Photographer: Joe Raedle/Getty Images

The Justice Department Used Shaky Statistics to Drop Private Prisons

The inspector general’s report is comparing apples with oranges. Even they say so.

The U.S. Department of Justice made headlines on Thursday by announcing it’s phasing out contracts with private prison companies. Shares of publicly traded incarceration firms Corrections Corp. of America and GEO Group plunged. Liberal prison-reform advocates applauded.

But there’s a problem: fundamental flaws in the main source of data on which the DOJ based its assessment—that privately operated prisons provide less safety and security than publicly run lockups. That source, an 80-page report released earlier this month by the agency’s own inspector general, compared 14 so-called contract prisons with an equal number of facilities run by the Federal Bureau of Prisons. The IG’s main conclusion: “… contract prisons incurred more safety and security incidents per capita than comparable BOP institutions.” Deputy U.S. Attorney General Sally Yates picked up on that “safety and security” language in her Aug. 18 memo instructing the bureau to wind down outstanding contracts with private prison operators.

Unfortunately, the inspector general compared apples with oranges.

Before delving deeper into this social science fruit bowl, here’s some context. The Bureau of Prisons began contracting with privately operated prison companies in 1997, at a time of soaring inmate populations. The number of federal inmates in contract prisons peaked in 2013 at almost 30,000, about 15 percent of the total incarcerated by the BOP. In part because of changing policies meant to reduce incarceration rates, inmate populations have been moving downward for three years. As of December, contract prisons housed fewer than 23,000 federal inmates, about 12 percent of the total federal population. (Federal inmates are only a small portion of the U.S. prison population of roughly 1.5 million, most of whom are held in state facilities—the policy change on contract prisons announced on Aug. 18 applied only to the federal system.)

Now that we have a rough sense of the universe we’re talking about, let’s get into the IG’s findings. Analyzing data from 2011 through 2014, the IG reached conclusions on contraband, reports of incidents of rule-breaking, lockdowns, inmate discipline, telephone monitoring, selected grievances, drug testing, and sexual misconduct. “With the exception of fewer incidents of positive drug tests and sexual misconduct, the contract prisons had more incidents per capita than the BOP institutions in all of the other categories of data we examined,” the IG concluded. “For example,” it continued, “the contract prisons confiscated eight times as many contraband cell phones annually on average as the BOP institutions. Contract prisons also had higher rates of assault, both by inmates on other inmates and inmates on staff.”

Sounds like a pretty airtight case against private prisons, right? Not really.

The IG report didn’t control for critical variables such as the makeup of prison populations and facility locations. Many contract prison populations are dominated by criminal aliens serving sentences before they’re deported, often back to Mexico or Central America. Those facilities are more difficult to manage and more prone to violence because of the entrenched presence of gangs based in Latin American nations. The populations in BOP-run prisons tend to be more heterogeneous and, if not easy to keep in line, certainly easier to manage than populations characterized by foreign gang rivalries.

“The inspector general makes a naked comparison of public and private prisons with no effort to control for important variables such as inmate demographics,” says Sasha Volokh, an associate professor at Emory University School of Law in Atlanta. Volokh has spent years researching comparisons of public and private prisons. Generally, he says, such studies suffer from flaws similar to those undermining the IG, making it difficult to discern definitively which approach to incarceration is more effective, public or private.

Consider contraband cell phone confiscation. What does the higher rate of takeaways in contract prisons show? It might show that there are more illicit phones in private prisons, says Volokh. Or it might show that private prisons have tougher, more effective policies about finding and confiscating banned phones. “You can’t tell unless you control for the policies being enforced, and the inspector general didn’t do that.”

To its credit, the IG did acknowledge in passing that the report was flawed: “We note that we were unable to evaluate all of the factors that contributed to the underlying data, including the effect of inmate demographics and facility locations.” OK, but that concession would seem to disqualify the IG report as the basis for a major policy decision. Instead the Justice Department, apparently ignoring the IG’s elephantine qualification, ran with the shaky results.

There are reasons the Justice Department—and society at large—might want to pare back the private prison experiment of recent decades. One might argue that contract prisons, if they are less expensive to run, facilitated the vast increase in incarceration rates that occurred from the 1980s through just a few years ago. If the U.S. put too many people behind bars, maybe ending private prison contracts will accelerate the reduction in prison populations.

But if we’re going to rely on numbers to suggest that private prisons are worse than their public counterparts, we should make sure the numbers are sound and meaningful.

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