U.S. Marshals Service Evades Biden Executive Order to End Contracts with Private Prisons, ACLU-Obtained Records Indicate

NEW YORK — The United States Marshals Service (USMS) is avoiding compliance with President Biden’s executive order requiring the Department of Justice (DOJ) to end contracts with private prisons, according to records obtained by the American Civil Liberties Union through a Freedom of Information Act request.

A letter sent to the U.S. Marshals Service by the ACLU National Prison Project details the findings and concerns.

A major goal of Executive Order 14006 is to reduce the number of people incarcerated in the federal criminal system, and it states unequivocally that “the Attorney General shall not renew Department of Justice contracts with privately operated criminal detention facilities” to achieve this purpose.

Yet, the U.S. Marshals Service — an agency under the DOJ — has defied this mandate through two mechanisms:

1. Requesting exemptions to renew its contracts with some private prisons. The process by which the U.S. Marshals Service requests these exemptions is not documented, not even for internal purposes.
2. Using pass-through intergovernmental agreements (known as pass-through IGAs) to essentially launder federal dollars, by paying local governments, which ultimately subcontract with private prisons, to detain people in USMS custody.

As a result of these two mechanisms, the U.S. Marshals Service is paying for-profit prison companies to operate 48 facilities that detain an average of nearly 21,000 people every day — a third of the people in U.S. Marshals Service custody.

“The for-profit prison industry’s bottom line requires more incarceration — and it comes at the expense of incarcerated people’s and correctional officers’ health, safety, and well-being,” said Kyle Virgien, senior staff attorney at the ACLU’s National Prison Project. “This federal agency’s apparent use of secret exemptions and subcontractor loopholes runs afoul of the Biden administration’s own commitment to end these private prison deals. Our tax dollars should not go into the pockets of for-profit companies that make their money from locking people up in abusive conditions.”

The ACLU letter calls on the U.S. Marshals Service to “plan for an orderly transition away from for profit prison companies and end its practice of using exemptions and IGAs to evade compliance with EO 14006.” The letter recommends taking steps to reduce the number of people in federal pretrial detention and finding alternative arrangements in government-run facilities to end the use of for-profit prison companies.

President Biden campaigned on a promise to end the federal use of private prisons. Executive Order 14006 backtracked on that, allowing the continued use of private facilities to detain immigrants — something the ACLU also opposes.