President Biden's Order to Ban Private Prisons Faces a Persistent Internal Challenge: The U.S. Marshals Service
At the onset of President Biden’s term, in January 2021, he issued an to phase out the federal criminal system’s use of for-profit prisons. This was an important step toward stemming the flow of federal money to corporations that lock people up for profit. The executive order covered both the Federal Bureau of Prisons, which holds people convicted of crimes, and the U.S. Marshals Service, which holds people while they await trial or await transfer to a federal prison after sentencing. However, it left out the federal government’s , which are rife with abuse, unsanitary conditions, and overcrowding.
The Bureau of Prisons followed the executive order and has . The Marshals Service has not. An ACLU analysis of documents produced in response to a Freedom of Information Act request shows that, despite the executive order, the Marshals Service continues to hold nearly a third of its entire detention population in for-profit facilities, totaling 20,000 people. It does this by exploiting two loopholes it has created that undermine the purpose of the executive order: to end prison profiteering.
The ACLU's Letter to the United States Marshals Service Due to It's Failure to Comply with Executive Order 14006
Source: American Civil Liberties Union
First, the Marshals Service has obtained repeated waivers from the White House that allow it to ignore the executive order and keep five for-profit facilities open. The Marshals Service and White House have not publicized these waivers, and when internal government investigators asked for documentation of these waivers, they were
Second, the Marshals Service has determined that it can continue to pay corporations to operate detention facilities for profit, so long as it uses a city or county government as a middleman. Under this arrangement, known as a “pass-through” agreement, the Marshals Service pays a city or county government, which keeps a portion of the payment and passes along most of the payment to the corporation that runs the facility. An found that these agreements cost the Marshals Service more and provide less control and oversight over operations at its detention facilities.
America’s Pretrial System Is Broken. Here’s Our Vision to Fix It.
Source: American Civil Liberties Union
By using these two loopholes to keep funneling money to corporations that profit from incarceration, the Marshals Service perpetuates the harm that these corporations cause. In the words of : “Private prisons profiteer off federal prisoners and are proven to be, or found to be by the Department of Justice inspector general, less safe for correctional officers and prisoners.”
A has shown that as states turn more to for-profit prisons, their incarceration rates increase. This should come as no surprise: for-profit prison companies use the taxpayer money they receive to lobby extensively for increased incarceration. The two largest for-profit prison companies spent and lobbying the federal government alone, with more money going to state lobbying. This does not include the for-profit prison industry’s significant donations to political campaigns and PACs. , these two companies each spent a quarter million on President Trump’s 2017 inauguration festivities, and one donated $225,000 to a pro-Trump super PAC.
Congress has taken notice. Nine senators wrote a to “express deep concern that the [Marshals Service] appears to be circumventing President Biden’s Executive Order.”
There are a few concrete steps that the Biden administration and the Marshals Service can take now to address these problems and plan for an orderly transition away from for-profit prison companies. First and foremost, they should work together to divert people away from pre-trial detention in a way that protects community safety and ensures people show up for their trials. With fewer people to detain, the Marshals Service will have less need to pay for-profit facilities.
The Biden administration and Marshals Service should also work to find viable alternatives to for-profit facilities for those who remain in detention, where people can be held near their families, friends, and lawyers. People have a right to confer with their attorney regularly to prepare a defense, and numerous studies show that proximity to loved ones and support networks supports better outcomes when people are released from custody.
As they do this, they should be transparent. The Marshals Service should publish its plan to close the five for-profit prisons with which it continues to directly contract. It should develop a plan to stop using pass-through intergovernmental agreements and publish a plan to phase out these detention facilities as well. Spending taxpayer dollars to enrich private corporations and shareholders who run facilities with abusive practices, poor medical care, and unsanitary conditions is a policy that harms incarcerated individuals and creates unsafe working conditions for correctional officers. The Biden administration has called for an end to this policy, it is past time for the Marshals Service to listen.
