New Efforts to Push Private Prisons Out of Immigration Detention

By Mariela Olivares

As regular readers of this blog and of César’s work know, the history of mass incarceration is one mired in political and societal efforts to criminalize drug-related offenses, to lengthen prison sentences and to increase the severity of punishment for relatively minor offenses. These general criminal justice system reform efforts, which gained greatest steam in the 1980’s, resulted in an incredible increase in the number of people incarcerated in the United States.

As we also know, the concomitant effect on immigration detention was also unprecedented. Although the U.S. government has long detained immigrants, the practice has evolved into one of the government’s default enforcement mechanisms, mirroring the carceral regime of the traditional criminal justice system. As I write in Intersectionality at the Intersection of Profiteering and Immigration Detention, forthcoming in the Nebraska Law Review in 2016: “In January 2014, Congress passed and President Obama approved a fiscal year 2014 operating budget for DHS [the Department of Homeland Security]  that allocated $2,038,239,000 to ‘Custody Operations,’ which amounts to imprisoning almost 34,000 immigrants each night. Just ten years prior in 2004, DHS operating budgets allocated funds for 18,000 detention beds. In 1995, DHS detained approximately 85,730 immigrants total throughout that year. In 2013, by contrast, DHS detained a total of 440,557 immigrants.”

Advocates for the dismantling of the behemoth immigration detention system are thus rightly intrigued by the recent conversations regarding criminal justice reform aimed at stopping the injustices perpetrated by our system of mass incarceration.  In a recent forum hosted by the criminal justice-focused nonprofit news organization The Marshall Project, President Obama spoke on a panel with law enforcement representatives—Los Angeles Police Chief Charlie Beck and U.S. Attorney for Colorado John Walsh—about needed reforms in the criminal justice system, including revising mandatory minimums for all but the most serious violent offenses; decriminalizing certain drug crimes; shortening prison sentences for many offenses, including certain violent offenses; and investing money in rehabilitative and preventative efforts, rather than in increased incarceration. Indeed, there has been a surprising call for criminal justice reform measures, including alternatives to imprisonment, from both sides of the political aisle and by progressive and conservative voices.

Part of this push towards reform targets not just the unjust policies and implementation of the criminal regime but also the corporatized incentives that fuel the prison machine in the immigration context. The private prison industry is one of the entities with much to gain by the increased incarceration of prisoners and immigrants, as these companies reap enormous profits when more people are put in jail. As I note in my article regarding the two largest private prison companies’ lucrative business practices: “In the first quarter of fiscal year 2015, GEO Group earned revenue of $427.4 million dollars—or roughly $142.4 million dollars a month. Similarly, in that same time frame, CCA earned revenue of $426 million—or roughly $142 million dollars a month. This money comes, in short, from government contracts. In the immigration context, for example, DHS contracts with the companies through various mechanisms to construct, open, operate and/or maintain immigrant detention facilities. A recent report estimates that, based on the 2014 congressional allocation of money to DHS for immigrant detention practices, this amounts to $5.6 million dollars of taxpayer money a day, which corresponds to $164 a day per imprisoned immigrant.”

Thus, just as current reformers are targeting the criminal laws, the movement has also aimed its sights at getting private companies out of the business of profiting off of incarceration and detention. As one example, U.S. Senator and presidential candidate Bernie Sanders recently introduced a bill in the Senate that would ban the federal government from contracting with private prison corporations, reinstate the federal parole system to increase alternatives to incarceration and shorten sentences, and eliminate the congressional immigration detention bed quote of 34,000 per night. The Justice is Not for Sale Act, with a companion bill introduced in the House by Democrats Rep. Raúl Grijalva, Rep. Keith Ellison, and Rep. Bobby L. Rush, aims to ameliorate the disparate and unjust effects of the currently broken criminal justice and immigration detention system by, in part, attacking the profit-driven incentives of incarceration.  As Senator Sanders proclaimed: “In my view, corporations should not be allowed to make a profit by building more jails and keeping more Americans behind bars. We have got to end the private-for-profit prison racket in America.”

This effort to drive corporations out of the prison business and, specifically, immigration detention, would have far-reaching effects on what has become the DHS default of putting immigrants in jail—even those not adjudicated guilty of any crime, accused of violence, or possessing a criminal history. Indeed, the reach of the private prison industry in immigration detention is perhaps no more starkly seen than in the imprisonment of women and children immigrants in the three so-called “Family Residential Centers,” two of which were built and are operated by private prison companies. In fact, during the first quarter of 2015, CCA, which operates the Family Residential Center in Dilley, Texas, recognized $36 million in revenue associated with the Dilley facility—or $8 million in each of the first three months of 2015 just by imprisoning immigrant mothers and children. Data further estimates that private prisons detain somewhere between roughly half to two-thirds of the total detained immigrant population, making them a dominate force in the immigrant incarceration business.

Banning the federal government from contracting with private prison corporations would be one important step towards dismantling detention as we know it. Reformers must be wary, though, of plans that simply focus on the private prison companies’ connections with incarceration. In fact, publicly-run prisons and jails also lobby and compete to receive lucrative prison and detention contracts, which could also lead to the same pro-carceral incentives. Moreover, private prison corporations have recently begun to branch into the business of parole monitoring, with an eye perhaps on the current air of reform against incarceration. As I assert in my article, alternatives to detention may be more humane than prison, but if the profit incentives still exist in these systems, then we risk an alternative with the same panoply of problems that define the corporatization of a process that is best left for public regulation and operation. Instead, attacking the corporatized incentives that fuel our detention regime is a necessary reform towards creating a more just and humane immigration system.

Mariela Olivares is an Associate Professor of Law at Howard University School of Law. Professor Olivares teaches immigration law and writes about immigration law and policy through a critical race, class and gender framework. View her research at: http://ssrn.com/author=1350215.

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