Executive Orders and Incarceration: The Rise, Fall, and Return of Private Prisons

By: Cory Baker

Disclaimer: The views expressed in this post are those of the author, and do not necessarily reflect the views of the Journal, the William H. Bowen School of Law, or UA Little Rock.

Private prisons have sustained scrutiny over the past several decades due to persistent concerns regarding discrimination, safety, and sanitation. In response to these concerns, President Biden issued Executive Order 14006 in 2021, directing the Department of Justice to refrain from renewing contracts with privately owned prisons as a means of phasing out federal reliance on private detention facilities. Exec. Order No. 14006, 86 Fed. Reg. 7483 (Jan 26, 2021). However, this policy shift proved short-lived. A subsequent executive order issued under the Trump Administration rescinded Executive Order 14006 and restored the Department of Justice’s (“DOJ”) authority to contract with private prisons. Exec. Order No. 14148, 90 Fed. Reg. 8237 (Jan 20, 2025). This commentary examines the legal implications of Trump’s executive reversal, with particular focus on how executive orders function as a limited and fragile mechanism for reform. Executive orders enable administrations to advance political motives while failing to produce lasting changes in the social reform of private prisons.

Private prisons have been around for much of early American history. Gabriella Badmus, Privatization and Flawed Punishment: An Economic Analysis and Critique of Private Prisons in the United States and the United Kingdom, 44 Nw. J. Int’l L. & Bus. 129, 133. As general prison populations grew, “private prisons became attractive alternatives to publicly run facilities as they were said to alleviate overcrowding and high operational costs.” Id. at 134. By the 1980s, private prisons expanded under the Regan Administration’s War on Drugs due to “overcriminalization of minor drug possession” leading to  “harsher sentences through the imposition of new mandatory minimum sentences.” Id. at 133.

A 2016 executive summary by the Office of the Inspector General regarding privately operated institutions, also known as contract prisons, revealed deeply troubling disparities between private facilities and correctional facilities run by the Federal Bureau of Prisons (“BOP”). U.S. Dep’t of Just., Review of the Federal Bureau of Prisons’ Monitoring of Contract Prisons. (Aug. 2016). https://goodtimesweb.org/industrial-policy/2016/e1606.pdf. The report found that “in a majority of the categories we examined, we found that contract prisons incurred more safety and security incidents per capita than comparable BOP institutions.” Id. at  44. The report further recommended enhanced monitoring and oversight of private facilities. Id.

In 2021, President Biden attempted to curb the use of private prisons by the federal government through Executive Order 14006. The Order stated that “[t]o 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.” Exec. Order No. 14006, 86 Fed. Reg. 7483 (Jan. 26, 2021). The Order was intended to prioritize rehabilitation, redemption, and equitable access to correctional services, programs, and resources, areas where private prisons consistently underperformed. Id.

Although Executive Order 14006 severed DOJ contracts with private prisons, the order did not terminate contracts maintained through Immigration and Customs Enforcement (“ICE”), thereby leaving private prisons as a central mechanism of federal immigration detention. Kyle Virgien & Nina Patel, President Biden’s Order to Ban Private Prisons Faces a Persistent Internal Challenge: The U.S. Marshals Service, ACLU (Mar 1, 2024), https://www.aclu.org/news/criminal-law-reform/president-bidens-order-to-ban-private-prisons-faces-a-persistent-internal-challenge-the-u-s-marshals-service.

Within the first twenty-four hours of President Trump’s second term, Executive Order 14006 was revoked along with dozens of other Biden-era executive orders. Exec. Order No. 14148, 90 Fed. Reg. 8237 (Jan. 20, 2025). The resurgence of private prisons under the Trump Administration is further highlighted by the nomination of Attorney General Pam Bondi, who previously lobbied for GEO Group, one of the largest private prison corporations in the United States. Lauren-Brooke Eisen, Trump Reverses Biden Order that Eliminated DOJ Contracts with Private Prisons, Brennan Center for Justice (Jan. 30, 2025) https://www.brennancenter.org/our-work/analysis-opinion/trump-reverses-biden-order-eliminated-doj-contracts-private-prisons. Under the Trump administration, the United States reversed course from hopeful mass-incarceration reform to embracing a profit-driven model that prioritizes private industry interests over public safety and rehabilitation. This recurring reversal of administrative policy decisions undermines long-term correctional reform.

