On February 21, 2017, the Attorney General of the United States, Jeff Sessions, issued a Memorandum titled “Recission of Memorandum on Use of Private Prisons” [PDF version].1 The Sessions Memorandum rescinds an August 18, 2016, Memorandum authored by the then-Deputy Attorney General of the United States, Sally Q. Yates titled “Reducing our Use of Private Prisons” [PDF version].
The Yates Memorandum had set forth a policy of “reducing-and ultimately ending-our use of privately owned prisons.” The Yates Memorandum directed the Federal Bureau of Prisons to either not renew expired contracts with private prison contractors or to “substantially reduce its scope in a matter consistent with law and the overall decline of the Bureau's inmate population.”
In his new Memorandum, Attorney General Sessions takes the position that the policy set forth in the Yates Memorandum “changed long-standing policy and practice, and impaired the Bureau's ability to meet the future needs of the federal correctional system.” Accordingly, Attorney General Sessions directed the Bureau of Prisons “to return to its previous approach.”
The purpose of the Attorney General's reversal of the Yates Memorandum is to give the Federal Bureau of Prisons more flexibility in handling large numbers of detainees. However, while the Sessions Memorandum represents a significant policy shift from the Yates Memorandum, it is important to note that the Yates Memorandum was issued just six months ago, and that the actual effects of its recission in practice may be limited.
In the immigration context, the Sessions Memorandum may work in conjunction with the recently issued Memorandums by the Secretary of Homeland Security, John Kelly, that call for enforcing the mandatory detention provisions of the Immigration and Nationality Act (INA) more strictly [see article].
We will update the site if and when more information becomes available about how the new Department of Justice policy on private prisons will interact with the new immigration policies of the new administration.