Within the borders of a nation that prides itself on democratic ideals, technological advances, and medical innovation, over two million people are living a harshly different reality devoid of these values. This is the United States prison population.1 Of those over two million individuals, more than 150,000 are federal inmates incarcerated in facilities run by either the U.S. government via the Department of Justice (DOJ) or a private prison contractor.2
The Biden administration has taken policy steps toward mitigating the abuses that are a byproduct of the for-profit prison system in an attempt to eliminate the source of increased reports of crime and violence within the greater federal prison complex.3 Prisoners living under the governance of contracted prison companies have reported staff neglect and mistreatment for decades, reflecting a “differentially high rate of violence at privately operated prisons when compared to those operated by the state,” and igniting advocacy efforts that have reached the executive branch.4 Although staff neglect and mistreatment of prisoners are not exclusive to the private prison system, privately run prisons—also known as “contract prisons”—have a notorious reputation for higher rates of crime and violence among inmates in comparison to their government-run counterparts.5 This underscores a recurring theme and the fundamental root of the contract prison problem—inadequate staff oversight.
The principal difference that distinguishes a contract prison from an exclusively federally run prison is the level of government oversight. Inside the facilities, federally run prisons are managed solely by government employees to ensure operations are truly “in compliance with security, safety, and environmental requirements,” whereas contract prisons lack a government watchdog in their hallways to hold contracted employees accountable when they act outside of the standards established by the DOJ.6 Although the DOJ generally requires a degree of government involvement within contract prisons to monitor operations, contracted employee conduct is predominantly overseen and managed by the contractor.7
Amid rising public apprehension surrounding the billion-dollar private prison industry and the dawn of a new presidency, it came as no surprise when President Biden announced Executive Order 14006, “Reforming Our Incarceration System to Eliminate the Use of Privately Operated Criminal Detention Facilities,” less than a week after his inauguration.8 Executive Order 14006 (EO 14006) commands that the “Attorney General shall not renew [DOJ] contracts with privately owned criminal detention facilities,” which effectuates the Biden administration’s goal to end the for-profit prison system and emerges as a success for prisoners, their families, and human-rights advocates alike.9 Supporters of EO 14006 posit that federal prisons operate “more cost effectively . . . and much safer than their for-profit counterparts.”10 The elimination of DOJ’s use of contract prisons is seen as a step towards disincentivizing for-profit incarceration, and EO 14006’s intended transition from independent contractor to government management may allow prisoners who were experiencing abuse in private facilities to live in a more secure environment, run by government-hired employees and in compliance with DOJ standards.
The implementation of EO 14006 raises other legal questions surrounding the status of existing contract workers, current standards for federal employment, and the viability of President Biden’s plan to transfer all federal inmates to DOJ management within the ambitious timeline of only two years.11 Further, effective execution of EO 14006 is challenged by the significant growth in the U.S. prison population since the late-twentieth century and the introduction of tough on crime policies, which have led to an increase in incarceration.12
This Note analyzes potential consequences of and solutions to best maintain President Biden’s plan to terminate contract detention facilities. Part II of this Note introduces the historical development of the U.S. prison system, the controversy surrounding contract prisons, Executive Order 14006, and the role of government contracts in this context. Part III examines the implications of qualified immunity following Executive Order 14006 and the likely consequences of transitioning all federal inmates to government management without any purported plan for government hiring reform. In light of Executive Order 14006, the Department of Justice must wholly reassess the qualified immunity impact on prison employability and consider how to best effectuate the Biden administration’s goals to create a federal prison structure built to last.
Contract prison management remains a relatively new scheme. Modern prison privatization practices began less than thirty years ago.13 Understanding the historical context of prison management sheds light on the gravity and challenges associated with EO 14006. The following section serves to contextualize the topics discussed in this Note, including the prison management history of the United States, the debate surrounding private prison contractors, the details of President Biden’s recent Executive Order, and the common design of government contracts for prison management.
A. The History of U.S. Prison Management
Federal prisons have long used contracting as a method to maintain and manage correctional facilities, but the nature of prison contracts has scaled exponentially. Prior to the late twentieth century, the government garnered prison assistance by hiring inmates to perform labor in the facilities, differing immensely from the multi-billion-dollar contracts that the federal government has awarded and renewed with private prison monoliths to obtain management assistance and alleviate costs for the last three decades.14
The Federal Bureau of Prisons, colloquially referred to as the “BOP,” is a government agency within the Department of Justice that operates under the direction of the U.S. Attorney General.15 The Bureau was created pursuant to the enactment of the Federal Prison Act of 1930 (codified as the “Act of May 14, 1930”), which consolidated to a single agency the responsibility of federal prison management and the regulation “of all Federal penal and correctional institutions” (excluding military penal institutions).16 BOP points to the lack of DOJ supervision over the outdated 1890’s Federal Prison System (FPS) as the reason for its establishment.17 This is because the DOJ’s limited involvement in the now inactive FPS led to overcrowded prisons, which were devoid of any meaningful programs geared toward inmate rehabilitation.18 The Federal Prison Act details the organizational and financial structure of the BOP, including designated appropriations to fund the necessary leasing or constructing of facilities and quality-of-life standards.19 The Federal Prison Act states that BOP “shall . . . provide suitable quarters for the safe-keeping, care, and subsistence of all persons convicted,” and be responsible for inmates’ “protection, instruction, and discipline.”20 In section three of the Act, Congress expressly authorizes the BOP Director to contract, “for the imprisonment, subsistence, care, and proper employment,” of prisoners, likely in light of the prison system’s historical use of prisoners and private companies.21
Towards the end of the twentieth century, significant shifts in U.S. criminal law and incarceration rates occurred, and DOJ was assigned the responsibility of managing an influx of federal inmates.22 President Ronald Reagan ushered in a new “tough on crime” policy approach when he signed into law the Comprehensive Crime Control Act of 1984. This Act was comprised of legislative reforms that aligned with Reagan’s campaign promise to mitigate crime and increase preventative and punitive measures in the United States, especially given the rise in the crack cocaine market and the government’s lack of ability to manage its rapid spread.23 The Comprehensive Crime Control Act is recognized for included “some of the most significant changes in the federal criminal justice system every enacted at one time,” and notably gained bipartisan support due to its unprecedented, strong punitive responses to issues like sentencing, bail conditions, and drug use.24 The Act contributed to a massive surge in the federal inmate population by creating new crimes and imposing sentencing guidelines.25
Within the two decades following the enactment of the Act, the population of U.S. federal inmates quadrupled from roughly 30,000 to 136,000,26 and the total number of persons incarcerated—across federal prisons, state prisons, and local jails—increased by hundreds of thousands.27 Exponential rates of imprisonment, coupled with the federal government’s growing interest in using private corrections management to alleviate costs, led to the expansion of the private-prison contracting model used today.28 Discussion of the U.S. prison population naturally raises the question of whether current criminal justice policies are effective, or whether existing laws lead to over-incarceration.
