Biden takes one small step for prison reform

As cameras rolled at the White House on Jan. 26, President Joe Biden signed an executive order against the use of private prisons, touting his commitment to racial equity. He said phasing out federal contracts with private prison companies was a first step toward reducing federal incarceration levels and improving prisoners’ services and programs.

Experts tend to agree that the United States incarcerates more people than necessary and that the government’s relationship with private prisons needs change. But excluding them entirely from the system could not only lead to missed opportunity for reforms but also would affect a much smaller group of inmates than many people realize.

Roughly 2.2 million adults are incarcerated in state prisons, local jails, and federal correctional facilities, according to the Prison Policy Initiative. The Federal Bureau of Prisons is housing just 152,000 of those. About 14,000 federal inmates are in the private prisons Biden targeted with his order. That’s 9 percent of the federally incarcerated population and 0.6 percent of all U.S. prisoners.

Biden’s executive order does not cancel existing government contracts with private prisons and does not affect privately contracted immigrant detention facilities, which hold about 26,000 detainees, according to The Sentencing Project. The order restores U.S. policy from the end of the Obama administration that President Donald Trump reversed.

Most of the criticism of private prison companies stems from how they profit from incarceration.

Their contracts often require the maintenance of a certain capacity in private facilities. If inmate levels drop too low, the government has to pay for the unused beds. This arrangement can incentivize the government to shuffle prisoners around and keep inmate levels high. Some research has shown that private prison companies may drive harsher sentencing laws for all convicts with their lobbying efforts.

Another problem has been poor standards of care: A 2016 Justice Department inspector general report found that private prisons “incurred more safety and security incidents per capita than comparable [Bureau of Prisons] institutions.” The report recommended improving government monitoring of private prisons, though Biden’s executive order cites the report as grounds for the ban.

Some experts say private prisons could play a role in the federal justice system if the government reformed how it handles their contracts. Austill Stuart is the director of privatization and government reform at the libertarian Reason Foundation. He wrote that private companies have the flexibility to do a better job than the Bureau of Prisons: Expecting the BOP to produce new solutions after eliminating private prisons “is more than wishful thinking, it is an outright denial of how innovative and competitive forces work.”

Private prisons could save the government money and contribute innovation and flexibility. In 2013, Pennsylvania’s Department of Corrections began rewriting contracts with privately funded halfway houses: It would cancel them if the halfway houses fell below a baseline recidivism rate and pay them more if rates improved. In August 2015, the state reported an 11 percent decline in recidivism among private halfway houses in the previous year. Some scholars suggest the federal government should similarly rewrite contracts with private prisons, incentivizing positive results instead of incarceration.

Michael Hallett, professor of criminology and criminal justice at the University of North Florida, pointed out that public and private prisons struggle with the same issues of underfunding and overcrowding: “Both types of institutions operate with a services deficit for inmates, but for different reasons. For the goals expressed by President Biden to really be achieved, he would have to make substantial changes to the public prison system, not just the private prison system.”