The Department of Justice (DoJ) announced just last week that it was beginning the process of substantially reducing contracts with privately run prisons with the goal of ultimately eliminating them entirely.
When asked about their decision, the DoJ stated that the downsides of private prisons drastically outweigh their benefits. Private prisons “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.”
The Problems of Private Prisons
How state law and federal law deals with private prisons varies. Some states have little to no legal restrictions on how they can operate, some states impose serious quality and cost evaluations on private prisons, and 19 states simply don’t allow private prisons whatsoever. The concept of a for-profit prison creates a number of concerning implications. The federal government, up until now, has had no restrictions on contracting private prisons—although they did include quality standards which ostensibly needed to be met. However, regardless of these attempts at quality control, private prisons continue to create serious issues.
Private prisons are generally paid per prisoner they keep. The contracts signed with private prisons usually require the government to sign an agreement to keep those prisons at least 90% full—some even have promises of 100% packed prisons. This creates a perverse motivation to send people to jail. For instance, in 2008, two judges were found to have accepted kickbacks from an executive of a private prison business in exchange for sending juveniles to private detention centers in situations where less extreme penalties would be more important.
Private prisons also have greater motivation to cut corners to save costs in a race to the bottom in order to maximize profits. While prisoners certainly don’t need luxurious conditions, there is a certain minimum level of security and amenities that are necessary both due to prisoners’ basic human rights and simply to avoid liability on the part of the government.
The government is ultimately responsible for the general wellbeing of prisoners. The poor conditions even led to a 2013 class action lawsuit against the Mississippi Department of Corrections alleging inhumane conditions in a special needs detention center for the mentally ill. The conditions alleged included rampant rapes and violence above and beyond what would be found in an average prison, starvation rations, total lack of medical care, complete lack of working plumbing or lighting in many areas of the prison, and extreme rat infestations. The lawsuit is ongoing, with the class action being given the full go-ahead in September of last year. The money damages resulting from lawsuits such as this will ultimately be paid by the taxpayers.
Other issues that stem from private prisons is that cost cutting works its way into their employment practices. Undercover reporters have even got jobs at private prisons with little to no training or background checks. Prisons are understaffed, guards are paid as little as $9/hour, and given four weeks of training total. Reports also reveal how underequipped guards often are, not even given pepper spray or nightsticks. All of this adds together to private prisons having nearly double the number of assaults as public prisons.
Private jails also have less transparency than their public counterparts. There are laws requiring public prisons to disclose certain types of information to the public—the most commonly used is the Freedom of Information Act (FOIA). In 2007, there was an attempt to apply similar requirements to private prisons called the Private Prison Information Act. The private prison industry fought the bill tooth and nail, ultimately leading to the bill fading into nothing with no vote being taken on it. No laws attempting to hold private prisons to these requirements have been introduced on a federal level since this bill failed. This lack of transparency leads to one of the biggest issues with private prisons—because they don’t have to collect information they don’t bother to. This makes it very hard to empirically compare the quality of public and private prisons.
External studies have gone both ways as to costs, some suggesting private prisons save money while others conclude the opposite. Despite the difficulty created by private prisons not keeping data, most studies agree that their operations are less safe and provide lower quality services than public prisons—thus the DoJ’s decision. As the DoJ said in regards to their decision, even if private prisons cost less—you get what you pay for.
The Future of Private Prisons
The DoJ’s changes only apply to federal prisons—which is a bit of a disappointment given that the vast majority of private prisons are state prisons. In fact, there are only 13 private prisons that this announcement actually applies to. To put this in perspective, the two biggest private prison companies—The Geo Group and Corrections Corporation of America—run 131 U.S. prisons between them. This is a little over half of the total number of private prisons in the U.S.
The DoJ’s announcement won’t be the end of private prisons and it won’t fix the many issues that already exist within the private prison system. Prison reform has been an ongoing legal issue for decades. Laws, such as the Prison Litigation Reform Act, have evolved in a way that prisoners generally have less ability to sue for violations of their rights.
The exact extent of rights prisoners should have is a conversation so complicated as to not fit within this article. However, the current state of the law does mean that if privatization of the prison system is going to end, it will likely take actions such as those taken by the DoJ. Private prisons have been speaking points for both presidential candidates this year, with Trump supporting expanding privatization of prisons and Clinton suggesting a more moderate approach. It is likely that the outcome of the election will be a turning point in the privatization of prisons.
Authored by Jonathan Lurie, LegalMatch Legal Writer and Attorney at Law
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