What to Make of President Biden’s Private Prisons Order

During President Joe Biden’s first week in office, he signed several executive orders. In the world of criminal justice reform, one got more attention than others: President Biden’s order ending the Department of Justice’s use of private prisons. The order marks a concrete step in President Biden’s efforts to carry out his campaign promises on criminal justice reform. But what does the order entail? And why was the order President Biden’s first move for criminal justice reform?

What Does President Biden’s Private Prisons Order Do?

Before looking at President Biden’s private prisons order, it’s important to understand what an executive order is and what it isn’t. An executive order is a directive only a sitting president can make. An executive order can only address the federal government’s operations. Within this framework, Biden’s directive to the DOJ tells the department how it needs to carry out its duties. Congress cannot overrule an executive order. But it can place policies that make it more difficult for federal officials to carry out an executive order.

President Biden’s order to the DOJ bans the attorney general from renewing contracts with private prisons. The executive order also addresses housing discrimination. Specifically, it directs the Department of Housing and Urban Development to ensure equity in housing policies. These policy shifts reflect a return to policies that existed under the Obama Administration but changed significantly under the Trump Administration.

The executive order came about after the spotlight grew brighter on institutionalized racism over the past several years. President Biden campaigned for unity in the country, and in some ways, criminal justice reform has become a bipartisan issue. In addition to unity, the executive order also aims to reduce the burden of the mass-incarceration system on communities of color.

Further, as noted in the executive order itself, “We must ensure that our nation’s incarceration and correctional systems are prioritizing rehabilitation and redemption.” The executive order also seeks to switch the intentions of what the purpose of prisons are by aiming to eliminate profit-driven incentives. Instead of profit, rehabilitation and “safe and human treatment” are the priorities.

What Are The Problems With Private Prisons?

The problems with private prisons have been highlighted by the media more recently than ever before. But the use of private prisons can be traced back throughout America’s history. In 1844, Louisiana privatized its penitentiary. Around the same time, Texas and Mississippi also privatized their own prisons. Accelerating after the Civil War, states privatized penitentiaries because of overcrowding in their own prisons. But there was another reason for this trend of privatization, too: free labor.

Essentially, these prisons took advantage of the Thirteenth Amendment. While the amendment abolished slavery, it nevertheless permitted forced labor “as a punishment for crime whereof the party shall have been duly convicted …” The financial incentive for private prisons was significant.

Shortcomings in conditions are inevitable for the incarcerated and those working at private prisons. According to the Justice Policy Institute, employees make about $5,000 less than those who work at government-run facilities. Those officers also receive about 58 fewer hours of training. Further, private prisons have about 28 percent more prisoner-on-prisoner assaults and more than twice the prisoner-on-staff assaults than government-run facilities. And there is also a lower likelihood of prisoners receiving proper health care and sufficient security.

One might assume, then, that private prisons save governments taxpayer money. But most studies demonstrate that private prisons are not much cheaper to run than those owned by the government. According to research done by the Arizona Department of Corrections and the ACLU, in Hawaii, New Jersey and Florida, it could actually be more expensive for private prisons to run than government-owned ones. While private prisons attempt to reduce costs, they end up not saving anyone money compared to the Bureau of Prisons.

The Pros And Cons President Biden’s Private Prisons Order

Although Biden’s private prisons order only impacts about 10 percent of prisoners held in custody in private prisons, it does impact the privatized prison system. The federal government is the industry’s largest customer. And many justice reform advocates hope that the federal government’s move encourages states to do the same.

But the executive order is only a first step. Criminal justice advocates have several concerns. First, the executive order focuses only on private prisons that contract with the DOJ. States, in contrast, are still able to utilize private prisons. About seven percent of the states’ total prison population are placed in private prisons, according to the Bureau of Justice Statistics.

Another issue criminal justice advocates note about Biden’s executive order focuses on its wording. As David Fathi, the director of the ACLU’s National Prison Project, noted in an interview with NPR, “The order directs the attorney general not to renew contracts with private prisons. So if the Justice Department simply lets these contracts expire at the end of their normal term, that’s a process that will take a number of years.”

Finally, perhaps the biggest concern among advocates is that the order does not address immigration detention facilities. These detention centers operated by Immigration and Customs Enforcement regularly contract with private companies. And, according to Fathi, about 80 percent of ICE detainees are in privately run facilities.

What Will President Biden Do Next?

President Biden’s executive order on private prisons is only a first step. And Vice President Kamala Harris understands that advocates want more. As she told Time, “I get that advocates are frustrated .. For me, I’m willing to extend some grace on day six to this new administration.” But, as the administration moves forward, criminal justice reform advocates’ patience will likely decrease. They’ll be looking for a complete end to the use of private prisons, significant reforms to government-run prisons and much, much more.