Many questions remain in looming phaseout of for-profit prisons

 
By David M. Shapiro
Guest columnist
Updated 9/19/2016 9:07 AM
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  • David Shapiro

    David Shapiro

The U.S. Department of Justice's plan to phase out for-profit prisons is good news for humane conditions and fiscal responsibility -- and bad news for executives who enrich themselves by locking up people in warehouses. But the full effect of the change in federal policy may not be realized or understood for years to come.

DOJ's important step forward raises as many questions as it answers.

First, who will implement the change?

Rather than terminating contracts with private prison companies immediately, DOJ announced that when current contracts expire, they will be carefully reviewed and likely not renewed. The federal government has contracts with 13 privately run prisons, and many of these contracts span several years. One of the companies, the Geo Group, reassured stockholders that all is well at the company thanks in part to DOJ's recent renewal of a contract through 2022.

The Obama administration leaders who decided this policy change will be long gone by the time the DOJ is in a position to discontinue most of the contracts. In large part, the current administration's decision to eliminate private federal prisons will be implemented -- or abandoned -- by the Trump or Clinton DOJ.

Second, why weren't immigration detainees included in this effort to safeguard the lives of people locked up by the federal government?

About 22,000 of the 193,000 men and women in federal prisons, about 13 percent, are incarcerated in private prisons, but the immigration detention picture is even bleaker. Immigration and Customs Enforcement (ICE) has private contractors running 46 ICE facilities where a daily average of more than 24,500 people are held. That's 73 percent of immigration detainees caged by for-profit companies.

Here's the rub: ICE is part of the Department of Homeland Security, which is not subject to DOJ's policy change on private prisons. In the wake of DOJ's decision to phase out private prisons, DHS has announced that it is reconsidering its use of private prison contractors but has not made any commitments.

Homeland Security relies on for-profit incarceration to such an extent that weening itself from profit-driven incarceration will be a greater challenge than the one faced by DOJ's Bureau of Prisons. It will take leadership and vision at DHS to get the job done.

Finally, what effect will DOJ's move have on state prisons, which account for the lion's share of both private prisons and governmentally operated prisons?

The short answer is none, because the Justice Department does not control state prisons.

DOJ's move could mark an important turning point, but we won't know for several years. And local and state reliance on private prison companies will not change without the continued advocacy by organizations and individuals concerned with prison conditions nationwide.

Privatization has made major inroads into state and federal prisons and jails with some 130,000 men and women now locked up in for-profit prisons across the nation. Because governments gradually came to rely more and more on private companies to run prisons and jails, there was little debate about the pros and cons of relying on for-profit companies to run businesses that essentially are out of public view.

As news stories and investigations reported horror stories coming out of those prisons, the public became more aware of the dangerous conditions in some of those prisons. Barely discussed a decade ago, private prisons have become a major national issue due to reporting of harsh conditions, medical malpractice, and corruption scandals. Hillary Clinton has called for an end to private prisons, and Bernie Sanders dubbed them "morally repugnant" and a "racket." Two states already ban private prisons, and other states could enact similar laws or phase out for-profit prisons.

Abolishing all private prisons will be a long road, but the DOJ policy change suggests we have started to travel it.

David M. Shapiro is director of appellate litigation at the Roderick and Solange MacArthur Justice Center at Northwestern Pritzker School of Law where he is a clinical assistant professor of law.

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