Such administrative whiplash exposes the structural weakness of executive orders acting as tools for permanent social change. Instead, executive action may provide only temporary reform, since the orders cannot “encroach on Congress’s constitutional authority to make the law” without violating the separation of powers. Christopher W. Durocher. What is an Executive Order and What Legal Weight Does it Carry?, American Constitution Society (Mar. 19, 2025). https://www.acslaw.org/inbrief/what-is-an-executive-order-and-what-legal-weight-does-it-carry/. Article II of the U.S Constitution requires the President to “take Care that the Laws be faithfully executed,” not to legislate through unilateral executive orders. U.S. Const. art. II, §3, cl.1. As a result, executive orders often operate as short-term solutions to systemic problems.

Permanent reform of private prisons will therefore require either congressional legislation or a successful constitutional challenge. Gabby Korb. President Biden’s Executive Order 14006: A Positive but Likely Fleeting Attempt to Address the Injustice of Private Prisons. Wake Forest L. Rev. (Jan. 19, 2023), https://www.wakeforestlawreview.com/2023/01/president-bidens-executive-order-14006-a-positive-but-likely-fleeting-attempt-to-address-the-injustice-of-private-prisons/.

One compelling legal argument against private for-profit prisons is implicated through a violation of the Thirteenth Amendment. Robert Craig & andré douglas pond cummings, Abolishing Private Prisons: A Constitutional and Moral Imperative, 49 U. Balt. L. Rev. 261, 298 (2020), https://scholarworks.law.ubalt.edu/cgi/viewcontent.cgi?article=2072&context=ublr. The Amendment abolishes slavery and involuntary servitude “except as a punishment for crime whereof the party shall have been duly convicted.” U.S. Const. amend. XIII, §1, cl.1. According to Robert Craig & andres douglas pond cummings, “all incarceration is slavery, but the punishment clause allows the State and only the State to hold someone in the state of carceral slavery.” Id at 299. By selling contracts to private prisons, these private corporations transform human confinement into a balance sheet commodity, reducing individuals into revenue-producing assets. Id. at 305. Such privatization arguably exceeds the narrow exception authorized by the punishment clause and undermines the Amendment’s core abolitionist purpose. Id.

Legislative challenges to private prisons have also faced judicial resistance. In 2019, California enacted Assembly Bill 32, restricting the operation of any private prison within the state, effectively eliminating ICE detention contracts. Assemb. B. No. 32, 2019-2028 R. Sess. However, in GEO Group, Inc. v Newsom, the Ninth Circuit held that Bill 32 was preempted under the Supremacy Clause because Congress had delegated to the Department of Homeland Security the authority “to arrange for appropriate places of detention.” Geo Grp., Inc. v. Newsom, 50 F.4th 745, 750 (9th Cir. 2022). The ruling illustrates the difficulty states face when attempting to restrict private detention in areas dominated by federal immigration authority.

Further challenges under civil rights violations of the Eighth Amendment have been less than successful. In the case of Dockery v. Hall,  a group of inmates at a privately owned facility in Mississippi filed a Section 1983 claim alleging cruel and unusual punishment based on inadequate medical care, excessive force, and solitary confinement practices. Dockery v. Hall, 443 F. Supp. 3d 726, 733-736 (S.D. Miss. 2019). The Fifth Circuit ultimately affirmed the lower court’s dismissal of the claims, deferring to its finding that the conditions did not rise to the level of a constitutional violation. Dockery v. Cain, 7 F.4th 375 (5th Cir. 2021).

With the renewed federal endorsement of privatized incarceration, the private prison industry is poised for renewed growth. Industry leaders GEO and CoreCivic are particularly well-positioned to benefit from expanded federal contracting under a second Trump Administration. Lauren-Brooke Eisen. What Trump’s Victory Means for the Private Prison Industry. Brennan Center for Justice (Nov. 25, 2024), https://www.brennancenter.org/our-work/analysis-opinion/what-trumps-victory-means-private-prison-industry?utm_source=chatgpt.com. 

Administrative mechanisms such as executive orders will continue to provide only temporary limits on private prisons. Social justice reform will require novel constitutional arguments, continued judicial scrutiny, and, most importantly, federal legislation expressly limiting or abolishing the federal government’s use of private detention facilities. For now, the elimination of private prisons is a figment of reality, and constitutional injustices will continue to take place as we wait for actual change.