Continuing a deluge of executive actions, President Biden last week ordered the Justice Department to step back from its partnership with the private prison industry. Inside the Justice Department, the U.S. Marshals Service and federal Bureau of Prisons run large prison networks, both of which contract with private prisons corporations to house people suspected or convicted of migrating to the United States in violation of federal criminal law.
On January 26, the president announced that the Justice Department “shall not renew…contracts with privately operated criminal detention facilities, as consistent with applicable law.” The president’s executive order does not apply to the Department of Homeland Security, which includes the Immigration and Customs Enforcement agency. In large part, the Biden administration is returning to a short-lived Obama-era policy. Announced in August 2016, that policy never got off the ground before Trump’s first Attorney General, Jeff Sessions, reversed it the following February.
By focusing exclusively on Justice Department contracts, Biden doesn’t touch the all-important migrant prison population under DHS custody. ICE and Customs and Border Protection both detain migrants, with ICE relying heavily on private prison contractors. Through contracts with eight private prisons, the agency houses upwards of three-quarters of its detainees in private facilities.
In most years, ICE holds hundreds of thousands of migrants while immigration authorities decide if they will be allowed to remain in the United States. In fiscal year 2019, the most recent for which annual data are available, ICE booked into custody 510,854 people, shattering the previous high of roughly 478,000 in 2012. Due to border closures ostensibly justified by the pandemic, ICE’s detained population dropped at the end of the Trump era. Currently, there are relatively few migrants held under ICE’s custody: an average daily population of 15,387 in January 2021. ICE hasn’t held this few people for a sustained period all century, so it’s entirely possible that this will go up.
Despite excluding DHS, President Biden’s order is significant for the many migrants held in private facilities on behalf of the Marshals Service or Bureau of Prisons. Unfortunately, just how many people fit this description is unclear, but it’s not a trivial amount.
The U.S. Marshals Service runs pretrial custody for the federal criminal justice system. As part of that responsibility, it books into custody everyone suspected of violating a federal crime. In 2018, the U.S. Marshals Service booked into its custody 108,667 people whose most serious charged offense was an immigration crime. The USMS does not run its own jail network. Instead, the USMS contracts with state and local governments, the Bureau of Prisons, and private corporations. In 2019, the USMS held 16.9 percent of its inmates in private facilities on an average day. Had it held that percentage of immigration crime suspects in private facilities the year before, that would mean 18,365 suspected immigration offenders would have been held in private facilities.
For its part, the Bureau of Prisons takes custody of everyone convicted of a federal crime and sentenced to prison. There are several federal crimes involving migration, but the two most common are illegal entry and illegal reentry, both of which essentially consist of entering the United States without the government’s permission. Just how many immigration prisoners are held in BOP’s private contract facilities is even less straightforward than it is for the Marshals Service. Every year from 2000 to 2016, the most recent year for which I’ve obtained data, the BOP has confined over 8,000 people convicted of illegal entry or illegal reentry, the two most commonly prosecuted types of federal immigration crimes. In 2016, for example, the BOP held 13,754 people convicted of nothing more serious than one of these offenses.
Taking a single-day snapshot, on January 16, 2021, 3.9 percent of all prisoners held by the BOP—5,601 people—where there because of an immigration offense conviction. A few days later, the agency reported that nine percent of its inmates were held in private facilities. If the agency held nine percent of its immigration prisoners in private facilities that day, that would be 504 immigration prisoners in a private facility. Nine percent of the 13,754 immigration offenders held by the BOP in 2016 would be 1,237 people.
There’s reason to suspect that the true number of immigration offenders that the BOP holds in private facilities is actually higher. In its fiscal year 2020 submission to Congress, the Justice Department reported that “72 percent of the inmates housed in the BOP contract facilities are low security, sentenced criminal aliens.” This does not mean that almost three-quarters of people held in private federal prisons are convicted immigration offenders. Instead, the Justice Department’s figure refers to the number of people who are not U.S. citizens who have been convicted for any crime: almost three quarters of the people held in private prisons are not U.S. citizens who have been convicted of some federal crime.
Indeed, the BOP runs a network of prisons reserved exclusively for people who are not U.S. citizens. These “criminal alien requirement” facilities house non-U.S. citizens regardless of their offense of conviction. According to BOP statistics obtained by Emma Kaufman, 32 percent of prisoners held in criminal alien requirement (CAR) facilities were convicted of an immigration offense. This is a confusing train, I know, but it likely means that there are a few thousand immigration offenders every year held in private facilities under contract with BOP.
Aside from the number of offenders, what is perhaps more meaningful about ending the BOP’s reliance on private facilities is the treatment immigration offenders will receive while locked up. Currently, CAR facilities provide more limited programming than what is available at other federal prisons. Inmates at these facilities are simply excluded from the paltry rehabilitative and educational programming available at typical BOP prisons. As one prison official told journalist Seth Freed Wessler in 2016, “In regular BOP prisons, mental-health treatment is part of the mission, because rehabilitation is part of the mission…For criminal-alien prisons, it’s just, ‘Hold them.’” Though these exclusions apply to the individuals, moving immigration offenders out of private prisons could make it more difficult to manage these exclusionary practices.
Update: On February 16, 2021, GEO Group informed investors that its “contracts with the BOP may not be renewed over the coming years.” It also noted that future policy decisions by the Biden administration could affect the company’s ability to contract with the federal government, including ICE.