The End of Private Prisons in America? Not So Fast.

The federal government is closing them, but that doesn’t mean states will.
by | November 2016
Trousdale Turner Correctional Center in Hartsville, Tenn. (AP)

The federal government is getting out of the private prison business. The U.S. Department of Justice said this summer that it would phase out its practice of outsourcing some inmates. Currently, nearly 20 percent of federal prisoners are housed in private facilities. The Department of Homeland Security similarly announced that it would review whether to discontinue using private prisons to house violators of immigration law.

The moves came on the heels of a critical report from the Justice Department’s inspector general, which found that safety and security incidents occurred at a higher rate in private prisons. (Private prison companies dispute the findings.) “Much of the state criminal justice reform movement has been fueled by a desire to get better public safety results at lower costs,” says Adam Gelb, who heads the public safety project at the Pew Charitable Trusts. “So when the U.S. Justice Department says its private prisons aren’t providing superior service or saving money, that’s going to reverberate in capitals across the country.”

But that doesn’t necessarily mean states will follow suit. The number of state prisoners housed in private facilities has already been declining. After peaking at just under 9 percent in 2012, the share of prisoners in private facilities is now under 7 percent. Still, there are some states that continue to rely heavily on private prisons, whether because of capacity issues or ideological preference. Hawaii, Montana, New Mexico and Oklahoma all keep a quarter or more of their prisoners in private facilities. The federal moves are unlikely to change that.

Kentucky decided to stop using private prisons back in 2013. In August, however, right around the time the feds were announcing their phase-out, Kentucky said it was looking into reopening two private prisons in order to deal with overcrowding. Transferring about 1,600 prisoners to private facilities would take some of the pressure off. “This doesn’t represent a change in philosophy,” John Tilley, Kentucky’s secretary of justice and public safety, told the Louisville Courier-Journal. “This is simply a pragmatic approach to a problem of capacity that we have at the moment.”

Some policymakers think private prisons are a bad idea, while others are supportive. But the declining private prison population, it seems, may have less to do with the policy debate than the drop in the overall number of incarcerated criminals. The recent decline in private prison populations, for the most part, tracks recent declines in criminal sentencing.

Fewer prisoners are bad for business. But private prison companies may have spotted a a few opportunities as states shift their approach to criminal justice. “As the federal government phases out its private prison contracts, people should be watchful of where private prison companies may be going next,” says Nicole Porter, advocacy director for the progressive Sentencing Project. “There have been new efforts by well-known private prison companies to enter into contracts with government at the state and federal level over re-entry services and electronic monitoring of people under alternative sentences.”