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Immcarceration: Examining America’s Immigration Detention System (A Three Part Series)

Published here.

While America’s problems with excessive incarceration have received increased attention, until recently, immigration detention has been conspicuously absent from this discussion. In the wake of each year, about 400,000 people are placed in immigration detention. On any given day, Immigration and Customs Enforcement (ICE) keeps at least 34,000 immigrants incarcerated while they await a hearing with an immigration judge. This arbitrary (and incredibly high) number is mainly attributable to the so-called “detention-bed mandate,” an arbitrary quota set by Congress that ICE needs to meet. The quota is written into the federal law that appropriates funding for ICE. Congress requires the agency to “maintain a level of not less than 34,000 detention beds” at any given time. The quota, first enacted in 2007, is an oppressive aberration—no other federal agency is required to detain a certain number of people.

This is the first of a three part series by Antoaneta Tileva examining immigration detention in these United States.

Unlike detention in the criminal-justice context, immigration custody does not have a punitive function, but is designed to ensure that immigrants appear at their hearings and/or can be successfully deported after a final order of removal. The government’s justification for family detention has also hinged on its importance as a deterrent to illegal immigration. Despite its supposedly non-punitive function, nearly all of the over 350 detention facilities are built and run on a corrections model. Billion-dollar companies like the Corrections Corporation of America and GEO Group run almost 62% of these immigration jails. The quota is costing taxpayers in excess of $2 billion each year when alternative community-based programs have a strong track record of success, at a much lower cost.

The human suffering caused by the policy of incarceration is a trenchant commentary on the real toll hidden behind its euphemistic, glib characterization of “detention.” Family separation and the resultant care and economic insecurity deeply scars individuals and communities; detainee abuse such as denial of water, medical treatment, adequate nutrition, or physical safety is far too rampant and, even worse, ignored.

While noncitizens in removal proceedings have the right to be represented by counsel at their own expense, many detention facilities are located in remote areas making it difficult for detainees to seek an attorney. On average, 84% of detained immigrants go through proceedings without legal representation. The detention bed quota contributes to the number of people who must go through removal proceedings unrepresented.

In many respects, immigrant detainees are treated less favorably than criminal defendants. U.S. mandatory detention laws cover broad categories of non-citizens, including lawful permanent residents (LPRs), asylum-seekers, petty offenders, and persons with U.S. families and other strong and longstanding ties to the United States. Sixty percent of the unauthorized have resided in the United States for 10 years or more and 17 percent for at least 20 years (Migration and Refugee Services/United States Conference of Catholic Bishops and Center for Migration Studies). Most criminal defendants receive custody hearings by judicial officers shortly after their apprehension and they can be released subject to conditions that will reasonably ensure their court appearance and protect the public—this is not the case with immigrant detainees.       

The US immigrant detention system grew more than fivefold between 1994 and 2013. The number of persons detained annually increased from roughly 85,000 persons in 1995 to 440,557 in 2013 (Migration and Refugee Services/United States Conference of Catholic Bishops and Center for Migration Studies). Since the beginning of the Obama administration’s detention reform initiative in 2009, annual detention numbers have reached record levels. More persons pass through the U.S. immigrant detention system each year than through federal Bureau of Prisons (BOP) facilities. In 2012, the United States Department of Homeland Security (DHS) detained a record 477,523 adult noncitizens. Since the Obama Administration announced its detention reform initiative in 2009, the number of noncitizens DHS detains yearly has increased by nearly 25 percent.  Since passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIIRIRA) in 1996, it has expanded over fivefold. The chart below, by the Center for Migration Studies, illustrates the precipitous increase in both detentions and removals.

The Intelligence Reform and Terrorism Prevention Act of 2004 required ICE to increase, in each fiscal year from 2006 to 2010, the number of immigration detention beds available by 8,000 above the preceding fiscal year’s number. ICE was under the pressure to not only increase the requirement but use it. In February 2006, then Assistant Secretary of ICE Julie Myers Wood met with then Chairman of the House Subcommittee on Homeland Security Harold Rogers (R-KY) and Representatives Louis Gohmert (R-TX), John Culberson (R-TX), and Judge John Carter (R-TX). In that meeting, Representatives Culberson and Carter highlighted that “detention facilities in Laredo are only one-third full,” and that there are “hundreds of empty beds.” Chairman Rogers noted that as one of his “key issues,” he wanted “no empty beds.”

The use of arbitrary numerical goals escalated in 2009 when Congress began formally including the national bed quota in annual appropriations bills. Since then, the detention bed quota has been written into the DHS Appropriations Act, which states, “funding made available under this heading shall maintain a level of not less than 34,000 detention beds.” In addition to requiring that ICE maintain the physical capacity to detain at least 34,000 people at any time, many members of Congress have urged ICE to interpret this language to require that all detention beds be in use at all times—that is, that a minimum of 34,000 beds not only be funded, but also filled, every day.

Over time, congressional frustration over empty beds has grown. In April 2015, after a heated exchange with ICE Director Sarah Saldaña, Representative John Culberson (R-TX) suggested that the current quota language be altered to replace the word “maintain” with “fill.” Congressional staff have also repeatedly, if incorrectly, told ICE that keeping an average of at least 34,000 detained per day is a statutory requirement (“Banking on Detention” 2). Former ICE Director John Sandweg expressed this frustration in a September 2013 interview with Bloomberg, saying that “having a mandate out there that says you have to detain a certain number – regardless of how many folks are a public safety threat or threaten the integrity of the system – doesn’t seem to make a lot of sense. You need the numbers to drive the detention needs, not set an arbitrary number that then drives your operation.”

