Warren, Durbin, Markey, Lawmakers Urge Department of Justice, U.S. Marshals Service to End Use of Private Jails, Comply with President Biden's Executive Order
Letter
Dear Director Davis and Attorney General Garland:
We write to express continued concerns that the U.S. Marshals Service (USMS) appears to be
circumventing President Biden's Executive Order (EO) 14006, which seeks to "phas[e] out the
Federal Government's reliance on privately operated criminal detention facilities."Despite President Biden's order that "the Attorney General shall not renew Department of Justice
contracts" with private facilities,USMS continues to house roughly one third of its detainees in
these facilities. It does so by using local governments as middlemen to contract with private
operators indirectly and by receiving waivers from the White House to continue private contracts
directly.These arrangements undermine the intent of the EO. We urge USMS to come into
compliance with both the letter and spirit of Executive Order 14006.
Within a week of his inauguration in 2021, President Biden issued Executive Order 14006
directing the Department of Justice (DOJ) -- including the Bureau of Prisons (BOP) and USMS
-- to "not renew Department of Justice contracts with privately operated criminal detention
facilities."The EO reasoned that such facilities feed into profit-based incentives to incarcerate,
and they underperform federal facilities in the safety and services provided to incarcerated
individuals.The BOP complied; it announced in December 2022 that it had ended all contracts
with private prison operators.However, DOJ has continued to rely on private facilities throughthe Marshals Service: USMS has leveraged workarounds to continue holding roughly 20,000 of
its 63,000 detainees in privately run facilities.
First, USMS accomplishes this workaround by forming intergovernmental agreements (IGAs)
with county governments; the counties in turn contract with the private detention operators on
USMS's behalf.The use of IGAs is standard for USMS, which does not operate its own
facilities.At the time Executive Order 14006 was issued, over half of USMS detainees were
housed under IGAs with state and local governments. However, over the past two years, USMS
has used IGAs as a means of circumventing the EO.
In December 2021, Senate Judiciary Committee Democrats sent a letter to DOJ highlighting the
policy and safety concerns associated with USMS continuing to contract with private prisons
through IGAs. In response to this letter, DOJ noted that, although USMS does not own or
operate any detention facilities, it is responsible for approximately 64,000 detainees and strives
to ensure that detainees in its custody are located as close as practicable to the federal court with
jurisdiction over their criminal case. At the time of its response, DOJ reported six active USMS
contracts with private prisons pending termination and 31 IGAs with state or local governments
that had contracted with private prisons. As of May 2022, 6,786 adults in USMS custody were
housed in private facilities through direct contracts and 14,860 were housed in private facilities
through IGA contracts.
In March 2023, DOJ's Office of the Inspector General (OIG) issued an audit further detailing
this practice, reinforcing earlier reports by media outlets and advocates. The audit focused on USMS's reliance on the private prison contractor CoreCivic to operate the Northeast Ohio
Correctional Center (NEOCC) in Mahoning County, Ohio. Leveraging a loophole within
President Biden's directive, USMS formed an IGA with the Mahoning County government that
allows USMS to use the "same contractor, to continue to house the detainees at the same
facility." According to USMS, the White House approved this arrangement. Based on OIG's
findings, this use of a pass-through agreement appears to be the worst of both worlds: detainees
remain in the same private facility, yet USMS pays more for the facility's operation and has even
less oversight of conditions at the facility.
Second, the White House has approved at least seven exceptions to Executive Order 14006 for
USMS to continue contracting directly with private prison operators. For example, USMS
considered using an IGA with the City of McFarland to house detainees at the privately operated
Western Region Detention Facility in San Diego. Instead, the White House Counsel's Office
issued a waiver for USMS to continue its contract with the private operator directly. The
Administration does not publish information regarding these exemptions.
As mentioned above, USMS has justified these decisions as preferable to the alternative of
relocating detainees to federal facilities located hours away from the judicial districts of
detainees' proceedings. USMS tries to ensure that every detainee is located within 50 miles of their applicable courthouse, in order to avoid straining transportation to courthouses and access
to counsel.This is an appropriate goal, and due to these logistical and due process concerns,
some Federal Defenders and judges have also opposed alternatives that would result in relocating
detainees to remote federally run facilities.
