Homeland Security Must Stop Using Private Prisons for Immigration Detention. Here’s How to Do It.

This August, the Justice Department made history when it announced that the Bureau of Prisons would curtail — and eventually end — its use of private prisons. As the Justice Department noted, this change was made possible by criminal justice reforms that reduced its prison population. Now the ACLU is releasing a policy paper that calls on the Department of Homeland Security to follow suit by reducing its detention population and then ending its own use of private prisons.

The paper, “Shutting Down the Profiteers: Why and How the Department of Homeland Security Should Stop Using Private Prisons,” provides a concrete plan for how ICE can and should phase out its reliance on private prisons. The number of immigrants in detention has skyrocketed in the past two decades, and without these unnecessary detentions, there would be no need for private prison beds. The paper describes the human toll of over-detention and privatization and lays out ICE’s dangerously close relationship with the private prison industry.

After the Justice Department announced it would stop using private prisons, many others immediately raised the obvious question: Shouldn’t DHS do the same? After all, ICE relies so heavily on private prisons that it spends even more money on them than the Bureau of Prisons does. And most of DHS’s contracts are with the same three private prison companies that the Justice Department condemned in its report — Corrections Corporation of America, GEO Group, and the Management and Training Corporation.

DHS Secretary Jeh Johnson responded by announcing that a committee of advisers would study this issue and submit a report by November 30.

To competently answer the question posed to the committee — namely, whether ICE should end the use of private prisons — the committee cannot simply assume that current levels of detention are appropriate. In 1995, fewer than 8,000 people were in immigration detention on a daily basis. By this summer, that figure exceeded 37,000 people. The Obama administration’s aggressive use of detention is extreme and unprecedented, and it is propping up the private prison industry.

We ran the numbers and found that sensible, justified executive actions to reduce ICE’s reliance on detention could have impacts major enough to enable ICE to free itself from its private prison contracts. We estimate that:

• Halting mass family detention and the detention of asylum seekers would reduce the detention population by between 11,000 and 15,000 people.
• Ending prolonged detention without bond hearings and no longer imposing exorbitant, unaffordable bonds would reduce the detention population by at least 4,500 and at least 1,300 people respectively. Six federal circuit courts have held that a hearing is required once detention becomes unreasonably prolonged.
• Interpreting the mandatory custody statute, INA § 236(c) — which requires noncitizens, including longtime lawful permanent residents, with certain criminal convictions to be kept in ICE “custody” during their removal proceedings after their release from criminal custody — to permit a range of custodial options and applying it only to immigrants recently convicted of serious crimes who do not have a realistic chance of winning their immigration cases would reduce the detention population by between 5,000 and 10,000 people.

The Justice Department decided to end its two-decade experiment with private prisons after its own inspector general investigated these prison companies and found damning evidence of widespread abuses that echoed the ACLU’s earlier findings.

ICE has similar problems. Detainee deaths, suicides, sexual abuse, and denial of medical care have been documented again and again by the ACLU, journalists, other advocacy organizations, and even ICE’s own internal death reviews. This should be no surprise. In both systems, the prison companies operate with the same cost-cutting incentives and the same penal model — in a manner wholly inconsistent with ICE’s rhetoric about running a true civil immigration detention system.

As the American Bar Association, the U.S. Commission on International Religious Freedom, the U.S. Commission on Civil Rights, and other groups have emphasized, civil detention for immigrants should not be a jail-like setting with razor wire, jumpsuits, headcounts, restricted movement inside the facility, and other prison-like features and policies. But this is exactly how private prisons holding immigration detainees operate. And ICE has entirely abdicated its responsibility to hold the private prison corporations accountable to its detention standards.

This way of doing business enabled the most horrific example of sexual abuse in ICE custody. Between 2009 and 2010, a guard at the multibillion-dollar for-profit prison company CCA, who was responsible for transporting detainees from CCA’s Hutto detention facility to the airport for their deportation flights, sexually assaulted multiple women while en route, typically at night. His modus operandi was to stop his van on the way to the airport, order each woman outside of the van, and sexually assault them one by one on the side of the road. He was able to do this with impunity because, in violation of CCA’s contract with ICE, the company permitted him to drive the women without a fellow guard in the van, which reduced CCA’s personnel costs.

Despite such scandals, ICE is going to great lengths to preserve the status quo. Even before the first meeting of the DHS committee mandated to study whether to end contracts with private prisons, Sarah Saldaña, the director of Immigration and Customs Enforcement (ICE), unequivocally embraced private prisons in testimony to Congress. She said that the Justice Department and DHS are “apples and oranges” and that ending ICE’s reliance on private prisons would “turn our system upside down” because “we are almost completely contractor-run.”

The timing of Saldaña’s testimony and her dismissive attitude toward reform raise serious questions about whether the DHS’s committee is just going through the motions, their findings a foregone conclusion.

But if the committee is willing to listen, the ACLU policy paper charts out a wholly different path. Only 12 percent of ICE detainees are held in federally owned facilities. The vast majority — nearly three-quarters — are held in private prisons, and most of the remainder are held by county sheriffs who similarly see their bodies as a source of revenue. Profiteering should have no place in any detention system, but it is at the core of ICE’s current detention paradigm. The only way to assess whether ICE can shift away from private prisons is to put all options on the table.

While the Justice Department has implemented common-sense criminal justice reform policies, including a 2013 initiative to ensure more proportional sentences for low-level and nonviolent drug offenses, DHS has done the opposite, pursuing extremely aggressive policies that have produced unprecedented levels of detention. If DHS is to eliminate private prisons from the immigration system, then it must reduce its use of detention.

If DHS implements our recommendations, it will no longer need the private prison corporations on which it now relies so heavily. This will make the detention system more accountable, transparent, and better able to assure safe, humane conditions for immigrants who came here to seek a better life.

Read the full policy paper