Inmates who do not reside in contract prison facilities have been housed within institutions run by the federal government. Federally run prisons operate under the self-proclaimed mission to protect society by “confining offenders in the controlled environments of prisons and community-based facilities that are safe, human, cost-effective, and appropriately secure,” and promise to maintain all facilities in “operationally sound conditions and in compliance with security, safety, and environmental requirements.”29 While this rhetoric sets a high standard for staff conduct, the DOJ further emphasizes its expectations for federal prison operations in a BOP report: “[A]ll Bureau staff are expected to conduct themselves in a manner that creates and maintains respect for the agency, the DOJ , the Federal Government, and the law.”30 The juxtaposition of this standard of excellence in management against leaked reports of prisoner abuse portrays an alarming contradiction that has fueled prison reform activists for decades.
1. The Private Prison Debate
The contemporary use of federal procurement methods began in the 1980s when the government became interested in paying for a prison service, as opposed to taking on prison management with in-house resources after witnessing a significant spike in the federal inmate population in the 1980s.31 While the privatization movement alleviated the DOJ’s initial overcrowding issues, it simultaneously created an impression to the public that there were for-profit incentives to incarceration. By 2010, the annual revenue made from government contracts between just two major federal prison contractors surpassed $2.9 billion.32 Because contract facilities are funded by DOJ contracts, reports of abuses and mismanagement in contract facilities raise flags to the taxpayers, who pay for federal contracts, and who worry that “profit motives, coupled with a lack of oversight, can create incentives to minimize costs and care for inmates.”33
The modern-day private prison houses approximately “116,000 individuals—or 8.1 percent of the nation’s total prison population” and is almost surely managed by one of the two largest private prison companies.34 Together, contractor monoliths GEO Group and CoreCivic (formerly CCA, Corrections Corporation of America), earned a combined annual revenue of almost $4.5 billion in 2019.35 Nearly one quarter of this revenue was from DOJ contracts, and an even higher percentage36 came from contracts with the U.S. Immigration and Customs Enforcement (ICE).37
Federal prison operations as of 2022 remain similar to those in 2019. At the start of 2021, DOJ was in contract with companies CoreCivic, the GEO Group, and Management and Training Corporation (MTC), who collectively managed twelve private prison facilities for the federal government.38 However, in light of Executive Order 14006, contracts expiring as a result of their agreement terms are not being renewed by the federal government. For example, federal inmates at the North Carolina-based Rivers Correctional Institution, operated by the GEO Group, were transferred to public facilities in March 2021 when the contract between DOJ and the GEO Group naturally expired.39 Both the GEO Group and CoreCivic anticipated further transfers as contracts naturally expired without government renewal.40 The terms of the remaining government contracts were set to naturally expire by the end of 2022, allowing the Biden administration to meet its Fiscal Year 2022 expectation “to vacate all 11 secure privately managed facilities, or private prisons, it currently occupies by the end of calendar year 2022,”41 meaning the Biden administration need not proactively terminate contracts.42
An ongoing debate surrounds the benefits and risks of private contract facilities in dealing with such a large federal inmate population.43 In an article published by the Bureau of Justice Assistance pursuant to a DOJ initiative, analysts from the National Council on Crime and Delinquency reviewed the incentives and risks of private prison contracts.44
2. Benefits to Contract Prisons
The benefits of contract prisons are dominated by themes of time and cost efficiency, as “contracting with the private sector allows prospective prisons to be financed, located, and constructed quicker and cheaper than government prisons.”45 For example, such benefits are exemplified by a Corrections Corporation of America (CCA, now CoreCivic) contract with the U.S. Immigration and Naturalization Service (INS).46 Here, INS contracted with CCA to build a Texas detention center in less than six months because the U.S. Immigration and Naturalization Service anticipated that the same project would have taken the agency over two years to complete on its own and would have cost nearly double the amount that it cost the INS to pay the contractors.47
3. Risks to Contract Prisons
Yet not all project comparisons are equal. There are risks implicated in contracts for prison management. For instance, there is the possibility that a contractor will reject high-cost inmates that require certain and more expensive needs, such as those with physical disabilities, mental illnesses, or chronic conditions.48 The potential for contract prisons to reject high-cost inmates is problematic and differs from federally run and state prisons, which “must provide services to all inmates.”49 By denying high-cost inmates, the apparent cost for private facilities is lowered in comparison to the public prison facilities that cannot turn inmates away and are responsible for providing special accommodations. This creates a false perception that contract prison operations are cheaper, when the reality may be that contract prisons are denying costly inmates.50
Additional disadvantages to privatization include the fear that “private prisons have financial incentives to cut corners” and the concern that inmate rights may be violated without the close monitoring of private management by the government.51 For instance, in 2008, the GEO Group was sued for $595 million after an inmate died in solitary confinement.52 Incidents like this one trigger public concern about inmate safety. A 2016 DOJ Office of Inspector General (OIG) report illustrates the truth of inmate safety concerns, finding that “contract prisons incurred more safety and security incidents per capita than comparable BOP institutions.”53 The report identifies a higher rate of incidents at contract prisons in multiple categories, such as contraband and inmate discipline.54
Further, the very process of federal procurement is referenced as a disadvantage to privatization. For example, the 2016 DOJ OIG report notes that the procurement process to obtain prison contractors is “slow, inefficient, and open to risks.”55 In addition to the daunting task of creating a clear solicitation and contract, the report asserts that the “lack of enforcement remedies in contracts leaves only termination or lawsuits as recourse,” which may lead to more lenient government oversight in enforcing contract terms to avoid costly and time-consuming litigation.56 As such, using government contracts for prison management can easily lead to oversight issues that, in turn, can harm inmates in contract facilities. These risks associated with privatization are a product of contracts drafted without a strong enforcement or watchdog component.
