The Obama Administration Did Two Great Things This Week

It appears to be legacy-polishing time at the White House. This is the time late in the second term where presidents start to recall the various terrible decisions they made over their tenure in office, and start looking to balance out the ledger so they'll still be remembered favorably. And since they aren't standing for reelection anyway, they tend to undertake actions regardless of their popularity politically.

For this reason, it's a time for both anxiety and cautious excitement, assuming there are at least a few issues where you share common ground with the president.

The goals of the legacy-polishing period are two-fold:

1. To prevent any complete chaos or crisis from breaking out in the last days of your term, and
2. To finally make progress on old campaign promises and pet projects alike.

We saw the first goal manifest itself in the renewal of the war in Libya last week--a war which even the Pentagon concedes is open-ended. The objective there, presumably, is to prevent ISIS from formally taking control of any high-profile city, at least until the next president is inaugurated.

While this is clearly terrible, there was also some genuinely good news to emerge. Interestingly, both items relate to prisons, which are not normally sources of hope and optimism.

More Releases from Guantanamo Bay

First up, reports emerged this week that the US had approved the release of 15 more detainees from Guantanamo Bay to the United Arab Emirates. This is the largest single release in the Obama years, and it brings the remaining population in Guantanamo down to just 61. Arguably even more impressive is that, according to The Washington Post, one of the detainees was slated for indefinite detention without trial.

Indefinite detention is an obviously illegal practice that is reserved for those detainees that the Administration has determined (without due process) to be "too dangerous to release" but impossible to convict. Although it probably won't be stated as such, the assumption here is that they wouldn't be able to convict them because some of the key evidence was derived through torture and thus wouldn't be admissible in court.

That's why it is particularly hopeful that a detainee managed to get off the "forever detention" list and actually get released. It's not clear exactly how many such prisoners remain at Guantanamo, but it's a win for due process that this dubious status is, at least in some cases, possible to be removed.

As with most decisions, there are risks associated with releasing prisoners, as there are with many political decisions. Many of these people have been tortured and denied their freedom for years by the American government. Frankly, it would be shocking if none of them hated America at this point, but the actual number of known violent incidents by former detainees is surprisingly small. In any case, the fact is that releasing people who cannot be prosecuted is still clearly the right thing to do. They may pose some danger to innocent people. But then again, a government that is empowered to incarcerate people indefinitely without trial poses a pretty strong danger to innocent people as well.

The End of Private Prisons, Sort Of

The second piece of great news is that Obama's Justice Department recently announced guidelines aimed at ending the use of private prisons for federal incarceration.

This is a big positive step. But it is more important symbolically than it is practically. The new guidelines do not do anything immediately; they merely instruct the federal government to either let contracts on the private prisons expire (and not renew them) or at least, substantially reduce the involvement of for-profit companies in the future. So again, today, nothing happens. And it's not a law, so technically, these guidelines could be overturned if, say, a law and order candidate got elected and decided private prisons were good for his brand.

Just as important, federal private prisons only hold around 22,000 inmates, out of the 2.3 million overall. Thus, even if these new guidelines were faithfully implemented, their direct impact is relatively small.

With all those qualifiers added, however, this is still a big step because it's going to refocus the debate on this subject. That's a good thing.

It's important to note that the problem with for-profit prisons is not a problem with for-profit companies in general. As the name implies, for-profit companies exist for one primary purpose, generating profits. In most markets, the incentives point in a direction that is beneficial. Companies produce profits by giving customers what they want, at a better price than the competition. It's a win-win.

However, a major problem arises when there are no customers to satisfy. And this is the case with private prisons. The people that deal with the private prisons the most are the prisoners themselves, but unlike customers, the prisoners don't have the ability to leave if the company behaves poorly. This, in turn, means companies have no incentive to meet the prisoners' needs, and these needs often go unmet.

A private prison corporation gets its revenue by winning contracts through the political process, not the market process. And once they win a contract, they are likely to preserve it as long as they avoid any major damaging scandals that could harm elected officials. Clearly, that is a very low bar for performance.

The result is that private prisons tend to be at least as bad as publicly run prisons. Then the private prison corporations recycle the profits into the political process to lobby for tougher crime legislation (and thus, greater demand for their services). In essence, the incentives are bad at nearly every step in the process.

That's why it's great news that the Administration is coming out publicly against this system--even if it doesn't have any immediate effect beyond crashing the stock prices of the prison corporations. It remains to be seen whether any state governments, who hold most of the US prisoners, will follow the federal lead.

It's not that often that we get the chance to praise President Obama, or any other politician, for that matter. But this week, at least on these narrow issues, he deserves credit. As the legacy-polishing continues, let's hope he sticks with the criminal justice theme. If he veers back into economics or foreign policy, it might not turn out so well.