In a memo sent to the acting director of the Federal Bureau of Prisons on Thursday, Attorney General Jeff Sessions said the federal government will continue to contract private prisons to help house federal inmates. In doing so, Sessions is reversing a directive the Obama Administration gave in August 2013 to begin phasing out the government’s reliance on for-profit prisons.

“The memorandum changed long-standing policy and practice, and impaired the Bureau’s ability to meet the future needs of the federal corrections system,” Sessions wrote, referring to the 2013 memo that was written by then-Deputy Attorney General Sally Yates. “Therefore, I direct the Bureau to return to its previous approach.” A Justice Department spokesman later clarified that private prisons give the Bureau increased “flexibility” in housing federal inmates.

For a little over a decade, the Department of Justice (DOJ) has been contracting private prisons to house a portion of federal inmates. As the prison population began to swell over the past few decades, hitting record levels under the Obama Administration, the federal government decided to outsource its imprisonment activities. By 2013, private prisons held 15 percent of the federal inmate population, or about 30,000 total prisoners. The prisoner population began to drop in 2013, and the Obama Administration decided private prisons, with their high costs and safety concerns, were no longer necessary.

“They do not save substantially on costs, and as noted in a recent report by the Department’s Office of Inspector General, they do not maintain the same level of safety and security,” Yates wrote in her August 2013 memo. President Donald Trump fired Yates last month, when as acting attorney general she refused to enforce his ban on refugees and travelers from seven largely Muslim countries.

According to the Federal Bureau of Prisons website, most of the private prisons the federal government contracts hold “criminal aliens who may be deported upon completion of their sentence.” Of the more than 189,000 federal prisoners in the U.S. today, 12 percent, or about 21,500, are housed in private facilities. The rest are distributed among the 122 federal prisons spread across the country or in “other types of facilities.”

In a scathing series of tweets on Thursday, Sen. Bernie Sanders (I-Vermont) called out the Trump Administration’s decision to continue using private prisons as a “reward” for the “hundreds of thousands of dollars” private prisons donated to Trump’s presidential campaign. Sanders added:

We must end private prisons in America. Corporations should not be profiting by incarcerating our fellow Americans.

— Bernie Sanders (@SenSanders) February 23, 2017

And Cory Booker, the Democratic Senator from New Jersey, said for-profit prisons undermine “the cause of justice and fairness” by adding a “profit motive to imprisonment.” He added, referring to the Sessions memo: “This damaging decision cuts against our deeply held values of justice and liberty, while creating vast wealth for private prison operators.”

Alec Siegel

Alec Siegel is a staff writer at Law Street Media. When he’s not working at Law Street he’s either cooking a mediocre tofu dish or enjoying a run in the woods. His passions include: gooey chocolate chips, black coffee, mountains, the Animal Kingdom in general, and John Lennon. Baklava is his achilles heel. Contact Alec at ASiegel@LawStreetMedia.com.

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The Justice Department plans to end its use of private prisons for federal prisoners, according to a memo from Deputy Attorney General Sally Yates released on Thursday. According to Yates, the Department of Justice plans to either not renew existing private prison contracts or significantly reduce the scope of the agreements in the coming years. Over time, this will end the use of private prisons at the federal level, but that’s only part of the picture. Let’s take a closer look at what this means.

Why Now?

The decision comes less than a week after the Office of the Inspector General released a harsh report about the quality of these contract prisons. According to the report, “in most key areas, contract prisons incurred more safety and security incidents per capita than comparable BOP institutions and that the BOP needs to improve how it monitors contract prisons in several areas.” The announcement also comes on the heels of an investigation from Mother Jones, which involved a reporter going undercover for multiple months in a Louisiana private prison. That story highlighted many of the security concerns involved with private prisons as well as the way that the profit motive can negatively affect prison conditions.

In her memo, Yates also points out that this move is in part a response to recent progress shrinking the size of the federal prison population. The use of private prisons was largely a product of the massive increase in federal prisoners over the past several decades. But 2014 marked the first year in which the number of federal prisoners actually decreased. The chart below shows the massive growth in the number of federal prisoners since 1980.

Source: Bureau of Justice Statistics, CSTAT

In 2013, the Department of Justice began its Smart on Crime Initiative, which sought to improve fairness and efficiency in the criminal justice system. An important part of the initiative was sentencing reform, which sought to ensure that sentence lengths were appropriate, particularly for nonviolent criminals. The new sentencing guidelines later became retroactive for drug offenders, which allowed inmates to challenge their sentence and get it reduced if approved by a judge. As a result, the DOJ hopes that the recent prison population decline will become a sustained trend, which in turn will reduce the need for private prisons.

How Many Prisoners Does This Affect?

