President Biden's Executive Order - A (Very) Small Step in the Right Direction

On January 26, 2021, President Biden signed the Executive Order on Reforming Our Incarceration System to Eliminate the Use of Privately Operated Criminal Detention Facilities. This action directed that the Attorney General “shall not renew Department of Justice contracts with privately operated criminal detention facilities, as consistent with applicable law.”

View the Executive Order here.

This Order is a most-welcome first step by our new administration in Washington that hopefully signals that many more reforms will come, including the elimination of all profit incentives to entangle people’s lives in the criminal justice system. Enforcement of criminal laws is the government’s responsibility alone.

To be certain, this action must be only the first step in eliminating this failed outsourcing strategy. Less than 10% of people held in private for-profit prisons are federal prisoners – most are state or local prisoners held by authorities unaffected by the Executive Order. And more than seventy percent of people held in immigration detention are held in private prison facilities. The President’s Order does not address this glaring problem.

Abolish Private Prisons is an Arizona 501(c)(3) nonprofit, public-interest law firm that filed its first litigation challenge to the constitutionality of prison privatization in June 2020. The lawsuit was filed on behalf of prisoners and the Arizona State Conference of the NAACP against Arizona officials.

We will continue to fight on behalf of many other prisoners and immigration detainees who are being held in private facilities. These people are most likely less safe and less likely to receive adequate healthcare and rehabilitation programs because costs for proper staffing and programs cut into the profit margins of prison corporations.

“Profit incentives in a privatized prison system directly conflict with individual liberty and reductions of mass incarceration and recidivism,” says John Dacey, the Executive Director of Abolish Private Prisons. “We are delighted that the Biden Administration has taken a stand for justice and racial equality, and there is much more to do.”

“The United States Constitution assigns incarceration of prisoners to the government,” says Dacey. “Our position is that the outsourcing practice violates the Constitution.”

The filed lawsuit further contends that prison privatization violates several constitutional provisions including due process, equal protection of laws, and the prohibitions of slavery and cruel and unusual punishments. The lawsuit seeks a declaratory judgment that prison privatization is unconstitutional and an injunction that bans the practice. “We intend to place this issue before the Supreme Court of the United States,” says Dacey.

“This is the time,” says Dacey. “This industry does not have deep roots or widespread support and government is not yet overly dependent on private prisons. Thanks to the Justice Department’s order to stop renewing private prison contracts, the door is open for real change. We must finish the job and overturn the practice in all states, cities, and immigrant detention facilities.”