THE BLOG
11/21/2016 02:49 pm ET Updated Dec 06, 2017

What Will Trump Team Do On DOJ Private Prison Ban?

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By Christopher Zoukis

In what the American Civil Liberties Union hailed as a groundbreaking step, the Department of Justice (DOJ) announced with great fanfare in August that it planned to stop using private prisons. The announcement followed the release a week earlier of a report by DOJ's inspector general finding private prisons generally have higher assault and use of force rates, more disciplinary actions, and more contraband seizures than facilities run by its Federal Bureau of Prisons (BOP).

In a memo explaining the DOJ's action, the agency's deputy attorney general assessed private prisons as not offering substantial cost savings or providing the same level of services, safety or security as government-run facilities. DOJ set the five-year goal of phasing out contracts with 12 privately owned facilities in seven states (CA, GA, MS, NC, OK, PA and TX) where nearly 22,000 Federal Bureau of Prisons inmates are currently housed. A 13th privately-owned facility in New Mexico, closed earlier this year, seems about ready to reopen as a detention center for the Department of Homeland Security's Immigration and Customs Enforcement (ICE) division, to house persons who have illegally entered this country from Mexico, Central America and Haiti.

During the recent presidential campaign, the Democratic Party platform Hillary Clinton ran on pledged to end private prison use. Later, after revelations last year that lobbyists for the two biggest private-prison companies, the Geo Group and Corrections Corporation of America, had been serving as major "bundler" fundraisers for her campaign, Clinton also declared she would return those funds and not accept further donations from private prison companies or their lobbyists. Clinton's rival for the nomination, Vermont Senator Bernie Sanders, has sponsored bills to abolish private prisons, calling for an end to what he termed the "private prison racket."

While also doing business with state and local governments, private-prison companies derive significant revenues from federal institutions (42 percent for the Geo Group in 2014, and over half for Corrections Corp of America in 2015). Besides BOP, the companies' federal revenues also come from detention facilities provided for ICE.

But the ultimate fate of DOJ's plan remains very much in doubt, following the election of Republican Donald Trump. How the Trump administration will staff DOJ and other related agencies, and what -- if any -- priority it will place on the issue of private prisons remains to be determined, but it seems unlikely the Trump team will defer to the position staked out by the Obama administration.

Positioning himself since the Republican convention as a "law and order" candidate seeking to "make America safe again," Trump has said relatively little about the issue of private prisons, but what little he has said has been positive, not critical. In an MSNBC-televised March 30 town hall meeting in Green Bay, Wisconsin, Trump was asked a question about drug legalization and prison reform.

He replied by calling the nation's prison system a "complete disaster," then volunteered the thought that the nation could "do a lot of privatizations and private prisons," which in his view "seems to work a lot better." On this score, Trump echoed Libertarian presidential candidate Gary Johnson, who in August told a press forum that he supported using private prisons for federal inmates.

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonLawBlog.com