On August 18, 2016, Sally Quinn, Deputy Attorney General of the Department of Justice (DOJ), announced that the Department would end its use of private prisons. This is an important development, but it does not ban private prisons entirely. What does it mean and what is its relevance to Latin America, where countries like Mexico are just starting to privatize their prison systems?

The DOJ’s findings
The DOJ’s instruction is based on a study performed by the Department’s Office of the Inspector General, comparing 14 private with 14 public federal prisons in the U.S. That review, published in August of 2016, concluded that private prisons are not cheaper, nor do they provide better services—the arguments typically used to justify prison privatization. It moreover indicated that the Bureau of Prisons’ monitoring and supervision of private contract prisons had fallen short and it found worrying violations in private prisons, such as the use of isolation cells (euphemistically called “Special Housing Units”) to house prisoners when the general area of the prison was full.

In addition to this, the study found that although there were less drugs and less incidents of sexual misconduct, there were considerably more security incidents in private prisons: 9 times more (partial or full) lockdowns, 28% more inmate-oninmate assaults, and more than half more inmate-on-staff assaults. Moreover, 8 times more cellphones were confiscated—with which inmates could potentially continue their criminal activities from prison.

Limited scope, but still important
As a consequence of these findings, the DOJ instructed its employees to either decline the renewal of contracts with private prison corporations, “or substantially reduce [their] scope.” Nevertheless, this decision does not necessarily mean the end for private prisons in the United States. In fact, the DOJ’s decision only affects the 13 private prisons contracted by the Bureau of Prisons (BOP). Why is that?

In the first place, because the DOJ’s memo only binds its own institution. Private prisons contracted by the BOP house only 8% of the total U.S. prison population. The memo does not oblige state or local authorities to stop using private prisons, and DOJ’s decision does not impact another major user of private prisons: the Department of Homeland Security (DHS), which is in charge of detention centers for undocumented migrants. Some 62% of those beds are managed by private prison corporations, and DHS not seem to want to stop this practice: it recently signed a (questioned and questionable) one billion dollar, four-year contract with a prison corporation to detain Central American asylum seekers.

Secondly, private corporations will remain active in other areas in the criminal justice system. In the operation of halfway houses (that were explicitly exempted from the DOJ memo) and in probation services, for example.

Nevertheless, the DOJ’s decision to end its use of private prisons is important, both for its moral value and for the reasoning it used to arrive at its decision. That is, if the Department of Justice concluded after a thorough review that private prisons “simply do not provide the same level of correctional services, programs, and resources; they do not save substantially on costs; and (…) do not maintain the same level of safety and security” as public prisons, then how do the Department of Homeland Security and state and local government defend the continued use of private prisons?

Lessons for Latin American authorities
On top of this, the DOJ report identified a number of specific weaknesses and lessons learned. It would be highly advisable that Latin American authorities take heed.

First of all, the report identified numerous rights violations and security risks. Perhaps the report´s most important lesson is that it is essential that prisons are actively supervised and monitored—both public and private ones. In this regard, it is relevant to note that U.S. courts do not accept the ACA (American Corrections Association) certification as evidence that prisons comply with constitutional norms. This underscores the importance of active monitoring.

Secondly, transparency is of fundamental importance. One needs to be able to consult the contents of contracts signed with private corporations to verify whether the obligations undertaken are effectively met, as well as to supervise how funds are spent. These principles also apply to State-run prisons.

Lastly, there are a number of questions that Latin-American authorities who call for the privatization of prisons should answer. If after more than two decades of experience with privatized prisons in the United States, authorities have concluded that it is better to end this practice, is it wise to move forward with this elsewhere? Would public funds not be put to better use if they would be used to strengthen the State and its prison system, instead of financing corporate profits?