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| Jeffrey Bornstein |
In August 2016, the U.S. Department of Justice instructed the Federal Bureau of Prisons to start phasing out the use of private detention facilities. In a memorandum, then-Deputy Attorney General Sally Yates noted that private prisons did not "provide the same level of correctional services, programs and resources" as did the BOP and found that there was no real cost savings that would justify their use.[1]
In 2017, former President Donald Trump's attorney general, Jeff Sessions, reversed that directive.[2]
In signing his order last month, Biden wrote that there is "broad consensus that our current system of mass incarceration imposes significant costs and hardships on our society and communities and does not make us safer." The order notes that to decrease incarceration levels, "we must reduce profit-based incentives to incarcerate" our people.[3]
Biden acknowledges that this is just a first step. But it is an important one.
The order presently only applies to imprisoned persons who were convicted of federal offenses, less than 10% of whom are housed in private facilities. The order should be extended to the U.S. Department of Homeland Security, which uses private prisons to detain immigrants.
Many states also contract with private companies. The president's example should be followed by the states as well.
Biden's embrace of the concept that mass incarceration does not make us safer is a critical step forward. The president's order sets the stage for more long-lasting changes that are desperately needed.
The Black Lives Matter protests, and the lessons learned from the COVID-19 pandemic and its impact on incarcerated persons and the staff who manage incarcerated persons, have laid bare the inequities of the system and the need for a dramatic shift in the way we manage our prison systems.
Decisions about crime and punishment should be based on societal needs and not profit motives. But in the current system, the incentive to lock people up is a powerful economic motivator.
The profit motive that underlies the prison industrial complex is vast and deep. Private prisons are just one factor.
Often overlooked is the fact that both the public and private prison industry use prison slave labor, as permitted by the 13th Amendment, and pay prisoners literately pennies an hour for their work. Compounding the problem, these employers do not even provide records or references to assist these "workers" in getting meaningful jobs once they are released.
One of the criticisms of private for-profit prisons is that they pay their staff less, and they are usually understaffed, as was noted in the 2018 case Dockery v. Hall before the U.S. District Court for the Southern District of Mississippi.[4]
The then-warden testified that the prison managers were paid financial incentives to stay within its budget, but that there was no penalty if inmates died under questionable circumstances. Expert testimony connected the dots showing that the lack of staff led to beatings by both prisoners and guards and violent acts perpetrated against mentally ill inmates, among other serious concerns.
The Marshall Project noted in a 2019 article that even in public prisons, private companies provide many essential services such as health care, food, transportation, financial services and messaging, phone and video calls, to name a few. They also make "big investments in reentry, electronic monitoring and drug treatment programs."[5]
Three of the biggest companies running corrections facilities in the U.S. are CoreCivic Inc. (formerly known as the Corrections Corporation of America), the Geo Group Inc., and Management & Training Corp., the entity that ran the prison in Mississippi.
Geo Group contracts with the BOP to run some of its residential reentry facilities, also known as halfway houses, with very uneven results.
In the Bay Area, there is a halfway house in Oakland and another in San Francisco's Tenderloin neighborhood. Programming is thin. There is little coordination with local agencies and nonprofits for housing or job training.
There is little or no practical problem-solving training, such as how to assist an incarcerated person who is trying to return to normal life get a bank account or an ID that is now required to enter a federal building, including a courthouse. Many who have been incarcerated know firsthand that the system seems designed to make them fail and not succeed in their transitions.
Instead of an incentive system based on success and lack of recidivism as goals for private entities, the system provides the private prison operators with incentives to turn a profit by keeping the reincarceration door revolving.
In addition, prisons are a terrible place for the mentally ill, but medical care is another critical area where the for-profit equation fails completely.
Many federal and state public prisons use outsourced for-profit mental and physical health care. Outsourcing is cheaper, but in many cases substandard. Private contractors are motivated to prioritize cost-cutting over providing adequate medical care. There is also an oversight and responsibility gray area when a for-profit contractor is involved.
In the for-profit environment, those who can hardly care for themselves are the ones who suffer. Medical and mental health care is more appropriately placed with the BOP or state prison departments. Incentivizing for-profit companies to provide often-substandard medical care to incarcerated persons only makes matters worse.
Biden's executive order is the start of what needs to be a deep dive into our national prison culture. Taking out the profit motive is one of the key elements of real reform. There are others.
We need to refocus our efforts to help people help themselves, making crime and punishment into a more complete process that also includes rehabilitation and true acceptance of responsibility.
Allowing those who are imprisoned to change and rebuild their lives, pay their debts to society, and find ways to contribute to it for the sake of their families, and even for the sake of those families they may have harmed by their misconduct, is critically important if there is to be true reform. Ending mandatory minimum sentences and increasing rehabilitation programs are important considerations that the DOJ must pursue aggressively.
Jeffrey Bornstein is a partner at Rosen Bien Galvan & Grunfeld LLP. He is a former assistant U.S. attorney in the San Francisco U.S. Attorney's Office.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.justice.gov/archives/opa/file/886311/download.
[2] https://www.bop.gov/resources/news/pdfs/20170224_doj_memo.pdf.
[3] https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/26/executive-order-reforming-our-incarceration-system-to-eliminate-the-use-of-privately-operated-criminal-detention-facilities/.
[4] https://www.aclu.org/blog/prisoners-rights/medical-and-mental-health-care/east-mississippi-correctional-facility-hell.
[5] https://www.themarshallproject.org/2019/09/12/here-s-why-abolishing-private-prisons-isn-t-a-silver-bullet.