President Biden’s executive order to cancel future contracts with privately-owned detention centers was met with mixed reactions last week. While many threw their hands in the air to celebrate the order, some politicians and social justice advocates expressed skepticism. They argued that the order only scratches the surface in addressing some of the more heinous issues that exist in the criminal justice system. One of which includes the heavily criticized practices of the U.S. Immigration and Customs Enforcement (ICE) under the Trump administration as well as existing racial disparities among incarcerated Blacks and overall issues with racial profiling in law enforcement. Blacks and Latinos represent only about 30% of the U.S. population, yet the two racial groups comprise almost 60% of the U.S. incarcerated population. According to the NAACP, Blacks are incarcerated at more than five times the rate of whites, and the imprisonment rate for Black women is double that of white women.
It’s no secret that the prison industry is booming and has grown by leaps and bounds over the past five decades. The NAACP reported that between 1980 and 2015, the number of incarcerated individuals rose from about 500,000 to over two million. Currently, three million people are incarcerated, which far outpaces the current population growth and crime. The prison industry’s rapid growth makes Biden’s order an even greater cause for celebration for many, and some argue that tackling privately owned prisons plays a significant role in prison reform and improving conditions for incarcerated individuals. In 2016, The Department of Justice’s Office of the Inspector General’s report revealed that private prisons “incurred more safety and security incidents per capita than comparable [public federal] institutions.” The DOJ also found that private prisons had more than double the rate of inmate-on-staff assaults and an almost 30% higher average rate of inmate-on-inmate assaults than federal public prisons.
According to the Bureau of Justice, in 2019, private prisons held approximately 88,500 state prisoners — 7% of the states’ total population, and about 27,400 federal prisoners were held in private prisons — 16% of the federal prison population. These numbers make up a relatively small portion of the incarcerated population, given that almost three million people are currently incarcerated in the U.S., most of which are Black.
President Biden’s executive order
That said, there seems to be some confusion over what President Biden’s order does and does not do. The executive order reads, “The Attorney General shall not renew Department of Justice contracts with privately operated criminal detention facilities, as consistent with applicable law.” In a Forbes article, the order is dissected so that everyday people can understand its aim and limits. Simply put, the order dictates that a total of 11 private prisons currently under contract by the DOJ will eventually close. Inevitably, Biden’s order also aims to dismantle the larger private prison industry overall.
However, the order does not touch on how government contracts with companies that run “immigrant detention centers and post-incarceration ‘services’ like transition housing and electronic monitoring” will be handled. The order will also not free any individual currently incarcerated in a privately-owned prison and only impacts a tiny segment of incarcerated individuals. Critics of the order argue that states will still be allowed to continue contracting with privately owned detention centers as they see fit and others have brought up the issue of time. To be clear, the order does not mandate that the DOJ cancel current contracts with privately owned prisons. The order indicates that the DOJ will not renew contracts with privately owned prisons. Details about the contracts have not yet been released. Arguably, some might be active for years before they are scheduled to be renewed, which signals that incarcerated individuals effected by the order might not feel its impact for quite some time. Also, the order will not necessarily reduce the staggering number of incarcerated individuals in the U.S. People currently housed in private prisons will be transported to non-private facilities.
The order also does not address larger issues related to prison reform, such as racial inequity and systemically racist policy that disproportionately impacts Blacks. Aside from the order’s apparent limits, it’s also vital to examine the complexity of the prison industrial complex, the justice system, and how both target Black Americans at alarmingly higher rates than their white peers. Let’s be clear; prison facilities aren’t the only contact Blacks have with the criminal justice system. The criminal justice system is comprised of three primary institutions: law enforcement, the courts, and corrections (e.g., prison and jails). These three institutions each have a role in processing a person’s case from its inception, through their trial, sentencing, and after corrections and release. All three institutions have been criticized for racially discriminatory practices toward Blacks individuals.
