Opinion: Biden is ending the Justice Department’s contracts with private prisons. Now end ICE’s.

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Eunice Cho is a senior staff attorney with the American Civil Liberties Union’s National Prison Project.

Earlier this week, President Biden signed an executive order directing the attorney general to phase out the Justice Department’s use of private prisons. Although this is an important step, the order falls short of realizing Biden’s campaign pledge to “make clear that the federal government should not use private facilities for any detention, including detention of undocumented immigrants.”

The executive order instructed the Justice Department not to renew contracts “with privately operated criminal detention facilities,” noting the “significant costs and hardships on our society” imposed by mass incarceration. The order cited a 2016 report by the Justice Department’s Office of Inspector General, which condemned the failure of private prison companies to meet basic standards to provide for the health and safety of people in their custody. Biden’s order reinstates and expands the Obama administration’s pledge to end the Federal Bureau of Prisons’ contracts with private prison companies, which President Donald Trump later rescinded.

The directive is a huge victory for civil rights advocates who have warned for years about the particular evils of private prison corporations, and the Biden administration should be applauded for prioritizing it. Privatized prisons, jails and detention centers provide an inherent financial incentive to lock people up and prioritize profits over safety. Governments that rely on private prisons incarcerate people for longer periods of time.

But the order fails to account for one of the most significant areas of the federal government’s use of private prison companies: immigration detention. As a 2020 report by the American Civil Liberties Union, Human Rights Watch and the National Immigrant Justice Center showed, the Trump administration enlarged the immigration detention system at a record pace. That growth overwhelmingly benefited private prison corporations, as almost all of the new facilities were owned and/or operated by for-profit companies, including the GEO Group, CoreCivic and La Salle Corrections. In four years, the Trump administration opened more than 40 new detention facilities and expanded the number of people in the system by approximately 50 percent. At this time last year, more than 81 percent of immigrants in detention were held in facilities owned or operated by private prison companies, a record high.

Biden’s executive order notes the disproportionate impact of mass incarceration on people of color as a reason to end the Justice Department’s use of private prisons. But unless the administration also ends its contracts for Immigration and Customs Enforcement detention, it may enable the continued mass detention of noncitizen people of color under the auspices of immigration enforcement. The past four years should be instructive: As our study showed, many of the new immigration detention facilities opened under the Trump administration had only recently been dedicated to incarcerating prisoners for profit. As sentencing reform reduced the number of prisoners nationwide, private prison companies successfully sought to fill their empty prison beds with immigrants, securing contracts for ICE detention.

For full op-ed go here.