Wake Forest Law Review
19Jan

President Biden’s Executive Order 14006: A Positive but Likely Fleeting Attempt to Address the Injustice of Private Prisons

Categories: Current Issues Blog
Comments Off on President Biden’s Executive Order 14006: A Positive but Likely Fleeting Attempt to Address the Injustice of Private Prisons

By Gabby Korb

President Biden signed Executive Order 14006 banning the renewal of private prison contracts, stating that “[t]his is the first step to stop corporations from profiting off of the incarcerated—incarceration that is less humane and less safe, as the studies show.”[1]  Although this can be seen as a positive step in the fight against injustice in the criminal system, the impact of this executive order is likely more rhetorical than concrete.  The main issue with Executive Order 14006 is that it only focuses on renewal of “Department of Justice contracts with privately operated criminal detention facilities,”[2] which means it only targets federal prisons.  This leaves a massive loophole for immigration detention centers and state and county-run detention centers.  Additionally, because it is an Executive Order, the policy will likely end up as a fleeting attempt to tackle a major issue because it is subject to the whim of future administrations.  These issues beg the question of what the strongest long-term solution for ending the private-prison industry is.  I believe the answer to this question is a Supreme Court opinion ruling private prisons unconstitutional.  This blog post will briefly explore the injustice of private prisons, how Executive Order 14006 attempts and fails to solve these injustices, and potential avenues for finding private prisons unconstitutional.

The existence of private prisons poses major moral and economic issues that undermine American values.  First, studies have shown that inmates held in private prisons are subjected to longer stays because it increases profit for the corporations.[3]  Private-prison corporations themselves admit that “the demand for [their] facilities and services could be adversely affected by . . . leniency in conviction or parole standards and sentencing practices.”[4]  Second, private prisons are known for their atrocious conditions and untrained workers, which saves money and turns a higher profit.[5]  The two largest private-prison corporations, Core Civic and GEO Group, have combined revenues of $3.5 billion as of 2015.[6]  The business model of private prisons is to reap financial gain from keeping people imprisoned at the lowest cost possible.  Third, private prisons profit off exploiting minority communities.[7]  Private prisons gained traction in the 1980’s during the War on Drugs when federal prisons became overcrowded.[8]  It is now a well-known fact that the War on Drugs had a racially motivated and detrimental impact on minority populations that has persisted with the use of private prisons, and minorities continue to be overrepresented in private prisons.[9]  This all means “that people of color are more likely to be arrested, more likely to be convicted, more likely to be placed in a private prison, and less likely to receive parole.” [10]  The ethical, moral, business, and legal implications of allowing prisons to exist that are less safe, depend on racial discrimination, and profit off of keeping citizens in jail is deeply disturbing, and addressing these implications is vital to uphold the values of freedom and equality that American society holds dear.

Executive Order 14006 was issued by President Biden on January 26, 2021, to pursue the administration’s goal of decreasing incarceration levels.[11]  The Executive Order states that “to decrease incarceration levels, we must reduce profit-based incentives to incarcerate by phasing out the Federal Government’s reliance on privately operated criminal detention facilities.”[12]  However, this Executive Order is inadequate in pursuing this goal.  It is likely the executive order will be repealed with a change in who occupies the presidency as was previously seen when President Trump repealed a similar Executive Order put forth by the Obama administration. [13]  Additionally, Executive Order 14006 allows major loopholes that prevent the majority of private prisons from being shut down.  One avenue for private-prison corporations to sidestep the effects of the order is to contract with county or state governments and other federal agencies, and there is evidence that these prison corporations have been doing just that since Executive Order 14006 was signed. [14]

Perhaps the most troubling aspect of this executive order is that it fails to encompass Immigration and Customs Enforcement (ICE) detention centers.  Before the Executive Order was enacted, roughly 80 percent of ICE detention beds were owned or managed by private prison corporations.[15]  With the passage of Executive Order 14006, this number will likely increase because private prison facilities shut down by the Order will take on new life as immigration detention centers.[16]  This is evidenced by one large prison company’s financial statements to its shareholders stating that it was “actively marketing and repurposing” prisons that would be phased out by Executive Order 14006.[17]  Therefore, it is clear that Executive Order 14006 is not a solution to the private prison problem.