While we know that the federal prison population has grown significantly over the past couple decades, how many of those prisoners are held in private prisons? Currently, private prisons account for about 11 percent of all federal prisoners, or about 22,100 prisoners. There are 13 private prisons used by the federal government, which will now be phased out over the next several years. But it’s important to note that most of the prisoners held in private prisons are at the state level. Here’s a look at the use of private prisons by states and the federal government since 1999:

Source: Bureau of Justice Statistics, CSTAT

What This Won’t Change

As you can see in the chart above, states use private prisons a lot more than the federal government and that won’t change with the DOJ’s recent decision. Another prominent use of private prisons is immigrant detention, which is overseen by Immigration and Customs Enforcement (ICE) and the U.S. Marshalls Service. Because immigration detention is not overseen by the DOJ, this decision will also not affect those facilities.

Simply put, this decision will not affect the majority of inmates in private prisons. But that doesn’t mean that the DOJ’s move will have no effect. In her memo, Assistant Attorney General Yates notes:

Private prisons served an important role during a difficult period, but time has shown that they compare poorly to our own Bureau facilities. They simply do not provide the same level of correctional services, programs, and resources; they do not save substantially on costs; and as noted in a recent report by the Department’ s Office oflnspector General, they do not maintain the same level of safety and security.

While she compares private facilities to the ones operated by the Bureau of Prisons, her comments amount to a strong statement against these prisons. Having a clear federal policy to stop using these facilities on the grounds that they are inferior to publicly controlled prisons may send a message to states to reconsider their private contracts. And shortly after the decision was announced on Thursday, Corrections Corporation of America and GEO Group–the two largest private prison companies–saw their stock prices plummet.

Kevin Rizzo

Kevin Rizzo is the Crime in America Editor at Law Street Media. An Ohio Native, the George Washington University graduate is a founding member of the company. Contact Kevin at krizzo@LawStreetMedia.com.

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In the span of four days–between October 30 and November 2–federal prisons around the country released 6,000 nonviolent prisoners. This marked the largest single prisoner release in the history of the United States. The decision was the result of the government’s growing desire to address the overcrowding within the prison system. An additional 40,000 convicts could also be released in the coming months as new, more lenient sentencing rules can be retroactively applied to them as well. Read on to see what led to the recent release and how it compares to similar releases in the past. Now that the government is starting to deal with an issue that has been building for decades, what will a continued response look like and how will the prison system change in the future?

Releasing Prisoners

In the Past

While the recent release of so many prisoners all at once has drawn a variety of reactions, including warnings of increased crime, this is not the first time that a large number of prisoners has been released. In 2011, the Supreme Court ordered the state of California to release 30,000 inmates due to overcrowding in the state’s prison system.

On top of this are the prisoners that are also released over the course of a year as well–the federal government releases up to 55,000 prisoners each year. However, this is only a small portion of the inmates set free, as many as 10,000 are set free each week.

This Release

The recent release was a long time in the making. The final decision came about following the advice of the U.S. Sentencing Commission. The commission lowered maximum sentences for people convicted of drug-related offenses. The change could then be applied retroactively, meaning if a prisoner was already convicted and serving a sentence they could apply for early release. Ultimately, the decision was up to federal judges who reviewed eligible cases and determined whether the person in question would be a threat if released back into society.

Like the process, the release itself was not as straightforward as it may seem either. Of the 6,000 inmates, approximately a third were undocumented immigrants. This group will not be released into the public, but will instead be detained by Immigration and Customs Enforcement, which will begin deportation proceedings. Additionally, many of those who were released were already on parole or in half-way houses. On average, those being released already served nine years of their sentences and were only being released around 18 months earlier than expected. The video below details the recent release:

Current Issues

Overcrowding

One of the major reasons for releasing these prisoners is that the prison population is simply too big for the system to manage effectively. There are 698 prisoners for every 100,000 people in the United States, the second highest rate in the world. A 2014 estimate from the Prison Policy Initiative suggests that there are as many as 2.4 million people in U.S. prisons on any given day, including 1.36 million in state prisons. Perhaps most troubling are the findings of a Department of Justice report, which shows that there are nearly 71,000 children in residential placement facilities in February 2010.

In order to properly put this in perspective, it is necessary to look at the U.S. prison population in an international context. As the NAACP points out, the United States has about 5 percent of the world’s population, but it has 25 percent of the world’s prison population. Not only is the United States’ prison population disproportionately large, its racial makeup is also heavily imbalanced. Although Hispanics and African Americans make up approximately 25 percent of the total population, they make up close to 60 percent of all American prisoners.

While simply having a massive number of prisoners does not necessarily mean that the existing prisons are overcrowded, when you look at the concentration of these prisoners it becomes clear that overcrowding is clearly an issue for many states. In fact, California’s mass prison release in 2011 was due specifically to over-crowding.  There were so many prisoners that inmates were being packed into gymnasiums. The situation became so bad that the Supreme Court forced the prisoner release because it was literally a health crisis. California is not an isolated case. While it may be the most extreme example, as of 2014, 17 states had prison populations far above the capacity of their facilities. While overcrowding recently caused states to reconsider their justice systems, it also led to the rise of controversial for-profit private prisons.

