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 Editorials | Issues | May 2008 
Lawsuits Raise Questions About Private US Prisons
 Leslie Berestein - Copley News Service
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| | Issac Kigondu Kiniti, a Kenyan detained since 2004, was photographed last year as the lead plaintiff in a lawsuit alleging overcrowding at a Corrections Corp. of America facility in San Diego. (CNS/Howard Lipin) | | |
As immigration laws have become tougher, the federal government has found itself with a logistical challenge: where to house a population that has swollen to more than 30,000 detainees.
The solution? Turn them over to the private sector.
Detention contracts have helped turn once-ailing private prison companies into a multibillion-dollar growth industry with record revenues, healthy stock prices and ambitious expansion plans.
One of them, Corrections Corporation of America, or CCA, has applied to build a nearly 3,000-bed prison near the border between California and Mexico, where it now runs a facility holding up to 700 detainees awaiting deportation or decisions on their immigration cases. The company is the nation's largest private prison operator.
On average, U.S. Immigration and Customs Enforcement saves more than $31 per day, per person, by using a contract detention facility rather than an agency-run one. For ICE, it's a way to save potentially hundreds of millions of dollars a year while having ready access to more beds.
In the past year, ICE and its contractors have come under fire for alleged mistreatment of immigrants. In San Diego last year, the American Civil Liberties Union twice sued the agency and CCA.
One lawsuit alleged overcrowding at the San Diego facility, with three detainees housed in cells designed for two. The other alleged inadequate medical care, with detainees complaining of being denied treatment or waiting months for it.
The pending lawsuits contend that immigration detainees, who are being held for violations of civil law, must be held in conditions better than those for criminal violators; anything worse amounts to punitive confinement without due process, a constitutional violation.
Both ICE and the company, which is based in Nashville, Tenn., have said there was no wrongdoing.
A 2006 federal investigation of five facilities used by Immigration and Customs Enforcement - an agency-run center, three jails and the CCA facility - found flaws with all. Last fall, an ICE-run detention center in San Pedro, near Los Angeles, closed for repairs a few months after losing its prison accreditation.
"The problems are not by any stretch of the imagination limited to private companies," said Michele Deitch, a prisons expert with the Lyndon B. Johnson School of Public Affairs at the University of Texas in Austin. "But I think you are going to see more problems there, and less oversight of these facilities."
ON THE RISE
While private prisons have contracts with other federal agencies and with states to house their inmates, business from immigration authorities has risen steadily.
The number of people held by Immigration and Customs Enforcement has jumped 36 percent since 2005, when the agency held a daily average of 19,718 detainees, who include illegal immigrants, asylum seekers and legal U.S. residents facing deportation. By the end of 2007, that number had grown to 30,881. At the end of last year, 13 percent of ICE detainees were held in agency facilities. Seventeen percent were in private facilities that contract directly with ICE; 21 percent were in facilities contracted from local governments, usually with the county acting as middleman for a private company. An additional 46 percent were in county jails, where ICE rents beds, and a handful in other facilities, including rented federal prison space.
Many of these jails and prisons, while under government jurisdiction, also are privately operated.
In the past three years, Immigration and Customs Enforcement has more than tripled what it spends on detention. Its annual appropriation for custody has grown to $1.6 billion this year from $504 million in 2005.
The White House has requested funding for 1,000 more beds by Sept. 30.
The immigration agency has no plans to build any more of its own detention centers, of which there are eight in the nation. Officials say it's easier to contract the beds.
"It just provides us with a quicker way to provide detention space," said Gary Mead, acting director of ICE detention and removal operations in Washington, D.C.
The savings are substantial: According to ICE, it cost $87.99 per day on average in fiscal year 2007 to hold someone at a contract detention facility, while it cost roughly $119.28 a day to house a person at an ICE-run facility.
Detention increased after 1996, when legislative changes made it easier to deport immigrants residing here legally who had been convicted and served a prison sentence, and made detention mandatory as they awaited deportation.
Then the terrorist attacks of Sept. 11, 2001, occurred, and the federal government intensified its focus on border security.
In 2003, there came a new emphasis on tracking down people who had missed an immigration hearing or ignored a deportation order. In fiscal year 2007, ICE fugitive teams made more than 30,000 arrests.
