In the barrage of news surrounding President Donald Trump, one of the things his administration quietly did over the past few months was reopen the federal prison system to private prison companies.
Some members of Congress, however, have noticed — and they want the Trump administration to explain itself.
On Monday, Sens. Chris Van Hollen (D-MD) and Cory Booker (D-NJ) will send a letter to Attorney General Jeff Sessions asking that the Justice Department explain why it reversed the Obama administration’s decision to stop contracting with some private prison operators.
Shortly before President Barack Obama left office, Deputy Attorney General Sally Yates sent out a guidance stating that the Bureau of Prisons (BOP) would phase out its use of private prisons. Now, the decision would have only affected a small portion of prisons in the US and across the country, since only 122 prisons out of thousands in the US are run by the BOP. And other federal agencies would continue to use private prisons, particularly the 100-plus immigrant detention facilities overseen by the Department of Homeland Security but mostly run by for-profit private companies.
Still, the end of BOP’s use of private prisons was seen as a victory among liberals who have long condemned the use of private prisons, buoyed by a report from the Justice Department’s Office of Inspector General (OIG) that found serious problems and more frequent reports of violence at privately run, for-profit federal facilities compared with federal public prisons.
Booker and Van Hollen pointed to the OIG report in their letter to Sessions:
[I]n 2016, the Justice Department’s Office of the Inspector General concluded, “in most key areas, contract prisons incurred more safety and security incidents per capita than comparable BOP institutions.” In another example, a 2012 Justice Department investigation found that in the City of Walnut Grove, Mississippi, a private prison that held youth offenders, did not provide “constitutionally adequate care” and that staff routinely engaged in “systematic, egregious, and dangerous practices.” In fact the investigation concluded that the Walnut Grove private prison was “among the worst […] in any facility anywhere in the nation.”
They also argued that the Trump administration’s decision “lends the appearance of rewarding campaign donors.”
“Corporations that manage private prisons — Civic Corp, GEO Group, and Management and Training Corporation — reportedly donated over $750,000 to super PACs that supported the President,” the senators wrote. “One private prison corporation donated $100,000 to pro-Trump PACS the day after former Attorney General Yates announced that the Bureau of Prisons would no longer renew their contracts with private prisons.”
Booker and Van Hollen don’t demand the Justice Department revert back to a policy that phases private prisons. But, along with several other requests, they ask the Justice Department to explain what evidence it relied on for its decision to allow more private prison facilities and how many private prisons the BOP plans to partner with in the next 10 years — essentially asking Sessions, as head of the Justice Department, to explain how he came to such vastly different conclusions about private prisons than the OIG report and previous administration.
It’s true: an OIG report did find private prisons were more dangerous
Generally, privately run federal prisons — known as “contract prisons” — house low-security inmates, typically undocumented male immigrants. So the comparisons in the 2016 OIG report weren’t to high-security facilities, but to other low-security prisons run by the Bureau of Prisons.
“We found that in a majority of the categories we examined, contract prisons incurred more safety and security incidents per capita than comparable BOP institutions,” the report concluded, based on its analysis of 14 private prisons and 14 public prisons from fiscal years 2011 to 2014.
OIG found problems in six categories: contraband, reports of incidents, lockdowns, inmate discipline, telephone monitoring, and selected grievances. Private prisons reportedly had fewer positive drug tests and reported incidents of sexual misconduct.
“For example, the contract prisons confiscated eight times as many contraband cell phones annually on average as the BOP institutions,” the report found. “Contract prisons also had higher rates of assaults, both by inmates on other inmates and by inmates on staff.”
Privately run facilities also consistently put inmates in solitary confinement units just because they didn’t have enough room to put them with the general population — a violation of federal rules for solitary. And the private prisons appeared to provide inadequate medical care to inmates.
The report had a big limitation: It couldn’t examine all the factors that contributed to these differences, including the effects of inmate demographics and facility locations. And some of the numbers could be misleading; for example, maybe inmates were just more willing to report sexual misconduct in public facilities, which suggests that public facilities could be better at handling sexual misconduct even if they have more reports of it.
But the findings were bad enough that OIG recommended the federal government take more serious actions to oversee privately run prisons. And the BOP responded with swift force, with plans to cancel contracts on its remaining 13 private facilities — before Sessions changed those plans.
Private prisons aren’t a big part of the US prison system, but they have problems where they exist
The OIG report isn’t the first to indicate that private prisons are worse off, although it’s the most recent one. A 2001 report from the Department of Justice found the rate of inmate-on-inmate violence at private prisons was 38 percent higher than the rate at public prisons. And in a four-month undercover investigation, reporter Shane Bauer witnessed high levels of violence — particularly stabbings, which seemingly went underreported in official numbers — and lockdowns at a private prison in Louisiana.
The problems in private facilities generally follow the same theme: They seem to have big problems staffing up, because private prisons’ for-profit motive incentivizes the facilities to keep salaries and staff numbers low. As a result, the limited number of guards can’t handle, deter, or stop outbreaks of violence as effectively as a bigger staff in, say, a public prison can. And even though state and federal governments are supposed to oversee these prisons, it’s harder to do that indirectly through a private contractor than directly through your own publicly hired and managed staff.
Proponents of private prisons argue that they can save money, since private companies can run them more efficiently. The OIG report cautions against that conclusion, given the problems that come with private prisons. And other research is mixed on whether private prisons actually save money. But even if the claim is true, the savings may not be worth the extra dangers to staff and inmates at private prisons.
This doesn’t mean public prisons are pristine. There are plenty of terrible stories from public facilities, such as Pelican Bay in California and Rikers Island in New York City. Last year, I reported on a transgender inmate’s horrific experience through multiple public prisons, where she was repeatedly sexually assaulted and brutalized as public prison officials did little about it.
But based on the available data, it does seem private prisons are even worse.
Nonetheless, they aren’t a big part of the US criminal justice system. They only hold about 18 percent of federal prisoners and 7 percent of state prisoners, according to the American Civil Liberties Union. (More than 87 percent of all prisoners in America are in state facilities.)
As I’ve written before, this shows that private prisons aren’t really the drivers of mass incarceration — a popular belief held by liberals — but instead a response to it: Once public prisons got too crowded, legislators around the country began to seek out less expensive options to take in some of the new prisoners. So private prisons began holding inmates on the margins.
Still, where private prisons do exist, they seem to pose extraordinary problems. And that makes it all the more curious that the Trump administration was so willing to embrace them.
For more on mass incarceration, read Vox’s explainer.