Elizabeth Warren Plans to Ban Private Prisons as President: Here Are 5 Things to Know

Karen Pulfer Focht/File Photo/Reuters

Among the dozens of plans Senator Elizabeth Warren (D-Mass.) has laid out as the foundation of her campaign is a plan to ban private prisons and detention centers.

This promise boils down to a foundational question: Should a company be allowed to profit off the imprisonment of American criminals? Warren’s answer is no.

While Warren paints the private prison industry as a switch that can be flipped on and off with little chaos, her plan fails to explain what it will look like when she flips that switch and outlaws private detention centers.

Here are five things to know about the debate on private prisons.

What are private prisons and detention centers?

The United States has the highest incarceration rate in the developed world. That high supply of inmates leads to a high demand for prisons. In the U.S., there are public prisons — meaning the prisons are run by the state and built using taxpayer dollars — and prisons owned and built by privately held companies.

Prisons were almost exclusively held by the public until the Reagan administration when the first contracts for private prisons were granted after the prison population ballooned following Richard Nixon’s “tough on crime” years in the peak of the “war on drugs.”

The majority of prisons in the U.S. are still publicly held facilities, but it varies by state. States like Montana and New Mexico have more than 30% of their prison populations in privately held detention centers while states like Washington and New York have no private prisons whatsoever.

Private prisons are still largely funded by taxpayer dollars, coming from federal and state governments. The federal government has several contracts for their privately held prisons, including the highly controversial facilities at the southern border.

These privately-held facilities are contracted by the government and funded by tax dollar-fueled stipends to carry out the housing of imprisoned people in the U.S. Private prisons are not exclusive to the United States, and prison privatization globally has trended upwards.

Beyond taxpayer funding, two of the largest private detention center companies — GEO Group and CoreCivic — are publicly traded on the New York Stock Exchange.

Are private prisons better or worse than government-owned prisons?

There are a lot of metrics from which someone can judge if private prisons are better or worse than publicly held prisons, but we’ll narrow it down to two: cost and quality.

The main argument for privatization of any government operation is that the free market can provide a cheaper, more efficient solution than the bureaucratic government — and that was Reagan’s case when the first private prisons were contracted.

Looking at the numbers today, it’s unclear that there is a major spending difference for the standard operation of a prison. In 2007, the Government Accountability Office reported that the Federal Bureau of Prisons was unable to find clear evidence that private prisons were cheaper to operate, though they typically maintain lower staff costs.

But as the center-left Brookings Institute points out, it’s difficult to compare costs between facilities because each prison could have different standards for the type of prisoner allowed. For example, some prisons cannot allow severely mentally-ill patients while others refuse costly maximum-security inmates.

This same point carries through to the other metric used to compare public and private prisons: quality.

There are plenty of examples of both public and private prisons housing inmates in subpar conditions and activist groups are able to cherry-pick examples of both facilities leaving inmates in unacceptable conditions.

For example, an inmate in San Quentin — a public prison in California — told the San Francisco Chronicle that he wished he could be sent back to a private prison where he had better food, a larger cell, and access to a game room with an Xbox.  But this same story can be flipped, as it was in a report by the New York Times.

Again, quality metrics such as recidivism rates, in-house violence, and staff-inmate violence varies based on the type of inmates allowed into the facilities.

In other words, there is no clear evidence that either private prisons or public prisons are better for inmates or for taxpayers as it seems to vary from facility to facility.

Why does Warren want to get rid of them?

Controversy has been present for private prisons since they were first developed, but the heat cranked up as Immigration and Customs Enforcement (ICE) began filling private facilities with migrant detainees.

While many Democrats have expressed concern over the situation, Warren, in typical fashion, was the candidate who put forward the clearest explanation as to why she found private prison usage problematic.

Warren highlighted what she sees to be the problem of “profiteering” off the criminal justice system, including high markups on health care, phone calls, and food — even though the examples of companies profiting take place in both public and private prisons.

Although she noted that her main problem with private prisons is that companies are “making money off incarcerated people,” the issue of immigration seems to be the driving force of this policy, as 73% of detained migrants are in private facilities contracted by ICE.

The senator noted that she would take action by ending “all contracts between the Bureau of Prisons, ICE, and the U.S. Marshals Service and private detention providers.”

Is Warren the only 2020 Democrat proposing a private prison ban?

Several Democrats support eliminating private prisons, including Senators Kamala Harris (D-Calif.), Bernie Sanders (I-Vt.), and Cory Booker (D-N.J.) and former Vice President Joe Biden.

Few candidates have offered plans as to how they would abolish private detention centers. Instead, they’ve just noted that they passively support such a measure.

Although many candidates support the elimination of private prisons, only Sanders offered legislation against prison privatization while serving in office.

In 2015, Sanders penned the “Justice Is Not For Sale Act,” which aimed to place several profit caps on prison functions. The bill, however, had no success and no co-sponsors, despite the fact that many of the 2020 candidates running to ban private prisons now, were serving in the Senate then.

What would happen if private prisons were outlawed today?

Although Warren touts her private prison proposal as a plan, she doesn’t actually explain how she would make the transition.

Right now, 8% of the U.S. prison population is in private facilities. Unless Warren plans to somehow change the sentences of inmates in those private detention centers, she’ll have to find a new place to put them — but that’s just for federal prisons.

She’ll also likely face pushback from the states. If a nationwide ban of private prisons took place, states would have to foot the bill to replace the outlawed facilities.

While Americans have never seen a nationwide ban on private prisons, there is one small-scale example of how the ban can backfire.

As IJR reported at the time, Denver’s city council banned privately-owned halfway houses in protest of the companies — CoreCivic and GEO Group — that operated facilities used by ICE.

Because of this decision, individuals who were reentering society via a halfway house faced being sent back to prison instead of continuing with their rehabilitation because the private facilities were banned.

Despite not having a plan, the council passed the measure. When they were hit with outcry from residents of the halfway houses, they were forced to crawl back to CoreCivic and GEO Group to come to a verbal agreement to keep six of the banned facilities open while they figure out what to do with the populations inside. The agreement between the three parties has no end date.

There are no guarantees that Warren’s ban would turn into the mess that Denver is seeing, but it does highlight the negative impact such a massive change can have on incarcerated people and their communities if it is not properly thought out.

What do you think?

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Zola Holt
Member

Lie-a-watha is not going to be President. Neither are any of the other private prison opponents. So don’t worry about it.

Phyllis Softa
Member

Madison, HOW does Warren plan to implement her “plan to ban”? EO? Congressional passage? Not sign renewal of their government contracts?

Phoenix
Member

Private prisons are only an issue because right now, their profits are soley based on keeping their prisons full. Add some financial incentives prisons to encourage inmates to focus on rejoining society as an upstanding member or something else actually beneficial.

If we want private prisons to change then giving them new requirements and incentives is the way to do it.

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