A Primer on Potential Plan to Ban U.S. Private Prisons

On September 17, Bernie Sanders, U.S. Senator and Independent candidate for President, introduced a bill to ban private prisons by 2018. It seems clear, in the wake of the Black Lives Matter movement and the police shootings that preceded it, that the 2016 presidential election will be one in which criminal justice and policing policies will be motivating factors for many voters, especially on the Democratic side. From a politics perspective, Sanders’ plan will help him stake out a claim on this issue separate from his main rival for the nomination, Hillary Clinton, who herself has promoted plans to reduce the country’s prison population. But how would this plan actually affect the U.S.’s prison population if enacted?

Firstly, the legislation, dubbed the Justice is Not for Sale Act, has three aspects that focus on prisons: 1) private companies will be barred from owning or operating federal, state or local correctional facilities; 2) the federal parole system abolished in 1984 will be reinstated; and 3) oversight on overcharging practices for inmate services like banking and telephone calls will be increased.

As other analysts have noted, Sanders’ plan won’t do much to lower overall incarceration rates given the small percentage of prisoners in private prisons in the U.S. It’s true that private prisons only house around 8% of the entire prison population in the U.S. However, this downplays the long-term movement to private prisons that is expected to deepen in the future as federal, state and local governments look for ways to strip costs off their books.

The modern American private prison system dates only to the 1980s, when governments faced with increasing costs and prison overcrowding due in part to the War on Drugs looked to private businesses that incorporated prison management into their preexisting suite of prison services (foodservice, transportation, medical services, etc.). The initial movement toward private management of prisons overwhelmingly occurred at the state level, but that has slowed over time given backlash against publicised controversies at private facilities. Still, the number of prisoners in private state facilities increased by 40% from 1999 to 2014 compared to just 10% growth of total state prisoners, though the percentage of prisoners in private state facilities has stabilised at around 6-7% of the full state population in the 10-year period to 2014.

This percentage obviously varies widely in each state, with 20 states having no private-operated prisons and another 11 having less than 5% of prisoners housed in private correctional facilities. The rest, including larger states like Texas, Florida, Ohio and Georgia, have a large and in many cases growing amount of inmates housed in private prisons. Eight states have more than 20% of their prison population in private facilities in 2014, while 13 have seen more than 50% increase in private populations in the 15-year period to 2014.

Additionally, federal prisons have generated strong private growth since the beginning of the 2000s, making it a very lucrative opportunity for private vendors. In 1999, less than 3% of federal prisoners were housed in private prisons. This percent has steadily increased this century, topping 19% in 2014. Though the federal government started privatising later (the first private federal prison contract was not until 1997), the number of federal prisoners in private facilities has increased 945% from 1999 to 2014, compared to a 56% increase of all federal prisoners over that time.

The movement in corrections is obviously in the direction of privatising, despite still being small compared to the country’s penal system in total. Regardless of the plan’s effect on the total number of prisoners, incarceration rates from around the country show how widespread this practice has become, which means that it won’t be easy or quick for federal regulators to transform. (Sanders has separately proposed a number of sentencing, rehabilitation and economic reforms that most likely would shrink the penal population in the U.S. anyway.)

As a result, this proposal is still significant, not just for criminal justice advocates, but also as it would represent the largest and fastest structural change in U.S. prison system history. It remains to be seen, for example, whether the proposal is limited to private management of prison facilities, or if it includes private services like cleaning or food preparation. Though the bill has little chance of passing (at least in the short term), look for this issue to crop up again regardless of who wins the White House in 2016 given the increasing movement behind prison reform.