Soon after President Biden took office, he issued an executive order phasing out the use of private prisons by the Department of Justice. It would be great to believe there are ethical reasons behind this move, that the Biden administration found the profiting off incarceration of human beings so morally bankrupt that it could no longer be justified. But upon closer examination, the reason for the federal government’s shunning of private prisons likely has much more to do, on one hand, with their limited significance in the carceral landscape. And on the other, with the growing Black Lives Matter movement and the fitful reckoning on race, policing, and imprisonment taking place in the United States.
The importance of the federal government phasing out private prisons should not be downplayed, but if the fight ends at getting rid of private prisons, we will have failed. As we consider strategies to continue dismantling the carceral state, it is critical for us to understand the outsized role private prisons play in the immigration enforcement apparatus, reflect on internal movement tensions around the issue, and assess why the federal phaseout is happening now. A better understanding of these dynamics shows the pitfalls of a focus on privatization and affirms the need for an abolitionist approach to anti-detention and anti-prison organizing.
Every administration since President Ronald Reagan’s has advanced the relationship between private prison companies and the federal government. From Reagan’s war on drugs and the explosion of immigration detention during the Clinton years through the anti-immigrant, post-9/11 period and the later privatization boom of the Obama era, the bonds between immigration enforcement and private prisons have grown deeper and more complicated over time. By the time Donald Trump rode into office, his administration benefitted from a robust, bipartisan immigration detention structure, largely reliant on private prisons — currently nearly 80 percent of immigration detention beds — that others had built and maintained for him over decades.
Because for-profit private prison companies have proliferated during this period, campaigns to divest from them have been a prominent strategy in the fight against mass incarceration. While well-intentioned, these campaigns often center the corporations as targets and inadvertently end up minimizing the fundamental role federal, state, and local governments play in creating and sustaining the prison industrial complex.
In the early 2000s, after the World Trade Organization protests in Seattle, anti-corporate campaigns on college campuses across the U.S. gained traction. One of these efforts, the Not With Our Money! campaign, targeted Sodexho Marriott (now Sodexo, Inc.), a campus food service provider whose parent company was a major shareholder in the Corrections Corporation of America, known today as CoreCivic. As an undergrad at the University of Texas at Austin, I joined the effort on campus, and later went on to co-direct the campaign after I graduated in 2003.
After six universities ended contracts with Sodexho due to the campaign, the company divested from CCA. However, Sodexho remained involved in private prison contracts in Europe and Australia. While the campaign hurt CCA’s reputation, it didn’t have much impact on the company’s bottom line. After this win, Not With Our Money! shifted to targeting Lehman Brothers, a major financier of the private prison industry, which had bailed out CCA when it was on the verge of bankruptcy in the early 2000s and floated more than $100 million in bonds to Wackenhut (now the GEO Group). Ending contracts with Lehman Brothers, which issued bonds to universities, would’ve been a much bigger blow to the private prison industry. However, and unsurprisingly, trying to explain higher education bond underwriting to the students whose support we sought proved to be a challenge and the campaign failed to gain momentum.
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Since then, there have been numerous campaigns focused on divestment from private prisons. In 2015, Columbia University divested its shares from CCA and G4S after a successful student-led fight. And in 2019, six banks severed ties with private prison companies after a sustained effort by the Corporate Backers of Hate campaign. While these wins should be celebrated for raising consciousness about the issue, there is little evidence of a direct or even indirect correlation between divestment campaigns and decarceration.
One foresight the previous organizers of the Not With Our Money! campaign had was to move the headquarters from New York to Texas, where my campaign co-director and I were based. Texas was ground zero for the private prison industry, with companies building jails on speculation and jumping on the boon post-9/11. Under George W. Bush, the increase in border prosecutions led the U.S. Marshals to solicit private companies to build a superjail in Laredo, a border city in south Texas. In our efforts to stop the construction of the jail, we rallied around the fact that it would be privately operated. This is where a focus on private prisons felt more useful — not because a state-run prison would have been better, but as a tactic to halt expansion. We knew the limits of the privatization argument, but deployed it strategically in the superjail fight, given the absence of a broader understanding of the harms of incarceration in south Texas at the time.
At the national level, however, some criminal justice advocates were so fundamentally opposed to prison privatization that they were willing to create alliances with pro-incarceration unions to stop their growth. This naturally created rifts within the movement. Advocates often collaborated with public-sector unions that represented prison guards, like AFSCME and AFGE. Frustrations erupted when anti-privatization advocates invited the California Correctional Peace Officers Association to strategy sessions. This union is notorious for the significant role it played in the prison boom in California, having spent millions lobbying to ensure more incarceration and having recently opposed a reform to California’s Three Strikes Law. Their inclusion was a step too far for those organizing against prisons in California, and the divisions within the movement grew.