And, there’s more
Under the U.S. Constitution, the fourth amendment serves as the foundation of protections included in our Miranda Rights and forbids unreasonable search and seizure. Yet, a Black person is five times more likely to be stopped without just cause than a white person, and almost 70% of Black adults have felt targeted because of their race. Criticism over racially bias and flat out anti-Black racist practices in law-enforcement began long before the heart-wrenching death of George Floyd last summer. Activists and some lawmakers have been calling for police reform in training and recruitment with minimal improvement for decades. Yet, data on bias in policing remains limited. In 2019, the FBI released a report on discrimination in policing that only contained responses from less than half of U.S. law enforcement officers, which many argue leads to incidents of racial bias being grossly underestimated or even concealing discrimination in law enforcement altogether. But some say that we have all the information needed to get serious about police reform.
“We have enough evidence that tells us that action needs to be taken,” Justin Nix, a criminologist at the University of Nebraska Omaha said during an interview with Nix.com.
The courts have also received large-scale criticism for racially bias sentencing. One out of every three Black boys born today will be sentenced to prison compared to 1 out of 6 Latino boys and 1 out of 17 white boys. Despite Blacks making up only 5% of illicit drug users in the U.S., they represent over 30% of those arrested for drug-related charges. A National Survey on Drug Use and Health revealed that although Blacks and whites use drugs at similar rates, imprisonment rates for Black Americans for drug charges were almost six times that of whites in 2015.
Even more disheartening, Blacks are also more likely to be wrongly convicted of a crime they are innocent of than whites. As of 2016, of the almost 2,000 exonerations of individuals who were wrongfully accused of a crime, nearly half were Black. Blacks are also 22% more likely than whites to be convicted of a crime involving police misconduct that eventually leads to exoneration. Sadly, even children are not exempt from racially disproporitonate arrests, convictions, and sentencing. Although Black children only make up 14% of the population of children, they represent:
- 32% of children arrested.
- 42% of children who are detained.
- 52% of children whose cases are waived to criminal court.
The consequence of the justice system on Black Americans
Once incarcerated, Blacks continue to endure racist treatment by prison and jail staff. In many cases, they return to their communities more traumatized than when they first entered the justice system — making recidivism among Black incarcerated individuals higher than all other racial groups. Blacks have to overcome various challenges related to discrimination in the workforce and other forms of daily prejudice. Formerly incarcerated Blacks feel the brunt of these challenges even more so. There are almost 50,000 legal restrictions that impact people with arrest and conviction records that affect housing, educational opportunities, and employment – all of which also impact recidivism. Not to mention the severe psychological and emotional toll that incarceration and exposure to racism can cause.
Families and the Black community overall also feel the effects of incarceration. Research suggests that children whose parents are incarcerated often experience antisocial behavior, economic hardship, psychological and emotional strain, suspension or expulsion from school, and are more than five times more likely to become involved in illegal activities themselves. Partners of those involved with incarcerated individuals are also more likely to experience economic hardship and depression. Mass incarceration has been associated with early death and an increased risk of disease, smoking cigarettes, and tobacco use. According to the NAACP, “more than one out of every six black men who today should be between 25 and 54 years old have disappeared from daily life. Incarceration and early deaths are the main drivers behind their absence.”
Some critics have called for the Biden administration to also push legislation for other initiatives focused on more extensive efforts toward reform in policing and the justice system overall. Attorney, pollical commentator and politician Bakari Sellers recently offered one such criticism.
“If you’re willing to cancel future contracts to build private prisons but aren’t willing to push for legislation like the Breathe Act or have the deeper immigration criminalization convo, then we still need to unpack what racial justice means.” Sellers tweeted.
The Breathe Act, for example, is described as a “visionary bill” aimed to “divest our taxpayer dollars from brutal and discriminatory policing and invest in a new vision of public safety – a vision that answers the call to defund the police and allows all communities to finally breathe free.”
Although not renewing contracts with privately owned prisons is a promising first step toward criminal justice reform, it’s one of many critical steps needed to be made. Not only do changes need to be made to policing, prosecution, sentencing, and jailing practices, but some argue that changes are also necessary for how tax dollars are being used to fund the prison industrial complex. Furthermore, that tax dollars should be reallocated toward new approaches that are not steeped in inherently anti-Black racist and discriminatory policy and are instead aimed at rehabilitation.