Loopholes and Bureaucracy: Navigating the Private Prison Ban
Three years after a ban, workarounds keep private prisons alive.
In January 2021, the Biden administration took a significant step toward criminal justice reform by issuing Executive Order 14006. The directive was clear: the Department of Justice (DOJ) must phase out its reliance on privately operated criminal detention facilities. The move was widely celebrated by civil rights advocates as a crucial blow to the profit-driven incarceration model. While the Federal Bureau of Prisons (BOP) successfully severed its direct ties with these corporations, a massive internal challenge persists. The United States Marshals Service (USMS), which is responsible for holding federal pretrial detainees, has managed to bypass the spirit of the mandate through a complex web of bureaucratic workarounds and indirect contracts.
Three years later, the ban on private prisons at the federal level is far from absolute. Through the use of “pass-through” intergovernmental agreements (IGAs) and specialized waivers, thousands of federal detainees remain housed in facilities operated by private corporations. This reality raises pressing questions about executive authority, the power of private prison lobbyists, and the fundamental rights of individuals held in pretrial detention. To understand why this mandate has faced such severe headwinds, it is necessary to examine the mechanisms the USMS uses, the findings of independent watchdogs, and the ongoing pushback from legislators and advocates.
Understanding the Mandate: Executive Order 14006
The foundation of this policy shift is Executive Order 14006, signed on January 26, 2021. The order explicitly directed the Attorney General to not renew DOJ contracts with privately operated criminal detention facilities. The rationale was deeply rooted in reports regarding safety, security, and human rights. A seminal 2016 report by the DOJ’s Office of the Inspector General (OIG) highlighted that private prisons underperformed federal facilities across multiple metrics, including security incidents, contraband, and lockdowns. Furthermore, critics have long argued that the profit motive inherent in private incarceration creates perverse incentives. When a corporation’s fiduciary duty is to its shareholders, cost-cutting measures inevitably impact the quality of food, medical care, staffing, and rehabilitative programming provided to incarcerated individuals.
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The executive order was framed not just as a cost-benefit analysis, but as a moral imperative. It aimed to ensure that the federal government was not participating in a system that commercializes human detention. However, the language of the order specifically targeted “direct” contracts with private operators, a technicality that would later become a significant avenue for non-compliance.
The Diverging Paths: Bureau of Prisons vs. U.S. Marshals Service
Following the executive order, the two primary custodial agencies within the DOJ—the Federal Bureau of Prisons and the U.S. Marshals Service—took vastly different paths. The BOP, which houses individuals who have already been convicted and sentenced for federal crimes, aggressively implemented the directive. By late 2022, the BOP had successfully concluded all of its contracts with privately managed prisons, transferring individuals to federally run facilities or alternative programs. Because the BOP manages long-term populations, it had the geographical flexibility to shift populations across its national network of institutions.
The U.S. Marshals Service, however, operates under entirely different logistical constraints. The USMS is tasked with holding roughly 60,000 individuals awaiting trial or sentencing. Because detainees must be accessible to their defense attorneys and the federal courthouses where their proceedings take place, the USMS cannot simply ship people across the country to fill empty federal beds. They rely heavily on local infrastructure. Historically, when local county jails lacked the capacity or the willingness to hold federal detainees, the USMS contracted directly with private prison companies operating in the region.
While the logistical challenges faced by the USMS are genuinely complex, watchdog organizations and lawmakers argue that they do not excuse the agency from its obligation to comply with presidential directives. Instead of developing long-term strategies to build federal capacity or incentivize local public facilities, the USMS has leaned heavily on loopholes to maintain the status quo.
The Pass-Through Loophole: Intergovernmental Agreements (IGAs)
The most prominent method the USMS has used to circumvent Executive Order 14006 is the Intergovernmental Agreement, or IGA. Traditionally, an IGA is a contract between the federal government and a state or local government entity (like a county or municipality) to rent jail space for federal detainees. However, the USMS has increasingly weaponized IGAs to maintain relationships with private prison operators.
Here is how the workaround functions: Instead of signing a direct contract with a private corporation like CoreCivic or the GEO Group, the USMS signs an IGA with a local county government. The county government, acting merely as a middleman, then subcontracts the actual detention operations to the private prison company. The federal funds pass through the local government’s accounts and end up in the coffers of the private corporation. Because the USMS contract is technically with the municipality, the agency claims it is not violating the executive order banning direct contracts with private operators.
This pass-through mechanism entirely subverts the intention of the executive order. The same private corporations continue to profit from federal detention, the same facilities are utilized, and the detainees experience the same conditions that the Biden administration sought to eliminate.
Financial and Oversight Repercussions
The pivot from direct private contracts to pass-through IGAs has created a myriad of unintended, negative consequences, particularly regarding taxpayer costs and federal oversight. In March 2023, the DOJ Office of the Inspector General released a critical review analyzing the USMS’s implementation of the executive order. The report specifically examined a situation at the Northeast Ohio Correctional Center (NEOCC). When the direct contract for NEOCC expired, the USMS replaced it with an IGA to keep the facility operational through a local government proxy.
The OIG found that this administrative maneuver actually increased costs for the federal government. The newly structured IGA arrangement was projected to cost taxpayers up to $6 million more per year than the previous direct contract. In a system already burdened by massive expenditures, paying a premium simply to bypass an executive order is a glaring misuse of funds.
Beyond the financial toll, the use of middlemen severely dilutes federal oversight. When the USMS contracts directly with a private prison, it retains direct leverage to enforce federal detention standards, conduct audits, and mandate corrective actions if safety violations occur. Under an IGA, the USMS is removed from the operational relationship. If medical care is neglected or security standards fail, the federal government must navigate through the local municipal bureaucracy to enact changes, leading to slower response times and diminished accountability.
Direct Waivers and Legislative Pushback
In instances where an IGA is not feasible, the USMS has pursued a different avenue: asking for direct exemptions. Documents and public reporting reveal that the White House Counsel’s Office has granted several waivers allowing the USMS to temporarily extend or renew direct contracts with private detention facilities. The justification is almost always a lack of viable alternative housing options in the immediate judicial district.
This reliance on exemptions has sparked intense pushback from lawmakers who championed the original executive order. In December 2023, a coalition of prominent U.S. Senators—including Elizabeth Warren, Dick Durbin, and Ed Markey—sent a strongly worded letter to Attorney General Merrick Garland and USMS Director Ronald L. Davis. The legislators expressed “deep concern” that the Marshals Service was blatantly circumventing the president’s mandate. The letter highlighted that roughly one-third of USMS detainees were still being housed in privately operated facilities via these workarounds, fundamentally undermining the policy’s goal of removing the profit incentive from criminal incarceration.
Lawmakers and civil rights advocates argue that granting repeated waivers disincentivizes the USMS from finding permanent solutions. If the agency knows it can secure an exception by citing logistical difficulties at the eleventh hour, it lacks the motivation to proactively invest in non-profit or federally operated alternatives.
The Human Cost of Profit-Driven Detention
At the center of this bureaucratic tug-of-war are the individuals incarcerated within these facilities. The debate over direct contracts versus IGAs is not merely an administrative squabble; it has real, daily impacts on human lives. Pretrial detainees, the primary population managed by the USMS, are legally presumed innocent. They are awaiting their day in court, yet they are subjected to conditions that are frequently worse than those in post-conviction prisons.
Facilities operated by private entities have a well-documented history of prioritizing cost-cutting over comprehensive care. Staffing shortages are common, as private companies often pay less than public correctional departments, leading to high turnover and inexperienced personnel. This lack of adequate staffing translates to more frequent lockdowns, restricted access to defense attorneys, and delayed medical care. When the USMS continues to funnel detainees into these environments—whether directly or indirectly—it perpetuates a cycle of harm and denies individuals their basic constitutional protections.
The Path Forward: Ending Reliance on For-Profit Detention
For the Biden administration’s mandate to have true efficacy, the loopholes utilized by the U.S. Marshals Service must be closed. Ending the use of pass-through IGAs requires a multi-faceted approach, emphasizing transparency, long-term planning, and systemic reform.
- Comprehensive Transition Plans: The USMS must be mandated to publish a detailed, facility-by-facility transition plan outlining exactly how and when it will phase out all private detention relationships, including those facilitated by local governments.
- Federal Investment in Public Infrastructure: Where necessary, the federal government must invest in expanding the capacity of BOP facilities to safely and humanely house pretrial detainees closer to federal courthouses, reducing the dependency on private and local beds.
- Pretrial Reform: The most effective way to reduce reliance on private detention is to detain fewer people. The DOJ can support broader criminal justice reforms that expand alternatives to pretrial detention, such as community supervision programs, particularly for individuals who do not pose a flight risk or a danger to the public.
- Strengthened Executive Language: Future executive actions should explicitly close the IGA loophole by stating that federal funds cannot be used to pay private prison operators, directly or indirectly, through subcontracts with state or local entities.
If the executive branch is serious about ending the commercialization of justice, it cannot allow its own agencies to exploit administrative backdoors. True compliance requires the political will to enforce the ban universally, even when faced with logistical inconvenience.
Frequently Asked Questions (FAQs)
What is Executive Order 14006?
Executive Order 14006, signed by President Joe Biden in January 2021, directs the Department of Justice to decline to renew contracts with privately operated criminal detention facilities. The order aims to reduce profit-based incentives in the justice system and address safety and security deficiencies identified in private prisons.
Did the Bureau of Prisons comply with the order?
Yes. The Federal Bureau of Prisons (BOP), which houses convicted individuals serving federal sentences, successfully phased out all of its direct contracts with private prison operators by the end of 2022, transferring individuals to federally managed institutions.
Why does the U.S. Marshals Service still use private facilities?
The U.S. Marshals Service handles pretrial detainees who must remain close to federal courthouses and their defense attorneys. The agency argues that there is often a lack of federal or public municipal jail space in these specific geographic areas, making them reliant on existing private infrastructure to house detainees awaiting trial.
What is an Intergovernmental Agreement (IGA) in this context?
An IGA is a contract between the federal government and a state or local government. To bypass the ban on direct private contracts, the USMS signs an IGA with a county. That county then acts as a middleman, subcontracting the detention services to a private prison corporation, effectively allowing federal funds to still flow to the private industry.
Are private prisons really less safe than federal facilities?
According to multiple federal investigations, including a comprehensive 2016 report by the DOJ’s Office of the Inspector General, privately operated facilities experience higher rates of safety and security incidents. This includes higher instances of assaults, contraband smuggling, and unauthorized lockdowns compared to government-run facilities.
Conclusion
The struggle to implement Executive Order 14006 highlights the intense friction between progressive policy mandates and entrenched bureaucratic realities. While the initial issuance of the order signaled a monumental shift away from the monetization of criminal justice, the actions of the U.S. Marshals Service demonstrate that the private prison industry’s roots run deep. By relying on intergovernmental agreements and temporary waivers, the agency has managed to keep the doors of private detention centers open, often at a higher cost to taxpayers and a devastating cost to the individuals held inside. Until the federal government closes these structural loopholes and demands absolute compliance, the promise of eliminating profit from the federal prison system will remain fundamentally unfulfilled.
References
- Reforming Our Incarceration System To Eliminate the Use of Privately Operated Criminal Detention Facilities (Executive Order 14006) — Federal Register. 2021-01-29. https://www.federalregister.gov/documents/2021/01/29/2021-02070/reforming-our-incarceration-system-to-eliminate-the-use-of-privately-operated-criminal-detention
- Warren, Durbin, Markey, Lawmakers Urge Department of Justice, U.S. Marshals Service to End Use of Private Jails — Office of U.S. Senator Elizabeth Warren. 2023-12-20. https://www.warren.senate.gov/oversight/letters/warren-durbin-markey-lawmakers-urge-department-of-justice-us-marshals-service-to-end-use-of-private-jails-comply-with-president-bidens-executive-order
- Review of Concerns Raised Related to the United States Marshals Service’s Implementation of Executive Order 14006 — U.S. Department of Justice, Office of the Inspector General. 2023-03-14. https://oig.justice.gov/sites/default/files/reports/23-055.pdf
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