Many advocates believed private prisons should be stopped before they became the norm, but others recognized that they were only a small part of the larger prison industrial complex and argued that a focus on them would hurt the broader abolitionist agenda. As abolitionist scholar Ruth Wilson Gilmore wrote in 2015, “The long-standing campaign against private prisons is based on the fictitious claim that revenues raked in from outsourced contracts explain the origin and growth of mass incarceration. . . . What kind of future will prison divestment campaigns produce if they pay no attention to the money that flows through and is extracted from the public prisons and jails, where 95 percent of inmates are held?”
A continued focus on prison privatization clouds the issue by presupposing government-run prisons are better. And moreover, this focus has not resulted in a reduction in people caged.
In 2016, when Deputy Attorney General Sally Yates announced the decision to phase out the use of private prisons for the federal Bureau of Prisons, it came as a surprise to many of us working on the issue. I had spent months before mapping out a plan for Detention Watch Network, where I currently work, to address the Justice Department’s shadow system of privately operated “Criminal Alien Requirement,” or CAR, prisons that held a growing number of immigrants prosecuted for crossing the border. Thirteen of the 122 BOP prisons were CAR facilities and had the capacity to hold 22,000 people at the time of the announcement.
Prior to the announcement, DOJ’s Office of Inspector General released a scathing report and a number of media investigations revealed how abysmal CAR prisons were, exposing the high number of deaths due to negligence. From a liberal perspective, the system worked like it was supposed to. The media exposed the harms of DOJ’s private prisons, while the government evaluated itself and then determined that the use of these prisons was no longer tenable. But, however tempting such a perspective might be, it would be a mistake to treat this as a result of the government righting the ship in response to media pressure and internal investigations. Fully considering the political conditions and broader context leading up to the decision, a different — and more accurate — story emerges.
On January 31, 2009, shortly after Obama came into office, a riot broke out at the GEO Group-run Reeves County Correctional Center in Texas. This was the second protest by immigrants incarcerated at Reeves in two months. The first one took place after Jesus Manuel Galindo, a 32-year-old Mexican immigrant, died in solitary confinement, his calls for medical care having been ignored; the second because the prison continued to use solitary confinement as a response to medical requests. In 2012, immigrants held at the Adams County Correctional Center in Mississippi, operated by CoreCivic, rioted in response to expired food being served and lack of medical care at the prison. They took over control of the facility and a prison guard was killed during the standoff. In 2015, a year before the Yates decision, 2,000 of the 3,000 people incarcerated at the MTC-operated Willacy County Correctional Center in Raymondville, Texas, organized and seized control of the prison and dismantled parts of the structure. The prison, nicknamed Ritmo in reference to the extrajudicial detention center in Guantanamo Bay, was made of 10 large Kevlar tents, some of which were burned down during the uprising. In each of these instances, a significant portion of the immigrants incarcerated at these prisons were serving sentences of 18 months or longer for unauthorized reentry at the border.
In that same period, the Black Lives Matter movement had been gaining steam. After multiple uprisings in Ferguson and an increase in BLM protests across the country, Obama felt pressure to respond. DOJ investigations into police shootings and violence were incremental and did little to immediately change the inherently racist systems being once again brought into question. The BOP had already quietly not renewed contracts at some of these prisons, including at Willacy, which they could’ve just kept doing; but announcing an end to the use of private prisons could be perceived as a bold move. The BOP, unlike Immigration and Customs Enforcement, mostly operated its own prisons and preferred them to contracting with private prisons companies. While the end of CAR prisons was significant, the impact on BOP was less so. As Sally Yates wrote in the memo, “These steps would be neither possible nor desirable without the Bureau’s superb and consistent work at our own facilities.”
After the Yates announcement, DHS conducted its own review of private prisons. Predictably, ICE had become so dependent on private prisons that it was impossible for DHS to imagine a scenario in which they could be phased out. The report stated: “Fiscal considerations, combined with the need for realistic capacity to handle sudden increases in detention, indicate that DHS’s use of private for-profit detention will continue . . . . Congress should provide to ICE the additional monetary and personnel resources needed to provide for a more robust, effective and coordinated inspection regime.”
