Ending The Private Prison Racket

One of President Biden’s first acts was to issue an executive order to eliminate the federal government’s use of private prisons. This order actually restored a similar order from President Obama that was subsequently reversed by Trump. A 2016 study conducted by the DOJ “found that in a majority of the categories we examined, contract prisons incurred more safety and security incidents per capita than comparable BOP institutions…the contract prisons confiscated eight times as many contraband cell phones annually on average as the BOP institutions. Contract prisons also had higher rates of assaults, both by inmates on other inmates and by inmates on staff…contract prisons we visited were all cited by the BOP for one or more safety and security deficiencies, including administrative infractions such as improper storage of use-of-force video footage, as well as more serious or systemic deficiencies such as failure to initiate discipline in over 50 percent of incidents reviewed by onsite monitors over a 6-month period”. In addition, the study showed that Special Housing Units that are designed for disciplinary segregation were being used for regular inmates who had done nothing to deserve segregation.

Unfortunately, less than 2% of all Americans currently incarcerated are held in federally contracted private prisons. In the states, only about 7% of prisoners are in private facilities, yet some of those are among the worst prisons in the country. Mississippi’s Walnut Grove facility was finally shuttered in 2016 after a federal judge described the conditions in the prison as a “picture of such horror as should be unrealized anywhere in the civilized world” and stated that the prison was actually being run by gangs in collusion with corrupt prison guards. That facility was managed by Management and Training Corporation (MTC) which also runs the East Mississippi Correctional Facility that the ACLU has described as “closer to a vision of hell on earth than a therapeutic treatment facility”.

Fortunately, more and more states are also abolishing the use of private prisons, including immigrant detention facilities. Currently, there are 22 states that do not use private prisons to house their incarcerated citizens and recently both California and Nevada passed bills to ban the use of private correctional facilities. Both Minnesota and Colorado are exploring ending their relationships with private prisons. In fact, the movement to abolish private prisons is becoming so strong that some in the industry believe that their core service may disappear within a decade. Biden’s announcement to end federal use of private prisons would potentially reduce the revenue of the two leading private prison operators, GEO Group and CoreCivic, by over 20%.

But all is not lost for the private prison industry. First of all, Biden’s executive order only instructs the DOJ not to renew any current contracts with private prison companies. If any existing contract runs beyond 2024 and Democrats don’t retain the Presidency, it seems likely that the policy would be reversed, just as Trump did to Obama’s, and those contracts will be renewed. By far the biggest loophole for the private prison industry, however, is the fact that Biden’s order does not cover the Department of Homeland Security, meaning that that the private facilities that ICE contracts to hold undocumented immigrants will not be effected.

Those privately run ICE facilities are also notoriously dangerous places. As Eunice Cho notes, “ICE detention is a system plagued by rampant abuse, mistreatment and danger. As various news reports have shown, lack of adequate medical and mental health care has led to serious harm to detained people, including loss of hearing and sight, amputations and suicide. Last year, the death toll in ICE detention centers reached levels not seen in 15 years. The use of force by guards, including pepper spray, physical force and rubber bullets, and the use of solitary enforcement have also increased”. It was a privately run ICE facility in Georgia, run by another large private prison company, LaSalle Corrections, where over 50 detainees were pressured to undergo or actually underwent unnecessary surgeries, including a significant number of hysterectomies. Both GEO Group and CoreCivic are currently being sued for using detained immigrants as forced labor, demanding work for free or for as little as $1 per day. In addition, a number of states have also filed suit against the two companies, alleging they violated the states’ minimum wage laws in its use of forced labor. One study indicates that over one quarter of the companies’ profits may have been the result of using forced detainee labor to maintain their facilities.

Under Trump, immigration detention became a growth sector for the private prison industry. Over 40 new facilities were opened, the number of detainees increased by over 50%, and over 80% of immigrant detainees were held in privately run facilities. The industry also sees opportunities to feed at the government trough in what they call “post-incarceration services”. This includes transitional housing, electronic monitoring, and even alternative justice programs. These, too, have the potential for abuses that we see in the private prison system. As one person who had endured a privately run transitional housing facility in California noted, “The GEO halfway house felt like moving from state prison to a local jail. I was denied permission to even see my own family. They care more about making money than actually helping you transition into society”.

In fact, California’s ban on private prisons contains an exception for facilities that provide “educational, vocational, medical or other ancillary services”. That exception provides a rather wide field for the private prison industry to play on. Similarly, private companies have also profited from alternative justice programs. A number of these diversion programs turn out to simply be privately run slave labor camps providing services for other private companies. As Reveal from The Center for Investigative Reporting reported, “Across the country, judges increasingly are sending defendants to rehab instead of prison or jail. These diversion courts have become the bedrock of criminal justice reform, aiming to transform lives and ease overcrowded prisons. But in the rush to spare people from prison, some judges are steering defendants into rehabs that are little more than lucrative work camps for private industry…The programs promise freedom from addiction. Instead, they’ve turned thousands of men and women into indentured servants. The beneficiaries of these programs span the country, from Fortune 500 companies to factories and local businesses”. The report focused on an Oklahoma facility that provided no real drug treatment but was simply a poultry processing plant using the free labor of those who has been referred there by the criminal justice system. When those “employees” complained about what they described as “slave labor” conditions, they were threatened with prison.

The private prison industry has thrived for the last quarter century with the explosion of our carceral state but the tide is turning against this historically abusive industry and serious criminal justice reform will only hasten the industry’s demise. Until that time, the larger problem is best described by Democratic Bonnie Watson Coleman who writes, “There has to be a demarcation between the dispensation of justice, and the revenue of a business or budget lines of local governments. Anytime you allow them to blur, you don’t just end up with the potential for corrupt motivations, you risk undermining faith in the system itself. As we continue to have a national conversation about what justice means, about the impact of mass incarceration not just on the individuals who serve time but within the communities they leave behind, we have to consider the removal of profit from the scales…Whether it’s a private prison contract that eventually influences local arrest rates, or a county so financially addicted to a federal reimbursement that it turns a blind eye to reports of abuse and human rights violations, we cannot condone the monetization of justice”.