Biden’s executive order notes the disproportionate impact of mass incarceration on people of color as a reason to end the Justice Department’s use of private prisons.
by Eunice Cho
The executive order instructed the Justice Department not to renew contracts “with privately operated criminal detention facilities,” noting the “significant costs and hardships on our society” imposed by mass incarceration. The order cited a 2016 report by the Justice Department’s Office of Inspector General, which condemned the failure of private prison companies to meet basic standards to provide for the health and safety of people in their custody. Biden’s order reinstates and expands the Obama administration’s pledge to end the Federal Bureau of Prisons’ contracts with private prison companies, which President Donald Trump later rescinded.
The directive is a huge victory for civil rights advocates who have warned for years about the particular evils of private prison corporations, and the Biden administration should be applauded for prioritizing it. Privatized prisons, jails and detention centers provide an inherent financial incentive to lock people up and prioritize profits over safety. Governments that rely on private prisons incarcerate people for longer periods of time.
But the order fails to account for one of the most significant areas of the federal government’s use of private prison companies: immigration detention. As a 2020 report by the American Civil Liberties Union, Human Rights Watch and the National Immigrant Justice Center showed, the Trump administration enlarged the immigration detention system at a record pace. That growth overwhelmingly benefited private prison corporations, as almost all of the new facilities were owned and/or operated by for-profit companies, including the GEO Group, CoreCivic and La Salle Corrections. In four years, the Trump administration opened more than 40 new detention facilities and expanded the number of people in the system by approximately 50 percent. At this time last year, more than 81 percent of immigrants in detention were held in facilities owned or operated by private prison companies, a record high.
Biden’s executive order notes the disproportionate impact of mass incarceration on people of color as a reason to end the Justice Department’s use of private prisons. But unless the administration also ends its contracts for Immigration and Customs Enforcement detention, it may enable the continued mass detention of noncitizen people of color under the auspices of immigration enforcement. The past four years should be instructive: As our study showed, many of the new immigration detention facilities opened under the Trump administration had only recently been dedicated to incarcerating prisoners for profit. As sentencing reform reduced the number of prisoners nationwide, private prison companies successfully sought to fill their empty prison beds with immigrants, securing contracts for ICE detention.
Now, more than ever, is the right time to end the federal government’s immigration detention contracts with private prison companies. There is plenty of room to begin shutting down detention facilities around the country. Due in part to court-ordered releases related to covid-19, ICE is currently detaining a historically low level of people each day — less than 15,000, which is about a quarter of its all-time high of 56,000 people in 2019. Even at those levels, ICE can and should release more people, particularly in light of the unique dangers posed to detained people by the covid-19 pandemic.
The Biden administration is reportedly considering an executive order to phase out federal contracts with private immigration detention facilities. The administration must make good on its promise to do so: ICE detention is a system plagued by rampant abuse, mistreatment and danger. As various news reports have shown, lack of adequate medical and mental health care has led to serious harm to detained people, including loss of hearing and sight, amputations and suicide. Last year, the death toll in ICE detention centers reached levels not seen in 15 years. The use of force by guards, including pepper spray, physical force and rubber bullets, and the use of solitary enforcement have also increased.
Shutting down immigration detention facilities run by private prison companies should not be the end goal alone: All immigration detention facilities, including those run by county and state prisons, are plagued by dangerous conditions and abuse of detained people. Instead, we can and should use the many proven alternatives to detention, including legal support and community-based case management systems where immigrants can receive the support of their friends, family and community as they navigate their civil immigration court proceedings.
Ending ICE’s contracts with private prison companies is long overdue. Now is the time.
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Eunice Cho is a senior staff attorney with the American Civil Liberties Union’s National Prison Project.
