The Private Prison Scam: ICE Fills The Cells DOJ Left Behind
Oct. 28, 2016 (Fault Lines) – The Obama administration, in its dying days, seems determined to further damage its already paltry record of criminal-justice reform. To understand why, we’ll need to take a look at the feds’ dirty laundry.
When, in August, DoJ Deputy Attorney General Sally Yates announced that Main Justice was going to ramp down and eventually end its use of private prisons to house federal inmates, the government’s largely progressive fans dutifully applauded. David Fathi, the director of the ACLU’s National Prison Project, described the government’s initiative as “a huge deal” and “historic and groundbreaking.” Lofty praise indeed, especially since when you look at the memo behind DoJ’s change of heart, it turns out the latest reform is all about appearances, not substance.
The biggest and most obvious problem is that DoJ doesn’t use many private prisons to begin with. Nationwide, only 22,000 inmates, or just 11% of the federal prison population, are housed in 13 private prisons. DoJ’s reform proposes doing away with contracts at three of those prisons, meaning as many as 8,000 inmates could be moved from private to public accommodations. That’s 4% of the total population; even if you accept the premise that government-run prisons have better facilities than their private counterparts, this is the sort of exceedingly minor change that doesn’t deserve the breathless praise the government’s admirers have bestowed upon it.
And there’s another, more subtle problem with DoJ’s position. The justification it offers for its roadside conversion – a roughly 10% decline in the federal prison population since 2013, something that supposedly makes it possible to phase out contracts with prison corporations – is more than a little overshadowed by its self-serving, selective explanation for the downtick.
When Yates and her minions wrote their memo, they went to some pains to present the proposed closing-out of contracts with private prisons as part of the Obama administration’s record of achievement in criminal-justice reform. In that vein, they’re eager to attribute the recent decline in the federal prison population to… themselves.
Specifically, along with praise for the U.S. Sentencing Commission for revising federal drug sentencing guidelines downward, they cite DoJ’s 2014 decision to less vigorously pursue low-level, non-violent drug offenders and the President’s grants of clemency as examples of the government’s “significant efforts to recalibrate federal sentencing policy.” DoJ plays a big part in determining who gets clemency, because it makes commutation and pardon recommendations: two years ago, as part of an earlier effort to cover up the administration’s crimlaw track record, DoJ announced “new, more expansive criteria” for deciding who gets the nod.
What the memo doesn’t say is that DoJ’s previous efforts, such as they were, to enact sentencing reform have been resoundingly underwhelming. Its “new, more expansive criteria” consisted of replacing one mechanism for making clemency recommendations (the Office of Pardon Attorney) with another (a bureaucratic checklist), giving OPA and the administration an excuse to neglect the many meritorious petitions already before it (read: burning a lot of prisoners). The President didn’t help matters, either: despite the White House’s efforts to make him look great and merciful, he remains the most reluctant pardoner in U.S. history and one of its most unenthusiastic commuters. Overall, only George W. Bush was less generous with his power of clemency.
Yates’ memo omits explanations for the prison population decrease that don’t implicate the administration, like the Supreme Court’s 2013 decision in Alleyne v. United States. And it plays fast and loose with statistics: it dishonestly attributes a 50% reduction in the federal-prisoners-in-private-prisons population to a reform it proposed in 2016 by comparing the figure from three years ago, when the population was at its peak, to a projected figure for 2017.
In a nutshell, DoJ’s much-vaunted private prison shutdown initiative is as big a crock as its other half-hearted gestures in the direction of reform. And we’ve only covered sentencing: in March, DoJ made a joke of the criminal-justice reform movement when AG Loretta Lynch resumed the agency’s much-despised “equitable sharing” civil asset forfeiture program, not four months after she put a widely ballyhooed temporary stop to it.
Just ten weeks before it’s going to end, we can sum up the administration’s track record on all things criminal justice: nothing short of atrocious. At some point, factoring in things like its ongoing enthusiastic support of the 1033 program, which lets DoD supply military equipment to police departments; the various mass surveillance projects; DoE’s creation of star chambers for college students by requiring colleges to police accusations of sexual misconduct, in defiance of statutory authority; and DoJ’s attempts to coerce tech companies to compromise their products’ security just starts to look like overkill.
But if the government has one great strength. It’s persuading people to treat its dummy reforms as if they were real. Matters aren’t helped by the fact that its cheerleaders include members of organizations with legacy credibility, like the ACLU, which championed civil liberties before it went on a progressive bender. Despite what we know about them, the feds’ seemingly-unimpeachable criminal-justice credentials are on display whenever a local or state police department is found to have engaged in misconduct: we suffer collective memory loss and ask Main Justice to swoop in and save us, despite the fact that DoJ’s got a few scandals of its own on the books.
If the reaction from the ACLU’s National Prison Project is anything to go by, the feds thoroughly succeeded in putting one over on us when DoJ announced it would no longer rely on private prisons. So it’s that much more of a shame that what one federal agency has accomplished, another is about to undo.
According to the Wall Street Journal, Immigration and Customs Enforcement is looking to move into the exact same prisons DoJ has said it will no longer use. Its rationale for doing so is simple, and the exact opposite of DoJ’s for quitting: the number of people held in immigration detention has absolutely exploded under the Obama administration, to the point that an unprecedented 45,000 people will soon be held in detention on any given day. (Just a year ago, that figure was 28,500.) ICE desperately needs the space. Even better, as the National Prison Project’s Carl Takei points out, ICE is planning to waive its minimum standards for detention facilities and borrow against its future budget to fund its current spending spree.
In a rare moment of self-awareness, Takei, who previously described DoJ’s private-prisons reform initiative as “the Justice Department making history,” said that ICE’s actions may “erode or reverse other achievements by the Obama administration [on criminal-justice reform].” But that presupposes actual achievements to erode. Despite our ongoing experience with the failure of the federal government to adequately address its criminal-justice shortcomings, we continue to believe in the shell game, believe that a token gesture here makes up for a substantively illiberal practice there. If reform is to begin anywhere, it might as well be here.