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Illustration by Mike Austin

Detention Tension

​When the U.S. Department of Justice (DOJ) announced last August that it planned to phase out and eventually close 13 private prisons, it was seen as a victory for the prison reform movement. Privately run prisons “incurred more safety and security incidents per capita” than those run by the government, according to a DOJ report released shortly before the announcement. 

Numerous critical investigations on private prisons, as well as the DOJ report and decision, inspired other federal agencies, including the U.S. Department of Homeland Security (DHS), to reassess their use of the facilities. But, despite allegations of inhumane conditions and dissention among DHS advisors, it appears immigration detention centers will continue to be contracted out to private corporations.

In an unusual series of events, a DHS Homeland Security Advisory Council (HSAC) subcommittee issued a report finding that federally run facilities used for the civil detention of immigrants during immigration hearings are more beneficial, but less cost effective. “Much could be said for a fully government-owned and government-operated detention model, if one were starting a new detention system from scratch,” the report noted. “But of course we are not starting anew.” Just one of the six subcommittee members dissented with the report’s recommendation to continue using private detention facilities, but when the issue was brought to the broader council for a vote, HSAC recommended that DHS oppose the report’s conclusion and close private facilities.

However, the vote may be more symbol than substance because the HSAC serves in an advisory role to DHS decision makers. Any action on the matter now rests with U.S. Immigration and Customs Enforcement (ICE) officials. In the interim, ICE has already renewed or expanded 15 private and local prison contracts to add 3,600 beds to its arsenal, including reopening a private correctional center in New Mexico that was shut down last year following a series of inmate deaths and reports of deficient medical care.

The HSAC report’s recommendation appears to be out of necessity—as of November 2016, ICE held more than 40,000 people in 197 immigrant detention centers, even though Congress has currently approved and funded the use of 32,000 beds, according to ICE. Individuals confined in ICE facilities can be held only for the purpose of detaining and removing them from the country. Immigrant detention numbers have already reached record-breaking levels and are expected to continue growing–U.S. President Donald Trump has pledged to deport 2 to 3 million immigrants, further straining the facilities. 

“Capacity to handle such surges, when policymakers determine that detention will be part of the response, cannot reasonably be maintained solely through the use of facilities staffed and operated by federal officers,” the report states. “Fiscal considerations, combined with the need for realistic capacity to handle sudden increases in detention, indicate that DHS’s use of private for-profit detention will continue.”

The cost of building and operating enough federally run detention facilities to phase out private detention centers, which make up two-thirds of all immigration centers, would cost billions of dollars and not be a good use of government resources, the report notes.

There have been numerous contributing factors to the increase in detainees held by ICE. A controversial 2009 addition to ICE’s detention budget stating that funding would be made available to “maintain a level of not less than 33,400 detention beds” was interpreted by ICE as a mandate to contract for and to fill that number of beds on a daily basis. This so-called immigrant detention quota has correlated with the expanded detainee population, as well as the involvement of private prison corporations in ICE facility operations, according to Payoff: How Congress Ensures Private Prison Profit with an Immigrant Detention Quota, a 2015 report by nonprofit Grassroots Leadership. The quota system is unique to ICE—no other law enforcement agency operates in such a fashion.

“Since just before the onset of the quota, the private prison industry has increased its share of immigrant detention beds by 13 percent,” the report states. “Nine of the ten largest ICE detention centers are private. This is particularly noteworthy in light of the expansion of the entire ICE detention system by nearly 47 percent in the last decade.” 

Immigration patterns have also bloated the number of immigrants held in detention centers. An unprecedented surge of Central American women and children to the United States in 2014 created overcrowding, resulting in the construction of the nation’s largest immigration detention center by a private prison corporation. A more recent influx of asylum seekers and immigrants who have been in the United States for years but are now facing exile has continued to strain the facilities.

Holding immigrants in privately run detention centers is easier on taxpayers’ wallets, ICE says. More than $2 billion in taxes goes to the country’s prison system each year, and lowering that cost is a big incentive to use private facilities, the report notes. Federally run detention centers are notoriously more expensive than their private counterparts—it costs about $127 a day to hold a person in a private facility, versus more than $180 in a government facility. And completely doing away with private facilities and replacing them with federally run ones would cost up to $6 billion, according to the HSAC report. 

Despite the lower price tag for private facilities, prison corporations have seen their profits rise over the past six years—GEO Group, which owns a quarter of all ICE immigrant detention centers, has seen a 244 percent profit increase from 2010 to 2014, the Grassroots Leadership report found. The private prison companies have also spent millions of dollars lobbying on immigration issues and DHS appropriations, according to Grassroots Leadership.

To civil rights organizations, the increase in private detention facilities means not only the monetization of detainees but centers that do not have to abide by federal quality control. The DOJ report on private facilities notes that contract compliance checklists do not address federal health and correctional services requirements.

“The observation steps do not include checks on whether inmates received initial examinations, immunizations, and tuberculosis tests…[and] does not include observation steps to ensure searches of certain areas of the prison, such as inmate housing units or recreation, work, and medical areas, or for validating actual correctional officer staffing levels and the daily correctional officer duty rosters,” the DOJ report notes.

The nonprofit Human Rights Watch website stresses that those kept in immigrant detention centers are not criminals—they are often legal permanent residents, families with young children, or asylum seekers in the midst of civil immigration proceedings. For years, Human Rights Watch and similar organizations have documented abuse and substandard medical care in privately run detention facilities. For example, three people died in detention facilities between October and December 2016. 

While the future of ICE immigration facilities will continue to involve privately run centers despite HSAC dissent, the council did agree with portions of the report’s recommendations that ICE must increase oversight of nonfederal detention facilities. The report found that county jails, which are often used for initial detention and staging, do not have to follow ICE facility standards and should be used for detaining immigrants for no more than 72 hours before moving them to a federal facility. The document also outlined the need for more stringent inspections of nonfederal facilities, including unannounced inspections and meaningful evaluations of conditions in each facility.

“U.S. Immigration and Customs Enforcement appreciates the Homeland Security Advisory Council’s recent review of the agency’s use of private contract detention facilities,” says ICE spokesperson Danielle Bennett. “The council’s report recognizes ICE’s ongoing commitment to providing a secure and humane environment for those in our custody while making the best use of agency resources. ICE’s civil detention system aims to reduce transfers, maximize access to counsel and visitation, promote recreation, improve conditions of confinement and ensure quality medical, mental health and dental care. ICE leadership will review and consider the council’s recommendations and will implement any changes, as appropriate.” ​ ​