland & Co., 2014). He regularly contributes to The Huffington Post, New York Daily News and Prison Legal News. This article is partially adapted from the Federal Prison Handbook. He can be found online at PrisonerResource.com 

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).