Homeland Security splits with Justice Department on for-profit immigration prisons

A Homeland Security advisory board concluded Thursday that surging numbers of immigrants facing deportation will all but force federal authorities to continue relying on privately run detention facilities, even after the Justice Department said it would phase out its use of such prisons due in part to safety and security concerns.

The report, produced by an advisory council subcommittee formed within the agency after the Justice Department's announcement this summer, did not recommend that Immigration and Customs Enforcement stop using detention centers operated by for-profit corporations.

It did, however, highlight the advantages of ICE-run detention facilities, and it also called for greater oversight by ICE and decreased reliance on county jails to house detainees.

Nearly two-thirds of the nation's roughly 41,000 immigrant detainees are incarcerated at private facilities run by for-profit contractors. Another quarter are held in county jails. Just 10 percent are held in federal facilities.

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"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 subcommittee wrote in its report. "But continuation should come with improved and expanded ICE oversight, and with further exploration of other models to enhance ICE control, responsiveness and sense of accountability for daily operations at all detention facilities."

County jails, it added, were the "most problematic" facilities, prompting the subcommittee to conclude that "ICE should also seek ongoing ways to reduce reliance on detention in county jails."

Homeland Security, in a statement, said that "ICE leadership will review and consider" the report's recommendations.

The report comes at a sensitive time in the immigration debate: Although deportations have reached record levels under President Barack Obama, President-elect Donald Trump has vowed to vastly expand the number of deportations, and on the campaign trail characterized some Mexican immigrants as "rapists" and "criminals" deliberately sent across the border by Mexico.

The Supreme Court, meanwhile, heard arguments Wednesday in a case that could decide whether immigrant detainees held for at least six months are entitled to bail bond hearings to determine whether they are dangers or flight risks. The ruling, combined with Trump's pledges, could greatly increase the number of immigrants placed in detention.

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The American Civil Liberties Union, which represented detainees in the Supreme Court case, expressed disappointment in the report's findings.

"The Homeland Security Advisory Committee's report represents a missed opportunity for the Obama administration to leave office setting forth a more humane alternative to Trump's mass deportation plans," Carl Takei, a staff attorney with the ACLU's National Prison Project, said in a statement. "Instead, the committee has helped to cement President Obama's ugly legacy on detention and deportation, and laid the groundwork for further detention profiteering under President Trump."

The ACLU and other civil rights and immigration advocacy groups, as well as left-leaning lawmakers, have long opposed the use of private prison and detention facilities. Critics allege that private incarceration impedes transparency, hinders oversight and distorts the justice system by turning prisoners and detainees into commodities for corporations. Investigative reports by The Nation and Mother Jones also exposed a range of issues at privately run prisons.

In announcing the Justice Department's plans to curtail its use of private prisons, Deputy Assistant Attorney General Sally Yates cited an extensive review by the Justice Department's Office of the Inspector General, which found higher rates of security and safety incidents at private prisons compared to government-run facilities.

The Justice Department's phase-out of private prisons, however, was aided by a 12 percent drop in the federal prison population in the past three years and the fact that only 15 percent of federal prisoners are held in for-profit facilities.

By contrast, just a fraction of ICE detainees are held in federally owned facilities, and the detainee population has rapidly expanded, driven by migrants fleeing violence in Central America and record numbers of deportations carried out by the Obama administration. Between September and October alone, the number of immigrants apprehended at the border leaped by 12 percent, to 46,195 people in October from 39,501 in September, the subcommittee report said.

In fact, as the Justice Department's Bureau of Prisons was curtailing its use of privately run prisons this fall – some of them with troubling histories of alleged abuse – ICE was apparently entering negotiations to contract with the same facilities.

"Capacity to handle such surges, when policymakers determine that detention will be part of the response, cannot reasonably be maintained solely through the use of facilities staffed and operated by federal officers," the report said. "This leaves essentially two options for coping with sudden detention fluctuations: privately operated facilities or county jails."

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County jails pose particular challenges, the report found. They often do not meet ICE standards, and their administrators "can be resistant to changes in their practices in response to identified problems, in part because they do not wish to have sharp differences in treatment for different categories of detainees (ICE vs. local) held at the same facility."

Detention Watch Network, an immigration and detention advocacy group, called the findings "disappointing" but "not surprising," and cited ICE's apparent efforts to use the same facilities being abandoned by the Bureau of Prisons.

"We are outraged that the subcommittee has chosen to recommend small changes that clearly will not address the underlying abuses endemic to the detention system," Detention Watch Network policy director Mary Small said in a statement "The investigation's findings don't respond to the mountain of evidence against private prison facilities, which are rife with abuse, mismanagement and neglect."

The six-member subcommittee, part of the Homeland Security Advisory Committee, included former CIA Director William Webster and Marshall Fitz, a senior fellow at the left-leaning Center for American Progress, and it was led by former Drug Enforcement Administrator Karen Tandy. The members visited an ICE detention facility and another owned and operated by a private prison corporation and also interviewed ICE officials, private detention executives, federal law enforcement officials and immigrant rights groups.