The Washington PostDemocracy Dies in Darkness

Marshals Service uses go-between to dodge Biden’s private prison order

President Biden speaks in the Roosevelt Room of the White House on March 13. (Demetrius Freeman/The Washington Post)
5 min

Uncle Sam got tricky, but he had to pay a price.

When the U.S. Marshals Service (USMS) faced difficulties implementing President Biden’s executive order to phase out the use of private prisons, the agency found a way to dodge his directive — with White House approval.

The January 2021 order is explicit, declaring that the government “shall not renew Department of Justice contracts with privately operated criminal detention facilities.”

Jettisoning the privately owned Northeast Ohio Correctional Center (NEOCC) in Youngstown, however, presented serious logistical problems for the service. So, to keep using the facility, the agency employed a middleman to get around Biden’s prohibition, according to the Justice Department’s internal watchdog.

The Marshals Service used the Mahoning County, Ohio, government to contract with CoreCivic, which owns the Youngstown facility, to continue incarcerating pretrial detainees. This allowed the agency to use “the same contractor, to continue to house the detainees at the same facility,” says a new report from Justice’s inspector general.

The result was “essentially no change in the USMS’s reliance on the facility, yet increased costs by as much as $500,000 per month,” according to an inspector general’s statement released last week, “or $6 million per year and decreased the control the USMS had for ensuring the safe and humane treatment of those in USMS custody.”

This costly go-between allows the Marshals Service to adhere to the letter of the executive order while violating its spirit.

In his order, Biden said “we must reduce profit-based incentives to incarcerate by phasing out the Federal Government’s reliance on privately operated criminal detention facilities.” He cited an earlier inspector general’s study that found “in most key areas, contract prisons incurred more safety and security incidents per capita than comparable” federal institutions.

Biden’s directive put the Marshals Service in a jam. It was issued just 30 days before the expiry of the contract with the Northeast Ohio Correctional Center, which held 541 Marshals Service inmates. The White House Counsel’s Office approved a 90-day contract extension, but not the additional two years the Marshals Service wanted.

After exploring other possibilities, Justice Department officials “determined that there were no viable options for relocating the NEOCC prisoners that met the needs of the judiciary, the affected pretrial prisoners, and the Department,” the inspector general’s report said.

Finding no acceptable alternatives, officials settled on a “pass-through” agreement with the county government. “The only viable option was for Mahoning County to contract with the private prison operator and then for the USMS to contract with Mahoning County for use of the cell block — at an increased cost,” Bradley Weinsheimer, an associate deputy attorney general, wrote in a response included in the inspector general’s report.

Curiously for an Uncle Sam who likes to document everything, the records that Justice provided the inspectors “did not include a discussion of the costs associated” with the pass-through, “and there was no documentation” of White House approval.

“While we have no reason to doubt such approval, we found no documentation of the approval in the materials provided to us,” the report said, “and we were told that no such documentation existed.”

Weinsheimer said that “the precise costs became known literally just days before the private prison NEOCC contract was set to expire,” adding that “there is little reason to believe that had more information about the precise costs been shared with White House Officials, there would have been a different outcome, especially given the absence of available options.”

The average monthly cost to incarcerate at the Northeast Ohio prison jumped to almost $3.4 million under the agreement with the county, 21 percent more than the service paid the facility directly. Justice officials attributed the increased cost to inflation and other factors, although the inspector general’s report notes that the relevant consumer price index increase was only 4.3 percent.

Weinsheimer’s response said “there is no reason to believe… the cost would have remained the same” by negotiating directly with the private prison operator. “Indeed, just the opposite is true,” he added, because the prior contract was negotiated in 2009.

White House officials did not respond to specific questions from The Washington Post, including why they approved a pass-through contract with the county, but not a contract directly with the private company that continued to provide the same housing. A White House statement said Justice is “working toward full compliance with the executive directive.”

The Marshals Service did find alternatives for its inmates in other private facilities. It neither owns nor operates prisons, and the majority of its prisoners are held in state and local facilities. Separately, as of Dec. 1, 2022, Justice said the Bureau of Prisons no longer uses private prison facilities, in accordance with Biden’s order.

Although the report cites “substantial good-faith efforts” to comply with Biden’s directive, continuing to use the Northeast Ohio facility raises “concerns about creating an end-run … which seeks to end the federal government’s support for private prisons and their profit motive for continuing mass incarceration on the backs of poor Black and Brown communities,” said Amy Fettig, the executive director of the Sentencing Project, which advocates for prison reform. “This appears to be gaming the system while increasing costs and undermining oversight and accountability — the worst of all possible worlds.”

The larger question, she added, is “why the USMS needs so many detention beds. The vast majority of people facing federal charges are not a public safety threat and unlikely to flee, so why do they need to be held pretrial in the first place.”

That’s another story.