President Biden ended the use of private prisons for convicted federal inmates, but the federal government still uses private detention facilities in some cases.

Biden signed an executive order in January 2021 directing the Justice Department to end contracts with privately operated criminal detention facilities. At the time, PolitiFact reported there were 14,095 federal inmates in privately managed facilities, or about 9% of all federal inmates. 

As of Nov. 21, the Federal Bureau of Prisons reported there were zero federal inmates in privately managed prisons. 

The Bureau of Prisons said in December 2022 it had ended its last contract with a privately managed prison. All inmates previously housed in those facilities had been transferred to other facilities, the bureau said. 

Although there are no convicted federal inmates in privately managed prisons, the U.S. government still uses private facilities to hold people detained and awaiting trial, according to the Department of Justice Inspector General and the American Civil Liberties Union.

The Justice Department's U.S. Marshals Service is responsible for arresting and processing federal suspects, and holding them in detention before trial. The agency has continued to hold detainees in private facilities, though it has let some contracts expire.

A 2023 Justice Department Inspector General investigation found that the U.S. Marshals Service had changed the recipient of a contract while holding detainees in the same for-profit facility in order to comply with Biden's order. The department has granted several waivers for the U.S. Marshals Service to continue holding pretrial detainees in privately managed detention centers, the American Civil Liberties Union reported. 

During fiscal year 2023 — the most recent data available — the U.S. Marshals Service had an average daily detention population of 6,639 people in private facilities. That's about 11% of the agency's total average daily detained population. 

Biden's order also did not address immigration detention centers, which are under the Department of Homeland Security. The department continues to use privately managed detention facilities to house migrant detainees. 

The number of people detained by U.S. Immigration and Customs Enforcement rose sharply during Biden's administration, as did the number of migrants in private detention centers. An American Civil Liberties Union report found about 90% of people in Immigration and Customs Enforcement custody in July 2023 were in privately owned or operated facilities. 

The Bureau of Prisons ended its use of private prisons to hold inmates, consistent with Biden's initial promise. But other agencies continue to detain people in private facilities, so Biden did not entirely fulfill his pledge. 

For that, we rate this promise Compromise.

President Joe Biden issued an order for the Justice Department not to renew contracts with privately operated criminal detention facilities for federal inmates.

"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," Biden wrote in the Jan. 26 order.

Biden announced the prison order as part of his racial equity agenda. A disproportionate number of people of color are among the more than two million people incarcerated in the U.S., Biden's order said.

Currently there are about 14,095 federal inmates in privately managed facilities out of 151,646 federal inmates, or about 9% of the population. 

Biden's promise continues an initiative by the Obama administration in 2016 to phase out the use of some private prisons due to safety concerns and a declining population, a move that the Trump administration rescinded.

"Given that the facilities will be phased out over time (when the contracts expire) there should be little problem in having sufficient space to house the population, assuming that the current numbers stabilize or continue to decline," said Marc Mauer, senior advisor to The Sentencing Project, which advocates for reduced incarceration. 

David Fathi, director of the ACLU's National Prison Project, praised Biden's order but said it doesn't limit the role of for-profit prison health care companies or end the use of private prison companies for immigration detention. We are tracking Biden's separate promise to end privately operated detention facilities for migrants seeking asylum.

Day 1 Alliance, a trade association representing private prison companies CoreCivic, The GEO Group, and MTC, sent a statement in response to Biden's order.

"If this announcement were truly about taking on mass incarceration, shouldn't it address the 91% of federally incarcerated men and women housed in government-run correctional facilities?"

The GEO Group said in a statement that due to the recent decline in federal prison populations, and in part due to the COVID pandemic, the Bureau of Prisons had already announced steps over the past four months to not renew expiring contracts with private sector operators. 

Biden's order is a first step toward his promise to end the federal government's use of private prisons and detention centers. We rate this promise In the Works.