Biden's Private Prison E.O. Won't Affect Mass Incarceration

President relies on old scapegoat to avoid pushing for releasing serious offenders

President Biden Delivers Remarks On His Racial Equity Agenda And Signs Executive Actions
President Biden signs an executive order in Jan. / Getty Images
January 27, 2021

President Joe Biden on Tuesday announced an end to federal use of private prisons, a move he heralded as a blow to mass incarceration but which would affect just 2 percent of all prisoners.

Biden's executive order, which requires the Department of Justice to begin phasing out private detention contracts, is specifically targeted at "decreas[ing] incarceration levels" by reducing "profit-based incentives to incarcerate." Speaking to the press Tuesday, Biden called the order "just the beginning of my administration’s plan to address systemic problems in our criminal justice system."

"President Biden is committed to reducing mass incarceration while making our communities safer," White House press secretary Jen Psaki said during a briefing on the order. "That starts with ending the federal government’s reliance on private prisons."

But the federal government is not reliant on private prisons, and the order would affect less than 2 percent of all prisoners in the United States, official data show, including just 16 percent of federal prisoners. It would also not reduce incarceration, as prisoners would be moved to public facilities and would likely leave untouched the many federal private prison detainees housed under the authority of the Department of Homeland Security.

Biden's order instead follows private prisons' role as a popular scapegoat for advocates of "criminal justice reform," who argued as far back as the Obama administration that profit-motivated corporations would tend to increase incarceration. That position is similar to other popular arguments—like advocacy for marijuana legalization on decarceration grounds—that allow proponents of reform to avoid talking about prisons' large population of violent offenders.

In its specifics, the new order only requires that the Department of Justice not renew its contracts with "privately operated criminal detention centers." It does not implicate detention centers administered by other departments. That may mean that private entities will still detain illegal aliens pending deportation, who account for "the vast majority of contractor-operated facilities," according to the private prison group Day One Alliance.

In other words, the Biden order may target a small share of a small share of offenders. Data from the Bureau of Justice Statistics indicate that private prisons hold just 7 percent of state prisoners and 16 percent of federal prisoners. In total, they detain roughly 116,000 of the roughly 1.4 million prisoners in the United States—the federal prisons that Biden's order would close house just 28,000 people or roughly 2 percent of the U.S. prison population.

In fact, the BJS data show, the federal private prison population was already in decline, falling between 2018 and 2019. Just five states hold more than 20 percent of their prisoners in private prisons, while 18 states hold none at all.

These facts did not stop "criminal justice reform" groups from praising Biden's executive order, with the ACLU's David Fathi calling it "an important first step toward acknowledging the harm that has been caused and taking actions to repair it." It also garnered praise from the union representing some 30,000 federal prison workers, who stand to gain from the closing of competitors.

Biden's order explicitly restarts an initiative of the last days of the Obama administration, which similarly prepared a phase-out in the months leading up to the 2016 election. Following his victory, President Donald Trump reversed that decision shortly after taking over the White House.

That made it a popular punching bag in the ensuing years, particularly during the 2020 Democratic primary. Then, contenders such as Sens. Elizabeth Warren (D., Mass.) and Cory Booker (D., N.J.) took aim at it, as did now-Vice President Kamala Harris. Those candidates likely induced Biden to pull his criminal justice platform to the left, including endorsing an end to federal private prisons—part of a larger effort to shed a tough-on-crime image from his days in the Senate.

Opposition to private prisons in the 2020 field followed that group's use of other popular progressive talking points on "criminal justice reform," like the debunked claim that marijuana criminalization is a major driver of incarceration. Just as with prisoners in private prisons, marijuana offenders account for a small fraction of overall prisoners. In reality, 48 percent of prisoners are violent offenders, a fraction that has risen even as prison populations have shrunk over the past decade and a half.

Published under: Joe Biden , Prison