Deputy Attorney General Sally Q. Yates instructed the Bureau of Prisons to end its use of private prisons. (J. David Ake/AP)

The private prison industry is lobbying against a Justice Department directive to end the use of their facilities, encouraging legislators to question the policy change and legally protesting one significant contract reduction.

The moves by the GEO Group and others demonstrate the practical and political hurdles that stand in the way of the Bureau of Prisons actually ending its use of for-profit facilities to manage federal inmates. The private prison industry claims that the decision to do so was based on faulty research and that officials need contractors because of overcrowding in the federal prison system.

“We think the private sector facilities did very well, that they were comparably secure, and in some important respects, they were better,” said George Zoley, chairman and chief executive of the GEO Group, which operates six facilities.

The private prison industry, which generates billions of dollars in revenue, has become a powerful lobbying force on Capitol Hill, and officials say they have tried since the Justice Department announcement to rally legislators to their side. Last month, six Republican representatives from Texas, California and Georgia sent a letter asking the Justice Department and the Bureau of Prisons to “step back” from the directive until they provided Congress with more information.


“We are concerned that the DOJ’s instructions put politics ahead of policy when it comes to maintaining flexibility in our prison system, encouraging vital criminal alien law enforcement and providing the best value for our taxpayers,” the lawmakers wrote.

Rep. Jason Chaffetz (R-Utah), chair of the House Oversight Committee, wrote in a separate missive with two other Republicans that the Justice Department’s plan would “undermine the effectiveness of the system’s rehabilitation programs.”

The directive by Deputy Attorney General Sally Q. Yates in August that said the Bureau of Prisons should end its use of private facilities was greeted with widespread praise by advocates who have long been calling for the end of for-profit incarceration. Its effect, though, was limited to the 13 privately run facilities, housing a little more than 22,000 inmates, in the federal Bureau of Prisons system.

Officials said it was unclear precisely how soon the contract prisons could be phased out. One of those 13 prisons in New Mexico has since had its inmates moved out, and the population in the rest stood just above 21,600 on Friday, according to the Bureau of Prisons website.

Justice Department spokeswoman Dena Iverson said in a statement that Yates’s directive was “in effect and the Bureau of Prisons is committed to implementing it.”

“Since August, the overall prison population has continued to decline and the Bureau continues to modify its contracts to reflect the reduced need for bed space in private facilities,” Iverson said. “As private prison contracts come up for renewal in the coming months and years, BOP will be terminating or renegotiating those contracts consistent with the continuing decline in the overall prison population.”

Yates has not minced words in criticizing the privately run 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 Inspector General, they do not maintain the same level of safety and security,” she wrote in her directive. That report found, among a litany of problems, private facilities had higher rates of assaults — both by inmates on other inmates and by inmates on staff — and had eight times as many contraband cellphones confiscated each year on average than government prisons.

A cornerstone of Yates’s memo was the revelation that the Bureau of Prisons would amend a solicitation for a 10,800-bed contract to one for a maximum 3,600-bed contract. That, Yates wrote, would allow the Bureau of Prisons over the next year to discontinue housing inmates in at least three private prisons, and by May 1, 2017, the total private prison population would stand at less than 14,200 inmates.

The GEO Group initially tried to compete for that modified contract, but earlier this month, it lodged a formal protest with the Government Accountability Office.

The company argued that the reduced request was an “improper and illogical change” that did not take into account what the Bureau of Prisons actually needs, given its problems with overcrowding. It asked the Government Accountability Office to recommend that the Bureau of Prisons issue a new solicitation for the 10,800 beds initially sought.

“We believe the need is still there, because the Bureau of Prisons is still overcrowded, and these communities have extended themselves financially,” Zoley said.

The GEO Group is one of three companies that operate private facilities for the Bureau of Prisons. The others are Corrections Corporation of America and Management and Training Corporation. Issa Arnita, a spokesman for Management and Training Corporation, said while the company had not lodged formal protests, it believed “phasing out the use of contractors will result in greater overcrowding in public BOP facilities and an increased cost to the BOP and ultimately taxpayers.” Jonathan Burns, a Corrections Corporation of America spokesman, said that company was “aware of and monitoring the issue.”

The private industry already had criticized the inspector general’s report for what it said was an unfair comparison to public facilities, which hold an eclectic mix of inmates, to private ones, which hold predominantly “criminal aliens.” The report acknowledged that investigators did not “know the extent to which demographic factors” might have played a role in contributing to some problems, and it said investigators were “unable to compare the overall costs of incarceration between BOP institutions and contract prisons in part because of the different nature of the inmate populations and programs offered in those facilities.” But the inspector general’s report was not the first public critique of private facilities, and some problems, such as concerns over medical care, seem to have little to do with inmate population.

Justin Long, a Bureau of Prisons spokesman, said the bureau supported the deputy attorney general’s directive and believed it could be practically implemented over time. That is largely because of declining inmate populations. In fiscal 2016, the bureau saw a population decline of more than 13,500 inmates and sits now at 191,965 — 205 fewer than the year before.

Long said the decline in population has led to a reduction in overall crowding, from 40 percent to 15 percent, as of Oct. 6. He said officials believed the inmate population would shrink further in 2017.

The vast majority of those incarcerated in the United States are housed in state prisons — rather than federal ones — and Yates’s memo does not apply to any of those, even the ones that are privately run. Nor does it apply to Immigration and Customs Enforcement and U.S. Marshals Service detainees, who are technically in the federal system but not under the purview of the federal Bureau of Prisons. Advocates have said, though, that it could serve as a catalyst for broader reform.