I believe the most effective way to end the private-prison industry must come from the Supreme Court.  As of now, the Supreme Court has not touched the private-prison industry, but there are a variety of legal arguments that could be used to find it unconstitutional.  First, prisons are likely unconstitutional under the private nondelegation doctrine.  The private nondelegation doctrine forbids core governmental functions from being delegated and prohibits legal enforcement power from being granted outside the government to private groups over which the executive branch does not exercise control.[18]  Imprisonment is a core governmental function because it is the most severe form of punishment that strips citizens of their most basic liberties.  Second, private prisons could be eliminated under substantive due process.  It is widely held that individuals have the fundamental right to bodily freedom, and so any government interference of this right must meet the strict scrutiny standard.[19]  Strict scrutiny requires that infringement of a fundamental right be supported by a compelling government interest, and the government interference must be narrowly tailored to achieving the government’s compelling interest.[20]  Private prisons are not the most narrowly tailored means of incarceration because the government is fully capable of providing and maintaining prisons without help from private companies whose goal is to profit off incarcerated citizens.

Finally, private prisons could be attacked under the Thirteenth Amendment, which is generally known for prohibiting slavery.  The Thirteenth Amendment further reads that “[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist”. [21]  On its face, this seems to allow slavery in the prison context.  However, the Thirteenth Amendment has been under-litigated in the past century, and a flurry of scholarship suggests that a modern interpretation of the amendment may allow for the termination of for-profit prisons.[22]  It is undeniable that minorities make up higher rates of the private-prison population.[23]  These prisoners are then subject to work in private facilities for longer periods of time where they make pennies per hour.[24]  These inmates serve longer sentences and make a pittance in wages in order for private prison corporations to be profitable.[25]  This violates the spirit of the thirteenth amendment, and a new and contemporary meaning of slavery could evolve with a present interpretation of the amendment.

The private prisons industry has countless negative effects that the federal government has acknowledged, but change has not been swift.  Executive Order 14006 is an act of acknowledgment, but it is unlikely to drive substantial change.  The private prison industry will continue to thrive unless the Court acts.  There are many strong legal paths that allow true change in the criminal justice system by abolishing the private-prison industry, including the nondelegation doctrine, due process, and the Thirteenth Amendment.  An Executive Order will never be enough to create permanent change in the private-prison system. That change will best be served by the Court system.

[1] Luke Bar, BOP Finalizes Moving Inmates from Private Prisons, ABC News ( Dec. 1, 2022, 4:25 OM),

https://abcnews.go.com/Politics/bop-finalizes-moving-inmates-private-prisons/story?id=94281403.

[2] Exec. Order No. 14,006, 86 Fed. Reg. 7483 (Jan. 26, 2021).

[3] Josh Sanburn, Privately-Run Prisons Hold Inmates Longer, Study Finds, TIME (June 19, 2015, 11:44 AM EDT), https://time.com/3928184/private-prisons-longer-incarceration/.

[4] Banking on Bondage: Private Prisons and Mass Incarceration, ACLU ( Nov. 2, 2011), https://www.aclu.org/banking-bondage-private-prisons-and-mass-incarceration.

[5]  ACLU, supra note 3.

[6]Kara Gotsch, Capitalizing on Mass Incarceration: U.S. Growth in Private Prisons, The Sentencing Project (Aug. 2, 2018), https://www.sentencingproject.org/reports/capitalizing-on-mass-incarceration-u-s-growth-in-private-prisons/.

[7] Rina Palta, Why For-Profit Prisons House More Inmates Of Color, NPR ( March 13, 2014 , 7:12 AM ET), https://www.npr.org/sections/codeswitch/2014/03/13/289000532/why-for-profit-prisons-house-more-inmates-of-color.  

[8] andre douglas pond cummings, “All Eyez on Me”: America’s War on Drugs and the Prison-Industrial Complex, 15 J. Gender Race & Just. 417 (2012).

[9] Mitchell Abood, The Evolution of Private Prison Incarceration in the United States, UMLR Insights (Jan. 31, 2021), https://lawreview.law.miami.edu/evolution-private-prison-incarceration-united-states/.

[10] Id.

[11] Exec. Order No. 14,006, 86 Fed. Reg. 7483 (Jan. 26, 2021).

[12] Id.

[13] Jim Tankersley & Annie Karni, Biden Moves to End Justice Contracts with Private Prisons, NY Times (Jan. 26, 2021), https://www.nytimes.com/2021/01/26/business/biden-private-prisons-justice-department.html.

[14] Lauren-Brooke Eisen, Breaking Down Biden’s Order to Eliminate DOJ Private Prison Contracts, Brennan Ctr. for Just. (Aug. 27,  2021), https://www.brennancenter.org/our-work/research-reports/breaking-down-bidens-order-eliminate-doj-private-prison-contracts.

[15] Id.

[16] Chris Geidner, A Year After Biden’s Executive Order on Private Prisons, Business Is Still Booming, Grid (Jan. 26, 2022), https://www.grid.news/story/politics/2022/01/26/a-year-after-bidens-executive-order-on-private-prisons-business-is-still-booming/.