Under Trump, Attorney General Jeff Sessions rescinded the Yates memo and CAR prisons remained open. But upon taking office, Biden immediately reissued the order to phase out private prisons as part of his racial equity plan, which was unquestionably influenced by the George Floyd protests in 2020. A lot went into creating the conditions for the DOJ to phase out private prisons. But one thing is clear: uprisings and rebellion within prison walls and on the streets were critical factors in the decision. This reality affirms why it is all the more important for immigrant justice organizers to work in solidarity with the broader movement for racial justice.
Biden’s hesitance to phase out ICE’s private prisons makes clear that the federal government’s decision to end their use by DOJ was never about treating private prisons — and their profit-driven model — as misaligned with American values. Instead, the primary consideration was whether the department could continue its carceral agenda without private prisons. The answer, for the DOJ, is yes. By contrast, ICE’s dependence on private prisons helps explain why Biden did not include them in his announcement; at this point, the bipartisan deportation agenda requires locking up immigrants to facilitate their deportation, and private prisons are the primary source of “bed space” for this objective.
If DHS does end up moving away from using private prisons, this will likely be for two reasons. First the contradictions in their decision to not extend the phaseout to ICE has put them in a bind. Biden will continue to be called out for the hypocrisy if DHS keeps contracting with private prison companies for ICE detention. But more importantly, if DHS stops contracting with private prisons, it would mean we have successfully made the case that mass detention in its present form should no longer exist. In the last several years, the idea of immigration detention abolition has caught fire in the immigrant rights movement. As a result of relentless organizing, much of it involving people in detention facilities and their families and communities, six states have passed anti-detention bills. Organizers in two dozen states have waged campaigns, with some wins, against county contracts with ICE. In the process, the movement and some policymakers have embraced the abolition of immigration detention.
If the Biden administration extends the phaseout of private prisons beyond DOJ to ICE facilities, it won’t be because advocates and journalists made the case that private prisons are inherently evil. It will be because ordinary people — both those detained by ICE and in communities across the country — called for an end to detention altogether.
If the Biden administration extends the phaseout of private prisons beyond DOJ to ICE facilities, it won’t be because advocates and journalists made the case that private prisons are inherently evil. It will be because ordinary people — both those detained by ICE and in communities across the country — called for an end to detention altogether.
While an end to private prisons would be a significant blow for ICE’s capacity to detain (and therefore deport), it is important to consider the ramifications of this type of win. First and foremost, this could result in an increase in ICE contracts with county jails or the expansion of government-run jails. This is already being proposed at ICE’s El Paso Processing Center in Texas. Also, if these private prisons close, that doesn’t necessarily mean they will just go offline. In Arizona, CoreCivic’s La Palma Correctional Center is shifting from an ICE detention center to a state-contracted prison.
Additionally, as we’ve seen in the criminal punishment system, ICE is increasingly turning to policies that are essentially detention by any other name. This includes a growing number of people subject to e-carceration — some 180,000, a record, also run by private companies — an increase in interdiction programs such as the “Remain in Mexico” policy that make it harder for people to even enter the U.S., and potential new non-profit run European-style “reception centers” at the border. Recently, ICE announced a house arrest pilot program and has requested funds from Congress to surveil as many as 350,000 households by the end of the year. Even if the phaseout of private prisons is extended to ICE, the struggle to close those facilities and the fight for immigrant justice will not be over.
So how, then, do private prisons fit into broader abolitionist organizing? In the immigration context, campaigns to ban private prisons and subcontracts with county jails have successfully halted detention expansion or ended existing contracts. This is an important tactic and one that only works because all but five of ICE’s 200 detention centers are outsourced to private prison companies and local governments.
Similarly, recent class action litigation challenging the practice of private prison companies paying detained immigrants a dollar a day for their labor to essentially keep detention centers running has been more effective at “starving the beast” (and cutting into private prison company’s bottom lines) than, say, divestment campaigns. These efforts are important in making detention less lucrative for the industry while also improving the conditions for people currently detained. Targeting private prisons as a tactic to disrupt the government’s overall carceral agenda can be useful so long as it is not understood as the core framework for what’s wrong with the system.
Targeting private prisons as a tactic to disrupt the government’s overall carceral agenda can be useful so long as it is not understood as the core framework for what’s wrong with the system.
Private prisons have become so prominent in the story of mass incarceration because people would much rather blame evil corporations than their own government for the problems with the world. Nefarious actors are easier to shame and are often easier to expose than a massive state infrastructure rooted in racism and white supremacy, carrying out a carceral and deportation agenda in partnership with whomever is willing. The closure of the BOP’s private prisons is a good thing. But the problem with these prisons wasn’t solely that they were private but that they existed in the first place. Building a world without them will require building bridges across migrant justice and carceral abolition movements.
Image: Alexey Demidov/Unsplash
