Several years ago, I was making a presentation to the student chapter of the American Constitution Society at the University of Michigan Law School. I concluded my remarks and the Q&A session on schedule so everyone could get to class on time. The law professor moderating the event wrapped with these remarks (paraphrasing), “Given that most people are in public prisons and that there are so many other pressing concerns in criminal justice, I don’t know that private prisons would make my top 20 list of priorities.” I had plenty to say in reply but the time was up. The professor taught me to tell audiences up front why prison privatization is our first priority.

It is true that about 8% of all people incarcerated in the USA are in private prisons and jails, but that number can be misleading. The numbers vary by state, and the national average includes 23 states that do not use private prisons at all. The numbers also can change very quickly. For example, the Arizona and Tennessee legislatures considered privatizing all their correctional facilities in years past.

Arizona incarcerates nearly 10,000 men in private prisons, or 27% of the state’s prison population. That does not include people sent to private prisons in Arizona by other states and federal agencies. New Mexico and Montana incarcerate roughly 40% of their inmates in private prisons. Texas, Tennessee, Georgia, Florida, Hawaii, Indiana, Vermont and Oklahoma are also high users of private prisons. When we began our work at APP, the federal government was incarcerating 18% of its prisoners in private prisons. That number has declined since President’s Biden’s Executive Order. However, 90% — yes, 90% — of ICE detainees are in private prisons, up from 45% when APP was first created.

Whatever the numbers are or will be, we challenge the constitutionality of prison privatization in courts because:

• We believe that taking away a person’s liberty in the most profound manner is government’s responsibility alone.

• Privatization treats incarcerated people as inter-changeable commodities, whose custody is bid at public auction (“procurement”) and whose mere presence in corporate prison cells generates shareholder profit. Indeed, the value of private prison stock is directly impacted by the number of people these private prisons detain.

• A profit-biased jailer has no incentive to ever release someone, and a jailer can dramatically affect someone’s release date.

• A small group of advocates can have a huge impact on this issue. Most corrections lawsuits require enormous resources and they concern the conditions in prisons and jails where the law is already settled. We are asking courts to apply the U.S. Constitution to circumstances to it has not yet been applied. In so doing we seek to ban the very existence of private for-profit prisons throughout the US.

• No one else is doing this work in the courts. Many advocates oppose prison privatization but not through court challenges. Abolish Private Prisons was created to do this work.

• Legislative and policy reforms are important, which is why we engage in policy reform as well. However, we recognize that legislative and policy reforms are much easier to change than constitutional court decisions. And we know that the private prison industry is politically powerful and plays a substantial role in opposing criminal justice reform. Note, for example, how swiftly the August 2016 decision of the US Department of Justice to end its private prison contracts was reversed when the new administration, friendly to private prisons, came to power in 2017.

• We believe that profit incentives to incarcerate and for longer periods, and to have people return to prison following their release, are cancers in our legal system that effect the quality of justice from top to bottom. These incentives infect the very making of our laws and law enforcement, as well as the abuse of prison labor.

• These cancers are metastasizing in the form of prison corporation subsidiaries that provide for-profit probation, parole, community corrections, electronic surveillance, collection of court fees and fines and more, all of which create huge economic incentives to involve and prolong people’s entanglement in the criminal justice system.

The Supreme Court’s landmark decision in Brown vs. Board of Education (1954) is one we keep in mind when we pursue litigation. Brown declared that forced racial segregation in public schools anywhere violated the Constitution. We hope our task will not be as hard as those faced by the plaintiffs in Brown. Unlike them, we are not challenging an institution with deep roots and we do not face existing, contrary U.S. Supreme Court precedent.


— John Dacey, Executive Director