[17] Id.

[18] Robert Craig & andre douglas pond cummings, Abolishing Private Prisons: A Constitutional and Moral Imperative, 49 U. Balt. L. Rev. 261, 282 (2020).

[19] Salil Dudani, Unconstitutional Incarceration: Applying Strict Scrutiny to Criminal Sentences, 129 Yale L.J. 2112 (2020).

[20] Russell W. Galloway, Jr., Basic Substantive Due Process Analysis, 26 U.S.F. L. REV. 625, 627 (1992).

[21] U.S. Const. amend. XIII, § 1.

[22] Craig & cummings, supra note 15.

[23] Mitchell Abood, The Evolution of Private Prison Incarceration in the United States, UMLR Insights (Jan. 31, 2021), https://lawreview.law.miami.edu/evolution-private-prison-incarceration-united-states/.

[24] Comparing Compensation: What Inmates in Private Prisons Would Otherwise Get Paid, Human Trafficking Search (Nov. 13, 2017), https://humantraffickingsearch.org/comparing-compensation-what-inmates-in-private-prisons-would-otherwise-get-paid/.

[25] Abood, supra note 9; Comparing Compensation, supra note 24.

Tags:
22Nov

Misplacement, Mistreatment and Abuse of Transgender Women in our City’s Jails

Categories: Current Issues Blog
Comments Off on Misplacement, Mistreatment and Abuse of Transgender Women in our City’s Jails

Free Illuminated Wall Lamp on a Concrete Wall Near Steel Bars Stock Photo

Julia Guarneri

In 2018, Alyssa Rodriguez was brought to Rikers Island (“Rikers”), New York City’s main jail complex, to be “held for pretrial detention”.[1] Although a transgender woman, she was placed in the all-male Anna M. Kross Center and housed in an open sleeping area with male detainees.[2] Corrections employees expressed confusion as to why she was being housed there.[3] Still, inmates and corrections officers subjected her to “relentless harassment,” culminating in a “male detainee sexually assault[ing] [her] in the shower.[4]

After being sent to Bellevue Hospital for her injuries, the Department of Correction sent her back to the same facility where she was attacked.[5] Unfortunately, “four days later she was sexually assault again in her holding cell.”[6] In the account of her experience submitted to the city’s Board of Correction, Rodrigeuz wrote that she “will never forget the loneliness, pain [and] destruction” the attacks caused her.[7] Unfortunately, Rodrigeuz passed away in the course of litigation “from unrelated health complications,” but the New York City government agreed to pay $1.4 million as part of a settlement agreement in early November.[8] 

In 2019, Layleen Polanco, another transgender woman, died from a seizure while being held in solitary confinement after corrections officers failed to check on her for forty-seven minutes.[9] She was placed “in punitive confinement for assaulting an officer,” despite having a pre-existing health condition that caused her to have seizures.[10] Corrections policy requires checks on prisoners in solitary confinement every fifteen minutes,[11] and, more importantly, requires “[a]nyone put into Rikers solitary units must first be cleared by medical staff.”[12] New York City settled with Polanco’s family for $5.9 million, “the largest settlement in the city’s history for a death in jail . . . .”[13]

Yet again, this past year, Latee Brockington was similarly placed at the Anna M. Cross Center.[14] Brockinton was on suicide side watch after becoming depressed because she was being housed in a men’s jail, even though she identified as female.[15] A “corrections officer let an inmate into her cell, who then choked her unconscious and sexually assaulted her.”[16] After this attack she was finally transferred to the women’s jail. [17] Despite this, six months later the Department sent her back to a men’s dormitory at the same center where she was sexually assaulted, “citing unspecified ‘security concerns.’”[18] “Only five days later Brockington was sexually assaulted for a second time by two inmates in the shower,” one of whom “threatened her with a knife.”[19] Brockington’s trauma doesn’t end there– just one week later, she was sexually assaulted in a holding pen. [20]

After each of the attacks, Brockington reported the incidents to the Correction Department, was taken to the hospital for a rape kit, and each time “semen was found.”[21] She explains in her suit against the city that she “was denied housing at the women’s jail when she arrived . . . because she was not on hormone replacement therapy, which she quickly started taking.” [22] Medical staffers “weren’t sure why [she] was moved back to the men’s lockup.” [23] Brockington “remains at the Anna M. Kross Center” and “lives in constant fear.” [24]

