Policy Brief

Examining the Inspector General’s Report on Private Prisons

With Attorney General Jeff Sessions re-opening the door to private prisons, the agencies involved should look to improve monitoring and oversight in private prisons.

In February 2017, United States Attorney General Jeff Sessions issued a memorandum rescinding an August 2016 March memorandum calling for the federal Bureau of Prisons to phase out, and eventually end, its use of private prisons.

The August 2016 Department of Justice memo, written by then-Deputy U.S. Attorney General Sally Q. Yates, asserted:

(T)ime has shown that (contract prison facilities) compare poorly to our own Bureau facilities. They simply do not provide the same level of correctional services, programs, and resources; they do not save substantially on costs; and as noted in a recent report by the Department’s Office of lnspector General, they do not maintain the same level of safety and security. The rehabilitative services that the Bureau provides, such as educational programs and job training, have proved difficult to replicate and outsource—and these services are essential to reducing recidivism and improving public safety.

For all these reasons, l am eager to enlist your help in beginning the process of reducing— and ultimately ending—our use of privately operated prisons. As you know, all of the Bureau’s existing contracts with private prison companies are term-limited and subject to renewal or termination. I am directing that, as each contract reaches the end of its term, the Bureau should either decline to renew that contract or substantially reduce its scope in a manner consistent with law and the overall decline of the Bureau’s inmate population.

In sharp contrast, Attorney General Sessions’ February 2017 memo says the decision to end private prison contracting has “impaired” the Bureau of Prisons:

I hereby rescind the memorandum dated August 18, 2016, sent to you by former Deputy Attorney General Sally Q. Yates, entitled “Reducing our Use of Private Prisons.” In that memorandum, former DAG Yates directed “that, as each contract reaches the end of its term, the Bureau should either decline to renew that contract or substantially reduce its scope in a manner consistent with law and the overall decline of the Bureau’s inmate population.” The memorandum changed long-standing policy and practice, and impaired the Bureau’s ability to meet the future needs of the federal correctional system. Therefore, I direct the Bureau to return to its previous approach.

The 2016 Yates memo references an Office of Inspector General (OIG) report, entitled “Review of the Federal Bureau of Prisons’ Monitoring of Contract Prisons.” As suggested by the OIG report’s title, its chief purpose was to evaluate how the BOP oversees the prisons it contracts with. The report does not analyze whether or not the BOP should terminate, or reduce, its use of private prisons.

The August 2016 OIG report is focused on an examination of the regulatory and monitoring regime that private prison operators in the BOP system face. The report compares government-operated prisons to contracted-out prisons on a variety of metrics and finds there were a greater number of safety and security incidents occurring at private prisons during the period studied. The report, however, contains many disclaimers suggesting that readers should not draw overly strong conclusions from its comparisons, noting that a variety of factors ranging from different inmate population demographics in the types of prisons to the use of metrics that can have ambiguous interpretations limit the ability to make apples-to-apples comparisons.

The OIG report also gives praise to private prison operators and their BOP monitors for quickly responding to incidents and issues as they arise. It notes private operators sought to adopt OIG recommendations, suggesting that the monitoring regime that BOP private prison operators face, when balanced with an incentive-pay structure that includes myriad ways for contractors to lose money over lack of performance, overcomes the incentive contractors would face to underreport incidents that result in financial penalties. In contrast, recent OIG work suggests that staff in government-run BOP prisons resist recommendations related to greater monitoring and oversight.

With Attorney General Sessions’ recent memo calling for private prison contracting to continue, the Bureau of Prisons has a great opportunity to improve oversight of private operators, to implement the OIG report’s key recommendations, and introduce additional reforms that ensure even better oversight.

This policy brief highlights the Office of Inspector General’s actual findings and examines what they actually tell us about the effectiveness of private prisons.