B. Executive Order 14006
While there are notable advantages and disadvantages to private facility management, Executive Order 14006 has shifted the dialogue to the de-privatization of the federal prison complex.57 Obama-era Deputy Attorney General, Sally Yates stated that “the goal of the Justice Department is to ensure consistency in safety, security and rehabilitation services by operating its own prison facilities.”58 President Biden speaks to this in EO 14006: “[W]e must ensure that our Nation’s incarceration and correctional systems are prioritizing rehabilitation and redemption.”59 Pivoting a full 180-degrees from former-President Donald J. Trump’s policy intentions of “robustly support[ing] private prisons” and to increasing federal private prison contracts, EO 14006 attempts to revitalize policy goals reminiscent of the Obama-era by focusing on switching entirely to federally owned prisons.60 Notably, EO 14006 specifies that “the Attorney General shall not renew [DOJ] contracts with privately operated criminal detention facilities,” leaving out Immigration and Customs Enforcement (ICE) facilities managed by the Department of Homeland Security and any military prison operated by the Department of Defense.61 According to the BOP, as of November 18, 2021, there were approximately seven thousand federal inmates in privately managed facilities.62 For reference, 1.7 million inmates were incarcerated across all United States prisons in Spring 2021, meaning that EO 14006 will impact less than one percent of the United States prison population.63 The BOP Fiscal Year 2022 Budget Request expanded on the Executive Order’s strategy, stating that “the BOP expects to vacate all 11 secure privately managed facilities, or private prisons, it currently occupies by the end of the calendar year 2022,” which eventually included the transition of nearly seven thousand federal inmates to public facilities.64
With the number of prisoners impacted by EO 14006 in mind, driving policy factors in the Biden administration’s decision to end private prison contracts are causing the administration to take a closer look at the conduct in contract facilities, including a lack of confidence in contract prison staff compliance. In 2019, DOJ’s Office of Inspector General found that ICE “routinely waives its own standards” in overseeing its contracted detention facilities.65 These OIG reports further found that “ICE often fails to include its quality assurance surveillance plan (QASP)—a key tool for ensuring that facilities meet ICE’s performance standards—in facility contracts and rarely imposes financial consequences for facilities that are noncompliant.”66 While ICE, an agency under the Department of Homeland Security, is not included in Biden’s EO 14006, many ICE facilities are run by the same companies that DOJ contracts for prison management.67 Thus, ICE QASP violations under the management of popular contract prison companies may provide the government a more transparent view into contract facility operations, perhaps allowing the government to terminate for default more easily.
Additionally, due to the Trump administration’s support of private prisons, many federal inmates have been left under the management of several renewed and existing contracts with private prison companies.68 This raises questions on how to effectively transfer prisoners, hire sufficient federal prison employees, and prepare for a prison system that proactively meets the goals of Biden’s Executive Order 14006.
C. Government Contracting for Prison Management
The formation and executive of prison contracts emphasize the risks of privatization. These highlight some of the systemic issues that the Biden administration will face in implementing EO 14006. For example, government is incentivized to capitalize on fixed-price contracts with contract prison companies. This abuse is one of the fundamental failures of the system. Further, the government’s emphasis on cost efficiency has led to a lack of government oversight of contract prisons, resulting in harm to both inmates and contract prison employees. The employees are stigmatized by having worked in facilities that received poor performance marks from the federal government.
1. Development of Modern Private Prison Contracts
Any service or good that the government outsources from a private vendor requires a specific type of government contract to fit the demands of the government given the nature of the service or good, and that is precisely how the government began contracting for its prison management.69 For the majority of the twentieth century, the federal government managed prison facilities on its own.70 This arrangement eliminated any need for negotiating and perfecting contract terms for prisoner management; oversight and care for inmates was handled internally and at the discretion of the BOP, its advisors, and its vetted employees who were given qualified immunity.71 Government contracts were employed for lower-stakes needs, such as food services, commissary, health care, and education, in favor of keeping the spending budget low with fewer and less expensive contracts.72 Consistent with Reagan-era criminal policy reform interests, the federal “crack down” on crime seemingly necessitated some degree of private sector aid in managing the number of inmates, which continued to soar upwards into the 2000s.73 Both the administrations of former Presidents Bill Clinton and George W. Bush continued the trend of privatizing prisons, asserting a vision of “market-based government” that allowed the private sector to become part of historically inherent governmental functions, like operating a prison.74
Even Congress was in favor of the shift towards privatization, indicating a government-wide acceptance of the private market’s growing role in federal matters. Congressional appropriations for Fiscal Year (FY) 1997 required the DOJ to contract out federal prison management and served as a test-run to see whether the United States should allow the private sector to handle correctional facility operations.75 To achieve this goal, the DOJ followed traditional government contracting rules but was able to choose the type of solicitation and contract awarded.
