What this decision does not affect, however, is the Department of Homeland Security’s vast and problematic detention machinery. These facilities often hold asylum seekers, including young women and children, while they wait for legal outcomes or deportation. This is called civil detention, and is not meant to be punitive. And yet, it often is, activists argue—both in private- and government-operated facilities.
The end of “shadow prisons”?
Non-citizens make up around 22 percent of the total Federal Bureau of Prisons inmate population—but they’re a majority of the 22,000-plus individuals held in the BOP’s privately-operated prisons. All thirteen such facilities are Criminal Alien Requirement (CAR) prisons, designated mainly for non-citizens who’ve entered the country without papers.
According to a 2015 investigative report from Fusion, two-thirds of individuals in these “shadow prisons,” as critics call them, are locked up for entering the U.S. illegally after already being deported once. Reentry was a civil offense up until the 1980s, but criminal penalties for the offense have since become extremely harsh, punishable by several years in prison. In the 1990s, prosecutions started inching up, then rose dramatically under the Bush administration because of Operation Streamline (a program that cracked down on illegal border crossings). Under President Barack Obama, they reached the high 30,000s annually, up from less than 5,000 in the mid-1990s.
Most of the roughly 23,000 immigrants held each night in CAR prisons have committed immigration infractions -- crimes that a decade ago would have resulted in little more than a bus trip back home. And now, some of the very same officials who oversaw agencies that created and fueled the system have gone on to work for the private prison companies that benefited most.
Activists have long decried the conditions in private prisons. An investigative report published in The Nation in January 2016 lent credence to their claims. The report was based on documents, obtained through the Freedom of Information Act, which showed that lax medical and mental health standards in privately run institutions had resulted in dozens of deaths.
The DOJ announcement signals the end of these institutions. “We hope that this decision will be a stepping stone for the DOJ to end the use of segregated prisons for non-citizens and de-prioritize improper entry and re-entry prosecutions,” said Bethany Carson, a researcher and organizer at Grassroots Leadership, an anti-incarceration advocacy group. Carson and her colleagues have published a book about the booming business created by targeting repeat border crossers.
What about private civil detention facilities?
Immigration and Customs Enforcement, which is under the DHS, detains individuals in several types of facilities: some are ICE-owned and operated; others belong to states or local government. But some are contracted out to private companies. Among them: the infamous family detention center in Dilley, Texas, which housed Central American mothers and children who came to the country in the 2014 migrant crisis. This facility was built by the Corrections Corporation of America—the second-largest private prison company in the U.S., which operates nine immigration detention centers. Recently, a Mother Jones reporter went undercover as a prison guard at a CCA-run facility, uncovering a high degree of corner-cutting and neglect. And just a few days ago, The Washington Post revealed the details of the unusual contract between the corporation and the government for the Dilley facility:
The four-year, $1 billion contract — details of which have not been previously disclosed — has been a boon for CCA, which, in an unusual arrangement, gets the money regardless of how many people are detained at the facility. Critics say the government’s policy has been expensive but ineffective. Arrivals of Central American families at the border have continued unabated while court rulings have forced the administration to step back from its original approach to the border surge.
Dilley has a troubled past. In 2015, a federal judge ruled that the center did not meet the well-being standards for children, as set by the agreement in the 1997 case of Flores v. Meese. The detained children were subsequently ordered to be released.
In May 2016, another judge temporarily blocked ICE’s attempt to get a child care license, which would have make child detention at Dilley legal. ICE insists that conditions have improved, but critics still call it a “baby jail.” Here’s Ian Philabaum, underground project coordinator for the CARA pro bono project, at a public hearing in front of the Texas Department of Family and Protective Services in 2015:
Six days a week, I walk into this facility, and I meet with over 150 mothers. With them are their children who all are sick. They are crying. They have fevers. They are constipated. They are bloated. They have diarrhea. We have been seeing eye infection rampant on a weekly basis. And we see, most of all, with every single child what we now refer "the Dilley cough." That's what's normal. That is what we see every single day.
Given that the problems in private-contracted prisons are similar under BOP and DHS, “the natural next step is for the DHS to also reconsider its practice of contracting with private prison corporations,” Claudia Valenzuela, detention project director at the National Immigrant Justice Center, tells CityLab.
Government-run facilities also have problems
Private prisons and detention centers may be more opaque, but government-operated ones don’t appear to offer much better conditions, as these newly released pictures of conditions at Customs and Border Patrol (CBP)-run facilities in Arizona seem to prove:
A recent court order in a class action lawsuit filed by civil and immigrants rights organizations against the CBP unsealed photographic evidence of freezing, cramped, and dirty conditions in these facilities where men, women, and children are held. These holding cells, often called hieleras—Spanish for “iceboxes”—are only intended for short-term stays of a few hours. But “lengthy detention is remarkably frequent” in these places, according to an American Civil Liberties Union report. (Across CBP facilities, length of detention varied from 65 to 104 hours.)
In the photos, small children crawl on the floors of concrete floors and detainees sleep head-to-toe in bare-bones cells—sometimes wrapped in Mylar sheets, but often without any kind of covers or mats. “These photos show the harm people suffer in these facilities, from having to sleep on the floor for days to needing to huddle together just to stay warm,” said Travis Silva, attorney at the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area—one of the organizations who filed the lawsuit. “These conditions should not exist in a facility operated by the United States government.”