Rodrigeuz, Polanco and Brockington are not alone. They have become part of a “pattern by the city of failing to protect transgender people in its custody,” by refusing to place these individuals in appropriate housing and failing to follow the most basic policies to ensure their protection while under care of the Department of Corrections.[25] Transgender women are repeatedly placed in male detention centers despite numerous incidents of sexual assault, rules against it, and even confusion of some of corrections employees.[26] And New York City is not unique in its dismissal of the objections of the individuals and their lawyers. Reports have sprung up from all over the United States, resulting from transgender individuals not being placed in centers aligned with their gender.[27]

Law enforcement in New York City overall, as well as much of the country, has had trouble adjusting its culture to one that respects and acknowledges the transgender community.  It was only in 2021 that New York repealed the 1976 penal statute know as  the “walking while trans” ban, that was “aimed at prohibiting loitering for the purpose of prostitution, but which ultimately led to years of law enforcement discrimination against trans people of color.”[28] The law “allowed [officers] to ‘stop-and-frisk trans women of color and other marginalized groups for simply walking down the street,’” and officers were “trained to look for women with dams apples, big hands, and big feet” when patrolling.[29] More specifically, in relation to the Depart of Corrections, a report from this past summer from the Task Force on Issues Faced by Transgender Gender Non-Conforming, Non-Binary, and Intersex (“TGNCNBI”) People in Custody, among other things, found that the “ need for transformative culture change within the Department of Correction is evident” in regards to treatment of TGNCBI individuals.[30] In part this comes from lack of enforcement, accountability, and investigations into use of “unnecessary and excessive force.”[31] Further, it is evident that TGNCNBI people “encounter sexually aggressive violence in custody at very high rates.”[32] TGNCNBI people are also frequently verbally assaulted and harassed with slurs, are misgendered, and experience emotional and physical abuse from both corrections officers and inmates.[33] Depart of Corrections, Board of Corrections, and City Counsel had created “multiple committees, coalitions, and task forces dedicated to culture change. . . yet [the Department of Corrections] remains unable to create a culture that reflects the dignity and safety of all people in custody, in particular for the TGNCNBI population.”[34]

The violence and harassment that these women face in prison is not without remedy, and in fact there is a fairly simple one. In 1979, New York City took a big step towards protecting gay and transgender prisoners incarcerated in Rikers.[35] The city created a wing for gay men and transgender women to “quell the verbal and physical abuse those prisoners had endured.”[36] Deputy Warden Henry Bernsen made comments to a reporter in May of that year explaining these individuals were “the easiest inmates in th[e] institution to deal with.”[37] He also praised their behavior as “beautiful,” commenting that “[a]s far as [he’s] concerned, [he’d] take a whole prison full of homosexuals any day.”[38] Further, being placed in this wing was a fairly simple process. Officers simply asked whether they “wanted to be part of general population or to be segregated . . . and in turn, [those that wanted to be segregated] were brought before a committee.”[39] They would be “asked if [they] were out-and-out” gay or transgender, whether they wanted to be segregated, “and the reasons why.” [40] “[T]hose who wanted to be segergated were given a form to sign” and moved to the special wing.[41]

At the time the wing opened, Deputy Bersen expressed only concern that as word spread about the special wing, “phonies” would try to sneak their way in and harass those who actually deserved to be there.[42] However, as noted by Brockington’s lawyer, this is “ultimately not a very large percentage of the overall inmate population,”[43] making it an easily fixable problem as it can be easily regulated. Further, most members of this population have either experienced violence, assault and constant harassment or are living in fear waiting for it to happen to them,[44] supporting the idea that if there is a simple fix, it should be implemented. Yet, the city and many cities across the country have yet to effectively address the issue. In particular, after Rikers Island saw at least eighteen deaths in 2022 and a drastic increase in violence since the COVID-19 pandemic, it has been suggested that a federal receivership be implemented over the jail to enact reforms.[45] Even returning to the special segregated unit for gay and transgender inmates, would be a fairly simple plan to implement and, based on its success in the past, greatly reduce violence against this population.[46] The city needs to at least try to protect transgender women, and all TGNCNBI people under its care while in city jails. As so perfectly explained by Naomi Waters, “another transgender woman who spent time in a male facility earlier this year, . . . [a]t the end of the day, I’m still human, . . . It’s a God-given right, that I have [basic necessities and protection while] under [the city’s] care, and by law it says you have to provide these things.” [47]

[1] Andrew Denney, NYC Settles Suit Filed on Behalf of Transgender Woman Raped While Held in Male Jail on Rikers Island, ALM (Nov. 8, 2022), https://www.law.com/newyorklawjournal/2022/11/08/nyc-settles-suit-filed-on-behalf-of-transgender-woman-raped-while-held-in-all-male-jail-on-rikers-island/#:~:text=The%20New%20York%20City%20government,a%20facility%20for%20male%20detainees.