2. Substance of Private Prison Contract
Significant benefits and risks are associated with modern-day private prison contracts, which are best exemplified by an actual contract’s terms. One of the earliest instances of the contemporary form of private prison contracts involved a 1996 BOP request for proposals for the management of a new prison facility in Taft, California.76 The winner of this contract, which was the first of its kind, was the international company Wackenhut Corrections Corporation, which ultimately became one of the biggest correctional center names in United States’ contracting, the GEO Group, Inc.77 The Taft facility contract was designed to be a firm fixed-price performance-based contract, which is still the default type of agreement for private prison agreements employed in the modern day.78
The use of performance-based contracts for prison contracts signals that the government’s contract shall include a performance work statement (PWS) that includes measurable performance standards for quality, time, and quantity, and performance incentives, if appropriate.79 The PWS should describe the work in terms of agency expectations and provide a way to assess the contractor’s work performance.80 Fixed-price contracts “provide for a price that is not subject to any adjustment on the basis of the contractor’s cost experience in performing the contract.”81 In the case of the Taft contract, the contractor was paid $27.6 million each year to operate the facility, and left operational planning for nearly 2,000 inmates primarily up to the contractor, giving the contractor a high level of operational power. The government implemented some safeguards to ensure Wackenhut’s compliance with the contract, including assigning federal employees with the responsibility of contract oversight.82 These safeguards were to confirm that the contractor was meeting performance standards and to incentivize the contractor “to perform well, above and beyond mere compliance, [and] the Bureau designed a procedure for determining if semi-annual awards should be given to the contractor.”83 However, so long as the government’s performance standards were met, management was up to the contractor.
3. Lack of Oversight and Hiring Implications
Grave ethical concerns exist when the well-being of thousands of inmates is in the hands of private contractors. Without strict government oversight, contracted prison employees are free to operate in ways that may prioritize keeping costs low as opposed to creating the best rehabilitative environment for inmates.84 The firm fixed-price method puts an onus on the contractors to keep costs low because the government will not pay anything more than the fixed-fee, even if contractor maintenance costs require more funding. Simultaneously, this type of contract puts pressure on the government to get its money’s worth of the fixed-price paid because “prison contracts are billed at a flat rate regardless of the number of prisoners housed.”85 Government contract experts suggest that contractors may build a cushion of extra money into their fixed-price contracts to account for risks. If the DOJ is not performing sufficient oversight checks to confirm the contractor is in compliance with its contract terms, then contract prison companies may be profiting off of their fixed-price contracts without adequately taking care of inmates.86
The primary issue is oversight. If the contractor and the government are both working to keep costs low, there is no incentive to use resources for increased oversight or facility checks to maintain DOJ standards for “operationally sound conditions . . . in compliance with security, safety, and environmental requirements.”87 With this background on government prison contract logistics, the role of the contract prison employee becomes even more important because of their ability to act behind the curtain of private employment. At the same time, the Biden administration’s plan to eliminate private prison management requires the transition of thousands of inmates to federal oversight. As a result, this will create a demand for more federal prison guards and staff, but the government protects federal employees with a qualified immunity to which private prison guards are not entitled.88 With the end goal of EO 14006 being the elimination of private prisons, private prison staff will be unemployed. If those private employees—lacking qualified immunity—have been disciplined or fired for misconduct, they likely will face challenges in attempting to join the DOJ’s federal prison staff. The issue of prison staff hiring is a key challenge of President Biden’s ambitious goal of eliminating all private prison management. The DOJ must hire enough government employees to manage the influx of federal inmates, but its applicants lack qualified immunity and carry the reputation of having worked in these problematic contract facilities. The DOJ should consider reforming its hiring standards and reassessing qualified immunity.89
III. Analysis and Solutions
Executive Order 14006 presents issues that President Biden and the DOJ must carefully consider to seamlessly eliminate privately operated detention facilities to meet its desired policy objective and manage oversight concerns. These issues are coupled with the likely introduction of new government employees who were once staff members at problematic contract prison facilities. First, the Biden administration must reassess the qualified immunity impact on prison staff employability. Then, the Biden administration must take measures to equip the DOJ with sufficient time, staff, and resources to create durable federal prison management, including reflecting on potential policy reforms.
IV. Qualified Immunity and Employability
The government first turned to private contractors to manage federal inmates given a significant increase in federal incarcerations, to the point where the government could not comfortably manage the growing number of inmates without outside assistance.90 The government needed additional prison staff, and, by contracting prison management companies, the contractors could hire more staff or sub-contract employees if needed. This alleviated many of the concerns associated with the government’s complicated and untimely hiring process. Unfortunately, outsourcing prison staff eventually led to an increase in unsafe prisons: “employing fewer and lower-skilled guards leads to significantly higher employee turnover rates in privately operated prisons, which ultimately results in safety and security risks for the imprisoned people, due to the inexperience of the guards.”91 Addressing the qualified immunity doctrine and its impact on DOJ hiring processes is essential to assess hiring implications for EO 14006.
A. Qualified Immunity Doctrine
Qualified immunity is a legal principle that shields government officials and employees from having to go to trial. Specifically, it protects the official from lawsuits “alleging that the official violated a plaintiff’s rights” and “only allow[s] suits where [the] official violated a clearly established statutory or constitutional right.”92 Because the official represents the government and maintains official authority, courts protect the government official’s discretion to make decisions for the sake of the public interest. This way, officials are less hesitant to make official decisions, as they do not live in constant fear of a future lawsuit.93
In Harlow v. Fitzgerald, the Supreme Court determined qualified immunity applied to federal government officials.94 Rather than rule on the merits of the individual’s argument against the federal aides, the Supreme Court determined that a government official had qualified immunity from such claims, so long as he did not know and should not have known that his actions were illegal.95 However, this holding did not give guidance as to whether a prison guard, employed by a private prison contracting company, received qualified immunity as an extension of the federal government’s “employees.”
The Supreme Court determined the applicability of qualified immunity protections in Richardson v. McKnight, concentrating exclusively on private federal prison employees.96 The suit involved a prisoner, McKnight, who was housed at a privately managed federal correctional center in Tennessee.97 McKnight filed a tort action against prison guards at the facility, who he claimed caused him physical injuries.98 The prison guards attempted to raise the qualified immunity defense as employees at a federal correctional center.99 The Court held that, while prison guards employed by the federal government were protected by this doctrine, prison guards employed by private firms in contract with the government were not entitled to qualified immunity.100 The Court explained that the “mere performance of a governmental function does not support immunity for a private person, especially one who performs a job without government supervision or direction.”101 The Court underscored that a private prison’s guards do not require immunity because they are part of an organizational structure within the private market, whereas government prison employees are held accountable by the democratic system and, therefore, their governmental role invokes the ability to use the qualified immunity defense.102
Thus, private prison guards are held to a private citizen standard because their employment is dictated by the private competitive market, which is held accountable by the supply and demand of the industry. While the private market is likely to have another role for a job-hunter because of the plethora of private businesses with differing standards for hiring, the federal government is not as forgiving. With EO 14006’s elimination of a significant number of prison staff positions, private prison staff members will look to government-controlled facilities for work.
B. Implications of Contract Prison Employment
Some driving forces behind EO 14006 were the increased safety and security risks connected to private prisons and their staff. President Biden has made clear that “privately operated criminal detention facilities consistently underperform Federal facilities with respect to correctional services, programs, and resources.”103 Relatedly, the underperformance of contract prisons has led to higher staff turnover rates, because contract prison staff who are not protected via qualified immunity are more likely to be terminated.104
With the termination of private staff comes the issue of federal hiring. Private employees who were terminated at their last place of employment are significantly less likely to meet DOJ hiring standards. This implies a double standard for private prison staff conduct: if an employee with the GEO Group was terminated for his interaction with an inmate, then the private employee may not pass preliminary DOJ background checks due to the employee’s termination for his conduct. On the other hand, a federal prison employee may have an identical interaction with an inmate in a federal facility but would likely face zero ramifications because he is protected by qualified immunity, which often defers to the discretion of the federal employee. This difference not only prejudices the private employee, but also creates an even bigger issue for the federal government: it may not be able to hire a sufficient number of prison staff members to manage all federal prisoners, including the influx of transferred inmates who used to be in private facilities because those applicants worked for a contractor rather than the government.
It is also unclear whether the DOJ is partly to blame for the high turnover rate and employee-related issues that arose in contract prisons. In 2016, a DOJ investigation of contract prison compliance, done by the Office of the Inspector General (OIG), raised the question of “whether the Justice Department conducts sufficient oversight of the private prisons to identify and preempt problems.”105 The OIG report explains how the DOJ failed to properly observe its contractors, adding that “onsite monitors at the contract prisons . . . did not use the checklist or monitoring logs to track contractors’ corrective actions.”106 While the contract companies have the responsibility of managing their facilities, they are still contractors—not DOJ employees. The DOJ is still principally responsible for the faults of contract prisons that result in problems for inmates. For example, once the DOJ identified a systematic failure in contract prison discipline, private prisons made moves towards correcting their failures “after being put on notice by the government. . . . [T]he Inspector General later discovered that the problems persisted because the Justice Department did not change its inspection and evaluation policies to prevent these same problems from recurring.”107
With regard to former private prison employees seeking federal employment, should EO 14006 successfully terminate the remaining private prison contracts,108 the DOJ states loose expectations for hiring guidelines on its Bureau of Prisons website.109 A BOP webpage provides that employment with the agency “is subject to a satisfactory completion of a background investigation . . . [including] law enforcement and criminal record checks, and inquiries with previous employers,” with the caveat that “suitability determinations are made on a case-by-case basis and are based upon . . . conduct that could affect how the agency accomplishes its duties or responsibilities.”110 By taking a hands-off approach to its contract prisons without reassessing contractors’ policies or paying attention to records of incidents, the DOJ effectively allowed for disciplinary issues to arise in its contract facilities. The DOJ’s failure to sufficiently oversee its contractor’s operations has led to poor compliance reports on these contractors and their employees and ultimately, high staff turnover that may, for example, leave a former CoreCivic prison guard with a blacklisted resume.111 A former contract prison employee should not be prejudiced in the federal hiring process due to the differing consequences for federal and contract prison staff when the industry is a revolving door between the public and private sector, especially given the DOJ’s high demand for prison personnel. For an effective transition from contract prison to exclusively federal prison management, this should be a key focus for the Biden administration’s consideration.
When EO 14006 plays out as intended, management of an influx of federal prisoners is a challenge that can be alleviated by a reassessment of hiring standards. EO 14006 will predictably create a demand for more federal prison staff, and the DOJ is at risk of losing out on qualified candidates due to its elevated standard for federal hiring. It is critical to the success of the EO 14006 that during the assessment of federal applications for prison staff employment, the DOJ considers the following: (1) that the termination status of a contract employee could have been due to the lack of DOJ supervision over its contractors, and (2) that contract employees may fail traditional background checks for prison staff actions that would have otherwise been defended by qualified immunity in the federal system.
