New Report Spotlights Human Toll of Over-Detention and Privatization in Immigration Facilities, Offers Policy Path Forward

October 3, 2016

WASHINGTON — A new report from the American Civil Liberties Union spotlights the dangerously close ties between U.S. Immigration and Customs Enforcement (ICE) and the private prison industry, describes the human toll of over-detention and privatization, and provides a concrete plan for how ICE can and should phase out its reliance on private prisons.

Shutting Down the Profiteers follows a recent Justice Department announcement that the Bureau of Prisons will halt the use of private prisons after concluding such facilities are less safe, less secure, and less effective than federally run prisons. The Justice Department noted that it is able to end its private prison contracts because criminal justice reforms reduced its prison population by 25,000 people from 2013 to 2016. The ACLU is calling on the Department of Homeland Security (DHS), which oversees ICE, to follow suit by reducing its detention population and then ending use of private prisons for immigration detention.

ICE has faced fierce criticism for failing to oversee its private detention contractors. Many cases of detainee abuse have occurred at detention facilities run by the same private prison companies that will soon lose their Bureau of Prisons contracts, including the Corrections Corporation of America (CCA). In one case, a CCA guard responsible for transporting female detainees from a detention facility to the airport sexually assaulted multiple women while en route. CCA permitted the guard to drive the women without an accompanying guard, in violation of the ICE contract.

“ICE’s heavy reliance on private prisons comes with terrible human costs,” said Carl Takei, a staff attorney with the ACLU’s National Prison Project. “And due to record-high levels of detention, ICE is the private prison industry’s biggest cash cow. CCA gets more money from ICE contracts than from the Bureau of Prisons, California, Texas, and the company’s home state of Tennessee combined.”

Key points in Shutting Down the Profiteers include:

  • During the Obama administration, ICE has detained an increasing number of asylum seekers in privately run detention facilities. Between FY 2009 and FY 2014, ICE more than quadrupled its detention of asylum seekers. Many asylum seekers remain locked up for over a year as they pursue their claims in court. ICE needs to reduce unnecessary detention in order to foster an end to privatized detention. Additionally, ICE has held large numbers of people in prolonged detention without bond hearings or with unaffordable bonds, and relied on expansive interpretations of the mandatory custody statute to keep immigrants unnecessarily locked up.
     
  • Starting in 2014, private prisons institutionalized mass family detention by erecting two mega-facilities to lock up children and mothers fleeing brutal violence in Central America.
     
  • DHS should look to the Justice Department’s approach for guidance. While the Justice Department has implemented common-sense criminal justice reform policies to reduce its prison population, exemplified by its 2013 “Smart on Crime” initiative to ensure more proportional sentences for low-level and nonviolent drug offenses, DHS has undertaken no comparable course of detention reform. Rather, DHS and ICE have pursued extremely aggressive policies that have produced unprecedented detention levels by all metrics: total numbers of people detained, vulnerable immigrants detained, duration of detention, and revenue for for-profit prison corporations.
     
  • ICE must replace its mass detention apparatus with a spectrum of alternative options, including release on recognizance, reasonable bond, and community-based alternative to detention programs with case-management services. The ACLU estimates that the specific policy changes we recommend would have the following impacts on the detention population:
    • 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, respectively, at least 4,500 and at least 1,300 people. 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.

“It’s time for ICE to stop detaining so many people and end its relationship with these predatory companies,” said Takei.

A full copy of Shutting Down the Profiteers is at: https://www.aclu.org/report/shutting-down-profiteers-why-and-how-department-homeland-security-should-stop-using-private

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