Guaranteed minimums predate the national quota’s inception and have existed at least since 2003. Their establishment can be best explained in the context of the private prison industry’s past instability and its voracious pursuit of guaranteed profit. In 1984, CCA built the first private prison in the U.S., the Houston Processing Center, an immigration detention center in Houston, TX. Although the private prison system has grown considerably since then, in the late 1990s, the industry lost steam as CCA almost went bankrupt and the stock of Wackenhut Corrections Corporation (now GEO) fell significantly. After being bailed out by the now-defunct hedge fund Lehman Brothers, the private prison industry saw the government’s post-9/11 interest in expanding immigration detention as a potential cash cow and began vying for more federal contracts to incarcerate immigrants.

Revitalized after the period of crisis, the private prison industry moved to secure its future by pursuing the incorporation of guaranteed minimums into contracts. CCA’s 2003 contract for the Houston Processing Center was one of the first to include a guaranteed minimum, this one for 375 persons. Since then, an increasing number of contracts between ICE and private contractors for detention or detention-related services have included guaranteed minimums. These guarantees act as taxpayer-funded insurance for private companies against any changes in immigration enforcement policy or prioritization, because the companies are paid regardless of how many individuals ICE detains. Guaranteed minimums have now spread to every type of immigration detention facility.

Even DHS recognized the injustice and absurdity behind this system. In testimony before the House Appropriations Subcommittee on Homeland Security’s hearing on the President’s FY 2014 budget, DHS then-Secretary Janet Napolitano called the bed quota “artificial” and stated that, “We ought to be managing the actual detention population to risk, not an arbitrary number.” In May 2015, Democratic Presidential candidate Hillary Clinton criticized the bed quota by saying that “People go out and round up people in order to get paid on a per-bed basis. That just makes no sense at all to me. That’s not the way we should be running any detention facility”. On June 17, 2015, Rep. Ted Deutch (D-FL) introduced the Protecting Taxpayers and Communities from Local Detention Quotas Act (H.R. 2808). The bill seeks to end the practice of including guaranteed bed minimums in immigration detention contracts.

Despite public outrage at the quota, The House Committee on Appropriations passed the Department of Homeland Security (DHS) Appropriations Act for 2016. The accompanying Committee report increased the bed quota to 34,040 average daily detention beds: 31,280 for adults at an estimated cost of $123.54 per bed and 2,760 family detention beds at an estimated daily cost of $342.73.

Who benefits from this quota is at the crux of this issue. For-profit private prisons, which get compensated per bed, hold more than half of all immigration detainees. Even a small reduction in the quota would impact their profits. Immigrant detention has become a huge business. It costs a staggering $2 billion a year to incarcerate enough people to satisfy the quota—a figure that represents approximately 40 percent of ICE’s $5.3 billion budget for fiscal year 2014. Put another way, the cost of the quota is equal to the entire annual budget of the Drug Enforcement Administration.

Sixty-two percent of all ICE beds are now run by private prison contractors, meaning for-profit prison companies operate nine of the ten largest immigrant detention centers in the country — eight of those ten are run by CCA or GEO Group. As their share of the immigrant-detention market has grown in recent years so have the companies’ profits CCA’s profits went from $133 million in 2007 to $195 million in 2014, while the GEO Group’s profits made a staggering 244 percent jump during that time period from $41.8 million to $143.8 million.

A 2014 investors presentation from CCA illustrates the incentive to push for every single ICE bed to be filled: “filling vacant beds would add ≈ $1.00 to [Earnings Per Share] & [Adjusted Funds From Operations] per share,” the company wrote. In a recent company filing, GEO wrote that efforts to reform the immigration system, which could put thousands of undocumented immigrants on the path to legalization, may harm the company’s bottom line: “Immigration reform laws which are currently a focus for legislators and politicians at the federal, state and local level also could materially adversely impact us.” Both companies have expanded to build centers for detaining asylum-seeking immigrant families in Texas. In 2014, GEO opened the Karnes County Residential Center southeast of San Antonio, where 600 women and children, most of whom have fled violence in Central America, are being held (GEO plans to expand capacity to 1,200 detainees). Two hunger strikes have erupted in the facility due to reprehensible treatment of the detainees.

Not surprisingly, the industry is an avid lobbyist. One private-prison company, for instance, spent more than $13 million between 2005 and 2013 on lobbying. With combined annual revenues in the billions, Corrections Corporation of America, the GEO Group, and Management and Training Corporation can afford it. In 2014 alone, they spent nearly $2 million lobbying Congress, and individuals from these companies gave well over $500,000 to congressional candidates as well. Federal political giving from the three largest companies favors Republicans in most cycles. For MTC in 2014, 61 percent of the $46,500 it gave to federal candidates went to Republicans; for GEO, it was 72 percent of the $230,111 it contributed. CCA showed the starkest preference, giving 85 percent of its $267,464 in donations to Republican candidates.

Read Part 2 here.

Read Part 3 here.