Reports

As a Presidential candidate, Joe Biden promised to end the use of private prisons in federal incarceration and immigration detention claiming “that the federal government should not use private facilities for any detention, including detention of undocumented immigrants.” This report provides an overview of progress towards that unfulfilled promise and outlines the steps the administration must take to end the federal use of private prisons and phase out the use of immigration detention entirely. On January 26, 2021, President Biden issued an executive order to phase out federal private prisons. The order banned the renewal of contracts for privately operated Department of Justice (DOJ) prisons — which include Bureau of Prisons (BOP) and U.S. Marshals (USMS) facilities — but failed to include privately operated Immigration and Customs Enforcement (ICE) detention centers, which operate under the Department of Homeland Security (DHS). While private prisons make up less than 10% of the total U.S. prison and jail system, private prisons detained 79% of people in immigration detention in September 2021.

Implementation of the executive order within the DOJ has been inconsistent and, in some cases, contrary to the stated goals of Biden. As the government phases out some USMS and BOP contracts with private prison companies, others have been extended to to allow for the negotiation of intergovernmental agreements to keep jails privatized or repurposed as ICE detention facilities. The executive order specifically instructs the DOJ not to renew any “contracts with privately operated criminal detention facilities.” Five BOP private prison contracts for segregated “Criminal Alien Requirement” (CAR) prisons have been terminated with six more CAR prisons slated to close by November 2022. However, the USMS has only terminated two direct contracts with private prison companies and is actively pursuing new “pass-through” agreements to expand privatization. Furthermore, multiple privatized USMS contracts are indefinite in duration, and therefore can continue to operate despite the executive order. In September 2021, ICE announced the reopening of the former BOP prison in Moshannon Valley, Pennsylvania as an ICE facility. Reports have emerged that local governments and private prison corporations are in talks to convert additional DOJ-contracted private prisons to ICE detention centers. These efforts are under way at facilities including the West Tennessee Detention Facility, and the Leavenworth Detention Facility in Kansas, where local governments are negotiating intergovernmental service agreements (IGSAs) to convert the facilities into ICE detention centers. ICE has made no public comments about these negotiations, leading to concerns that it may be negotiating in other locations with little to no transparency. Furthermore, ICE is reportedly in the process of negotiating contract extensions with private detention centers, including at the GEO Group’s Broward Transitional Center in Florida and Management and Training Center’s Otero County Processing Center in New Mexico.

It is not too late to change course. Advocates and those directly impacted by the system are clear — detention puts people’s lives and well-being at great risk, exacerbates humanitarian crises, violates principles of human rights, and is cruel and unnecessary. The criminalization of migration and the incarceration of migrants must end. As a first step, the Biden administration should join states around the country that are banning for-profit incarceration. It should phase out the use of detention in the immigration system and ensure that the executive order on private prisons is followed in both letter and spirit and by extending the order to include immigration detention.