Sentencing

Overcrowding is largely a product of the United States’ historically severe sentencing rules. The idea of being “tough on crime” swept the nation in the 1980s. Tough on crime policies continued through the 1990s and early 2000s and only now is the trend starting to reverse itself. The severity of these laws varied from state to state. California had some of the toughest policies, enacting a three strikes law in 1994 that created mandatory punishments for repeat offenders. In 2012, California voters passed Proposition 36, which amended the state’s constitution to limit the use of its three-strikes law.

These sentences are known as mandatory minimums. As the name suggests, these policies lead to mandatory sentences of a minimum length for particular crimes, removing much of the discretion that judges have in the sentencing process. According to Families Against Mandatory Minimums (FAMM), “Most mandatory minimum sentences apply to drug offenses, but Congress has enacted them for other crimes, including certain gun, pornography, and economic offenses.” A U.S. Sentencing Commission report found that 14.5 percent of all offenders in 2010 were subject to mandatory minimum penalties–a total of 10,605 prisoners.

What’s Next?

While there are some who fear that releasing so many prisoners, especially at the same time, will lead to a surge in crime, the numbers suggest otherwise. In the California mass release, only auto thefts increased after 30,000 of the state’s inmates were released. Furthermore, a Stanford University study, which involved 1,600 prisoners released when California changed its three strikes law, found a remarkably low recidivism rate. Prisoners released after the three-strikes law changed had a recidivism rate of just 1.3 percent compared to 30 percent for regularly released inmates.

Not all laws are created equally–perhaps the most infamous is the differing penalties for crack cocaine offenses compared to the one for cocaine in its powder form. Originally, the sentencing ratio was 100:1–with those sentenced for crack-related offenses facing much longer prison sentences. While that was reduced to 18:1 with the Fair Sentencing Act in 2010, a disparity remains. The troubling part of this issue is that most people arrested for crack-related offenses were black while most of those who were arrested for cocaine possession were white–reinforcing the racial imbalance in American prisons.

Post-Release Questions 

Another major issue is the question of what former prisoners will do once they get out. A notable concern is recidivism–when a prisoner returns to prison for another crime after his or her initial release. This worry seems warranted in light of a 2005 study by conducted by the Bureau of Justice Statistics (BJS)–57 percent were re-imprisoned after one year, 68 percent by year three, and 77 percent by year five.

It should be noted that the way the Bureau of Justice Statistics records its numbers may not be the best way to understand recidivism. In a recent study, researchers found that recidivism is actually much lower than what is reported. Rates found in the BJS studies likely overrepresent people who are re-arrested after being released from prison.  However, even if these new findings are taken into account, which emphasize that certain offenders have a higher risk of recidivism, the issue remains a notable problem for American prisons.

Moreover, for those who do avoid re-offending, life can be difficult once they leave prison. While there are certainly a number of programs and organizations in place, it is still hard for someone with a criminal record to find a job. In a 2008 study from the Urban Institute, only 45 percent of ex-cons had jobs eight months after leaving prison. The following video discusses what happens to prisoners if and when they can make it out of prison:

Conclusion

The recent release of so many prisoners has reignited old fears that the reintroduction of prisoners into society will lead to a wave of crime. However, the evidence from past releases calls this line of thinking into question. Too many people, especially those of color, face long prison sentences, putting significant strain on American prisons. The current system is also costing the United States an estimated $39 billion each year.

To effectively reduce the size of the American prison population, changes beyond releasing prisoners need to be made. While recent sentencing reform, which led to this prisoner release, is an important step toward reducing the American prison population, it will not solve the issue. In addition to reducing the number of prisoners, policymakers will also have to deal with helping inmates readjust to society when they are released.

Resources

Vox: The biggest prisoner release in U.S. History, explained

Time: What happened when California released 30,000 inmates?

NPR: What You Should Know About the Federal Inmate Release

Newsweek: The Unconstitutional Horrors of Prison Overcrowding

FAMM: What are Mandatory Minimums?

The Economist: America’s Prison Population

CNN: Roughly 6000 Federal Inmates to be released

ACLU: Fair Sentencing Act

National Institute of Justice: Recidivism

Business Insider: Getting a Job after prison

NAACP: Criminal Justice Fact Sheet

Washington Post: Prisons in These 17 States are Over Capacity

Huffington Post: For-Profit Prisons are Big Winners of California’s Overcrowding Crisis

Slate: Why do so Many Prisoners End up Back in Prison? A New Study Says Maybe They Don’t

Michael Sliwinski

Michael Sliwinski (@MoneyMike4289) is a 2011 graduate of Ohio University in Athens with a Bachelor’s in History, as well as a 2014 graduate of the University of Georgia with a Master’s in International Policy. In his free time he enjoys writing, reading, and outdoor activites, particularly basketball. Contact Michael at staff@LawStreetMedia.com.

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