The Trump administration announced this week it will allow the federal Bureau of Prisons to continue contracting out prison services to private companies. Attorney General Jeff Sessions issued a memo rescinding an Obama administration memo that had directed the federal government to phase out and ultimately stop relying on private prisons. Sessions’ order says the earlier memo “changed long-standing policy and practice, and impaired the Bureau’s ability to meet the future needs of the federal correctional system.”
Former Deputy Attorney General Sally Yates signed the now obsolete memo, concluding “time has shown that [private prisons] compare poorly to our own Bureau facilities. They simply do not provide the same level of correctional services, programs, and resources; they do not save substantially on costs; and . . . they do not maintain the same level of safety and security.”
High costs associated with prison overcrowding in the 1990s led the federal government to turn to cheaper private companies to operate prisons and associated services such as prisoner transportation. The trend has met strong criticism, with opponents arguing that perverse profit incentives lead to poorer outcomes, and that declining incarceration rates obviated the need to turn to private companies. But opponents worry certain of Trump’s policies, including on criminal justice and immigration, may drive prison populations back up, positioning private prison companies to benefit.
With private prisons here to stay, the potential for fraud remains. For example, government contractors may expose themselves to False Claims Act liability if they fail to live up to their promises to maintain adequate staffing and appropriate resources, safety, and care
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