Is this the end of prison for profit in the US?

Last August the US Department of Justice released a statement that they would begin the process of phasing out private prison contracts in federal prisons, some 30 years after the Bureau of Prisons began its experiment contracting beds to for-profit facilities.

The decision, according to the Justice Department, came in response to a declining prison population – down from 220,000 inmates in 2013 to fewer than 195,000 inmates today, as well as an acknowledgement of the often lower safety and security standards of the private prison industry (PDF). 

“Private prisons served an important role during a difficult period,” says deputy attorney-general, Sally Quillian Yates, referring to the explosive US incarceration rates – an 800 percent increase from 1980 to 2013 according to the Justice Department – that led to the use of private companies to house federal inmates.

“But time has shown that [private prisons] compare poorly to our own bureau facilities. They simply do not provide the same level of correctional services, programmes and resources; they do not save substantially on costs,” says Yates, referring to a memo from the Justice Department, which stated that private prisons “do not maintain the same level of safety and security”.

“The use of private prisons is a recipe for abuse, neglect and misconduct,” says Carl Takei, staff lawyer with the ACLU’s National Prison Project, speaking to Al Jazeera about the high instances of abuses inside private prisons [PDF], an industry that has grown 1,600 percent from 1990 to 2013. “We know that private prisons compare poorly to federal prisons,” Takie says, echoing Yates’ view that the private facilities “provide no significant cost savings”.

Profit over justice

Criminal justice reform advocates have praised the decision as an important step in minimising the private prison industry’s influence on criminal justice policy.

“Private prisons operate on a business model that emphasises profit over public good and benefits from policies that maintain America’s high incarceration rates,” writes Cody Mason in a report (PDF) for the Sentencing Project, a nonprofit criminal justice reform organisation, referring to the lobbying efforts of the private prison industry to effect legislations that halt criminal justice reform and maintain the United States’ high incarceration rates.

“They [private prison companies] are very careful about not publicly stating what they support; but if you follow the money, it becomes pretty clear,” says Philip Torrey, a professor at Harvard Law School. Torrey notes how private prison companies, particularly the nation’s two largest private prison companies, Geo Group and Correction Corporation of America (CCA), have supported controversial bills such as the three-strikes laws and minimum mandatory sentencing, as well as Arizona’s controversial anti-immigration law – each acknowledged as drivers of incarceration, particularly of immigrants and people of colour.

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“Private prisons did not cause mass incarceration,” says Nazgol Ghandnoosh, a research analyst for the Sentencing Project, “but they certainly helped to sustain it.”

The interest of private prisons in “sustaining” the current levels of incarceration was candidly revealed in a 2010 statement by CCA.

“The demand for our facilities and services could be adversely affected by the relaxation of enforcement efforts, leniency in conviction or parole standards and sentencing practices or through the decriminalisation of certain activities that are currently proscribed by criminal laws,” the company said. Along with Geo Group, the companies netted a combined $3bn in 2013.

“It is capitalising on incarceration,” says Ghandnoosh. “Private prisons incentives are really misaligned as to what our goal in society should be: fewer prisons and safer communities.”

Speaking to Al Jazeera from her office in Washington, DC, Ghandnoosh described the Justice Department divestment as a “historic decision”, but also sounded a note of caution.

“Let’s be clear; this is hugely significant. But we should be cautious about thinking how far this will reach,” she told Al Jazeera, explaining that the decision will have no impact on privatised jails, which are state level and not affected by the justice department’s decisions, nor the federal immigrant detention system, now the fastest growing prison population segment in the US – more than half of which are run by for-profit companies.

Silky Shah, codirector of the Detention Watch Network, national coalition of organisations working for immigration detention reform agrees that impact of the divestment on privatised jails will be minimal, telling Al Jazeera: “All you have to do is look at immigration detention to see that that is far from the case.”

The criminalisation of immigration

Over the past 20 years, a reorientation of national attitudes and polices towards immigration have led to increases in the US detention system, which now holds upwards of 400,000 immigrants yearly – up from 230,000 in 2005. 

Many trace the immigrant detention boom to the “toughening” of immigration laws in the mid-1990s, particularly the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. 

“The impact of the 1996 laws really set the foundation of how we got to this point,” says Shah. “It was a complete shift in policy around immigration.”

Some five years later, the 9/11 attacks would shape the issue of immigration as, above all else, a matter of national security. In 2003, immigration proceedings were moved from the Department of Justice to the newly created Department of Homeland Security (DHS). Since then, the Immigration and Customs Enforcement (ICE) – the DHS agency responsible for running the nation’s immigration detention system – has been given unprecedented funding and powers for expanding both enforcement and detention.