Detentions expanded again after late 2005, when the Bush administration called for an end to the practice of "catch and release" for non-Mexican illegal immigrants who were being released with a notice to appear in court. Most Mexican nationals are quickly repatriated at the border.
PLASTIC 'BOATS'
Until early last year, the 10-year-old San Diego Correctional Facility, built and operated by Corrections Corporation of America, held up to 1,000 detainees.
In June 2006, the company lost 200 beds when the lease on part of the county-owned property expired. Yet according to CCA's 2006 financial report, the population of detainees wasn't reduced "as we had the ability to consolidate inmates."
The following January, in its lawsuit, the ACLU cited the per-person fees paid by ICE to the contractor as an incentive for putting three people in a two-man cell. The third slept on the floor in a plastic cot referred to as a "boat."
Lead plaintiff Isaac Kigondu Kiniti, a Kenyan detainee in ICE custody since 2004, said his head was so close to the toilet when he slept on the floor that he was showered with urine when cellmates used it. Kiniti criticized the contractor.
"Because they are a for-profit company, they will give you only the bare minimum of things to increase their profits," said Kiniti, a former student-visa holder, appealing a deportation order stemming from a drug conviction.
ICE has since set the facility's maximum capacity at 700.
CCA, which like its competitors touts its cost-effectiveness, says there is no skimping at detainees' expense.
"We do not cut corners," said Louise Grant, a spokeswoman. "Safety and security is our highest priority. We are extremely committed to offering strong programming for offenders in our care, as well as the highest medical care."
Grant said costs are reduced by using efficient construction methods. While wages vary depending on the contract, she said, staff salaries frequently reflect the local cost of living. Many private prisons, like public ones, are in low-cost rural areas.
Grant said almost 90 percent of the company's facilities abide by the voluntary standards of the American Correctional Association, which includes public and private prisons.
However, according to the overcrowding lawsuit, the association's standards for "adult local detention facilities" call for cells housing more than one person to provide 25 square feet of unencumbered space per occupant. At Otay Mesa, when there were three detainees per cell with the cot on the floor, it amounted to no more than 15 square feet for all three, the complaint reads.
OVERSIGHT CONCERNS
Critics of prison privatization cite oversight as perhaps one of the biggest concerns when private companies perform public incarceration duties.
According to ICE, 71 people have died in the agency's custody since the beginning of 2004. Of these, 57 were in contract facilities that ranged from private detention centers to county jails, raising questions about whether a lack of government oversight played a part.
Three people have died at San Diego since 2003, including Yusif Osman, 34, a Ghanian man who died in his cell in 2006 after complaining of chest pain.
According to the San Diego County medical examiner's report, it took personnel more than an hour to call 911 after Osman's cellmate began asking for help. The report claims that Osman was seen on his knees, and that a medical supervisor, upon finding no medical history on him, "informed the control officer to have Mr. Osman file a request to seek medical assistance."
In the ACLU medical-care lawsuit, plaintiffs complained about delays in getting treatment and prescription refills. One plaintiff is a diabetic man whose requests for care for a small injury to his foot were delayed so long that he developed gangrene.
Also cited is the case of Francisco Castaneda, a detainee who had to wait several months to see an off-site oncologist for what turned out to be penile cancer. Castaneda sued the federal government a few months before his death in February. His family has continued the lawsuit. The government recently acknowledged that there was medical negligence, one of the allegations made.
Health care at the San Diego site is provided by the federal government, which according to the ACLU complaint took over health services from Corrections Corporation of America in 2002 after finding the company's health program deficient.
However, because company guards are the first to hear requests for medical care, "that does not mean that CCA is off the hook entirely," said David Blair-Loy, legal director of the ACLU in San Diego.
"They may be interfering with access to treatment," Blair-Loy said. "And they may or may not have a direct financial incentive to prevent people from getting treatment."
There is no way to know, he said, because the public cannot obtain government contract information from private companies.
CCA's Grant, whose company earned nearly $1.5 billion last year, said that if the quality of CCA's service to inmates was not meeting expectations, the federal agency would cancel its contracts.
In February 2007, the month after the overcrowding lawsuit, Immigration and Customs Enforcement created a new detention-inspection task force charged with responding to complaints at all facilities where it houses detainees.
Staff writer Greg Moran contributed to this report. |
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