President Biden just signed an Executive Order to phase out the federal government’s use of private prisons. For-profit, private prison systems have been found to provide less humane and less safe environments overall, in an effort to increase profits. While signing the Order, the President stated that “[t]his is the first step to stop corporations from profiting off incarceration, that is less humane and less safe, as studies show . . . [a]nd this is just the beginning of my administration’s plan to address systematic problems in our criminal justice system.”

Beginning in the late 1990s, private prison companies were established to deal with overcrowding. Rather than build new prisons run by the federal Bureau of Prisons (BOP), the government contracted with private companies to both build and operate prisons in certain areas of the country. Numerous individuals sentenced to federal prison have been housed in these locations, including all non-U.S. citizens, who are placed in private prisons to complete their sentences prior to being removed from the country. Unfortunately, the Order just signed by the President does not phase out the use of private prisons to house the sizeable number of incarcerated, non-citizens.

The reasoning behind the Order focuses on racial equality and the level of care in such institutions. To clarify, the Order does not immediately shut down private prisons. Rather, it directs the Department of Justice not to renew their contracts with privately operated criminal detention facilities. The Order noted that there is “broad consensus” that the U.S. system of mass incarceration comes with major costs and hardships without increasing overall safety. Profit-based incentives to incarcerate individuals in facilities that offer sub-standard safety measures, medical programs, and treatment programs should not be tolerated going forward. In an August 2016 report, the DOJ, Office of Inspector General found that “contract prisons incurred more safety and security incidents per capita than comparable BOP institutions.”

New prison and jail population data recently released by the DOJ shows the United States still incarcerates its citizens at a rate 5 to 10 times higher than other industrialized countries. Data also shows the vast racial disparity in number of minorities incarcerated and the average sentence length. The U.S. leads the world in incarceration. While the United States consists of only 5 percent of the world’s total population, it has nearly 25 percent of the world’s prison population – about 2.2 million people.

incarceration-ratesOperators of private prisons argue that President Biden’s Order was political grandstanding as the BOP had previously announced steps not to renew expiring contracts due to the declining federal prison population. However, this Order explicitly countermanded a Trump-era policy that continued the use of these private prisons without regard for overall prison populations. Thus, there is a clear sign that the new administration is taking criminal justice and prison reform seriously. This is one step in, what will hopefully be, a series of measures designed to reduce the length of sentences, offer alternative non-incarceration programs, and increase the safety and program offerings to those sentenced to prison.

Stahl Criminal Defense is here for all of your criminal legal needs during this time. To contact the firm’s NJ office, call 908.301.9001  and to contact the firm’s NYC office, call 212.755.3300, or email Mr. Stahl at