Private Prison Companies Pursue Creative Workarounds to Biden Executive Order

Criminal justice reform advocates were pleasantly surprised when President Joe Biden issued an executive order shortly after taking office aiming to end the use of private detention facilities for those in federal criminal custody.

It had taken the Obama administration until the very end of its term to issue a similar edict, and Biden’s order seemingly went a step further — seeking to close not only private prisons, but also privately run jails that the federal government relies on to house its pretrial population. (Similar to President Barack Obama’s directive, however, private immigration detention was still exempted.)

“To have that not only be issued, but to have it come so early in the Biden administration, we saw that as a very hopeful sign,” said Bardis Vakili, an attorney with American Civil Liberties Union of San Diego and Imperial Counties, which has engaged in litigation over conditions at private federal jails in the area.

Biden’s executive order directed the Department of Justice not to renew any contracts with private operators once they expired, citing poor conditions in the facilities. While the Trump administration had quickly overturned Obama’s directive before a single facility closed down, several contracts for federal criminal detention facilities were near their expiration dates when Biden’s order went into effect.

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Some prisons and jails have closed as a result. The 1,878-bed Moshannon Valley Correctional Facility in Pennsylvania, operated by the private prison company GEO Group, saw those in its custody transferred to government-run facilities when its contract expired in March. (The GEO Group recently announced that the facility would soon house people detained by U.S. Immigration and Customs Enforcement.) Another GEO Group-run facility, a 220-bed jail in Queens, New York, also closed following the executive order.

But not every facility is closing when its contract expires.

Over the past several months, the GEO Group has pursued complicated maneuvers to keep the private facilities it operates open — citing the backing of the U.S. Marshals Service, part of the same executive branch that issued the order. In one such scheme, the GEO Group has proposed a huge payout to a small California city to subcontract with an embattled private jail 250 miles outside its jurisdiction.

49-year-old Luis Napoles has been in that jail.

Napoles and his family moved to the United States from Mexico when he was five months old. He was deported after a criminal conviction but returned to San Diego to be with his family, securing work at the Home Depot. It was at work that he was picked up by ICE agents in the summer of 2017 and booked into federal jail on illegal reentry charges. He was eventually transferred to the Western Region Detention Facility in downtown San Diego, a 770-bed private jail run by the GEO Group. Many of those held at the facility are there for immigration-related offenses. At the end of their sentences, which can range from six months to several years, they’ll most likely be deported.

Napoles described conditions at the jail as “disgusting.” Within a few weeks of being booked into the facility, he began experiencing severe pain along his underarm, where a growth had developed. When he went to the infirmary, he was given aspirin and an antibiotic and told not to touch the growth.

As the pain intensified over the next few days, he returned to the infirmary, sweating profusely. On August 27, 2017, after his blood pressure fell dangerously low, he was placed into a medically induced coma, where he would stay for the next two months.

Luis Napoles lies in a medically induced coma while hospitalized at Alvarado Hospital Medical Center in San Diego in August 2017.

He had contracted MRSA, a skin infection that eventually left him without feeling in his left foot. His right arm had to be fused to his chest after multiple surgeries to remove the skin-eating bacteria.

“I was in pain, I was asking for help, and I really needed them to help me,” he told The Intercept from Rosarito, Mexico. Though his criminal charges were dropped, Napoles was still deported this past summer. “If I had gotten treatment the first time I asked, they could have saved me. But they just didn’t care.”

In legal filings related to a civil case filed by Napoles, the GEO Group contended that it had properly cared for its detainees and that antibacterial solutions were widely available for use in the facility. The company did not respond to a request for comment from The Intercept.

Poor medical treatment was a main driver for the federal government’s move to end the use of private detention, with Biden’s order citing a 2016 Justice Department report that found disparate medical care between facilities run by private companies and the Bureau of Prisons.

“The goal is to build profit. It builds an automatic incentive to try to save money on medical costs.”

“When you have for-profit institutions like this, the goal is to build profit,” said Tim Scott, an attorney who has represented people detained at the Western Region Detention Facility. “It builds an automatic incentive to try to save money on medical costs.”

The contract between the Marshals and the GEO Group for the Western Region Detention Facility was set to expire on September 30. In the lead-up to that date, the GEO Group — along with local officials, labor groups representing federal contractors at the facility, and the chief judge of the Southern District of California — leaned on the Biden administration to grant the jail a temporary reprieve.

