BOP and Private Prisons: Minor Implications for Juvenile Justice (for Now)

When President Obama announced in August that the Bureau of Prisons (BOP) would move away from contracting with for-profit correctional companies, Youth Services Insider speculated that the actual prospect of that was entirely contingent on the next president. Hillary Clinton would 100 percent maintain, and perhaps expedite, that process. Donald Trump would 100 percent roll it back.

Attorney General Jeff Sessions affirmed that this week, reversing Obama’s policy and allowing BOP to maintain and forge new contracts with for-profit corrections agencies.

The announcement drew a sharp rebuke from the Philadelphia-based Juvenile Law Center, which has for decades pushed through litigation for juvenile justice reforms around the country. Its statement, in a series of tweets:

Juvenile Law Center denounces the move by AG Sessions yesterday to rescind the plan to cut federal use of private prisons. For-profit prisons make their money based on a headcount. This model is incredibly dangerous for society and for youth we serve.

Through our Luzerne lawsuit, we saw devastating outcomes when judges took kickbacks from private youth corrections facilities. By refusing to divest in federal use of for-profit prisons, AG Sessions is needlessly impairing vital criminal justice reform efforts.

This is the wrong move for our country and for the youth we serve.

To be sure, many states and counties lean heavily on private providers to detain and confine juvenile offenders. The BOP phase-out, though, was more of a positive sign than an actual achievement for the juvenile justice community.

The bureau does not incarcerate anyone under 18 in its facilities, and it has very few people under that age in its custody; usually two or three dozen. Most are from Washington, D.C., and BOP contracts with an area jail to hold them. That facility was managed by a private provider, but is now back in the city’s control. It is worth noting that since the election, several of the juvenile BOP inmates were transferred to other facilities in South Dakota and Texas.

BOP does contract with another private provider (Cornerstone Programs) to hold juveniles at its facility in Post, Texas. But in August, BOP spokesman Hugh Hurwitz told YSI that the facility was a “juvenile center,” not a prison, so the new policy would not apply.

As far as adult prisons: many of the juvenile inmates from D.C. end up at Rivers, a low-security prison in North Carolina. It was built in 2000 and is still managed by GEO Group, which even in the wake of the Obama policy said it expected a contract extension for the prison.

Rivers has had a number of problems, including violence, drug use and contraband. But someone who works with juvenile offenders in the federal system told YSI that several of the federally run prisons housing D.C. inmates are far worse than the for-profit operation at Rivers.

So for now, the reversal on this policy has little direct impact on juvenile offenders. But there is a way this could shift from symbolic to substantial.

Sessions, in his career as a U.S. Senator, has long supported the notion of handling juveniles accused of violent offenses in the criminal court system. In 1997, he introduced a bill that dangled millions in block grants for states that changed their laws to permit prosecutorial discretion to try certain juveniles, age 14 and up, as adults.

The federal government won’t house a juvenile with adults, but it will try them as adults. As attorney general, Sessions has immense power to effect policies and strategies that would increase the number of juveniles tried in criminal court.

There are two ways in which Justice Department policy could land more juveniles in for-profit facilities:

Change in BOP Policy on Juvenile Incarceration

As mentioned, BOP does not incarcerate juveniles in adult facilities. A course correction on this policy would of course be the most direct way in which more juveniles would be exposed to for-profit facilities.

It would not be easy to change. The BOP policy on juveniles is a matter of law that came in with the original passage of the Juvenile Justice and Delinquency Prevention Act in 1974. Through that law came the following piece of Title 18, U.S. Code 5039:

No juvenile committed, whether pursuant to an adjudication of delinquency or conviction for an offense, to the custody of the Attorney General may be placed or retained in an adult jail or correctional institution in which he has regular contact with adults incarcerated because they have been convicted of a crime or are awaiting trial on criminal charges.

So it would take an act of law to overturn BOP procedure on that matter. Theoretically, BOP could create wings or establish buildings at adult prisons to house juveniles, so long as they were kept separate from adults.

BOP spokesman Hugh Hurwitz said that is highly unlikely.

“We recognize that juveniles have very unique needs and challenges, so simply opening up a wing in an existing facility does not in itself get anywhere close to meeting those needs,” he said, in an e-mail to YSI. “We would need a significant investment in programs, training and resources that we do not have for a very small subset of our population.  So, while not specifically prohibited by law, it would be quite a challenge and investment to put in place.”

Shift in Prosecutorial Philosophy

It does not require a change in law for the Justice Department to be more or less aggressive in its pursuit of juveniles in connection with certain crimes. Four areas in which such a shift would manifest itself:

Washington, D.C.: Federal prosecutors can directly file juveniles into criminal court for certain offenses. They don’t have to file, though, which means that the number could go up under a more aggressive Justice Department.

Tribal lands: BOP currently contracts with several nonprofits to hold Native American juveniles.

Gang prosecutions: the Justice Department has wide discretion to pursue firearm, trafficking and RICO prosecutions against organized gangs.

“I’m worried about it,” said Marcy Mistrett, executive director of the Campaign for Youth Justice. “With Trump saying we should expand what counts as federal crimes, that’s worrisome.”

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