By Noma Ndlovu
On February 23, 2017, U.S. Attorney General Jeff Sessions announced that the Department of Justice would rescind an Obama Administration policy that instructed the Bureau of Prisons to phase out the use of private prison contract agreements due to overall concerns for inmate safety and security.[1] In a one-paragraph memorandum, Sessions reversed that direction, stating that the absence of private prisons would lead to “overcrowding” and citing a concern for the “future needs of the federal corrections system” as reasoning for the reversal.[2]
The Obama Administration’s memorandum, written by Former Deputy Attorney General Sally Yates, expressed concern about federal inmates in private prisons safety after a Department of Justice Office of the Inspector General report found that private prisons had more safety and security incidents than public federal prisons.[3] In addition to higher incidents of violence between inmates in private prisons, the OIG report found that while 43 percent of public federal prisons reported lockdowns, an astounding 86 percent of private prisons reported lockdowns.[4]
The OIG’s report is particularly concerning because the tort remedies available for federal inmates in private prisons are different from federal inmates in public prisons. In 2012, the Supreme Court ruled in Minnici v. Pollard[5] that remedies previously made available by Bivens v. Six Unknown Named Agents[6] would not be available to federal inmates in private prisons when state tort law would provide “a reasonably comparable substitute.”[7] Given that the OIG report cited safety and security issues, the recession of the Obama Administration may leave inmates in federal private prisons vulnerable to the varying quality and strength of state tort law.[8] While some on the Court may argue that state tort law is sufficient, if not stronger than the remedies provided under federal law § 1983, the varying quality/strength of the state laws leaves the possibility that two inmates could receiving different remedies based on their geographic location, while both being wards of the U.S. government.[9]
Aside from the safety and security concerns outlined in the OIG report, the new administration’s decision is particularly concerning due to connections between two of the private prison groups and the Trump campaign and administration. The GEO Group, a private prison company, made a $225,000 contribution to a Trump political action committee through a subsidiary.[10] While the GEO Group defends this action by stating that the subsidiary has no contracts with any federal agencies, one can look at the parent company and see the connections to the federal government.[11] This connection is made murkier when one considers that 45% of the GEO Group’s revenue comes from twenty-six prison contracts from the federal government.[12]
The profits, revenues and an increase in the stock prices of private prison companies would be dismissible if they did not reflect an unsavory connection to the Trump Administration’s social policy. Forbes.com reports that shares of GEO Group and CoreCivic, another private prison company, plummeted 35 percent and 25 percent respectively after the release of Yates’ memorandum.[13] After Attorney General Sessions released his memorandum, GEO stocks hit a record high.[14]
So why does it matter if the Trump Administration chooses to reengage the use of private prisons? The Obama Administration used them, as did Bush, Clinton, Bush and Regan before him.[15] Here’s the issue: prison inmate numbers have dropped.[16] The federal government only started using federal private prisons in the 1980s during the war on drugs, when tough sentencing guidelines led to an increase in federal prisoners.[17] Since then, both republicans and democrats recognize the harm that those polices inflicted, and have worked together for reform.[18] The Department of Justice had even anticipated the need to stop sending prisoners to three private prisons in its prediction that private prison populations would drop.[19]
But if prison numbers have dropped and will continue to do so, then why is Sessions’ concerned about prison overcrowding? Why do the “future needs of the federal corrections system” come from? Could it be the Department of Homeland Security’s need for private prisons for detention centers?[20] Sessions’ memorandum did not address the safety and security concerns outlined by Yates, but focused on the future of incarceration, a latent prediction of the Administration’s intent to imprison more people the federal government can currently handle? The Attorney General and the Trump Administration are running social policy not based on reasoning, but based campaign contributions.
[1] Matt Zapotosky, Department of Justice Will Again Use Private Prisons, Wash. Post (Feb. 23, 2017), https://www.washingtonpost.com/world/national-security/justice-department-will-again-use-private-prisons/2017/02/23/da395d02-fa0e-11e6-be05-1a3817ac21a5_story.html?utm_term=.1e7d3b818f8c.
[2] See Betsy Woodruff, Trump Moves to Make Private Prisons Great Again Daily Beast, (February 23, 2017), https://www.thedailybeast.com/articles/2017/02/23/trump-moves-to-make-private-prisons-great-again.html.
[3] Office of the Inspector Gen., U.S. Dep’t of Justice, Review of the Federal Bureau of Prisons’ Monitoring of Contract Prisons, 14 (August 2016), https://oig.justice.gov/reports/2016/e1606.pdf (Hereinafter OIG Report).
[4] OIG Report, supra note 2 at 21.
[5] 565 U.S. 118 (2012).
[6] 403 U.S. 388 (1971).
[7] See Sasha Volokh, The Supreme Court has Restricted Civil Rights Litigation by Private Prison Inmates: Should We Care? Wash. Post (Feb. 17, 2014), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/02/17/the-supreme-court-has-restricted-civil-rights-litigation-by-federal-private-prison-inmates-should-we-care/?utm_term=.5cf5d69ef20f.
[8] See Sasha Volokh, The Surprising Truth About Suing Private Prisons, Wash. Post. (Feb. 19, 2014), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/02/19/the-surprising-truth-about-suing-private-prisons/?utm_term=.744dcbc31aa4.
[9] See id.
[10] Franco Ordonez, Did Companies Donations Buy a Trump Change in Private Prison Policy? Seattle Times (Mar. 4, 2017), https://www.seattletimes.com/nation-world/did-companies-donations-buy-a-trump-change-in-private-prison-policy/.
[11] See Ordonez, “Change in Private Prison Policy”, supra note 8.
[12] See Change in Private Prison Policy, supra note 8.
[13] See Adam Sarhan, Prison Stocks Soar Under Trump As Jeff Sessions Okays Private Jails, Forbes (February 24, 2017, 8:21 AM), https://www.forbes.com/sites/adamsarhan/2017/02/24/prison-stocks-soar-under-trump-as-sessions-oks-private-jails-again/#127eaa0710ce.
[14] See Sarhan, Prison Stocks, supra note 10.
[15] See Madison Pauly, A Brief History of the Private Prison Industry, Mother Jones (July/August 2016), https://www.motherjones.com/politics/2016/06/history-of-americas-private-prison-industry-timeline.
[16] John Gramlich, Federal Prison Population Fell During Obama’s Term, Reversing Recent Trend, Pew Research Center: Fact Tank (January 5, 2017), https://www.pewresearch.org/fact-tank/2017/01/05/federal-prison-population-fell-during-obamas-term-reversing-recent-trend/.
[17] Ordonez, supra note 8.
[18] See Sentencing Reform and Corrections Act of 2015, S. 2123, 114th Cong.; see also Sentencing Overall Proposed in Senate with Bipartisan Backing, N.Y. Times (Oct. 1, 2015), https://www.nytimes.com/2015/10/02/us/politics/senate-plan-to-ease-sentencing-laws.html.
[19] See Jon Schuppe, Private Prisons: Here’s Why Sessions’ Memo Matters, NBC News (February 26, 2017), https://www.nbcnews.com/news/us-news/private-prisons-here-s-why-sessions-memo-matters-n725316.
[20] See Woodruff, “Make Private Prisons Great Again”, supra note 2.