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DHS review defends using private prisons for detained immigrants

Homeland Security officials will likely continue using privately owned prisons to detain immigrants following the recommendation of an advisory committee tasked to review the practice. 

In a draft report obtained by TucsonSentinel.com, the Homeland Security Advisory Subcommittee on Privatized Immigration Detention Facilities said that Immigration and Customs Enforcement should remain entangled with the private-prison industry, noting that a shift away from the practice would cost $5-6 billion. 

The subcommittee argued that the ICE simply has no choice but to continue using private prisons, writing that "fiscal considerations, combined with the need for realistic capacity to handle sudden increases in detention, indicate that DHS’s use of private for-profit detention will continue." 

The decision to maintain privately run detention centers for immigrants follows sustained criticism from advocates and civil rights groups that delays in healthcare and the use of isolation has contributed to the deaths of immigrants in their custody. 

The CCA-run Eloy Detention Center in Arizona has the dubious distinction of being the deadliest facility in the United States, where 15 detainees—including a 36-year-old Guatemalan women who died after suffering seizures on Monday—have died since 2003. 

Raquel Calderon de Hilgado died at Banner Casa Grande Medical Center after she was taken by ambulance from the detention center, becoming the third person to die in ICE custody in 2017. The year before, 10 people died in ICE custody. 

The subcommittee noted if ICE was building an immigration detention system "from scratch" a government-run model might be more appropriate, however, the ad hoc nature of the nation's detention center meant that the current mixture of private companies, county jails, and government-run facilities would remain in place.

"Because legitimate restriction on physical liberty is inherently and exclusively a governmental authority, much could be said for a fully government-owned and government operated detention model, if one were starting a new detention system from scratch. But of course we are not starting anew," the subcommittee wrote. 

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Marshall Fitz, a senior fellow at the liberal Center of American Progress and a member of the committee, rejected this argument in a forceful dissent. 

While it may take years of concerted effort to remove private companies from immigration detention, Fitz said, he disagreed with the subcommittee's conclusion that "reliance on private prisons should, or inevitable must, continue." 

"A measured, but deliberate shift away from the private prison model is warranted," Fitz said. 

In September, the American Civil Liberties Union released a report, "Shutting Down Profiteers" which made several recommendations that would allow ICE to close private prisons. This included halting the practice of detaining asylum seekers and families, ending prolonged detention without bond hearings, allow more people to enter "alternative to detention" programs, and stop the imposition of "exorbitant, unaffordable bonds." 

The subcommittee deferred this kinds of decision in its report, noting that it only had two months to review the use of private prisons for immigration detention, and thus was only a "high-altitude view" of the highly-complex subject of immigration detention. 

The group said that it did not try to "address the broader policy" guiding how often DHS should hold immigrants in detention centers rather than use alternatives, including supervision programs, electronic monitoring, or releases using financial bonds. 

The subcommittee was tasked with reviewing the use of detention facilities operated by for-profit corporations following an August 18 announcement from the Justice Department that it would substantially reduce, and ultimately end the use of private prisons. 

This included input from the private-prison industry, including GEO Group and CoreCivic, the renamed Corrections Corporation of America, and advocates, including the ACLU and the United Nations High Commissioner for Refugees. 

Members of HSAC also visited two sites, including a facility in Arizona. 

While this affected only 13 facilities nationwide — none in Arizona — nonetheless, Homeland Security Secretary Jeh Johnson directed HSAC to review "our current policy and practices concerning the use of private immigration detention and evaluate whether this practice should be eliminated." 

The subcommittee should review "all factors concerning ICE’s detention policy and practice, including fiscal considerations," Johnson said, and directed the subcommittee to submit a report by November 29. 

While advocates celebrated the decision of the Justice Department, it was clear that the reduction of private prisons was focused on only a handful of facilities run by the Bureau of Prisons. Other federal agencies, including the U.S. Marshals Service, were not affected by the decision.

The subcommittee said that the ICE's detention needs "most closely parallels that of the Marshals Service." 

"Like ICE, the Marshals primarily hold detainees awaiting trial or implementation of a judgment, rather than for corrections or the related services that are provided in prisons for convicted offenders," the subcommittee wrote. In 2016, U.S. Marshals detained 51,382 people, about 19 percent in federal facilities, 46 percent in county jails, and 35 percent in privately run facilities. 

ICE uses private facilities to hold 65 percent of immigrants, while around 25 percent are held in county jails, and only 10 percent are held in facilities run by the federal government, HSAC said. 

This includes nearly 41,00 people held by ICE in detention centers nationwide, largely driven by the influx of families and unaccompanied minors from Central America. 

On November 10, Johnson announced that in October 46,195 people were apprehended along the southwest border, a dramatic increase from August, when 37,048 people tried to cross the U.S.-Mexico border, and September when 39,501 people were apprehended.

In response, Johnson said that ICE should look to acquiring more detention space for single adults, so that "those apprehended at the border can be returned to their home countries as soon as possible." 

The subcommittee noted these increases in its report, saying that "ICE detention is also particularly subject to sudden and sharp swings in population." 

The report was critical of the use of county jails to house civil immigration detainees, calling them the "most problematic facilities for immigration detention." 

While ICE cannot realistically eliminate the use of county jails for detention, largely because immigration enforcement action can take place in remote locations, federal officials should only use these facilities for short-term detention and transfer detainees to federal facilities or a privately-run facility "subject to the full range of ICE standards and oversight." 

Requests for comment from CCA and ICE were not returned. 

U.S. Rep. Raúl Grijalva, in a joint statement with former Democratic candidate for president, Sen. Bernie Sanders, blasted the committee's findings, saying that the federal government's decision to maintain contracts with privately-owned prisons was "unacceptable." 

"This administration has allowed incarceration and detention profiteers to flourish under its leadership, with revolving doors between agencies and corporations ensuring lucrative contracts and cozy lobbying ties," Grijalva said. "The federal government cannot turn a blind eye to the suffering of adults and children, their inadequate care, and the erosion of justice in our society. And now, just when the administration had the opportunity to move our nation in the right direction, they’ve decided to double down on for-profit captivity." 

Sanders called the private-prison industry a "racket" and that said that "incarceration has been a source of major profits for private corporations." 

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Paul Ingram/TucsonSentinel.com

The logo of the Corrections Corporation of America hangs over the Eloy Detention Center, which the private prison company runs under contract with immigration authorities.