But for many in USMS custody, options exist beyond either remaining in privately run jails or
relocating hours away from their families and courts. Some of USMS's contracts are with private
facilities near major population centers where government-run alternatives exist. Others are
with private facilities so remote as to not satisfy USMS's convenience argument. And overall,
DOJ should pursue pretrial release whenever appropriate after considering any public safety or
flight risks, which would free space in government-run facilities. USMS should work with the
relevant offices at DOJ to expand the scope of cases in which U.S. Attorneys Offices decline to
request pretrial detention, and increase the funding it provides to the federal court system to
support alternatives to pretrial detention.
We are encouraged to see the White House's assurance that DOJ is "working toward full
compliance with the executive directive." And we applaud USMS's successful termination of
some of its private contracts. But we are concerned that, more than two years after the issuance
of Executive Order 14006, USMS has only ended private contracts for seven facilities holding
just three percent of the population in its custody, while continuing to hold a much larger share
of its detainees in private facilities. These contracts are lucrative for private prison corporations, the two largest of which receive around 20 percent of their revenue from USMS. This fuels the
"profit-based incentives to incarcerate" that President Biden's EO aims to address.
We urge USMS to swiftly come into full compliance with both the text and spirit of Executive
Order 14006. To help us understand the actions DOJ is taking to end its reliance on private
prison operators, we request your responses to the following questions no later than [DATE],
2024:
1. What steps is DOJ currently taking to ensure USMS's full compliance with Executive
Order 14006?
2. How is DOJ specifically addressing OIG's report about NEOCC?
3. Which USMS facilities are currently operated by private contractors? For each facility:
a. What is the contract end date?
b. On a daily average, how many beds were filled by USMS detainees during fiscal
year (FY) 2023?
c. What is the cost of the contract to USMS, including the total FY2023 cost, the
per-diem rate and any minimum guaranteed occupancy level?
d. What is USMS's plan for relocating detainees upon expiration of the contract?
What other facilities or release options are being considered?
e. Does USMS intend to form an IGA to continue housing detainees at the same
privately operated facility? If so, with which government entity?
f. If USMS plans to relocate detainees, what steps is USMS taking to ensure that
detainees will remain in reasonable proximity to their applicable courthouses?
4. Is DOJ exploring alternatives that would involve moving for, or consenting to, the release
of pretrial detainees who do not pose a public safety threat or a flight risk?
a. If not, why not?
b. If so, please describe what specific alternatives DOJ is exploring.
5. What, if any, criteria are used to determine if USMS will seek a waiver to continue
contracting with a private detention facility?
a. Will DOJ make these considerations -- as well as the specific considerations
evaluated in each instance in which a waiver was granted -- publicly available?
b. Which individuals are responsible for approving these waivers?
6. How many waivers have been provided to USMS to continue contracting with private
facilities? Please list all waivers, the date when they were issued, and explain the reason
they were provided.
7. Will USMS commit to publicly disclose any waivers to Executive Order 14006 that it
receives in the future?
a. If not, what is USMS's justification for not disclosing the waivers it receives?
8. What portion of USMS funding in FY2023 was allocated to the U.S. Courts for
Alternatives to Detention (ATD)?
a. What portion of USMS funding in FY24 is expected to be allocated to the courts
for Alternatives to Detention (ATD)?
9. Does USMS currently have any contracts with Immigration and Customs Enforcement
(ICE) to house any USMS detainees in ICE facilities?
a. If so, how many ICE facilities hold USMS detainees, and how many USMS
detainees are held in those facilities?
b. How many of those ICE facilities are privately operated?
10. Private vendors that provide critical services to incarcerated people, such as health care,
commissary, and telecommunications, raise some of the same carceral incentive concerns
as private prison facilities. Is DOJ taking steps to reduce its reliance on private vendors?
a. If not, why not?
b. If so, please describe any steps taken.
We look forward to your prompt response.
Sincerely,
Source