On January 26, less than a week into his term, President Joe Biden issued Executive Order 14006, directing the Department of Justice to end the contracting of prisons to private corporations. While this was simply the reinstatement of an Obama-era policy rescinded by former president Donald Trump in 2017, the order represented a substantial improvement over the status quo and possibly signaled the Biden administration’s willingness to address some of the most egregious elements of the criminal justice system.

Unfortunately, this policy change permits one glaring exception: Immigration and Customs Enforcement (ICE) may still contract private corporations to operate immigration “detention centers.” Private immigration prisons maintain some of the most disturbing and brutal conditions within the American prison system, including discrimination against LGBT inmates and widespread labor abuses. In October 2020, detention centers came under intensified scrutiny after individuals held at a privately operated ICE prison in Georgia reported being forced into receiving hysterectomies. While prohibiting the private contracting of immigrant detention centers was a core plank of Biden’s criminal justice platform during the 2020 election, the president has so far taken no action on this front.

Biden’s exception for private immigration prisons is deliberate, resulting from the uniquely privatized nature of immigration detention. While only 8 percent of today’s general federal prison population is held in private prisons, 73 percent of immigrant detainees are incarcerated in corporate facilities. Eliminating private immigration prisons would eliminate the vast majority of immigration prisons nationwide, forcing the federal government to either shut down hundreds of facilities or operate them publicly.