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Private Federal Prisons Executive Order

On January 26, 2021, President Joe Biden signed an executive order calling for the elimination of private federal prisons.

On January 26, 2021, President Joe Biden signed an executive order. regarding private federal prisons. The order calls the government to "Eliminate the Use of Privately Operated Criminal Detention Facilities." What does the order mean? What will the order create? We need to understand executive order and what prisons will be affected. What is an Executive Order?

An executive order is a signed, written, and published directive from the President of the United States. This manages executive orders and proclamations with force of law. Executive orders are not legislation; they require no approval from Congress, and Congress cannot simply overturn them. Congress may pass legislation to create difficulty in carrying out the order. Possibly creating an impossibility by removing funding. Only a sitting U.S. President may overturn an existing executive order by issuing another executive order to that effect.


American Bar Association, What Is an Executive Order?

Wikipedia indicates some of the most famous executive orders included the emancipation proclamation. Others included actions the U.S. involvement in the Kosovo war and the seizure of steel mills during the Korean War.

What is a Private Prison?

Wikipedia indicates that "[a] private prison, or for-profit prison, is a place where people are imprisoned by a third party that is contracted by a government agency. Private prison companies typically enter into contractual agreements with governments that commit prisoners and then pay a per diem or monthly rate, either for each prisoner in the facility, or for each place available, whether occupied or not." The Sentencing Project indicates that "[t]he Federal Bureau of Prisons maintains the nation’s highest number of people managed by private prison contractors. Since 2000, it's use increased 77%. The number of people in private federal custody, including prisons, half-way houses and home confinement, totaled 27,569 in 2017."

An example of a private prison that is run by the BOP is the Big Spring Complex. This is run by the Geo Group or the Eden Detention Center. This is also held by CoreCivic, formerly known as Corrections Corporation of America or CCA. Per Mother Jones, CCA is a staple of the private prison industry with both Prisons and immigration detention centers. The basic idea is that a privately run prison can save money and operate more efficiently.

The Text of Biden's Executive Order Regarding Private Prisons

The AP News reports that President Biden's order regarding private prisons "directs the attorney general not to renew Justice Department contracts with privately operated criminal detention facilities. The move will effectively revert the Justice Department to the same posture it held at the end of the Obama administration." AP news indicates that there are 14,000 people at federal private prisons. This equates to around ten percent of the total prison population.

Sec. 2.  Contracts with Privately Operated Criminal Detention Facilities.  The Attorney General shall not renew Department of Justice contracts with privately operated criminal detention facilities, as consistent with applicable law.

Executive Order on Reforming Our Incarceration System to Eliminate the Use of Privately Operated Criminal Detention Facilities

Critical Review of the Executive Order Regarding

The Washington Post is quick to point out that the executive order does not immediately close private prisons. Noted, the order instructs to not renew contracts. If said contracts continue through 2024 a different President can renew them. Nor is it likely to lead to any actual change in the total amount of incarcerated individuals in prison. Those in federal prisons are likely to just be sent to another prison if theirs is closed.

Writing for the post, John Pfaff is quick to remind us that this is just a drop in the bucket of mass incarceration:

It applies only to the federal prison system, which holds about 11 percent of all people in prisons nationwide. Of those, about 15 percent are in private facilities. This means the order affects only about 1.5 percent of the U.S. prison population. Moreover, the order does not apply to the Department of Homeland Security. This means it does not apply to the numerous private immigration facilities run by Immigration and Customs Enforcement.

Washington Post, Private prisons aren’t uniquely heinous. All prisons are abusive.

Pfaff also indicates that if the order is meant to combat systemic inequality and racism then it is ineffective there as well as this only deals with where incarcerated people are placed, not who is being incarcerated.

Disparities in punishment do not arise from where we send the people we’ve convicted, but from whom we choose to arrest, whom we choose to charge, what we choose to charge them with and the sentences we impose on them. Biden has the ability to shape all of these factors: Federal law enforcement agencies all report (ultimately) to him, and he will eventually appoint the nation’s 93 chief federal prosecutors. Simply changing the “where” — private vs. public — does not change who we are locking up in the first place and for how long.

Washington Post, Private prisons aren’t uniquely heinous. All prisons are abusive.


Clearly this is a step in the right direction towards ending the mass incarceration system. It is better to work towards having private prisons closed than open. The Biden Administration should and hopefully will do more. Since Biden has been elected, the Justice department has rolled back orders on how accused individuals are charged with crimes and the President has considered withdrawing the Memo indicating that individuals on home confinement under the CARES Act would have to go back to prison after the pandemic Let's hope that more reforms are ahead.

If anything here applies to you, contact us today.

At The Law Office of Jeremy Gordon, we fight aggressively for our clients. We are experienced, and know what it takes to present a successful defense in a federal criminal case. For prompt, courteous and skilled representation as your federal criminal defense attorney, contact us today to schedule a free phone consultation.
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