Commentary

For Bureau of Prisons, Continuing Prison Contracting Makes More Sense Than Ending It

Agency should now focus on evolving its approach to contracting.

In February, Attorney General Jeff Sessions rescinded an August 2016 policy memorandum penned by then–Assistant Attorney General Sally Q. Yates, which called for phasing out the use of private prisons in the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:

  • First, the inmate populations at the two types of prisons are vastly different. Contracted BOP prisons mostly house inmates who are undocumented immigrants from Central American countries, while native-born Americans make up the majority of inmates in government–run BOP prisons. These differences put added cost pressures on contractors and severely limit the ability to make meaningful (or sweeping, in this case) conclusions about the relative performance of the public and private sectors. The OIG report points out that such language and cultural differences can lead to many of the safety and security incidents that their facilities experience, so if anything, it would be reasonable to expect more incidents in the private prisons, all else being equal.
  • Next, many of the metrics have ambiguous interpretations. A lack of grievances from inmates can mean well-fun facilities, or an inmate population living in fear of retaliation from staff. Lockdowns work in a similar fashion; while they are undoubtedly serious incidents, lockdowns can also be used as a tool to prevent more serious incidents. Similarly, finding a lack of contraband on inmates can mean either effective contraband interdiction techniques that prevent contraband from entering the inmate population, or it can mean poor techniques that inmates can circumvent. Lacking the information to effectively address such ambiguities raises serious questions about what constitutes “good” or “bad” in terms or performance over at least a few of the metrics provided by the OIG in their August 2016 study.
  • Speaking to contraband interdiction specifically, the OIG notes in another report released last year that the contraband interdiction techniques in government–run BOP prisons fell very short of OIG recommendations and expectations. Despite an OIG recommendation that staff searches occur on at least 5% of shifts, the report found that searches of BOP occurred at under 1% of shifts over January–September 2014, a time period included at the tail end period studied in the August OIG report, which examined FY2011–FY2014.
  • Further, OIG found in that same report that staff searches, policies and procedures were not consistent with the successful interdiction of contraband. Two–thirds (67%) of searches occurred during morning shifts (8:15 AM–4PM), while only eight percent occurred in evening shifts (4PM–midnight), making the evening shift especially vulnerable to the introduction of contraband. Although the BOP noted that it never seized any contraband from a pat–down search of its staff, the OIG concludes that “in light of the BOP’s infrequent application of random pat search events and other related issues described in this report, the absence of contraband recoveries may not constitute an accurate performance measure.”

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.