The DOJ must take into consideration the nature of the prison employee’s role, and whether concerns on a candidate’s application that would have traditionally disqualified his candidacy are products of the lack of qualified immunity in the private prison context. The BOP website states that candidates are considered on a case-by-case basis, and as such, the DOJ should make a temporary internal hiring notice that considers the actions of a candidate who was formerly employed by a private prison company.112 Further, DOJ should implement a process that considers whether an employee’s application is tainted for a legitimate conduct reason, or because the applicant made a difficult decision while acting in the role of a prison employee that would have been protected by qualified immunity if the employee were working for the government. Further, DOJ should reflect on whether an applicant’s termination or poor marks were due to internal contractor mismanagement as a result of DOJ’s lack of guidelines and oversight for its contractors, per concerns raised by the DOJ’s OIG report in 2016.113
V. Effective Federal Management
The next major question raised by EO 14006 is how the DOJ will have ample time, staff, and resources to transfer all privately housed inmates safely and efficiently to federal management. Among the four existing private prison facilities, there are more than six thousand inmates housed who will require location transfers to federal facilities upon the termination of remaining contracts.114 Seeing that the agency has relied on private contractors for housing and management services for thousands of inmates at a fixed-price since the 1990s, recent political leaders and agencies have not had to manage the full number of federal inmates without the help of private contractors. Additionally, there have been no major criminal policy changes that would suggest an end in sight to the high rate of incarceration in the United States. While the federal prison population of 153,855115 has been reported to be at its lowest since the early 2000s, “the day after Biden’s inauguration, the BOP population clocked in at 151,646, and that number has been rising ever since.”116 Because the BOP has historically struggled to keep up with simply managing its contract facilities,117 it is difficult to imagine that the agency is equipped structurally and organizationally to handle all federal inmates in the near future for the full elimination of contract facilities.118
Corporate contracting loopholes may be a further risk to the policy objectives of EO 14006. As the Brennan Center for Justice summarized, “[T]he executive order may unintentionally create a scenario where for-profit firms sign more contracts with counties that then directly contract with the federal government, allowing the firms to essentially circumvent the order.”119 Should contracting companies find business via this method, the purpose of EO 14006 is defeated.
In light of the growing number of federal inmates, the Biden administration’s executive order does not appropriately tackle the root of the United States’ criminal justice issues. The increasing number of prisoners will only require more federal staff and spending or will result in less supervision. The Biden administration must acknowledge that this executive order only touches the tip of the criminal justice reform iceberg. A solution would be to propose an accompanying policy bundle that aims to minimize the number of federal inmates, rather than approach the issue by shuffling inmates to different facilities. The administration is also recommended to approach criminal justice policy reforms by decriminalizing certain non-violent crimes, and creating a task force to re-examine cold cases with new technologies; these efforts may free wrongly incarcerated or overly sentenced inmates. Additionally, the DOJ is recommended to reassess their sentencing guidelines for inmates who are sentenced for crimes committed under the age of eighteen and to perhaps take a more rehabilitative approach in the case of lower-stakes crimes.
The increasing rate of federal inmates will only pose management challenges to the federal government, and by instating policies with the intent of lowering the number of federal inmates, the Biden administration can set future administrations up for success by alleviating some of the factors that contribute to a higher population. Further, such policies may take time, and the effects may not be clear immediately. But even the gradual decrease in federal prisoners may disincentivize a future President from re-employing private contracts, if numbers are more manageable and less costly for the federal government.
Executive Order 14006 is an ambitious, policy-driven plan. President Biden’s strategy to terminate private detention facilities raises complicated questions for current contractors and the future of government contracting, federal hiring, and the complex U.S. prison system. As such, the Biden administration should take measures to ensure that federal hiring guidelines are aligned with the influx of government employee applicants, and that President Biden’s policy objectives are wholly served by the execution of Executive Order 14006 in pursuit of an entirely federal prison system.
1. See Proclamation No. 14006, 86 Fed. Reg. 7483 (Jan. 29, 2021) [hereinafter Proclamation No. 14006].
2. See Population Statistics, Fed. Bureau of Prisons, https://www.bop.gov/about/statistics/population_statistics.jsp [https://perma.cc/UG44-8ZCT] (last visited Jan. 23, 2022) [hereinafter Population Statistics].
3. See Proclamation No. 14006, supra note 1.
4. Elaine Rizzo & Margaret Hayes, An Assessment of the Risks and Benefits of Prison Privatization, Prison Legal News 6 (Jan. 30, 2012), https://www.prisonlegalnews.org/media/publications/rizzo_report_on_assessment_of_risks_and_benefits_of_prison_privatization_2012.pdf [https://perma.cc/E4XY-85A2].
6. Organization, Mission and Functions Manual: Federal Bureau of Prisons, U.S. Dept. of Just., https://www.justice.gov/jmd/organization-mission-and-functions-manual-federal-bureau-prisons [https://perma.cc/59MY-GXK5] (last visited Jan. 29, 2022).
7. See Dept. of Just., Off. of the Inspector Gen., Evaluation & Inspections Div., Review of the Federal Bureau of Prisons’ Monitoring of Contract Prisons 32 (Aug. 2016), https://oig.justice.gov/reports/2016/e1606.pdf [https://perma.cc/LKP5-M4M6] [hereinafter Review of the Federal Bureau of Prisons’ Monitoring of Contract Prisons].
