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Biden’s Private Prison Executive Order Doesn’t Undo Mass Incarceration

Biden’s executive order is like moving chairs on the deck of the Titanic — it doesn’t actually reduce incarceration.

Vice President Kamala Harris looks on as President Joe Biden signs executive orders related to his racial equity agenda in the State Dining Room of the White House on January 26, 2021, in Washington, D.C.

On January 26, 2021, President Joe Biden signed a series of executive orders in the name of advancing racial equity. One of the most high-profile orders resurrected an Obama-era policy to phase out the Department of Justice’s contracts with privately managed prisons. As a politician whose career has been marked by championing federal law and order policies, including but not limited to the 1994 Crime Bill, Biden has been challenged by anti-prison activists and advocates to account for his past actions and to use his executive powers to reduce the scope and power of the federal penal system. Although couched in the language of taking on mass incarceration, Biden’s private prison executive order fails to scale back incarceration or to confront racial state violence headon.

As has been widely noted, privately managed prisons are not the propellers of mass incarceration but as abolitionist scholar Ruth Wilson Gilmore explains, they serve as “parasites” on the system. Private prison companies showed up decades into the U.S.’s process of prison expansion and have always been a small slice of the U.S. prison system. And it has been public dollars and public laws that allow for privately run prisons to exist. The problem of private prisons is not that they are private but that they are prisons.

Biden’s executive order impacts a small segment of the current carceral state. His order not only applies exclusively to the federal Bureau of Prisons which makes up slightly more than 8 percent of the current U.S. penal population but just 9 percent of the people incarcerated under the Bureau of Prisons are held in a private prison. Rather than addressing the whole of the Bureau of Prisons under his purview, Biden’s order covers only 11 prisons, which incarcerate a total of 14,000 people.

In addition, immigration justice activists have rightfully called attention to Biden’s exclusion of the Department of Homeland Security, and therefore privately run immigration detention centers, from his order. In contrast to the small percentage of private prisons within the Bureau of Prisons, the majority of U.S. Immigration and Customs Enforcement (ICE) detention facilities are currently under private contracts. Yet there is no indication that the Biden administration will extend the executive order to the Department of Homeland Security, as the order is careful to only refer to “criminal” detention facilities in contrast to ICE’s “civil” detention facilities.

What’s more, such executive commitments have proven less than secure. Under Obama, after the Department of Justice pledged it would not renew such contracts unless they were substantially reduced in scope, the Department of Justice renewed two separate private prison contracts at close to the previous capacity agreements. Furthermore, following the election of Donald Trump, Obama’s executive order was thrown in the trash allowing for a host of other federal private prison contracts to be renewed.

Yet, even if ICE detention facilities were included and the order was air-tight, the fact remains that Biden’s executive order does nothing to reduce punitive power. Under this policy, not a single person will be released any earlier from jail or prison and the feds will not cut back on policing and prosecution. This executive order is simply an act of moving chairs around the deck of the Titanic. When a private prison contract runs out, imprisoned people will be transferred to a different federal prison where they will still be subject to inadequate medical care, sexualized state violence and concentrated premature death. While Biden contends that public prisons are more “safe and humane,” the problems that plague private prisons are mirrored in their public counterparts. As the pandemic has starkly demonstrated, no prison is a site of health or well-being.

Furthermore, Biden makes clear that this policy is grounded in the idea that people in prison deserve and need to be incarcerated. As his executive order states,We must ensure that our Nation’s incarceration and correctional systems are prioritizing rehabilitation and redemption…. However, privately operated criminal detention facilities consistently underperform Federal facilities with respect to correctional services, programs, and resources. We should ensure that time in prison prepares individuals for the next chapter of their lives.” Under this punitive framework, Biden locates the root of mass incarceration in individuals who need to be fixed rather than in white supremacy, capitalism, and the state’s widening net of criminalization and control.

Rather than taking a step toward dismantling mass incarceration, Biden’s private prison executive order shores up the legitimacy of the state to imprison people.

While it might be tempting to frame President Biden’s actions as a well-intentioned, if misguided, step toward ending mass incarceration, we must remember that as an architect of the U.S. prison boom, Biden is more than knowledgeable about the true levers of mass criminalization. Having spent his years as a senator drafting legislation that expanded police power, increased federal penalties, and financed public prison and jail expansion, it would be disingenuous to act as if he doesn’t know any better.

If Biden were serious about undoing carceral power, there are many things he could do. He could issue a moratorium on U.S. Marshals Service and ICE contracts with local jails and on the United States Department of Agriculture loan program, which finances jail expansion in the name of “community development,” and which together have been driving rural jail expansions at a breakneck pace. He could halt federal executions and commute the sentence of every person on federal death row. Biden could institute broad-based decarceration by ending pre-trial federal detention and giving clemency to most or all people incarcerated in federal prisons. He could push to defund and dismantle the Department of Homeland Security and Bureau of Prisons. He could end federal policing initiatives that target sex workers. And he could champion the repeal of the 1994 Crime Bill.

There are many avenues for Biden to take on mass incarceration. Targeting private prisons is not one of them.

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