If private prisons close…

When the Justice Department announced two weeks ago that it would soon limit its reliance on private prison corporations, the news didn’t take long to reverberate. Advocates rightfully cheered a major step toward ending an egregious moral failure of a policy: Private prisons represent a base commodification of human bondage. For their part, the private prison corporations tried to put on a calm look, but had a tough time succeeding. The Corrections Corporation of America (CCA), one of the two largest private prison operators in the United States, issued a statement the same day as the Justice Department’s announcement only to follow it up with another statement a few minutes later correcting all the errors in the initial statement. Apparently someone hit “send” before proofreading—a sign of a harried public relations department.

As many observers of the nation’s bloated prison regime noted then (including me), the Justice Department’s announcement didn’t directly impact the largest segment of the federal government’s prison population, the Department of Homeland Security’s civil immigration detainees, but it did apply pressure on DHS to follow suit or explain why it’s so different. Turns out maybe it’s not. On Monday (August 16, 2016), Secretary of Homeland Security Jeh Johnson announced that he instructed the Homeland Security Advisory Council “to review our current policy and practices concerning the use of private immigration detention and evaluate whether this practice should be eliminated.” A major player in the private prison marketplace, GEO Group, responded almost immediately to Secretary Johnson’s announcement saying it “welcomed” the opportunity to have its operations reviewed.

If DHS decides to stop housing the nation’s roughly 430,000 civil immigration detainees in private prisons, the impact on the private prison industry will be undeniably severe.  According to GEO’s most recent financial report to investors, 18% of its revenue comes from ICE. Another 15% comes from the Justice Department’s Bureau of Prisons and an additional 12% from the U.S. Marshals. In total, 45% of GEO’s fiscal year 2015 revenue came from the federal government. CCA is in an even more dire position. It reported that 51% of its fiscal year 2015 revenue came from the federal government (24% from ICE, 11% from the Bureau of Prisons, and 16% from the U.S. Marshals). It’s never a good month when you learn that half your revenue stream might dry up.

Of course, there is no guarantee that the Homeland Security Advisory Council will conclude that DHS ought to sever ties with CCA, GEO, Management and Training Corporation, and other private prison contractors. Best known for having issued a controversial 2011 report on the flawed and now-defunct Secure Communities program, the HSAC is dominated by law enforcement and business officials.

But what if the Justice Department makes good on its promise and DHS decides to follow along? Not much at first. DOJ’s plan is to reduce its reliance on private facilities incrementally—reducing by about half the number of federal prisoners held in private facilities by May 1, 2017. It doesn’t plan to renege on existing contracts; instead, it plans not to renew contracts when they expire. At that rate it will take many years before it stops using private facilities. The Moshannon Valley Facility in Pennsylvania, for example, is under contract with GEO until March 2021.

DHS would have to do much the same. After decades of relying almost exclusively on private prison corporations to expand its ever growing prison archipelago, ICE simply doesn’t have the ability to end all of its contracts with private operators at once and take over these facilities.

The more interesting question is what would happen after that process unravels. What would an immigration detention regime look like after the era of privatization sunsets? If the Port Isabel Service Processing Center in the southeastern tip of Texas serves as a model, the answer is that the immigration detention regime that comes after privatization is likely to look a lot like the immigration regime of the privatization era.  Unlike many existing sites, the Port Isabel facility is owned and operated by ICE. I used to represent clients there and the law firm to which I remain of counsel, García & García Attorneys at Law, continues to do so. Though it is surrounded by the natural beauty of South Texas, there is nothing pretty about the Port Isabel facility. A former guard there in the 1980s described sexual abuse, death, and widespread retaliation against whistleblowers. More recently, the U.S. Commission on Civil Rights visited Port Isabel and concluded that it resembles a criminal penitentiary. According to the Commission’s September 2015 report, “Commission staff observed that dormitories house between 50 and 75 people, were lined with beds, and had open bathrooms and shower areas…. Additionally, the dormitories were electronically locked by heavy doors and were guarded.”

Port Isabel isn’t unique. Violence and lesser forms of mistreatment have been endemic in civil immigration detention sites for decades. And despite the Supreme Court’s conclusions that this type of detention isn’t punitive and ICE’s claims that these are not prisons or jails, every existing facility is run according to penal norms. Moreover, ICE actually rents out beds in dozens of county jails blurring to the point of invisibility the line between civil detention and criminal confinement.

All of this makes me skeptical that a civil immigration detention regime without private prison operators will necessarily usher in more humane treatment of migrants. That is not to discount the significance of the DOJ or DHS announcements and certainly not to discount the significance of potentially removing private prison operators from the federal prison regime. If these two enormous federal agencies in fact sever prison ties with the private prison industry, that would hinder these companies’ ability to profit from human bondage. Sure, GEO, CCA, and others have rapidly expanded their non-custodial surveillance offerings in recent years (indeed, in a conference call with investors about the Justice Department’s announcement GEO referenced the 53,000 people it manages under ICE’s ISAP alternative to detention surveillance system). What’s more, public entities (think county governments) would presumably be welcomed to fill the gap that private entities leave behind. Still, the hit that this would represent to the private prison industry is substantial.

That alone should be applauded, but, as the Port Isabel example illustrates, advocates who have cheered these two announcements should not celebrate prematurely. The horrendous conditions that have characterized many privately owned or operated facilities are not unique to those centers. Perhaps more importantly, none of this discussion about reforming the federal government’s prison estate raises the more fundamental question: should these people be confined in the first place? No matter which name is on the guards’ uniforms, confinement can’t be deemed legitimate if the government hasn’t shown a strong likelihood that the people inside the barbed wire pose a substantial threat if left to live their lives on the outside. This needs to be part of any reformation of the nation’s prison regime.