On January 26th, 2021, Biden issued one of his opening orders as president, the closure of all private prisons within the US, fulfilling a promise made during his campaign. Yet at the start of 2024, more than 3 years later, there remain tens of thousands of individuals held in for-profit facilities across the country. What exactly went wrong, and what are the implications?
From the start, Biden’s promise was not all-encompassing in the elimination of all forms of private prison. The executive order specifically called for the closing of private prisons under the control of the Federal Bureau of Prisons (which holds people convicted of crimes) and the U.S. Marshals Service (which holds individuals who await transfer to federal prison or a trial). The order did not require the closing of immigration detention facilities, a decision especially notable as during Trump’s administration there was a substantial rise in the number of immigrants in these centers (over 17,000 people - nearly 80% of which were housed in privately run facilities). Though Biden supported an internal review of immigration detention centers in May of 2021, little response came from the recommendations of closure or revision for about two dozen Immigration and Customs Enforcement (ICE) facilities. This was due in part to pressure from the record number of undocumented border crossings that year, which led to Biden closing only one facility the following year. During Biden’s term, the number of people held by ICE in private facilities rose to 90%, 10% above what it was during Trump’s administration, and massive revenue increases were reported across the board for private prison companies. In the past year, the number of detainees has only increased following Biden’s asylum policy passed in May of 2023, which allows more migrants to be sent to detention centers (all privately run) for rapid asylum screenings, increasing the number of people held by ICE by 48%.
In addition to the lack of acknowledgement of immigrant detention centers, another cause for the continuation of private prisons has been loopholes created by the prisons themselves. While the BOP has closed all for-profit prisons since Biden’s order, the Marshals Service has not - and nearly 20,000 people remain in their private facilities. One way that they have maintained this illegal activity is through waivers from the White House that allow them to ignore the executive order. Another is by recruiting a middleman (such as a city or county government) to whom they’ll pay to fund the corporations which operate the prisons, in order to not “directly” pay them.
Today, private prisons continue to be utilized in twenty-seven states and hold over 90,000 people - about 8% of total state and federal prison population - which is a far cry from Biden’ promise of elimination. But why is this fact so worrisome? When incarceration becomes a capital to profit off of, increased incarceration for lower level crimes will occur. This occurs not only through police action on the ground, but through policies as well, as companies that run these prisons use taxpayer money received to lobby for increased incarceration. A privatization of prisons will lead to more people in them.
As stated by Udi Ofer, former Director of the ACLU’s Justice Division, “While this executive order is important, it is well short of what the nation needs to end mass incarceration and racism in the criminal legal system… And the biggest culprit in the mass incarceration crisis are government policies and government actors.” With the upcoming elections, it is of especial importance to support not only the elimination of private prisons, but the need for their existence in the first place. The order issued by Biden was monumental in its passing, but far from notable in its application, and much remains to be fulfilled.
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