[2] Id. 

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Kate Sosin, New video reveals Layleen Polanco’s death at Rikers was preventable, family says, NBC News (June 13, 2022, 5:05 AM), https://www.nbcnews.com/feature/nbc-out/new-video-reveals-layleen-polanco-s-death-rikers-was-preventable-n1230951.

[10] Id.

[11] Id.

[12] Rosa Goldensohn and Reuven Blau, Layleen Polanco Died of Epileptic Seizure in Solitary, Autopsy Reveals, The City (Jul. 30, 2019), https://www.thecity.nyc/2019/7/30/21210880/layleen-polanco-died-of-epileptic-seizure-in-solitary-autopsy-reveals.

[13] Rosa Goldensohn, NYC to Pay Layleen Polanco’s Family Record $5.9M Over Rikers Island Solitary Death, The City (Aug. 30, 2020), https://www.thecity.nyc/2020/8/30/21407833/layleen-polancos-nyc-record-lawsuit-settlement-rikers-island-solitary-death#:~:text=Her%20case%20ultimately%20spurred%20Mayor,to%20solitary%20in%20city%20jails.&text=The%20family%20of%20Layleen%20Polanco,jail%2C%20THE%20CITY%20has%20learned. .

[14] Noah Goldberg, Transgender woman held at Rikers Island sexually assaulted in men’s jail three times: suit, Daily News (Feb. 6, 2022.), https://www.nydailynews.com/new-york/ny-transgender-rikers-island-inmate-sexually-assaulted-three-times-mens-jail-20220207-de36tmakqvhv5oxfp2vtv3ugbe-story.html. 

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Denny, supra note 1.

[26] See id.; Goldberg, supra note 14.

[27] See Transgender Woman Continues Fight for Transfer from Male Prison Where She Faces Repeated Sexual Assault, Center for Constitutional Rights (Feb. 23. 2022), https://ccrjustice.org/home/press-center/press-releases/transgender-woman-continues-fight-transfer-male-prison-where-she ; California Transgender prisoner lawsuit alleges rape, abuse, The Sacramento Bee (Jan. 8, 2019), https://www.sacbee.com/news/politics-government/the-state-worker/article224037370.html ; Tresa Baldas, Transgender female inmate sues MDOC: I was forced to bunk with rapist, then got raped, Detroit Free Press (Mar. 3, 2021), https://www.freep.com/story/news/local/michigan/detroit/2021/03/03/transgender-female-prisoner-forced-bunk-rapist-and-got-raped/6894034002/. 

[28] Lauren del Valle, New York governor signs bill to repeal ‘walking while trans’ ban, CNN (Feb. 2, 2021). https://www.cnn.com/2021/02/02/us/new-york-trans-ban-prostitution-law-repeal/index.html.

[29] Id.

[30] Rachel Holliday Smith, First Report of the Task Force on Issues Faced by TGNCNBI People in Custody, 1, 82 (2022), https://www.documentcloud.org/documents/22136076-first-report-of-the-task-force-on-issues-faced-by-tgncnbi-people-in-custody-08152022.

[31] Id.

[32] Id.

[33] Id. at 82, giving “examples describing experiences of TGNCNBI people represented by The Bronx Defenders in recent years demonstrating the violence that TGNCNBI people incarcerated at DOC regularly endure.”

[34] Id. at 83.

[35] Jason Villemez, In 1979, Rikers Island gave gay prisoners hope, Philedelphia Gay News (Mar. 4, 2020), https://epgn.com/2020/03/04/our-history-our-future-in-1979-rikers-island-gave-gay-prisoners-hope/.

[36] Id. 

[37] Id.

[38] Id.

[39] Id.

[40] Id.

[41] Id.

[42] Id.

[43] Goldberg, supra note 14.

[44] Smith, supra note 25. 

[45] Reuven Blau & George Joseph, City Jails Fail to Protect or Properly Identify Transgender People, Task Force Finds, The City, (Aug. 15, 2022), https://gothamist.com/news/city-jails-fail-to-protect-or-properly-identify-transgender-people-task-force-finds; Reuven Blau, Federal Judge Kicks Rikers Receivership Question Down Road, The City (Nov. 17, 2022), https://www.thecity.nyc/2022/11/17/23465436/federal-judge-jails-receivership-decision  (unfortunately the issue of a federal receivership has been pushed to April to give the city “more time to implement its own plan for action.”).

[46] Blau & Joseph, supra note 45. 

[47]Villmez, supra note 35.

Photo by RODNAE Productions via Pexels

Tags: