As we recently argued in The Tennessean, the Department of Justice’s (DOJ) decision to end the use of private prisons for select federal facilities is a first step towards reforming the industry. However, DOJ’s announcement will have only a limited impact. Only 13 federal Bureau of Prisons facilities are affected, leaving the remaining privately run facilities, including other federal facilities for Immigration and Customs Enforcement (ICE) and the United States Marshal’s Service (USMS), and state facilities, unaffected.
The problems in the industry are well documented. Both prisoners and correctional staff are at risk from understaffed and under-maintained facilities, which lack basic health care and suicide-prevention policies. The drive to change these conditions has traditionally come from civil rights lawsuits by prisoners. But there are other ways to create change in these facilities. Each private prison contract mandates certain actions by the prison company, including provisions regarding staffing levels, activities and resources, and safety and care. If the prison company purposefully does not provide the contractually mandated services, the company may be committing fraud and may be liable under the False Claims Act (FCA) or state-level equivalents. The FCA provides the means by which a well-placed whistleblower can come forward to tell the government about fraud. The FCA then provides for the recovery of treble damages if the government can prove a fraud occurred. To incentivize people to come forward, the FCA provides that if the government recovers lost funds based on the whistleblower’s information, the whistleblower gets a portion of the pot. Whistleblowers have the opportunity to help reform an industry in desperate need of change, and to help the individuals who are currently suffering in its grasp. Until the DOJ and states make a broader push to end the privatization of prisons, whistleblowers may be the best chance at reform.
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