President Biden Signs Executive Order To End the Use of Private For-Profit Prisons

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Philadelphia County Prison

In an important move that returns federal government policy to the Obama era, today President Biden signed an executive order calling on the Department of Justice to ends its use of private prisons.  While this executive order does not end federal government reliance on for-profit immigration detention centers, it does require that no future contracts with private prison operators be entered into between the federal government and private prison corporations CoreCivic, GEO Group and others.  Use of the executive order to end private for-profit prison reliance has proven difficult politically as Obama ended their use before the 2016 election, but once Trump entered the White House, he rescinded the policy and made robust use of private prisons for federal prisoners as well as immigration detention.

This executive order, while lauded as a positive step in addressing mass incarceration and systemic racism, will not permanently end its practice.  Legislation outlawing private prisons would be a more permanent solution.  Or, a judicial pronouncement that private for-profit incarceration is unconstitutional would effectively end the use of private prisons as well.  An Arizona 501(c)(3), Abolish Private Prisons, has filed a lawsuit in Arizona federal district court on behalf of inmates housed in private prison facilities, arguing that for-profit incarceration is unconstitutional under the 13th, 14th and 8th amendments as well as a violation of the non-delegation doctrine.  The lawsuit Nielsen v. Shinn is currently pending in Arizona federal court.  

The complaint filed by plaintiffs, together with the Government motion to dismiss, the plaintiff's motion in opposition and the Government's reply can all be viewed here.