8. See Proclamation No. 14006, supra note 1.
10. President Issues EOs on Contract Prisons, Racial Equity, Climate Change, Pandemic Supplies, 63 Gov’t Contractor, Feb. 3, 2021, at 1, ¶ 30.
11. See Federal Prison System (BOP): FY 2022 Budget Request at a Glance, U.S. Dept. of Just., https://www.justice.gov/d9/pages/attachments/2021/05/27/bop.pdf [https://perma.cc/K76L-XA2U) (last visited Feb. 20, 2023).
12. See Peter H. Kyle, Contracting for Performance: Restructuring the Private Prison Market, 54 Wm. & Mary L. Rev. 2087, 2090 (2013).
13. See James Austin & Garry Coventry, Emerging Issues on Privatized Prison iii (Bureau of Just. Assistance 2001); see also Review of the Federal Bureau of Prisons’ Monitoring of Contract Prisons, supra note 7, at 1.
14. See Sharon Dolovich, State Punishment and Private Prisons, 55 Duke L.J. 437, 450–51 (2005).
15. Act of May 14, 1930, Pub. L. No. 71-218, 46 Stat. 325 (1930).
16. See id.
17. See Historical Information, Fed. Bureau of Prisons, https://www.bop.gov/about/history/timeline.jsp [https://perma.cc/2P3Q-JUM5] (last visited Nov. 22, 2021).
18. See id.
19. Act of May 14, 1930, § 2. While valuable to note the appropriations of the congressional budget to the Bureau of Prisons, the scope of this note is limited to government contract implications and will not expand on the topic of appropriations.
21. Id. § 3.
22. See Austin & Coventry, supra note 13, at 13.
23. John Hagan, Who Are the Criminals?: The Politics of Crime Policy from the Age of Roosevelt to the Age of Reagan 25 (2012); see also Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, § 2, 98 Stat. 1976 (1984) (codified as amended at 18 U.S.C. § 1).
24. Stephen S. Trott, Implementing Criminal Justice Reform, 45 Pub. Admin. Rev. 795, 795 (1985).
25. See About the Federal Bureau of Prisons, Fed. Bureau of Prisons 2 (June 2015), https://www.bop.gov/resources/pdfs/ipaabout.pdf [https://perma.cc/2F5J-NPN3] [hereinafter About the Federal Bureau of Prisons].
26. See id.
27. Allen J. Beck & Christopher J. Mumola, Bureau of Justice Statistics Bulletin: Prisoners in 1998, Dept. of Just. (Aug. 1999), https://bjs.ojp.gov/content/pub/pdf/p98.pdf [https://perma.cc/86HE-PVD9].
28. See Austin & Coventry, supra note 13, at 13.
29. Organization, Mission and Functions Manual: Federal Bureau of Prisons, U.S. Dept. of Justice, https://www.justice.gov/doj/organization-mission-and-functions-manual-federal-bureau-prisons (last visited Feb. 18, 2023).
30. About the Federal Bureau of Prisons, supra note 25.
31. Ira P. Robbins, Privatization of Corrections: A Violation of U.S. Domestic Law, Int’l Human Rights, and Good Sense, 13 Hum. Rts. Brief, No. 3, at 12 (2006).
32. See Rizzo & Hayes, supra note 4, at 1. The two major prison contractors referenced are Correctional Corporation of America and GEO Group.
33. John M. Eason, Why are Private Prisons Controversial?, The Conversation (Sept. 26, 2019, 7:21 AM), https://theconversation.com/why-are-private-prisons-controversial-3-questions-answered-116774 [https://perma.cc/26RZ-X7QR].
34. Alyce McFadden, Biden Phases Out Private Prisons, Which Spent Big Backing Trump, OpenSecrets (Feb. 2, 2021, 1:24 PM), https://www.opensecrets.org/news/2021/02/biden-phases-out-private-prisons [https://perma.cc/3TJD-TZAH].
35. See id.
36. See id.
37. See id. ICE and immigration detention facilities are outside the scope of this Note, but these statistics show the financial impact of government contracts to these businesses’ revenue.
38. Louisa Valentin, The First Step to Stop Corporations From Profiting from Incarceration in the United States, Transnat’l Inst. (Mar. 30, 2021), https://www.tni.org/en/article/the-first-step-to-stop-corporations-from-profiting-from-incarceration-in-the-united-states [https://perma.cc/PH48-358C].
39. See id.
40. Lauren-Brooke Eisen, Breaking Down Biden’s Order to Eliminate DOJ Private Prison Contracts, Brennan Ctr. for Just. (Aug. 27, 2021), https://www.brennancenter.org/our-work/research-reports/breaking-down-bidens-order-eliminate-doj-private-prison-contracts [https://perma.cc/NN4Y-5BWD].
41. U.S. Dept. of Just.: FY 2022 Budget Request at a Glance (2021), supra note 11; see also BOP Ends Use of Privately Owned Prisons, Fed. Bureau of Prisons (Dec. 1, 2022), https://www.bop.gov/resources/news/20221201_ends_use_of_privately_owned_prisons.jsp (last visited March 14, 2023) [https://perma.cc/Z9QU-KXGS] [hereinafter BOP Ends Use of Privately Owned Prisons].
42. Termination for convenience is a doctrine of government contracts that exceeds the scope of this Note.
43. See Austin & Coventry, supra note 13, at 13.
44. See id. at 14.
45. See id. at 15.
46. See id. By way of comparison, the context surrounding this government contract for the U.S. Immigration and Naturalization Service is analogous to the contracts employed by the U.S. Bureau of Prisons and serves as a valuable example.
