The Government’s Out-of-Control Detention Practices Could Bail Out the Private Prison Industry

Norma (not her real name) was the wife of a police officer in El Salvador. She lived in a neighborhood where gang members waged frequent gunfights, committed murders, and forced her to pay extortion fees. In late 2014, four gang members abducted Norma and took her to a cemetery, where three of them tied her hands, stuffed her mouth closed, and raped her. Even after she fled to another town, the groups continued to threaten Norma and her children. When she finally escaped to the United States to seek asylum, federal authorities locked her in a detention center.

The mass detention of asylum-seekers like Norma is a major reason why The Wall Street Journal recently reported that the detention centers of Immigration and Customs Enforcement (ICE) are bursting at the seams. The agency will soon hold more than 45,000 people in detention on an average day, blowing past all previous records. By comparison, in fiscal year 2015, ICE held 28,449 people in detention on an average day, a number that already represented enormous growth compared to prior decades. In fiscal year 1995, for example, fewer than 8,000 people were held in immigration detention on an average day.

As one ICE official told The Wall Street Journal, this massive, rapid increase in the number of people in custody means that ICE is “scraping the bottom looking for beds.” To make it easier to expand its detention capacity, the agency is planning to waive minimum standards — including allowing facilities to ignore mandated protections against rape in custody — and borrow money from future accounts to fund current detention expenses.

This risks the lives and well-being of people in detention and is fiscally irresponsible, out-of-control spending. It also threatens to erode or reverse other achievements by the Obama administration, including the Justice Department’s August 2016 announcement that the federal prison system would cease using private prisons. Stunningly, ICE is actually working to reopen two private prisons in Ohio and New Mexico that recently lost their Justice Department contracts after a long, grisly history of abuses and mismanagement. In other words, ICE is turning to the exact same prisons and companies that the Justice Department rejected wholesale just two months ago.

As one SunTrust analyst put it, rising numbers of detained families signify that “the basic building block of demand” for private prisons “seems to be robust.”

Indeed, ICE’s out-of-control detention practices could bail out the private prison industry, which had recently been struggling. Last week, ICE renewed a Corrections Corporation of America (CCA) family detention contract in Dilley, Texas, for another five years. The contract renewal came only weeks after ICE’s own advisory committee on family detention recommended the agency end family detention and completely overhaul its existing detention policies to safeguard child and family welfare.

The renewal also came despite the Department of Homeland Security’s pending review of whether ICE should even be using companies like CCA. Private prison investors rejoiced. As one SunTrust analyst put it, rising numbers of detained families signify that “the basic building block of demand” for private prisons “seems to be robust.” And on a call with investors, the company’s CEO gloated about the timing of the renewal, expressing confidence that the DHS review would “come to the same conclusion that, we've been a really, really good tool for ICE.”

The biggest cause of this investor celebration is a hemispheric refugee crisis and the Obama administration’s cruel, irrational response. The countries of Central America’s Northern Triangle — El Salvador, Guatemala, and Honduras — are now some of the most dangerous in the Western Hemisphere because criminal organizations feel free to target men, women, and children for extortion and violence.

For some perspective, El Salvador’s homicide rate of 108.5 homicides per 100,000 people dwarfs the U.S. homicide rate of 4.5 homicides per 100,000 people. Local police fail to intervene because they are often poorly trained, under-resourced, and corrupt. These countries are especially dangerous for women and girls, who face extraordinarily high risks of being raped, assaulted, extorted, and threatened by gangs and drug cartels. Those who resist the demands of these criminal organizations have little choice but to flee to safe places like the United States.

This refugee crisis cannot be resolved through additional border security. The United States already spends nearly $4 billion per year on border security. Border communities are some of the safest cities in the country, and the border itself is more secure than it’s been in 40 years. And more security won’t keep out asylum seekers, because when people arrive at our border seeking protection, they often seek out Border Patrol agents for help. The real question is how we should treat people after that initial contact.

Unfortunately, the Obama administration’s response has been to double down on detention, wrongly believing that if you mistreat refugees enough, they will no longer come to our doorstep and will choose death — or worse — in their home countries. Central American refugees are not even the only group of vulnerable people being detained and deported to “send a message” discouraging others from coming. Haitians fleeing suffering, including a cholera epidemic recently worsened by Hurricane Matthew, are similarly being detained in vastly increased numbers.

The United States has a clear obligation under international law to treat people seeking refuge from violence fairly and humanely. Instead, the administration has directed ICE to keep them locked in a sprawling, unaccountable network of detention centers while they try to win their immigration cases from behind bars. These jails and jail-like facilities are overwhelmingly run by private prison companies. Both the U.S. Commission on International Religious Freedom and the U.S. Commission on Civil Rights, which are independent bipartisan commissions created by Congress, have concluded that these conditions of detention are inappropriately punitive.

Earlier this month, the ACLU proposed a clear, comprehensive plan for how ICE can reduce its reliance on detention enough to free itself from its private prison contracts. This includes ending the detention of families and asylum-seekers (impacting an estimated 11,000 to 15,000 people), ending prolonged detention without bond hearings (at least 4,500 people), adopting narrower interpretations of the mandatory custody statute (between 5,000 and 10,000 people), and no longer imposing exorbitant, unaffordable bonds (at least 1,300 people). If ICE followed our recommendations, it would be detaining tens of thousands fewer people per day, estimating conservatively — and saving money it doesn’t have.

Now that ICE’s out-of-control detention of asylum-seekers is proving financially untenable and threatening to erase the impact of the Justice Department’s historic private prisons phase-out, these reforms are even more urgently necessary. President Obama has already been derided as the “deporter-in-chief” for deporting more people than any other president in U.S. history. It would be profoundly disappointing if he were to hand the next president even more private prison contracts to lock down the dreams of people yearning to be free.