WASHINGTON ― Private prison companies received a blessing on Thursday from a Department of Homeland Security panel tasked with determining whether the government should continue operating immigrant detention facilities as for-profit businesses. Then the panel's meeting fell apart.
Members of the Homeland Security Advisory Council, which advises DHS Secretary Jeh Johnson, voted on Thursday to approve a report that said private immigrant detention “will continue,” even if government-run facilities might be preferable.
But in a surprising twist, nearly three-fourths of the council members gave their approval with the caveat that they disagreed with its lead recommendation and instead want private detention to cease. In the end, Johnson received recommendations on how to improve private detention and an earful from council members and advocates on why he should abandon the practice.
The report by a council subcommittee, commissioned in the wake of a decision by the Department of Justice to phase out private facilities from the Bureau of Prisons system, may still quash further internal challenges to the controversial privatization of immigrant detention as the Obama administration winds to a close.
“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 report reads. But it advocates expanded Immigration and Customs Enforcement oversight of private facilities, and other measures “to enhance ICE control, responsiveness, and sense of accountability for daily operations at all detention facilities.”
The report includes a slew of other recommendations, though none are required to be implemented. The authors ― a group of former law enforcement officials, advocates and legal experts ― urged ICE to rely less on county jails, to place an ICE warden in facilities the agency doesn't run itself, and to carry out more out more unannounced inspections of privatized detention centers.
But it was the panel's recommendation on the widely criticized privatization of immigrant detention that was by far the most anticipated.
No Cheaper, But With Security Problems
The Department of Justice announced on Aug. 18 it would phase out the use of private contractors to run Bureau of Prisons facilities, citing a damning report by the department's Office of Inspector General that found privatized prisons were more likely than government-run facilities to have security problems and didn't necessarily save money.
While reformers hailed the decision, critics were quick to point out that it didn't apply to the immigrant detention centers under ICE control, two-thirds of which are privatized. The U.S. Marshals Service, which also routinely detains immigrants facing prosecution for the crimes of illegal entry and reentry, was also exempted from DOJ's August policy change. Later that month, Homeland Security Secretary Jeh Johnson ordered the panel to consider whether ICE should follow the DOJ lead.
The authors appeared sympathetic to the idea, noting that it would be preferable for ICE to run all its own facilities “if one were starting a new detention system from scratch.”
“But of course we are not starting anew,” the report says. “Over many decades, immigration detention has evolved into a mixed public private system where only 10 percent of detainees are now in ICE-owned facilities …” The remainder are run by either private corporations or local governments.
One of the report's authors, legal scholar David Martin, said at the council meeting that there is need for further debate on the scale of immigrant detention, and on alternatives such as ankle bracelets or parole. But he said the core question in the report was “how to develop safe and humane and effective detention that's appropriate for the civil context.”
“That's the underlying question, and the identity of the facility owner is just a part of that mix,” Martin said, adding that government-run facilities wouldn't solve every problem.
'Overreliance On The Private Prison Industry'
There was a dissent within the report from subcommittee member Marshall Fitz, a longtime immigration-reform advocate and a managing director at Emerson Collective, a social justice advocacy organization. He wrote that he respectfully disagreed with “the conclusion that reliance on private prisons should, or inevitably must, continue,” even though he acknowledged changing the status quo would be difficult.
Critics of private detention agreed.
“We're not being pollyannaish about this,” said Joanne Lin, American Civil Liberties Union legislative counsel, during a public comment period at the meeting. “We know that you can't cut off ties immediately, but a serious look needs to focus on how to shift the overreliance on the private prison industry.”
And then the surprise: Most of the council ended up siding with Fitz. Members asked for an option to vote for the report ― endorsing its other recommendations ― while also saying they agreed with Fitz's point that private detention should not remain as the DHS status quo. In the end, 17 members endorsed that split position, while five voted to approve the recommendations without endorsing Fitz's view, and one voted against the report.
Even as DOJ staggered forward with an uneven policy of phasing out privatized prisons ― it renewed at least two contracts since the August decision ― ICE has powered ahead with privatization.
The agency renewed a contract with CoreCivic, the country's largest private prison company, to run a widely criticized family detention center in Dilley, Texas, and entered talks with the same company to take over a former federal prison in Cibola County, New Mexico. ICE advanced those plans, even as the DHS subcommittee pondered the wisdom of using for-profit detention centers at all.
Last month, average daily immigrant detention topped 40,000 people ― well above the minimum-bed capacity Congress has ordered DHS to maintain.
'Disastrous For Immigrants, As Well As For American Taxpayers'
The subcommittee's report ran into heavy criticism from immigrant rights defenders and reformers, who have long pressured ICE to abandon privatization, saying the trend exaggerates the worst flaws of an overgrown and excessively harsh civil detention system. Critics often contend private companies make their services more attractive by cutting corners on essentials, like qualified staff, quality food, or care for mental health and physical health.
“The relationship between ICE and private contractors has been disastrous for immigrants, as well as for American taxpayers, who pay more than $2 billion each year to maintain the detention system,” the Detention Watch Network wrote a report also released on Thursday. “Although a lack of due process, inhumane and sometimes fatally inadequate conditions, and a woeful lack of both oversight and transparency are endemic to the entire system, privatization has exacerbated each of these problems.”
The Eloy Detention Center in Arizona, run by CoreCivic, is the deadliest one in the country, with 15 deaths since 2003, according to The Arizona Republic. The most recent death occurred Sunday, when Guatemalan immigrant Raquel Calderón de Hildago was stricken with a series of seizures.
CoreCivic CEO Damon Hininger defended his company's record in a letter to the panel that was included in the report's index. “CoreCivic has long understood its role in the federal immigration detention system to be a public trust, and we embrace our accountability to ICE,” the letter reads.
The DHS panel report's index also contains statements from several groups opposing the privatization of immigrant detention, including the American Civil Liberties Union and the Southern Poverty Law Center.
Jacinta Gonzalez, an organizer with the social justice group Mijente, said she was heartened by the subcommittee's surprise decision to pull away from the report's core recommendation. She called the DHS panel's report “extremely alarming,” saying that the Obama administration should instead focus its attention on releasing people who don't belong in detention.
“They understand the problems and yet their recommendation is to give [the private prison industry] more money? It's completely outrageous, especially knowing that all these problems will only get worse under a Trump administration,” Gonzalez said.
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