The following article authored by RBGG’s Jeff Bornstein appeared in Law360 on February 7, 2021.

A Critical Step Toward Eliminating Profit Motive From Prisons

President Biden’s Executive Order ending certain contracting with private prisons is a good first step.  In August 2016, the United States Department of Justice instructed the Bureau of Prisons (BOP) to start phasing out the use of private detention facilities.  In a New York Times editorial on August 22, 2016, then Deputy Attorney General Sally Yates noted that private prisons did not “provide the same level of correctional services, programs and resources” as did the BOP and found that there was no real cost savings that would justify their use.  In 2017, Former President Trump’s Attorney General Sessions reversed that directive.

In signing his Order this week, President Biden wrote that there is “broad consensus that our current system of mass incarceration imposes significant hardships on our society and communities and does not make us safer.”  The Order notes that to decrease incarceration levels “we must reduce profit based incentives to incarcerate” our people. 

President Biden acknowledges that this is just a first step; it is an important one. The order presently only applies to imprisoned persons who were convicted of federal offences,  less than 10% of whom are housed in private facilities.  The Order should be extended to the Department of Homeland Security, which uses private prisons to detain immigrants.  Many states contract with private companies.  The President’s example should be followed by the states as well.

President Biden’s embrace of the concept that mass incarceration does not make us safer is a critical step forward.  The President’s order sets the stage for more long lasting changes that are desperately needed.  The Black Lives Matter protests and the lessons learned from the COVID-19 pandemic and its impact on incarcerated persons and the staff who manage incarcerated persons have laid bare the inequities of the system and the need for a dramatic shift in the way we manage our prison systems.

The profit motive that underlies the prison industrial complex is vast and deep.  Private prisons are just one factor.  Often overlooked is that fact that the public and private prison industry use prison slave labor, as permitted by the 13th Amendment, and pay prisoners literately pennies an hour for their work.  Compounding the problem, these employers do not even provide records or references to assist these “workers” in getting meaningful jobs once they are released.   

Decisions about crime and punishment should be based on societal needs and not profit motives.  It is “criminal” that even government-run institutions generate substantial income for families and communities where prisons operate and create good paying jobs for people to work in these institutions.  The incentive to lock people up is a powerful economic motivator.   Private prisons and detention facilities are the worst.  One of the criticisms of private for-profit prisons is that they pay their staff less, and they are usually understaffed, as was noted in a 2018 case in Mississippi (Dockery v. Hall, U.S.D.C. Southern District of Mississippi,  Case 3:13-cv-00326-WHB-JC.)  The then-warden testified that the prison managers were paid financial incentives to stay within its budget, but that there was no penalty if inmates died under questionable circumstances.  Expert testimony connected the dots showing that the lack of staff led to beatings by both prisoners and guards and violent acts perpetrated against mentally ill inmates, among other serious concerns. 

Even in public prisons, The Marshall Project notes that private companies provide many essential services such as “healthcare, food, transportation, financial services and messaging, phone and video calls to name a few.”  They also make big investments in “reentry, electronic monitoring and drug treatment programs.”  Three of the biggest are CoreCivic (formerly known as Corrections Corporation of America), the Geo Group and Management & Training Corporation (MTC), the entity that ran the prison in Mississippi.     

Geo Group contracts with the federal Bureau of Prisons (BOP) to run some of its residential reentry facilities, also known as “halfway houses,” with very uneven results.  In the San Francisco Bay Area, there is a halfway house in Oakland and another in San Francisco’s Tenderloin district.  Programming is thin.  There is little  coordination with local agencies and non-profits for housing or job training.  There is little or no practical problem-solving training, such as how to assist an incarcerated person who is trying to return to normal life get a bank account or a real ID that is now required to enter a federal building including the courthouse.  Many who have been incarcerated know first-hand that the system seems designed to make them fail and not succeed in their transitions.   

Instead of an incentive system based on success and lack of recidivism as goals for private entities if they are going to be used at all, the system provides the private prison operators with incentives to turn a profit by keeping the revolving re-incarceration door revolving. 

Mental and medical health care is a critical area in which the prison industrial complex fails completely. Prisons are a terrible place for the mentally ill and yet we as a society use them to “treat” people by keeping them locked in cells for 23 hours per day and sometimes more.   Many federal and state public prisons use outsourced for-profit mental healthcare and medical care. Outsourced mental and physical healthcare may be cheaper but in many cases is substandard.  There is also an oversight and responsibility gray area when a for-profit contractor is involved.  Medical and mental health care is more appropriately placed with the BOP or state prison departments. In the for-profit environment those who can hardly care for themselves are the ones who suffer.  Prisons make people crazy; incentivizing for profit companies to operate prisons and to provide often substandard medical and mental health care to incarcerated persons only makes matters worse.

President Biden’s Executive Order is the start of what needs to be a deep dive into our national prison culture.  Taking out the profit motive is one of the key elements of real reform.  There are others.

We need to refocus our efforts to help people help themselves; making crime and punishment into a more complete process that also includes rehabilitation and true acceptance of responsibility.  Allowing those who are imprisoned to change and rebuild their lives, pay their debts to society and find ways to contribute to it for the sake of their families and even for the sake of those families they may have harmed by their misconduct, is critically important if there is to be true reform.  Ending mandatory minimum sentences and increasing rehabilitation programs are important considerations that the DOJ must pursue aggressively.