“After 9/11 and the establishment of the DHS [there was] an increase in surveillance, border security and expanding enforcement and detention budgets,” says Torrey, the Harvard professor. “These factors led to a dramatic increase in the number of immigrants detained,” he adds, referring to a fivefold increase in immigrant detention over the past two decades.

READ MORE: Lost in the System

Congressional budget documents (PDF) from the Department of Homeland Security show the huge increases in funding for ICE. For instance between 2004 and 2016 the ICE Budget (PDF) increased from $2.8bn to $6.2bn. That same year, ICE was allotted $2.3bn in funding for detention alone (compared with only $184m for detention in 2001, according to the Sentencing Project report).

This increase in funding was a windfall for a private prison industry that was, by the early 2000s, floundering.

“Around 2000 the two largest private prison companies CCA and Geo were struggling and near bankruptcy,” says Shah. “However after 9/11 there was suddenly this huge opportunity for private prison companies” as lucrative immigration detention contracts were awarded to companies such as CCA and Geo.

“The growth in ICE’s use of private detention helped buoy profits for prison companies faced with slowing growth and contributed to the market’s annual grosses of about $5bn,” according to the report by the Sentencing Project.

Meanwhile, the number of immigration detention beds increased from 5,000 in 1995, to more than 30,000 guaranteed detention beds today. This congressionally authorised daily quota (PDF) , passed in 2009, is a mandate for ICE to contract and fill all beds. Congress requires the agency to maintain a level of not less than 34,000 detention beds at any given time. 

According to a report by the Centre for Constitutional Rights and the Detention Watch Network, “ICE has an incentive to detain individuals, and gives private companies that run detention facilities a say in the number of immigrants the US detains annually”.

These private prison contracts often include a further requirement that the government keep immigrant detention centres full and at times contain a “tiered pricing structure” that provides discounts for those detained in excess of the guaranteed minimum. Private prison companies now control 62 percent of immigration detention beds in the US, according to a report by Grassroots Leadership. 

Noting the pressure to fulfil both congressional and contractual quotas, the report says: “This interdependent relationship with private industry has produced a set of government-sanctioned detention quotas that ensure profits for the companies involved while incentivising the incarceration of immigrants.”

The expanding immigration detention market has been mirrored by increased lobbying efforts from private prison companies. Between 2006 and 2015, CCA spent more than $8.7m and the Geo group more than $1.3m lobbying congress solely on Homeland Security appropriations, according to the liberal policy advocacy think-tank, Center for American Progress.

READ MORE: America’s prison problem

“As revenues of private prison companies have grown over the past decade, the companies have had more resources with which to build political power, and they have used this power to promote policies that lead to higher rates of incarceration,” according to a report by the Justice Policy Institute.

“Both CCA and Geo recognise the immigration reform and criminal justice reform are threats to their business model,” adds Takei of the National Prison Project.

Beyond the impact on immigration reform, the operation of private immigrant detention facilities raises troubling – if familiar – issues about detainee safety, prison conditions and civil and human rights abuses inside these detention centres. CCA and the Geo group – the same two companies that have been criticised for their handling of federal prison contracts – now operate 72 percent of ICE detention beds, dominating an immigration detention system that, whether private or public, operates under a severe lack of oversight and accountability.

In detention, immigrants are often subjected to harsh conditions of confinement and “denied access to adequate medical care, legal counsel and family contact”, according to the Detention Watch Network, outlining the conditions found in detention centres.

This is a system that is “costly, harsh and virtually immune from constitutional oversight”, according to Torrey, who explains how immigration law violations are considered a civil – not criminal – offence, and therefore, many of the protections afforded to criminal detainees do not apply to detained immigrants.

“Immigrant detention is criminal detention but without constitutional protections,” explains Torrey,

“The immigration detention industry is costly and causes unnecessary suffering,” says Takei. Like many others, he hopes the Justice Department decision will push other agencies, like the DHS, to phase out privatisation. “There is simply no place for this in this country.”

Currently, the DHS is evaluating whether it should also phase out the use of private detention centres and beds.

And while the Justice Department decision will not affect immigration detention or address the root causes of the US mass immigrant incarceration system, it is for some a glimmer of hope.

“If privatisation ended today in this country, it would be an overhaul of the entire system,” says Shah. “Let’s hope that happens.”