47. See id. at 15.
48. See Rizzo & Hayes, supra note 4, at 3.
49. See id.
50. See id.
51. Austin & Coventry, supra note 13, at 14.
52. See Rizzo & Hayes, supra note 4, at 4.
53. Review of the Federal Bureau of Prisons’ Monitoring of Contract Prisons, supra note 7, at 44.
54. See id. at ii.
55. Austin & Coventry, supra note 13, at 14.
57. Proclamation No. 14006, supra note 1.
58. Rebecca Beitsch, Biden Directs DOJ to Phase Out Use of Private Prisons, The Hill (Jan. 26, 2021), https://thehill.com/homenews/administration/535973-biden-directs-doj-to-phase-out-use-of-private-prisons [https://perma.cc/X3DQ-YXZF].
59. Proclamation No. 14006, supra note 1.
60. Hauwa Ahmed, How Private Prisons Are Profiting Under the Trump Administration, Ctr. for Am. Progress (Aug. 30, 2019, 9:02 AM), https://americanprogress.org/article/private-prisons-profiting-trump-administration [https://perma.cc/4Z5X-HP2L].
61. Proclamation No. 14006, supra note 1.
62. See Population Statistics, supra note 2.
63. Jacob Kang-Brown et al., People in Jail and Prison, Vera Inst. of Just. (June 2021), https://www.vera.org/downloads/publications/people-in-jail-and-prison-in-spring-2021.pdf [https://perma.cc/78V9-RFUB].
64. U.S. Dept. of Just.: FY 2022 Budget Request At A Glance (2021), supra note 11; see also BOP Ends Use of Privately Owned Prisons, supra note 41.
65. Ahmed, supra note 60, at 7.
67. See id.
68. See id.
69. Sean Bryant, The Business Model of Private Prisons, Investopedia (Nov. 2, 2021), https://www.investopedia.com/articles/investing/062215/business-model-private-prisons.asp [https://perma.cc/8NJK-N8ZW].
70. See Douglas C. McDonald & Kenneth Carlson, Contracting for Imprisonment in the Federal Prison System: Cost and Performance of the Privately Operated Taft Correctional Institution 1 (Abt Associates Inc., Oct. 1, 2005).
71. See id.
72. Gregg Satula, Using Contractors in Correctional Facilities: Key Policy Considerations, Lexipol (June 15, 2018), https://www.lexipol.com/resources/blog/using-contractors-in-correctional-facilities-key-policy-considerations [https://perma.cc/VXL3-H8CT].
73. McDonald & Carlson, supra note 70, at 1.
75. See id.
76. See id. at 2.
77. See id.
78. See id. at 3; see also Kyle, supra note 12, at 2110.
79. FAR 37.601(b).
80. FAR 37.602(a–b).
81. FAR 16.202-1.
82. See McDonald & Carlson, supra note 70, at 2.
83. Id. at 3.
84. See Rebecca Jones, Government Prison Contracts Gamble with Taxpayer Dollars, Project on Gov’t Oversight: Accountability (Feb. 27, 2018), https://www.pogo.org/analysis/2018/02/government-prison-contracts-gamble-with-taxpayer-dollars [https://perma.cc/7CSW-E3S3].
86. Can There Be Too Much Profit on a Fixed-Price Federal Government Contract?, Cassidy Law PLLC (July 13, 2020), http://cassidylawpllc.com/toomuchprofitfixedpricefederalgovernmentcontract [https://perma.cc/8BWD-DT6W].
87. Organization, Mission and Functions Manual: Federal Bureau of Prisons, supra note 29.
88. See generally Richardson v. McKnight, 521 U.S. 399 (1997) (holding that prison guards employed by private contractors were not entitled to the defense of qualified immunity).
89. See generally U.S. Dept. of Just.: FY 2022 Budget Request At A Glance (2021), supra note 11.
90. See McDonald & Carlson, supra note 70, at 4.
91. Valentin, supra note 38, at 6.
92. Qualified Immunity, Legal Info. Inst., https://www.law.cornell.edu/wex/qualified_immunity [https://perma.cc/JBK5-LZ9U] (last visited Jan. 30, 2022).
93. See id.
94. Harlow v. Fitzgerald, 457 U.S. 800, 800 (1982).
95. See id.
96. See Richardson v. McKnight, 521 U.S. 399, 401 (1997).
97. See id.
98. Id. at 399.
100. See id. at 399–400.
101. See generally id.
102. See id. at 412.
103. Proclamation No. 14006, supra note 1.
104. See Valentin, supra note 38, at 6.
105. Jones, supra note 84, at 3.
106. Review of the Federal Bureau of Prisons’ Monitoring of Contract Prisons, supra note 7, at 32.
107. Jones, supra note 84, at 3.
108. See generally Our Locations, Fed. Bureau of Prisons, https://www.bop.gov/locations/list.jsp# [https://perma.cc/3WZS-C8QE] (last visited Jan. 30, 2022) [hereinafter Our Locations].
109. See Our Hiring Process, Fed. Bureau of Prisons, https://www.bop.gov/jobs/hiring_process.jsp [https://perma.cc/4XXM-6XXX] (last visited Jan. 30, 2022).
111. See Review of the Federal Bureau of Prisons’ Monitoring of Contract Prisons, supra note 7, at 31.
112. See Our Hiring Process, supra note 109.
113. See Review of the Federal Bureau of Prisons’ Monitoring of Contract Prisons, supra note 7, at i.
114. See generally Our Locations, supra note 108.
115. See Population Statistics, supra note 2.
116. Eisen, supra note 40, at 5.
117. See Review of the Federal Bureau of Prisons’ Monitoring of Contract Prisons, supra note 7, at i.
118. U.S. Dept. of Just.: FY 2022 Budget Request at A Glance (2021), supra note 11.
119. Eisen, supra note 40, at 4.