In January 2021, President Joe Biden issued a landmark executive order aimed at phasing out the use of for-profit prisons within the federal criminal justice system. This order, intended to end the practice of contracting with private prison companies that profit from incarceration, was a significant step towards reforming the system and addressing concerns about the ethics and effectiveness of prison profiteering. The executive order was meant to cover both the Federal Bureau of Prisons, which manages individuals convicted of crimes, and the U.S. Marshals Service, responsible for detaining individuals awaiting trial or transfer to a federal prison.
However, three years after this pivotal directive, the U.S. Marshals Service (USMS) continues to sidestep the ban, creating a substantial gap between the administration’s policy goals and the reality on the ground. Despite the Bureau of Prisons’ compliance with the order, which has led to the closure of all its for-profit prisons, the Marshals Service persists in using these facilities, exacerbating concerns about their detrimental effects.
The U.S. Marshals Service’s Evasion Tactics
An analysis by the American Civil Liberties Union (ACLU) reveals that nearly a third of the Marshals Service’s detention population—approximately 20,000 individuals—remains housed in for-profit facilities. This ongoing use of private prisons undermines the intent of President Biden’s executive order and highlights two significant loopholes exploited by the Marshals Service:
- Repeated Waivers: The Marshals Service has secured multiple waivers from the White House, allowing it to bypass the executive order and maintain contracts with five for-profit detention facilities. These waivers, which have not been publicly disclosed, raise questions about transparency and accountability. When internal government investigators sought documentation of these waivers, they were informed that no such records existed.
- Pass-Through Agreements: Another strategy used by the Marshals Service involves “pass-through” agreements with city or county governments. In these arrangements, the Marshals Service pays local governments, which then transfer the funds to private prison companies. This method effectively circumvents the ban on direct contracts with for-profit facilities. An internal investigation has shown that these agreements are more expensive and provide less oversight compared to direct contracts.
Impact and Implications
The continued reliance on for-profit prisons perpetuates the negative impacts associated with private incarceration, including abusive practices, inadequate medical care, and unsanitary conditions. The ACLU and other advocacy groups have long argued that private prisons are inherently flawed, with evidence suggesting they are less safe and less effective than their public counterparts.
Moreover, the practice of using for-profit facilities contributes to the broader problem of mass incarceration. Private prison companies, which lobby extensively for increased incarceration rates, benefit financially from higher detention numbers. Their lobbying efforts and political contributions further entrench the system of private prison profiteering.
Congressional and Public Response
In response to the Marshals Service’s actions, nine senators have expressed deep concern about the agency’s apparent circumvention of President Biden’s executive order. This scrutiny reflects broader public and legislative frustration with the persistence of for-profit prison contracts despite federal directives aimed at ending them.
Recommendations for Reform
To address these issues, several concrete steps can be taken:
- Diversion from Pre-Trial Detention: The Biden administration and the Marshals Service should focus on reducing the reliance on pre-trial detention. Implementing alternative measures that ensure individuals appear for their trials while minimizing the need for detention can help reduce the Marshals Service’s dependence on for-profit facilities.
- Find Alternatives to For-Profit Facilities: For those who must remain in detention, finding alternatives to for-profit facilities that ensure proximity to family, friends, and legal representation can improve outcomes and reduce the need for private prison contracts.
- Increase Transparency: The Marshals Service should publicly disclose its plans for phasing out contracts with for-profit prisons and eliminating pass-through agreements. This transparency is crucial for rebuilding public trust and ensuring accountability.
In conclusion, while President Biden’s executive order represented a critical move towards ending prison profiteering, the U.S. Marshals Service’s continued use of for-profit facilities undermines these efforts. It is imperative for the administration to address these challenges decisively and ensure that federal policies on prison reform are fully implemented and respected.