In a memorandum sent to the Bureau of Prisons (BOP) on August 18, the Department of Justice (DOJ) announced it would begin “reducing and ultimately ending” the agency’s use of private prisons.
“As each contract reaches the end of its term, the [BOP] should either decline to renew that contract or substantially reduce its scope in a manner consistent with law and the overall decline of the Bureau’s inmate population,” Deputy Attorney General Sally Q. Yates directed [PDF].
The announcement comes days after the DOJ’s Inspector General released a report documenting multiple contract violations and deficiencies at private prisons, which resulted in abuse and poor quality of life for inmates. It also called attention to the BOP’s role in turning a blind eye to abusive conditions in private prisons.
The DOJ directive appears to only impact private prison contracts with the BOP. It does not include private immigrant detention centers under contract with the Department of Homeland Security and Immigrations and Customs Enforcement. It also does not impact private prison contracts with state correction departments—of which there are many.
“Private prisons served an important role during a difficult period, but time has shown that they compare poorly to our own Bureau facilities,” Yates writes. “They simply do not provide the same level of correctional services, programs, and resources; they do not save substantially on costs; and as noted in a recent report by the Department’s Office of Inspector General, they do not maintain the same level of safety and security.”
It’s true the inspector general found private prisons had comparatively more safety and security incidents than BOP institutions. But the inspector general also found the reason why problems arose and persisted was because the BOP utterly failed to oversee the contracts.
Notwithstanding the deplorable conditions found at many BOP prisons, these failures of oversight are a small part of the larger failures of management within the bureau, which ultimately answers to President Barack Obama’s administration.
“The Federal Bureau of Prisons is awful at overseeing its own prisons,” criminal defense attorney David Menschel told Shadowproof.
“The public prisons in the federal system are overcrowded, which this [directive] will potentially make worse,” he said, taking issue with “the idea that we should somehow single out the federal private prisons when there has been such a total lack of leadership and basic humanity in the federal public system [in general].”
Menschel noted these problems, as well as the BOP’s use of solitary confinement, were “not something that a private company has power over.” But it is “something Barack Obama has power over.”
In 2014, the Government Accountability Office found BOP prisons were 30 percent over capacity. High security facilities in particular were 50 percent over capacity. The inmate-to-staff ratio was also high and had increased over the years.
“The rehabilitative services that the Bureau provides, such as educational programs and job training, have proved difficult to replicate and outsource,” Yates continues, adding, “These services are essential to reducing recidivism and improving public safety.”
Yet, because of overcrowding, these and other “essential” services are dysfunctional, inaccessible, or nonexistent for most federal prisoners. Transferring prisoners from private institutions back to the BOP will not resolve these issues.
These glaring problems are evident in reports, like the one published earlier this year by the inspector general [PDF]. That report showed less than a quarter of federal prisons have adequate medical staff to care for inmates, despite a $200 million increase in funding for medical care.
“The BOP is responsible for confining offenders in environments that are safe, humane, cost-efficient, and appropriately secure,” the report stated. However, “Many institutions remain understaffed, limiting the amount of care that an institution can provide.”
If the BOP plans to draw down its agreements with private prison companies “in a manner consistent with law and the overall decline of the Bureau’s inmate population,” it is unclear how this will happen without overburdening the system and placing inmates in harm’s way. The system needs serious sentencing reform and shifts in prosecutorial discretion to avoid suffering.
The federal government’s commitment to ignoring over-incarceration has led to construction of new prisons at a breakneck pace, but the GAO noted BOP has failed to staff them appropriately and even delayed their use.
The BOP also faces a backlog of facility maintenance work across the system, as many of its prisoners now live in facilities that are over 50 years old, crumbling and in disrepair.
Meanwhile, giants like GEO Group and Corrections Corporation of America have begun to diversify their businesses through acquisition, signing federal contracts to provide services, such as food, medical, commissary, telephones and visitation, as well as post-release services, such as treatment, probation and residential reentry services.
Many federal prisons contract out their medical care and other treatment services to for-profit providers with similarly abysmal records. One such company, Correct Care Solutions, is a subsidiary of GEO Group—one of the contractors from which the BOP and DOJ are trying to distance themselves from right now.
These scions of the carceral industry also have contracts with the BOP to operate halfway houses and treatment programs.
A 2012 inspector general audit of residential reentry centers [PDF] had similar results to the agency’s recent report on private prisons. It found numerous security and procedural lapses, poor record keeping, and inconsistencies in the way deficiencies were reported and evaluated by BOP oversight officials, which allowed problems to persist.
In an article on the state of residential reentry by Derek Gilna for Prison Legal News, Gilna writes, “If the promise of the recent flurry of prison population reductions and sentencing reforms across the nation is to be realized, halfway houses must adapt to new challenges and increased responsibilities. Such reforms will be rendered meaningless if a large percentage of newly-released prisoners re-offend and are re-incarcerated.”
“Despite this potential crisis, there is little sign that either state corrections officials or the Bureau of Prisons is addressing shortcomings in the current halfway house system,” Gilna writes, noting, “Many reentry facilities are poorly-managed and monitored, with violence, drug use and escapes that are aggravated by widespread indifference and misconduct by staff members.”
Getting reentry right is critical to public safety and ensuring a person can have the support they need rejoin society and not reoffend. However, such contracts will be left untouched.
In a footnote on the first page of the DOJ memo, Yates writes, “As you know, the Bureau also maintains contracts with private companies to operate hundreds of community-based Residential Reentry Centers, or ‘halfway houses,’ across the country. These facilities provide short-term transitional housing and community-based reentry services such as employment assistance.”
“The use of private companies to operate Residential Reentry Centers is not the focus of this memorandum,” adds Yates.
“Private prisons are bad because they create incentives for large powerful corporations to lobby legislatures,” David Menschel said. “I applaud what [President Obama] did today because of the impact that it will have on the lobby, but if he really wants there to be better prison conditions in America, well, he’s had seven-and-a-half years to improve one, the very worst prison system in the world: the Federal Bureau of Prisons. What has he done about that?”
Referring to the president’s commutation powers, Menschel continued, “If [President Obama] really wanted to make a difference in the federal prison system, what he should do is just recognize that there are tens of thousands of people doing too much time and cut their sentence. He could do that with a stroke of a pen.”
“We need to decarcerate,” Menschel concluded. “We need there to be fewer people in prison. That would be the best way to solve the problem of prison conditions and private prisons: for there to be dramatically fewer people in federal prison.”
“If we’re keeping our eye on the ball, that’s what we should be focused on,” he said.