The U.S. Marshals Service is using loopholes to renew private prison contracts despite a Biden administration executive order to stop the practice, internal documents show.
As part of an executive order issued in 2021 aimed at reforming the country’s incarceration system, President Joe Biden ordered the U.S. attorney general to “not renew Department of Justice contracts with privately operated criminal detention facilities.”
While a Department of Justice Office of Inspector General review published in March of 2023 found four instances where the U.S. Marshals Service was using workarounds to renew private prison contracts, a much larger list of exemptions and intergovernmental agreements shows the practices are much more widely used than previously reported.
The records were obtained through a records request by the ACLU in May and shared exclusively with The Arizona Republic.
The U.S. Marshals Service is responsible for housing more than 63,000 pre-trial detainees in federal custody.
A spreadsheet maintained by the U.S. Marshals Service shows the government is contracting with 48 private facilities with a population of more than 20,000 detainees — nearly a third of its total in-custody population.
The private detention facilities in question are located all over the country. One of the largest private facilities utilized by the U.S. Marshals Service is in Florence.
The contract renewal tactics affect four facilities in Arizona and 44 more across the country. Records show the population for all four Arizona facilities at the end of 2022 was around 3,700 detainees. Critics say private prisons contracted through third parties are less safe, provide less transparency and oversight, and could cost the federal government millions of dollars more than direct contracts.
ACLU Senior staff attorney Kyle Virgien sent a letter Monday morning to the U.S. Marshals Service, as well as the Office of the White House Counsel and the Justice Department's Office of the Deputy Attorney General, asking the government to stop the practice, and comply with the executive order.
“President Biden recognized that for profit, private prison corporations are harmful, and he issued an executive order publicly committing to ending all contracts with them in the federal criminal system,” Virgien told The Arizona Republic. “But his administration has been using secret loopholes to keep these detention centers open, and we see that as a significant problem.”
Virgien said he was only aware of seven contracts with private facilities that had ended since the executive order was signed.
The ACLU identified eight contracts that were renewed by requesting exemptions from the White House counsel’s office, and 40 instances where the U.S. Marshals Service used an intergovernmental agreement (IGA) to renew contracts with private prisons.
In a so-called “pass-through IGA” the Marshals Service signs an agreement with a local government, which, in turn, signs a contract with a private prison operator.
Aside from giving the Marshals Service less control over the contracts, and decreasing transparency, the Department of Justice's Office of the Inspector General found that using such agreements also led to much higher costs.
In Ohio, one intergovernmental agreement was found to increase the Marshals Service’s costs “potentially by as much as $6 million per year,” while giving the agency less direct oversight.
Costs to the Marshals Service "potentially increased by as much as $500,000 per month under the IGA compared to the contract cost, and there was no change in the department’s reliance on privately operated criminal detention facilities, which was the stated purpose of the executive order,” the Inspector General's Office found.
While the inspector general's report said the U.S. Marshals had received approval for the use of intergovernmental agreements to renew private prison contracts from the White House Counsel’s Office, the Justice Department said it could find no documentation of such an approval. The inspector general said it took the U.S. Marshals at their word on the approval.
Neither the U.S. Marshals Service nor the Office of the White House Counsel returned a request for comment Monday. A trade industry official, in an email on behalf of CoreCivic, which owns the Central Arizona Florence Correctional Complex, said only that the private prison industry has prohibitions against lobbying for lengthening incarceration.
According to the Marshals Service records, the Florence complex received an exemption in 2022. The contract is set to expire on Sept. 30.
In his executive order, President Biden cited safety concerns at private prisons found by the Justice Department's internal probe in 2016, saying “privately operated criminal detention facilities do not maintain the same levels of safety and security for people in the federal criminal justice system or for correctional staff.”
Arizona immigrant advocacy groups filed a complaint in 2022 alleging medical neglect and “inhumane” conditions for migrants in U.S. Immigration and Customs Enforcement detention, who are also detained at the facility in Florence.
