DOJ's Private Prison Phaseout Has Complex Roots

Part II: How the Policy Came About and Will It Last?

In a blog last week, I summarized the Department of Justice's August 18 announcement it plans to stop sending federal inmates to privately-owned prisons. Now, let's look at the background leading up to this change, and how far-reaching it may turn out to be.

Deputy Attorney General Sally Yates' announcement took most commentators by surprise, but signs were in fact mounting private prisons were becoming a bigger issue. For example, spurred by Vermont senator Bernie Sanders, the Democratic Party's 2016 political platform for the first time included a call for ending federal contracts with private prisons.

Second-term Administration efforts - like DOJ's "Smart on Crime" initiative and a presidential commutation project - drew greater attention to the size and cost of the federal inmate population. The most immediate foreshadowing for DOJ's announcement, however, came exactly a week earlier, when a DOJ Inspector General's report unfavorably compared the safety and effectiveness of private prisons, where DOJ's Bureau of Prisons has contracted to house nearly 12% of all federal inmates, to BOP-run prisons.

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The IG's report evaluated performance data on eight key security and inmate safety criteria for the 14 private prisons DOJ used between fiscal years 2011 and 2014, comparing them with results at 14 BOP-operated prisons comparable populations and services. With few exceptions, private prisons performed worse on a per-capita basis than did BOP facilities.

Eight times as many contraband cellphones were seized in private prisons, and assaults by inmates occurred at higher rates - both on other inmates and on staff. Private prisons also had more frequent lockdowns, use of force incidents, guilty findings in inmate discipline hearings, and inmate-filed grievances; monitoring of inmate telephone conversations was lower. In private prisons they visited, IG investigators discovered new inmates being routinely held in solitary confinement, apparently as a stopgap overcrowding remedy, and detected other administrative lapses, including failure to secure use-of-force videos or take timely action against rules violations.

The IG's report faulted BOP's oversight, especially its compliance checklist which omits some important health and corrections services, such as verifying inmates receive such BOP-mandated services as initial health exams, TB tests, and immunizations, and which also failed to require confirmation of staffing levels and certain security inspections. The report also noted BOP compliance officers weren't required to coordinate with health service supervisors.
Private corrections firms criticized the report, saying it lacked data to show inmate populations at their facilities were actually comparable to inmates in BOP facilities the report used for comparison.

DOJ's announcement didn't apply to privately-operated residential reentry centers, short-facilities for recently released inmates. Nor did it cover Department of Homeland Security- created detention centers, or state prison systems, which send far more inmates to private prisons. But private prison opponents quickly took up the call for states and DHS to follow DOJ in pulling out.

If BOP-run prisons must in fact absorb inmates transferred from private prisons, their inmate populations may not only increase, but also change somewhat in character (private prison executives note their facilities have focused primarily on housing adult males, particularly criminal aliens). And since the plan will take up to five years, its fate will largely be determined by the administration arriving next January.

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at www.ChristopherZoukis.comPrisonEducation.comand PrisonLawBlog.com