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Press ReleaseDec 2024
Prisoners' Rights
Criminal Law Reform
ACLU Sues Bureau of Prisons for Keeping People in Prison Longer Than the Law AllowsACLU Sues Bureau of Prisons for Keeping People in Prison Longer Than the Law Allows
WASHINGTON – A federal lawsuit brought today by the American Civil Liberties Union, ACLU of D.C., and Jenner & Block LLP challenges the Federal Bureau of Prisons (BOP) for unlawfully incarcerating people longer than the law allows under the First Step Act. The lawsuit contends that the BOP’s failure to implement the First Step Act according to its plain language violates the rights of thousands of people who should be returning to their communities and rebuilding their lives but instead remain incarcerated. Signed into law in 2018 by then-President Donald Trump, the bipartisan First Step Act was designed to reduce the population in federal prisons, reform extreme sentencing laws, and provide programming and reentry transition services to people in prison. Central to the First Step Act is a system of earned time credits, which allows people in prison to earn time off their sentences and time out of prison by participating in rehabilitation programs. Through the First Step Act, Congress unambiguously ordered BOP to move people out of prison when they meet certain requirements to use their earned time credits. Instead of faithfully following the mandatory law, BOP adopted a regulation treating the law as optional. As a result, thousands of people, who should already be back in their communities and with their families, remain in prison. “Every extra unlawful day our clients spend in prison is a serious injustice,” said Emma Andersson, deputy director of the Criminal Law Reform Project at the ACLU. “It is egregious that the Bureau of Prisons is imprisoning people for months longer than the law allows. The government must follow through on its legal obligation to get people out of prison on time and back into their communities, where they belong.” Additional comments below from: Vanessa Crowe, plaintiff: “Time is what I owed for my wrongdoing, and I have paid my time. But I should not have to spend more time in prison than the law allows. I often reflect on what I will miss during the months after when I should be out of prison. I will miss work and lose out on wages that would help me get back on my feet. I could be a tax paying citizen instead of a burden on society. But most of all, I will miss more precious time with my family. My family and I are ready to tum the page on this period in our lives — we are all ready to start a new life, a life with purpose, hope, and healing together. I want to start that life when I am legally entitled to start it-not five months later.” Arthur Spitzer, senior counsel at ACLU of D.C.: “There’s no excuse for the Bureau of Prisons to pretend not to understand Congress’s clear command that people who have earned the right to early release must be released. This law has been on the books for six years. The Bureau of Prisons has had plenty of time to understand it. Law enforcers should obey the law.” Betsy Henthorne, partner at Jenner & Block: “It has been six years since the First Step Act was signed, but despite Congress’s clear directives, the Bureau of Prisons continues to hold thousands of people in prison longer than the law allows. We should and do expect better—it’s past time for the BOP to ensure that those who have earned their release are able to return home to their families and communities according to the law Congress passed.” -
Maryland Supreme CourtDec 2024
Criminal Law Reform
Roland Branch v. State of MarylandRoland Branch v. State of Maryland
This petition to the Supreme Court of Maryland asked the court to reconsider its adherence to Whren v. U.S., 517 U.S. 806 (1996), which declared that a traffic stop undertaken for pretextual reasons does not violate the Fourth Amendment to the U.S. Constitution so long as the police have probable cause to believe that a traffic violation occurred. The ACLU, alongside the ACLU of Maryland, filed an amicus brief in support of the defendant’s petition, in which the ACLU argued that the court should take up the question of whether pretextual stops violate the Maryland Constitution. In September 2024, the Court denied the petition. -
North Carolina Supreme CourtDec 2024
Criminal Law Reform
State v. WrightState v. Wright
This case in the North Carolina Supreme Court involves the question of whether the police violated the U.S. Constitution when they searched the defendant, Mr. Wright’s, backpack even after he repeatedly said no to the search requests. The ACLU alongside the ACLU of North Carolina filed an amicus brief arguing that the search was unconstitutional because Mr. Wright’s eventual “consent” was the result of police coercion. Our brief urges the court to consider the totality of the circumstances that make one more susceptible to coercion, including race and poverty. -
News & CommentaryDec 2024
Criminal Law Reform
Disability Rights
Incarceration Should Not be a Death Sentence for Individuals Who Use OpioidsIncarceration Should Not be a Death Sentence for Individuals Who Use Opioids
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