The executive order does not pertain to Immigration and Customs Enforcement detention centers, but Virgien said they would be requesting the Biden administration end private prison contracts with that agency as well.
Maintenance workers at the Florence prison went on strike in 2022 over wages and safety concerns.
Three other facilities contracts in Arizona were renewed through intergovernmental agreements: La Palma Correctional Center in Eloy, Red Rock Correctional Center in Eloy, and San Luis Regional Detention and Support Center in San Luis.
The La Palma facility currently houses people in the custody of the federal government and has faced complaints for not properly protecting prisoners during the COVID-19 pandemic. A scathing report from the U.S. Department of Homeland Security's Office of Inspector General found immigrants detained at the La Palma Correctional Center in April 2020 held two peaceful protests inside a housing unit, complaining that staff was not providing adequate protective equipment to prevent the spread of COVID-19.
Ben Nemec is an attorney based in Las Vegas who represents people who are currently detained in the Nevada Southern Detention Center in Pahrump, Nevada.
He says the biggest struggle for his clients who are housed at the CoreCivic facility there in the custody of the U.S. Marshals Service is the lack of proper medical care.
"The process can take weeks," Nemec said. "My clients aren't getting heart medication. In some instances they're not even able to do necessary surgeries."
He said the facility also lacks any kind of meaningful programming.
"I think the private prison model encourages them to reduce costs, and not worry about rehabilitation," Nemec said.
Jonathan Mosz, one of Nemec's clients currently detained at Pahrump, said in a phone call from the facility on Monday that it takes more than an hour to get to and from his court dates in Las Vegas.
Mosz has been at the facility for more than a year, during which time he says his body has broken down from illness and lack of medical care.
"It's very dirty here," Mosz said. "They keep the temperature hot all day and cold at night. It's very weird conditions that they have us living in."
He said it was "disgusting" to think that company was making money off of his detention.
In addition to safety concerns, Virgien said the contracts with private prisons lead to a troubling lack of financial transparency. He said the Marshals Service refuses to disclose the rates it pays to private contractors.
In his letter to the Biden administration, Virgien also points to what he called a harmful profit motive.
“By paying for-profit prison companies, the Marshals Service provides support to an industry that lobbies for increased incarceration at a hefty cost to the public,” Virgien said, adding this thwarts the intent of Biden’s executive order.
The letter states that in 2022, the Marshals Service accounted for 22% of CoreCivic’s total revenue, and 16% of the total revenue of the Geo Group, another private prison operator. Virgien said the private prisons then use that money to lobby Congress on legislation that affects the federal prison population.
Alexandra Wilkes, a spokesperson for Day 1 Alliance, a trade association that represents private prison companies, including CoreCivic and Geo Group, said any notion that their member companies lobby for increased incarceration was "flat wrong."
"Our members have longstanding, clear policies against lobbying for or against policies, regulations, or legislation that impact the basis for or duration of an individual’s incarceration or detention," Wilkes said.
An investigation from The Arizona Republic found Arizona lawmakers invested more in private prisons after recent record-high campaign contributions.
The Marshals Service told the inspector general they have requested exemptions “because the available alternative arrangements presented logistical issues for the (Marshalls Service) and legal issues for the district court and counsel for the detainees.”
But Virgien said the Central Arizona complex in Florence serves four courthouses throughout Arizona, some of which are more than a three-hour drive from the facility.
“If the Marshals Service argues that the Florence facility is the most convenient place to house people, so they can be near their friends and families and lawyers, that argument just doesn't seem to hold water,” Virgien said, “because it's really quite far from the locations where many of them have their cases proceeding.”
The ACLU is asking the U.S. Marshals Service to find alternatives to incarceration if possible.
“People who can safely be housed in the community should be allowed to return to the community while their criminal cases are proceeding,” Virgien said. “And for those who the Marshals Service determined it must continue to detain, the Marshal Service should take steps identify facilities run by the government, where it can hold people closer to their families.”
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This article originally appeared on Arizona Republic: US Marshals renewing private prison contracts despite Biden order