WOLA: Advocacy for Human Rights in the Americas

AP Photo/Kate Brumback

9 Sep 2016 | Commentary

Private Prisons: a Questionable Model across the Americas

In a major shift promoted by the Obama administration, the United States federal government is poised to end its use of private prisons, concluding that they are less secure and not cost effective. What does this shift mean for Latin America, where in recent years governments have been increasingly interested in prison privatization?

On August 18, the U.S. Department of Justice (DOJ) released a landmark memo instructing federal personnel to phase out their reliance on private prisons. The announcement was based on a report comparing 14 prisons operated by private companies and 14 prison facilities operated by the Federal Bureau of Prisons (BOP). The findings are staggering. Researchers found that private prisons had significantly higher incidents of violence than their government-operated counterparts. According to the report, private prisons saw nine times as many lockdowns due to emergency security situations, roughly 30 percent more incidents of inmates assaulting each other, and over 50 percent more incidents of assaults on prison staff. Private prisons also seized larger numbers of contraband like drugs, weapons, and cell phones. The report also identified major pitfalls in overseeing healthcare provision at private prisons, corroborating multiple press reports in recent years.

At the same time, these private prisons were found to be no more cost efficient than those run by the BOP. This element of the report is crucial, as it undermines a principal tenet of the drive to privatize prisons in the first place. Beginning in the 1980s, the private prison industry expanded rapidly with the promise that it could provide authorities with the same level of service as government-operated facilities, but at less cost. But the DOJ has concluded otherwise. In the August 18 memo, Deputy Attorney General Sally Yates asserted that private prisons “simply do not provide the same level of correctional services, programs, and resources; they do not save substantially on costs.”

In fact, the cost efficiency of private prisons in the United States has been put into question a number of times in recent years. Other studies have had similar findings. A 2011 study by the Arizona Department of Corrections found that public prisons were not significantly more expensive, and in some cases were as much as $1,600 cheaper per inmate per year than private facilities. A University of Utah analysis conducted in 2007 found that savings from private prisons were “not guaranteed and appear minimal.”

A Major Decision, But With Limitations

The August 18 DOJ memo concluded that the department should either refrain from renewing contracts with private prison operators when they expire, or “substantially reduce” their scope. This is a significant shift in federal policy, but as Stanford Law Fellow Mirte Postema has pointed out, its impact nationally is limited because it applies only to privately-operated prisons at the federal level, which currently number 13 and whose inmates account for only about 8 percent of the nation’s entire prison population. State and local governments are still free to use private facilities, and the DOJ directive does not apply to immigrant detention centers, which today account for the lion’s share of private prison contracts in the country and are granted through the Department of Homeland Security (DHS). Still, the DOJ report sends a signal to state authorities and DHS officials that they should also be questioning their reliance on the private sector to operate prison facilities.

Indeed, DHS Secretary Jeh Johnson has said that the department is reevaluating its use of private detention facilities in the wake of the DOJ report. As of 2014, 62 percent of immigration detention facilities were operated by private companies. As WOLA noted in a 2015 visit to the Texas-Mexico border, many private detention facilities in the area appear to face the same difficulties in addressing local realities as their public counterparts. Yet this has not appeared to impact the industry’s growth. In fact the largest prison corporation in the country, Corrections Corporation of America, recently signed a four-year, $1 billion contract with the Obama administration to build and operate migrant detention facilities along the U.S.-Mexico border.

Latin America Needs to Reassess

While the full impact of the U.S. government’s decision will be defined in the coming years in the United States, the rationales for ending federally-sanctioned private prisons should also serve as a red flag to governments in the hemisphere. Mexico, for instance, is currently experiencing a similar debate. In 2010, then-President Felipe Calderon announced plans to create public-private partnerships to build 12 prisons in states across the country, with a combined capacity of 32,500 inmates.

The move was justified as a cost-saving measure, but civil society and independent researchers in Mexico have questioned this logic. A new report published by seven Mexican human rights and transparency organizations documents serious transparency and regulatory concerns about private prisons in the country. This report also expressed concerns about the administrative and infrastructure focus of the standards promoted by the American Corrections Association (an international accrediting body for private prisons) which are supported with U.S. funding through the Merida Initiative, echoing some findings of the DOJ report.

Mexico is not alone in this trend. Over the last decade, the number of Latin American countries eyeing the use of private prisons has grown considerably. In July 2016, Peru passed a law authorizing private companies to operate and administer prisons in the country, while Chile, Brazil, Argentina, and Uruguay have all begun experimenting with partnering with private companies to run prisons.

The Way Forward

At first glance, these governments’ interest in privately-run prisons is understandable. Latin American prisons are among the most overcrowded on the planet. According to a 2014 report based on data from the Institute for Criminal Policy Research, four Latin American nations—Haiti at 416 percent over capacity, El Salvador at 320 percent, Venezuela at 270 percent, and Bolivia at 256 percent—are among the top ten most overpopulated prison systems in the world.

But private prisons are not the solution to the explosion of the incarcerated population in the Americas. As WOLA and our partners at the Research Consortium on Drugs and the Law (Colectivo de Estudios Drogas y Derecho, CEDD) have documented, addressing the prison crisis starts with more humane drug laws, and an end to punitive approaches to low-level, nonviolent offenders, and an emphasis on rehabilitation and reinsertion programs.

While the U.S. DOJ report is only a single step in the right direction, in many ways it is the product of a broader trend that has major implications for criminal justice and drug policy in the region. At long last, the United States is moving away from failed models of mass incarceration and prohibition, policies that it promoted for decades across the Americas. Now that the main backer of the “war on drugs” is shifting its approach, however, it’s time for the rest of the hemisphere to move away from being the main theater of this war and embrace policy alternatives as well.