Imagine that the American criminal justice system was not run according to dictates of justice or criminal culpability but quotas — rules that dictated that at any given time there needed to be a certain minimum number of people locked up in jail. Then go one step further to imagine that the jails in question were largely run by private corporations, whose profits were effectively being underwritten by the government.
Virtually any sensible person would reject such a system out of hand. Yet, it’s precisely what the United States is doing with immigration detention, and under the Trump administration it’s potentially about to get a lot worse.
Immigration detention refers to the practice of incarcerating an individual while they await an immigration decision or navigate through removal proceedings. Immigration and Customs Enforcement oversees a nationwide network of 200 immigration detention facilities that annually detain as many as 400,000 individuals — approximately 30,000 to 40,000 at any given time. Over 60 percent of these facilities are contracted out to private corporations.
Now there are a variety of overarching critiques of this system of private detention: that the private prison system as a whole creates perverse incentives in law enforcement, that immigration detention centers suffer from inadequate oversight and monitoring, that immigration detention constitutes an illegal and morally and empirically questionable form of deterrence.
So what explains the widespread use of privately run facilities in immigration detention? In part, this stems from a disturbing nexus between politically connected and powerful corporations, Congress, and American public policy. In 2009, a provision added into a Department of Homeland Security spending bill mandated that any private immigration detention facilities must have, at any time, at least 34,000 occupants.
This detention quota was extended once again in 2015 when Congress re-upped appropriations for the agency. Note that this was despite Homeland Security Secretary Janet Napolitano publicly criticizing the quota in 2013 congressional testimony and even Homeland Security asking Congress to lower the quota in its 2015 appropriation. That the provision remained unchanged and intact is no accident. The private prison industry funnels millions of dollars into lobbying and campaign contributions while benefiting from close relationships with key policymakers.
Private prisons have become big business, paradoxically as rates of violent crime decline in the United States. Reading the tea leaves of these crime trends, the private prison industry has sought to protect its investments by branching out into “growth areas,” such as immigration detention, halfway houses and release monitoring systems.
Their diversification proved timely, as former President Barack Obama sought to phase out the federal use of private prisons in August 2016.
Yet, all of this is changing under President Donald Trump and the prospects for windfall growth in private prisons soar ever higher. In February, the Justice Department announced it would continue using for-profit prisons, abandoning Obama’s phase-out of the practice. In addition, recent internal memos suggest the Trump administration is looking to more than double the number of people held in immigration detention to 80,000 per day.
The end result would be a system that essentially mandates mass detention, and further ensures that we taxpayers foot the bill to enrich large, private corporations.
It would be a system in which the profits of private companies drive immigration policy and enforcement rather than our character as a nation, or sound decisions about what is in the economic, political and security interests of our country. Such a result would be many things, but it would not be justice.
It is within our power as citizens to demand prison reform and sensible immigration policy from our leaders in Washington. However, as the quota discussed here suggests, once a giveaway for a large and powerful industry is enshrined in public policy, it becomes very hard to undo, even when the agencies and Cabinet secretaries involved attempt to change it.
Robert W. Glover is an assistant professor of honors and political science at the University of Maine in Orono. He is a member of the Maine chapter of the national Scholars Strategy Network, which brings together scholars across the country to address public challenges and their policy implications. Members’ columns appear in the BDN every other week.