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In February, Attorney General Jeff Sessions rescinded an August 2016 policy memorandum penned by then–Assistant Attorney General Sally Q. Yates, which called for phasing out the use of private prisons in the federal Bureau of Prisons (BOP). The Yates memo cited a study released that same month by the Department of Justice’s Office of the Inspector General (OIG) as evidence that private prisons are less safe and secure, while also saying that falling federal prison populations have eliminated the need for BOP’s use of private prisons.
A recent policy brief released by the Reason Foundation—Should the Federal Bureau of Prisons Phase Out Private Prisons? A Closer Look at the Inspector General’s Findings—takes a closer look at the August 2016 OIG report to get a better idea of what it says and does not say about contracted BOP prisons. Based on what the OIG report does say, the decision to phase out private BOP prisons appears to be a reach, and evidence for claims made in the Yates memo appears to be lacking.
For example, the memo’s claim that private prisons “do not maintain the same level of safety and security” cannot be substantiated from the report. The OIG report examined all 14 private prisons in the BOP and compared them to 14, but not all, government–run BOP prisons, chosen mostly for their similar inmate population sizes. Even still, while the OIG did note more total safety and security incidents in private BOP prisons over the time period studied, individual contractors reported fewer average incidents in many categories than the comparator BOP-operated prisons.
The OIG report also includes many cautions and disclaimers about making conclusive statements about such findings:
Many private prison critics want to see the end of all private prisons, not just those within the BOP prison system, expressing a moral objection that having a for-profit entity managing a prison population necessarily leads to bad outcomes. While it is perfectly reasonable to hold a sincere, good faith objection to the use of private prisons on moral grounds, it is equally reasonable for public officials to make the administrative or policy decision to use private prisons in the interest of fiscal responsibility and protecting taxpayers’ interests. In reversing the DOJ’s position on private prison contracting in BOP, Attorney General Sessions noted that the previous administration’s decision to end private prisons “changed long-standing policy and practice, and impaired in the Bureau’s ability to meet the future needs of the federal correctional system.”
For criminal justice reform advocates who wish the best outcomes for inmates in the long–term, including lowering recidivism, private prisons offer an opportunity to drive innovation. For example, in 2013, Pennsylvania revoked and rebid the contracts on all 42 of its community corrections centers, tying compensation paid to the prison operators to reductions in recidivism rates. Between July 2014 and June 2015, the Commonwealth reported an impressive 11% drop in recidivism in those centers. Thus, privatization can be used to create a market incentive to innovate on ways to reduce recidivism and develop new service delivery models that might not otherwise materialize, given the inertia and risk aversion often seen in public agencies.
It is for these reasons that the actual focus of the August 2016 OIG report is important. The report sought to improve the oversight and operations of private prisons, as the title makes clear—Review of the Federal Bureau of Prisons’ Monitoring of Contract Prisons. The report contained no recommendation to end, or even curtail, the use of private prisons in the BOP, making its use as a justification to phase out private prisons puzzling.
Rather, the very subject of that report—better monitoring of contracted BOP prisons—suggests that BOP fully embraced private prison contracting, expected it to continue, and sought ways to improve performance and accountability. Thus, rescinding the DOJ’s decision to phase out private prisons in BOP is simply allowing the agency to shift back to having the flexibility to make the administrative decisions on outsourcing that it sees fit. But with that restored flexibility, as the recent Reason Foundation brief notes, the BOP should consider ways to evolve its approach to contracting to leverage the power of competition to innovate on difficult issues like recidivism.