By Megan Kriss
On August 18 of this year, Deputy Attorney General Sally Yates announced that the U.S. Department of Justice will begin to reduce its reliance on the use of private prisons, with the goal of eventually ending their presence in the justice system entirely. Supporters of the decision have celebrated the announcement, with some activists hailing the decision as a positive step towards ending the country’s mass incarceration problem.
The United States leads the world in the number of incarcerated individuals per capita, with more than 1.5 million inmates housed in state and federal penitentiaries, at a rate of 716 per 100,000 people. This is an incarceration rate of about three and a half times that of Western Europe, despite having similar victimization rates to the countries in the region. However, of these 1.5 million inmates, only 12.7 percent are federal inmates, and furthermore only about 19 percent of U.S. inmates detained at either the federal or state level are held in private prisons. Since only about 22,000 inmates in the United States are held in federal private prisons, only a very small portion of the massive incarcerated population in the United States will be affected by the DOJ’s new policy. In fact, this ruling will impact less than 0.03 percent of inmates. Even if all of these inmates were pardoned, it would make no significant difference in the size of the U.S. prison population. In reality, no prisoners will be released as part of this change, they will only be moved into public prisons, further crowding them.
Many proponents of the recent DOJ decision cite ending corporate profiteering as a reason to end the use of private prisons, but that oversimplifies the role of private companies in the U.S. prison system. Private companies are heavily involved in public prisons through transportation, food services, phone and communication, commissary, medical services, and more, and gain significant revenue from this involvement, allowing them to massively benefit from mass incarceration. On top of this, only a small portion of the total revenue for companies that run private prisons is actually from running private prisons. Contracts with the DOJ’s Bureau of Prisons account for only about 13 percent of the combined revenue of two of the largest private prison companies in the United States, Corrections Corporation of America (CCA) and the GEO Group. The rest of these companies’ business is made up of contracts with the U.S. Marshall’s Service, state prison systems, and the US immigration and Customs Enforcement (ICE).
In fact, the CCA was just awarded a $1 billion dollar contract by ICE, an agency under the jurisdiction of the Department of Homeland Security rather than the DOJ. Under this contract, CCA is set to build a detention center for women and children seeking asylum in the United States. In contrast to the U.S. prison system, nearly two thirds of immigration detention beds are operated by private prison corporations.
In addition to making very little progress in reducing the size of the prison population directly, this move by the DOJ also completely ignores the underlying causes of the United States’ problem of mass incarceration. Over half of federal inmates are held because of drug convictions, while almost 93 percent of federal inmates are held for nonviolent crimes. Associations of members of ethnic minorities with crime, by both the average person and police officers, has also led to the disproportionate imprisonment of members of ethnic minorities. The disproportion is present in both public and private prisons, but is even greater in private prisons. This is because private prisons specifically seek out and request younger, healthier inmates who, thanks to recent shifts in prison demographics, tend to be minorities.
Despite all of these failings, the DOJ has very effectively ensured one thing with this recent decision. By ignoring the fact that all inmates are in prison because of sentences handed down by the DOJ, they completely shirk responsibility for their very significant role in mass incarceration.
Mandatory sentencing laws and other policies from the War on Drugs have led to an 800 percent increase in the U.S. prison population since 1980, while the general population has only increased by a third. Despite this, statistics support the idea that the War on Drugs has largely failed. While usage rates of hard drugs remain relatively stable, marijuana use has increased by 30 percent over the last two decades. The War on Drugs also disproportionately affects members of ethnic and racial minorities, a fact that was known while these policies were still being discussed, while offering little opportunity or assistance for rehabilitation and treatment.
The DOJ has also consistently failed to address the ethnic and racial inequality that is pervasive throughout the U.S. judicial system. While minorities are disproportionately overrepresented in prisons, they are disproportionately underrepresented in police departments. Hispanics and blacks are far more likely than whites to have interactions with law enforcement, including traffic stops, and are also far more likely than whites to experience force and the threat of force during an interaction with law enforcement. Pretrial procedures disadvantage minorities and Latinos, and African Americans are more harshly sentenced than whites.
It is difficult to study exactly how often inequality in policing and justice is a result of bias, but the perception of bias can be clearly observed. This creates a cycle. Minority members are far more likely than their white counterparts to feel that the justice system is not fair to members of ethnic and racial minorities. Because perception of fairness is integral for the support and acceptance of laws and authority, the DOJ’s failure to address this perception of unfairness leads to law-breaking and distrust of police, creating more problems and contributing to mass incarceration.
None of this is to say that the Department of Justice was wrong to close private prisons. The DOJ’s own report showed that private prisons have higher rates of safety and security issues, and other research backs up the report. Private prisons have higher recidivism rates than their public counterparts. Safety and quality of care in private prisons is equal to or slightly inferior to that of public prisons. However, private prisons experience greater drug use, higher staff turnover, and a higher number of escapes than public prisons. Even the evidence that private prisons are less expensive than public prisons is mixed at best.
But regardless of these facts, it is disingenuous to pretend that a decision that has its biggest influence on the plot of “Orange is the New Black” is a step in any direction, let alone the right one. Until the DOJ addresses the failing War on Drugs and the over-incarceration of nonviolent offenders, especially of those who are part of ethnic minorities, they wash their hands of the problem of mass incarceration.