Nearly three years into President Joe Biden’s tenure, his executive order to phase out the Justice Department’s reliance on private prisons seems to be hitting roadblocks. Despite Biden’s directive, a significant number of individuals are still languishing in privately-run detention centers, a scenario that contradicts the administration’s promised reforms and continues a legacy of controversial incarceration practices.
Biden’s 2020 executive order was a ray of hope for critics of private prisons, especially after the Trump administration’s favorable stance towards the industry. The order aimed to halt the renewal of contracts with private prison companies, addressing concerns raised by a federal report about the inferior safety and security standards in such facilities. However, while the Bureau of Prisons has moved away from using private prisons, the U.S. Marshals Service (USMS) tells a different story.
As discovered by the ACLU, about a third of the 63,000 individuals in USMS custody are still housed in private facilities. This continuity of private prison use has prompted nine Senate Democrats, led by Senator Elizabeth Warren, to demand explanations from USMS Director Ronald Davis and Attorney General Merrick Garland. The senators’ letter highlights the agency’s use of loopholes to continue its association with private prisons, raising serious concerns about the commitment to ending the profitable exploitation of mass incarceration.
One of the primary tactics employed by USMS is utilizing municipalities as intermediaries in contracting private prison companies. This practice allows USMS to circumvent direct dealings with these companies while still housing detainees in their facilities. For instance, the Northeast Ohio Correctional Center, operated by CoreCivic, remained in use through a contract with Mahoning County.
Additionally, the White House Counsel’s Office has reportedly granted case-by-case exemptions to the executive order, allowing continued use of certain private facilities. This lack of transparency and potential misuse of executive discretion is alarming, as it undermines the purpose of Biden’s executive order.
The ACLU’s findings reveal that USMS had pass-through agreements with 40 municipalities, resulting in about 13,500 people per night being held in for-profit detention centers. Moreover, several large for-profit facilities were labeled “exempt” from the executive order, suggesting a systematic bypass of the intended policy.
While the USMS justifies its actions by citing logistical challenges and the need to keep detainees close to courts and families, this does not absolve the agency from seeking humane and just alternatives. The senators’ letter rightly points out that there are other options beyond remaining in private jails or relocating detainees far from their support systems. Exploring alternatives to detention and releasing pretrial detainees who pose no significant risk could be viable solutions.
It’s crucial to note that Biden’s order was limited to the Department of Justice, leaving agencies like Immigration and Customs Enforcement (ICE) free to continue their extensive use of private facilities. As of mid-2023, ICE was still using for-profit facilities for about 91% of its roughly 30,000 nightly detainees.
Biden’s initiative to move away from private prisons was a step towards addressing the deeply rooted issues within the U.S. criminal justice system. However, the ongoing reliance on these facilities by agencies like the USMS and ICE highlights a significant gap between policy intentions and their implementation. It’s a stark reminder of the complexities and entrenched interests that continue to challenge the overhaul of the incarceration system in the United States.