The Department of Justice’s Very Good Day

By Fair Punishment Project
August 22, 2016

It’s a good day,” Christie Donner, Director of the Colorado Criminal Justice Reform Coalition, noted last Thursday, August 18. She was referring to the announcement by Sally Yates, Deputy Attorney General, that the Justice Department planned to phase out its use of private prisons for inmates in the federal system.

The contracting out of prisons to private for-profit companies began in 1983 and has been a source of deep concern for criminal justice reform advocates ever since. For many, the notion of profiting from human misery is an unsettling one, as are the inherent challenges in reconciling cost-cutting measures with the need to provide safe and humane conditions for inmates and corrections officers.

A recent report by the Office of Inspector General confirmed that these concerns are well-founded. It revealed that federal inmates in privately-run prisons have died unnecessarily from untreated health conditions including cancer, suicide, and heart attacks, that solitary confinement is inappropriately used to address over-crowding, and that incidences of violence are higher in privately-run prisons than in those operated by the Department of Corrections. As Christie Donner noted, “There’s just no appropriate way to inject a for-profit motive into corrections…It’s just completely inappropriate.” In her memo announcing the Justice Department’s decision to curtail its use of private prison contractors, Deputy Attorney General Yates’ conceded as much, writing that private prisons “simply do not provide the same level of correctional services, programs, and resources; they do not save substantially on costs; and…they do not maintain the same level of safety and security.”

As welcome as this news is, the impact, at least initially, will be limited. The use of private prisons will be phased out over time and will affect only about 22,000 federal prison inmates, or about 12 percent of the Federal Bureau of Prisons’ total inmate population. DOJ’s decision does not directly impact states’ use of private prisons, which currently hold approximately 100,000 inmates. But many hope that this move will “provide an impetus for states to reduce their reliance on private prisons and ultimately ban them entirely,” according to David Shapiro, a Northwestern University law professor. “I think it adds to a growing movement to reject for-profit incarceration.”

August 18 was also a news-worthy day for the Department of Justice for another reason. It filed a friend of the court brief with the 11th Circuit Court of Appeals arguing that holding defendants in jail because they can’t afford to make bail is unconstitutional. The brief read in part that “Bail practices that incarcerate indigent individuals before trial solely because of their inability to pay for their release violate the Fourteenth Amendment.” The brief supports the growing demand from the ACLU and other advocates to end bail practices that are creating modern-day “debtors prisons.” Although, again, the DOJ cannot force states to fall in line, this move, according to Nusrat Choudhury of the ACLU, “is sending a strong message that judges should voluntarily comply and take a hard look at their policies before they get in trouble.”

Our nation’s current system of mass incarceration took decades to build up, and it is likely to be a long slog to dismantle it. Although public and political support for reforms continue to grow, actual progress has been slow and halting, as Congress and state legislatures backpedal and stall on reforms. Key actors—police, prosecutors, and judges—still over-arrest, over-charge, and sentence far more harshly than is often warranted. In too many places, the criminal justice system continues to function like an antiquated bicycle stuck in one gear—prison—to navigate terrain that requires a more agile and sophisticated apparatus. Our public safety, health, humanity and economic vitality suffer as a result.

Still, we must celebrate progress, however incremental, when it occurs, and applaud public officials, like those at the Department of Justice, who are carefully reviewing facts and data and forcing change accordingly. Their actions last week to end the use of private prisons and to advance humane bail reforms send strong signals to the states that these excesses are no longer acceptable. Hopefully, these will accelerate the pace and demand for reform. Within this context, those dual actions made Thursday, August 18, a very good day indeed.

Fair Punishment Project