In a letter to the White House, Rep. Scott Peters, D-Calif., whose district includes portions of San Diego, asked Biden to narrow the executive order, writing, “I do not believe applying this order to U.S. Marshals’ facilities will serve to remedy the problems we face within our criminal justice system.”

According to Peters’s office, the chief judge of the District Court, Dana Sabraw, reached out to him directly about keeping the jail open, citing the need for defense attorneys to have easy access to their clients. The District Court did not respond to The Intercept’s request for comment.

At the same time that this pressure campaign was being mounted, the GEO Group was working to circumvent the executive order altogether.

Over the summer, the GEO Group approached the city of McFarland, California, with a proposal: The Central Valley city of 15,000 would contract with the Marshals Service to take up to 770 pretrial detainees. In turn, McFarland would subcontract with the GEO Group to house those detainees at the Western Region Detention Facility, more than 250 miles away. In return for acting as a pass-through for the private prison company, the city would bag $500,000 in administrative fees from the GEO Group — a boon for a city with a $22 million annual operating budget.

“Ultimately, this does have to get approved by the White House,” a GEO Group representative told the McFarland City Council on August 18. “But … the U.S. Marshals have run out of options, they do desire to keep the facility operational.”

To avoid violating the executive order, the Marshals would technically be contracting with a state entity. But that state entity would simply be a pass-through for the private jail operators. The McFarland City Council unanimously voted to pursue the arrangement.

These types of intergovernmental agreements are common and carried out with little scrutiny or oversight, says Lauren-Brooke Eisen, director of the Brennan Center’s Justice Program.

“There’s really no oversight of these agreements.”

“It is a creative contractual arrangement that we often see with these for-profit firms as a way to avoid complicated federal procurement regulations,” Eisen explained. “When we talk about reforming these detention facilities, there’s really no oversight of these agreements.”

The Marshals Service has already used an intergovernmental agreement to circumvent the executive order at least once. In May, the nation’s other private prison giant, CoreCivic, signed a new three-year contract with Mahoning County, Ohio, for 990 beds at the company’s Northeast Ohio Correctional Center. CoreCivic’s contract with the Marshals had just expired, but that was no matter — instead, the Marshals Service could send its detainees to Mahoning County, which in turn could hold them in CoreCivic’s private jail.

By the end of September, as the expiration of the contract between the Marshals and the GEO Group in San Diego approached, no pass-through deal with McFarland had yet been reached. Instead, the Marshals signed a six-month extension to their contract.

The Marshals did not respond to questions from The Intercept about whether the extension amounted to a violation of the executive order. In a statement, the agency said that it “is carefully examining its existing contracts with these facilities, mindful that any plans should avoid unnecessarily disrupting access to counsel, court appearances, and family support.” Neither the Justice Department nor the White House responded to requests for comment.

Meanwhile, since releasing the executive order, the White House has taken no further action to reduce the number of people in federal criminal detention. Without such efforts, it has proven difficult for the Marshals to comply with the order.

Illegal reentry, a nonviolent immigration charge, remains the No. 1 crime prosecuted by U.S. attorneys.

“The federal government has never created enough specific government-owned facilities for Marshals detainees,” explained the Brennan Center’s Eisen. “The Marshals were not shy about it when the executive order was announced, saying they would need to quickly make these workarounds happen to be compliant.”

In fact, the federal detention population has grown under Biden, and illegal reentry, a nonviolent immigration charge, remains the No. 1 crime prosecuted by U.S. attorneys, filling jails like the GEO Group’s Western Region Detention Facility. Many detainees at federal jails are also being held simply because they cannot pay exorbitant bail amounts.

“It’s no longer something that anyone can claim is being done secretly,” said the ACLU of San Diego’s Vakili, whose organization sent a letter to the White House raising alarm about the effort to circumvent the executive order. “The administration has a choice: Enforce its order and stand by its commitments to reducing incarceration or admit that it’s going to let the private prison operators reduce that order to meaningless words on paper.”

Luis Napoles still carries the scars of his time in private detention. His cousin has found him a job as a fry cook, where he’s able to sit down whenever his legs become too painful.

“I was happy when I heard about the executive order, because maybe it meant no one else was going to get sick like me,” he said. “I went through some serious crap that no one else needs to.”