Partisan Ping-Pong – President Biden and Private Prisons

President Joe Biden was sworn in on January 20, 2021.  Soon after, he signed a flurry of executive orders, four of which were specifically targeted at “increas[ing] racial equity in the US.”[1]  One of these executive orders is titled “Executive Order on Reforming Our Incarceration System to Eliminate the Use of Privately Operated Criminal Detention Facilities.”[2]  It orders the United States Attorney General to not renew the Department of Justice’s “contracts with privately operated criminal detention facilities.”[3]

Public prisons, which are prisons owned by the government that operate as a non-profit, accounted for nearly all prisons in the United States until the 1980s.[4]  At that point, private, or for-profit, prisons began to emerge as a result of the War on Drugs.[5]  Since the War on Drugs began, the number of people incarcerated for drug crimes has skyrocketed, from 40,900 in 1980 to 452,964 in 2017.[6]  As more people were incarcerated, more prisons were necessary.[7]  Private prisons grew from “five in 1998 to 100 in 2008.”[8]  During this time, “a billion-dollar industry” was born, with CoreCivic and GEO Group becoming America’s two largest private prison companies.[9] 

The executive order notes that over “two million people are currently incarcerated in the United States, including a disproportionate number of people of color.”[10]  To reduce mass incarceration, the executive order aims to “reduce profit-based incentives to incarcerate by phasing out the Federal Government’s reliance on privately operated criminal detention facilities.”[11]

President Biden is not the first elected official to consider the issue.  In 2016, the Department of Justice found that private prisons have increased security and safety risks.[12]  This led President Obama to issue an executive order against contract renewal.[13]  President Trump reversed this policy, and President Biden’s executive order reinstated President Obama’s policy.[14] 

Though the issue is politically salient, only around nine percent of federal inmates are housed at private prisons.[15]  Critics have noted that the executive order will simply lead to these inmates being moved to public prisons.[16]  Accordingly, the executive order does not release prisoners and therefore will not achieve the order’s purported goal of reducing mass incarceration in the United States.[17]  Others have noted the executive order does not cancel current contracts with private prison companies and that it is not applicable “to immigration detention, where more than 80% of detained immigrants are held in private, for-profit prisons.”[18]  Moreover, the executive order’s impact on the private prison industry is questionable because states—which currently house roughly 88,500 prisoners in private prisons—are not affected and remain free to contract with these companies.[19] 

The executive order is a step in the right direction, but it is certainly not sufficient.  To go beyond mere symbolism, the Biden administration will need to support additional measures addressing the ugly fact that “[t]he United States incarcerates more people than any other nation in the world.”[20]  Potential measures include wielding the clemency power, pushing for sentencing reform, and supporting more prosecutorial discretion when it comes to drug crimes.[21]  Hopefully, this executive order marks the beginning of four years dedicated to racial equity. 

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[1] Daniel Strauss, Biden Signs More Executive Orders in Effort to Advance US Racial Equity, The Guardian (Jan. 26, 2021, 3:50 PM), https://www.theguardian.com/us-news/2021/jan/26/joe-biden-executive-orders-us-racial-equity.

[2] Exec. Order No. 14006, 3 C.F.R. § 7483 (2021).

[3] Aamer Madhani, Biden Orders Justice Dept. to End Use of Private Prisons, AP News (Jan. 26, 2021),  https://apnews.com/article/joe-biden-race-and-ethnicity-prisons-coronavirus-pandemic-c8c246f00695f37ef2afb1dd3a5f115e.

[4] Pros and Cons of Private Prisons, Crim. Just. Programs,  https://www.criminaljusticeprograms.com/articles/private-prisons-vs-public-prisons/ (last visited Feb. 25, 2021).

[5] Id. Following the inception President Reagan’s War on Drugs, public prisons became unable to accommodate the rising number of incarcerated individuals who were receiving “longer sentences for drug crimes.”  Id.  Private prisons emerged to accommodate the overcrowding caused by these policy decisions, and also aimed to operate at a lower cost than public prisons by reducing staff and relying on surveillance cameras.  Id.

[6] Criminal Justice Facts, Sent’g Project, http://www.sentencingproject.org/criminal-justice-facts/ (last visited Feb. 25, 2021).

[7] Pros and Cons of Private Prison, supra note 4.   

[8] Id.

[9] Char Adams, Biden’s Order Terminates Federal Private Prison Contracts. Here’s What That Means., NBC News (Jan. 27, 2021), https://www.nbcnews.com/news/nbcblk/biden-s-order-terminates-federal-private-prison-contracts-here-s-n1255776.

[10] Exec. Order No. 14006, 3 C.F.R. § 7483 (2021).

[11] Id.

[12] Alyce McFadden, Biden Phases out Private Prisons, Which Spent Big Backing Trump, OpenSecrets.org (Feb. 2, 2021),  https://www.opensecrets.org/news/2021/02/biden-phases-out-private-prisons/. 

[13] Id.

[14] Jim Tankersley & Annie Karni, Biden Moves to End Justice Contracts with Private Prisons, N.Y. Times (Jan. 26, 2021, 1:24 PM), https://www.nytimes.com/2021/01/26/business/biden-private-prisons-justice-department.html. 

[15] Madhani, supra note 3.

[16] Adams, supra note 9. 

[17] Madeline Carlisle, ‘Much More Work To Be Done.’ Advocates Call for More Action Against Private Prisons After Biden’s ‘First Step’ Executive Order, Time (Jan. 29, 2021, 3:32 PM),https://time.com/5934213/private-prisons-ban-joe-biden/.   

[18] The Real Impact of Biden’s Private Prisons Executive Order, NPR (Jan. 29, 2021), https://www.npr.org/2021/01/29/962190239/the-real-impact-of-bidens-private-prisons-executive-order. 

[19] Carlisle, supra note 17.

[20] Morgan Simon, What Does Biden’s “Ban” On Private Prisons Really Mean?, Forbes (Jan. 27, 2021, 12:33 PM), https://www.forbes.com/sites/morgansimon/2021/01/27/what-does-bidens-ban-on-private-prisons-really-mean/?sh=757bb11e73cb.

[21] Id.