Uncle Sam is an influential guy. When he speaks, states listen.
If history is a guide, the Justice Department’s decision to phase out private prisons could have an impact well beyond federal Bureau of Prison facilities. Already, some states are ahead of the federal government in closing for-profit correctional locations. The move by the Justice Department could encourage more of that.
“The federal prison system is traditionally seen, by other state prison systems, as the gold standard, as embodying best practices, as an example to follow,” said David Fathi, director of the American Civil Liberties Union (ACLU) National Prison Project. “The fact that the federal prison system is ending its use of private prisons could encourage some other states to follow suit. … I think it’s likely that some will follow the federal example.”
Nicole D. Porter, advocacy director of the Sentencing Project, which, like the ACLU, opposes private prisons, provided these examples of states moving away from private facilities:
- Colorado officials announced plans in June to close the private Kit Carson Correctional Center.
- Mississippi officials said they will close the Walnut Grove Correctional Facility.
- D.C. Mayor Muriel Bowser (D) announced that the District would resume operation of the Correctional Treatment Facility when a contract with Corrections Corporation of America (CCA) expires next year.
- Kentucky announced the closing of its last of three facilities in 2013. In June, however, the state said it was considering reopening two private facilities because of overcrowding.
- Texas closed two private prisons in 2013.
- Idaho said in February it would no longer send prisoners to a private facility in Colorado.
Despite setbacks from policies such as these, CCA is looking to “new, innovative opportunities we’ve been exploring in recent years,” said Jonathan Burns, a company spokesman. “We’ve also greatly expanded our residential re-entry offerings, which help inmates prepare to successfully return to their communities. In fact, this spring we won a re-bid of a Federal Bureau of Prisons (BOP) contract for these critical services. It’s important to note that the DOJ announcement relates only to BOP correctional facilities, which make up seven percent of our business.”
While the impact on states of the Justice Department’s private prison decision remains to be seen, the federal government’s strong influence on prison policy was demonstrated with the 1994 crime bill. It contributed to a prolonged period of mass incarceration at the federal and state levels and increased use of for-profit facilities.
“The crime bill was most relevant to the states in the funding incentives it provided for harsh sentencing and prison construction,” said Marc Mauer, executive director of the Sentencing Project. “Out of the $9 billion in funding for prison construction $4 billion was allocated for states that adopted (or already had) ‘truth in sentencing’ policies requiring that violent offenders (and sometimes others) be required to serve at least 85 percent of their sentence. A subsequent report by the GAO (Government Accountability Office) concluded that the availability of funding was either a ‘partial’ factor or a ‘key’ factor in more than half the states that adopted such policies. Most of these states still maintain these policies today, contributing to higher rates of incarceration, long after the federal prison funding has dried out.”
Whatever influence the Justice Department’s policy might have on the states, so far a sister agency, the Department of Homeland Security, has indicated no plans to change its use of private facilities for detainees held by U.S. Immigration and Customs Enforcement (ICE), as Sen. Bernie Sanders (I-Vt.) and Rep. Raúl M. Grijalva (D-Ariz.) urged this week.
ICE spokeswoman Jennifer D. Elzea said the agency uses federal, state and local facilities “to meet the agency’s detention needs while achieving the highest possible cost savings for the taxpayer.”
Although the Justice Department’s announcement did not come with a financial incentive for states to follow its lead on private prisons, state officials face similar issues. That includes falling prison populations. Furthermore, the notion of having a profit motive influence the incarceration of individuals and their care, particularly health care, is an anathema to private prison foes. Private facilities are not “always inferior to publicly-run institutions,” as Mauer noted, but making money off incarceration is not a factor when a government agency is the operator.
Opponents argue that for-profit facilities at the state level also share the same type of problems that Deputy Attorney General Sally Yates outlined in her memo to the Bureau of Prisons last week: “Private prisons served an important role during a difficult period, but time has shown that they compare poorly to our own Bureau facilities. They simply do not provide the same level of correctional services, programs, and resources; they do not save substantially on costs; and as noted in a recent report by the Department’s Office of lnspector General, they do not maintain the same level of safety and security. The rehabilitative services that the Bureau provides, such as educational programs and job training, have proved difficult to replicate and outsource — and these services are essential to reducing recidivism and improving public safety.”
Yates’s comments “absolutely” apply to state and local private facilities, Fathi said: “They are run by the same private prison companies as the federal private prisons … and the business model is the same: cut costs wherever possible to maximize profits.”