[Sasha Volokh] Don’t end federal private prisons

Yesterday, the DOJ announced that it would gradually end its use of private prisons. You can read the memo by Deputy AG Sally Yates here. She writes: “I am directing that, as each contract [with a private prison corporation] reaches the end of its term, the Bureau [of Prisons] should either decline to renew that contract or substantially reduce its scope in a manner consistent with the law and the overall decline of the Bureau’s inmate population.”

Why? The Yates memo says: “Private prisons . . . compare poorly to our own Bureau facilities. They simply do not provide the same level of correctional services, programs, and resources; they do not save substantially on costs; and as noted in a recent report by the Department’s Office of Inspector General, they do not maintain the same level of safety and security. The rehabilitative services that the Bureau provides, such as educational programs and job training, have proved difficult to replicate and outsource — and these services are essential to reducing recidivism and improving public safety.”

This is unfortunate, for two reasons.

First, Yates seems to be exaggerating what empirical studies tell us about private vs. public prison comparisons. They do save money (though how much is a matter of dispute). And they don’t clearly provide worse quality; in fact, the best empirical studies don’t give a strong edge to either sector. The best we can say about public vs. private prison comparisons is a cautious “We don’t really know, but the quality differences are probably pretty minor and don’t strongly cut in either direction.” The Inspector General’s report doesn’t give us strong reason to question that result.

Second, even if all the bad things people say about private prisons were true, why not pursue a “Mend it, don’t end it” strategy? there’s a new trend in corrections to develop good performance measures and make payments contingent on those performance measures. If the private sector hasn’t performed spectacularly on quality dimensions to date, it’s because good correctional quality hasn’t been strongly incentivized so far. But the advent of performance-based contracting has the potential to open up new vistas of quality improvements — and the federal system, if it abandons contracting, may miss out on these quality improvements.

First, how many people does this affect? The Bureau of Justice Statistics report on Prisoners in 2014 reports (Table 9) that 19% of federal prisoners were held in private facilities — about 40,000 in 2013 and in 2014. But that includes about 14,000 in nonsecure facilities and home confinement. The Yates memo says that in 2013 the number of private prison inmates was 30,000, or 15% of federal prisoners, and notes in a footnote that this doesn’t include federal halfway houses (and that halfway houses aren’t the focus of the memo). The IG report says federal private prisoners were 22,660 in 2015, or 12% of the total. Probably these numbers are all consistent, and the different is due to different years and slightly different definitions of who’s covered. So this memo affects probably about roughly 25,000 people today.

Compare that to the state prison system. Private prisons represent much less of the state systems — about 7% — but the state systems are much bigger. Overall, there were about 90,000 private state prisoners in 2014. (The 7% is of course an aggregate: it’s 0% in almost 20 states that don’t use privatization at all, over 25% in just three states (MT, NM, OK), and something in between (a median of about 10%) in others.) And these people are unaffected by the Yates memo, though maybe some states might be moved to follow the federal government’s lead.

Also, this doesn’t include immigrant detainees in ICE facilities — I haven’t looked into those numbers closely, but it looks like those total numbers are comparable to the federal Bureau of Prisons numbers.

Now, let’s look at what empirical studies can tell us about cost and quality. For a discussion at greater length, please see my Emory Law Journal article on Prison Accountability and Performance Measures, or