DOJ Politely Suggests that Federal Prisons Consider Ending the Practice of Jailing Humans for Money

Last month, #FiscalConservatives and #SocialLiberals alike rejoiced at the Department of Justice (DOJ)’s announcement that private prisons won’t be a thing anymore. But did you read the fine print? This policy change applies to only federal prisons. Oh, and it’s just a suggestion.

Anyone who’s watched Orange is the New Black and saw Litchfield Prison go to shit upon private acquisition knows that private prisons are one of those things you shake your heads at when it comes up in light conversation. Making a profit off the business of jailing human beings feels itchy even to your uncle who normally disagrees with you. Statistics and stories have long abounded detailing the problems with private prisons. So it makes sense that the public consensus was resoundingly positive upon the memo’s release.

But what’s the real context and impact of the announcement?

The memo, released by the DOJ on August 18th by Deputy Attorney General Sally Yates, devotes three and a half lines to detailing the problem with private prisons:

Time has shown that they compare poorly to our own [Federal] Bureau [of Prisons] facilities. They simply do not provide the same level of correctional services, programs, and resources; they do not save substantially on costs; and…they do not maintain the same level of safety and security.

In sum, the problem as DOJ sees it is that public resources can do it better. In that way, this memo does not underline the “bad”-ness of private prisons and thus open the door for actual conversations about how to move past the prison industrial complex, but rather just names their “less good”-ness, thus sustaining the concepts of cost-saving and punishment upon which our system relies.

But without a conversation about why we began using private prisons, we cannot think critically about the values which drive our criminal justice system and fulfill Sally Yates’ ultimate vision as summarized in the memo’s closing, of “improving outcomes for [our prison population], law enforcement, and for the wider community.”

The DOJ memo contextualizes American reliance on private prisons as a decision made as part of “an effort to manage the rising prison population,” which “increased by almost 800 percent” at the federal level from 1980 to 2013.

You may be confused by the passive voice about how an incarcerated population “increased” that dramatically. As it turns out, incarcerated populations increase not through natural population growth, but when government and police authorities decide to incarcerate more people.

The values which drove that decision are not mentioned in the memo. In 1980, the federal government enacted dual “public safety” metrics which are the direct causes of this explosive growth in the federal incarcerated population. (These are individuals prosecuted by the federal government and convicted of federal-level offenses.)

The first was the War on Drugs. Today, there are over 215,000 people incarcerated in federal prisons — and the majority are there for drug offenses. Their “sympathetic” status as nonviolent offenders is the driver behind many who’d like to end mass incarceration. President Obama has famously granted clemency to more incarcerated people than any other president in history, and almost all of them were in on drug offenses.

The second was a 1990s immigration policy change which led to the incarceration of thousands convicted of illegally entering or reentering the United States. Such cases constitute half of all federal prosecutions, and they ultimately land these individuals in institutions that are unthreatened by the DOJ announcement: ICE (Immigration and Customs Enforcement) detention centers.

In a now-viral tweet in the wake of the DOJ announcement, the world learned that the memorandum directly affected just 13 prisons since most federal prisons aren’t private and most private prisons aren’t federal. While the 22,000 individuals in these 13 prisons are certainly affected, the memo won’t automatically have the impact that advocates hope it could. It could ignite a movement away from private prisons, but only if other institutions (state prisons and immigration detention centers) follow suit.

The real missing puzzle piece are the ICE detention centers. Whereas the Department of Justice is the “parent agency” for the Federal Bureau of Prisons and thus wields at least the weight of a parent over an adult child with their own decision-making power, the Department of Homeland Security (DHS, which manages these centers) is under no such purview. This means that these facilities, which constitute the bulk of federal private prisons, will continue operations and received no instructions to end their contracts with the very companies the DOJ is now outsourcing.

62 percent of all immigration detention beds are operated for-profit by these corporations. While many peg the rise of mass incarceration and the “need” for privatized prisons on the War on Drugs, the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) is the real catalyst because it set the stage for the mass incarceration of undocumented immigrants, as well as the collaboration between police and immigration forces which perpetuates this trend.

The fact that ICE detention centers are unaffected by the DOJ memo is indicative of the toothlessness of the announcement’s impact. The other significant limitation of the recommendation is more value-based. As mentioned, the memo does not ask or answer the question of why our nation turned to privatized prisons in the first place.

It does not question our incarceratory motivations, nor does it touch the issue of assigning a profit motive to keeping prisons full and valuing human lives as bottom lines. Sally Yates’s silence on this issue is deafening, particularly in light of the fact that a profit motive continues to exist in our justice system. Our punitive system isn’t going anywhere, and neither is the profit motive which so often drives mass incarceration.

Even if every federal and state agency follows suit and ends their contracts with the private prison industry, these agencies will profit off the cash bail, civil forfeiture, and countless other auxiliary systems which fund pensions and other staples of civic financing.

The DOJ memo was released on the heels of an Inspector General report which found private prisons to be more dangerous, needlessly punitive, and grossly noncompliant when compared to their non-private counterparts. Ultimately, their recommendation was for the Federal Bureau of Prisons to “examine the reasons behind our findings.” The DOJ announcement could and should serve as a springboard to examine and reconsider the reasons behind so many elements of our criminal justice system, not just the 13 prisons directly affected by the memo.

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