On Jan. 26, President Joe Biden signed an executive order directing the Department of Justice (DOJ) not to renew its contracts with private prisons, effectively returning to an Obama-era policy that had been overturned under former President Donald Trump. But while advocates have praised the move as a first step, many argue more must be done to address the privatization of the criminal justice system and prison industrial complex.
Advocates have long decried the use of private prisons, arguing that—among other issues—the facilities put incarcerated people at greater risk for abuse. A 2016 report by the DOJ’s Office of the Inspector General found that private prisons “incurred more safety and security incidents per capita than comparable [public federal] institutions.” The review also found that private prisons had a 28% higher average rate of inmate-on-inmate assault and more than double the rates of inmate-on-staff assaults compared to public federal prisons.
While Biden’s order will affect the 11 private prisons currently under contract by the DOJ—as well as the larger private prison industry—it will not actually free any people currently housed therein, and only impacts a small slice of the U.S. prison population. States will also be free to continue contracting with private prisons, which held roughly 88,500 state prisoners (or 7% of the states’ total prison population) at the end of 2019, according to the Bureau of Justice Statistics (BJS). Around 27,400 federal prisoners (or roughly 16% of the federal prison population) were housed in private prisons at the end of 2019, per the BJS. For comparison, a 2020 Prison Policy Initiative report found that over two million people are incarcerated in the American criminal justice system.
It could also take some time for the full impact of the order to go into effect, as it directs the DOJ to decline to renew private prison contracts whenever they expire, rather than sever them immediately. “They’ll have time to transfer these people from private facilities from non-private ones,” says John Pfaff, a professor of law at Fordham University School of Law. “It doesn’t necessarily mean a shrinking of the footprint of prisons, it just means a transfer from privates to the public.”
Though private prisons have long been used by state and federal authorities, the Department of Justice’s use of private facilities increased under President Trump. During his presidency, Trump “doubled private prison revenues,” according to Courthouse News Service; in just one example, in 2019 the federal government spent nearly $600 million on GEO Group, a for-profit group operating correctional facilities, compared to $260 million spent in 2014 during the Obama administration. (The Obama-era limitations on DOJ contracts with private prisons didn’t roll out until 2016.)
GEO Group released a statement on Jan. 26 calling Biden’s order “a solution in search of a problem,” and pointed to the fact that the Bureau of Prisons (BOP) had already chosen to not renew some private prison contracts in the past few months.
“Given the steps the BOP had already announced, President Biden’s executive order merely represents a political statement,” GEO Group’s statement reads, “which could carry serious negative unintended consequences, including the loss of hundreds of jobs and negative economic impact for the communities where our facilities are located, which are already struggling economically due to the COVID pandemic.”
Biden told reporters on Jan. 26 that the executive order is a “first step” to stop corporations from profiting off “incarceration that is less humane and less safe.” Asked for comment on criticism that the order does not go far enough, a White House official told TIME that “President Biden is committed to reducing mass incarceration while making our communities safer, which starts with ending DOJ’s reliance on private prisons and will continue with further work on criminal justice reform in the months ahead.”
Still, Pfaff says he hopes the order does not give the false impression that the issue of profiteering off the criminal justice system is so easily remedied. “Saying we’re taking the profit out of prisons by shutting down the private facilities ignores the massive amount of [financial incentives] on the public side,” he argues.
At the state level, over two thirds of the roughly $43 billion spent on corrections each year goes to to personnel costs, such as salaries, overtime and benefits, a 2015 Vera Institute report found. “That is very much a form of profit that encourages [legislators] to lobby aggressively to keep their prisons open,” Pfaff says.
“When you engage in a symbolic act, which [this order] mostly is,” Pfaff continues, “you have to make sure the symbolism doesn’t actually undermine the broader message that you need to convey.”
One of a series of executives orders Biden signed on Jan. 26, the White House has said his decision to end the DOJ’s use of private prisons is intended to help further racial equity.
Ash-Lee Woodard Henderson, an organizer with The Frontline and the Movement for Black Lives, says it marks a small step, but must serve as starting place for the administration on the issue of racial justice, rather than its ceiling. “It is by no means the victory being won,” she says. “So I think it’s even more incumbent on our social movements, to continue to put on political pressure.”
Pfaff also points out that “the choice of where we put people in prison [alone] isn’t what drives the racial disparities” apparent between inmates held in private and public prisons, and across the larger U.S. prison population. “What drives disparities are who we arrest, who we charge, what we decided to charge them with, what kinds of sentences we impose, either after trial, or after plea bargaining,” he says.
Advocates also note that the order does not address other privatized elements of the carceral state. In a statement acknowledging that Biden’s order “will start curtailing” what he described as the “insidious practice” of prison privatization, David Fathi, director of the American Civil Liberties Union’s (ACLU) National Prison Project, also flagged the impact of “for-profit prison health care companies, which have also been the source of much abuse and malfeasance in recent years.”
“There is much more work to be done,” Fathi said in a Jan. 26 statement.
Similarly, “the Biden administration must now address the private prison industry’s toxic relationship with the Department of Homeland Security (DHS),” said Silky Shah, the executive director of the advocacy group Detention Watch Network, in a Jan. 26 statement. “Ending immigration detention is part and parcel to the advancement of racial justice.”
Biden’s order only addresses private prisons under contract with the Department of Justice, not facilities contracted by the U.S. Immigration and Customs Enforcement (ICE) in the Department of Homeland Security (DHS). The use such facilities by the federal government grew under the Trump administration, and now make up around 75% of DHS detention contracts, according to the Center for American Progress. In the 2019 fiscal year, ICE detained on average 50,000 people a day, every day—and at points, over 56,000 people a day—according to a 2020 ACLU report.
That same report found that, in January 2020, a record-breaking 81% of people detained in ICE custody were held in facilities that were privately owned or managed.
Biden had addressed this issue on the campaign trail, pledging to “end the federal government’s use of private prisons” including in its “detention of undocumented immigrants.” POLITICO also reported Jan. 26 that Biden is considering another order that would address facilities detaining undocumented immigrants.
Holly Harris, the executive director of Justice Action Network, a bipartisan advocacy organization, tells TIME the order is an “important and critical step in right-sizing our justice system.”
“I get that advocates are frustrated, and I’m grateful that there are so many people out there pushing for more,” Harris says. But Biden was “very clear that much more is going to be done,” she continues. “For me, I’m willing to extend some grace on day six to this new administration.”
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