Under the Obama administration, a record number of immigrants are getting charged and convicted of illegal entry and illegal reentry. But those immigrants don't get deported until after they've served their prison terms in the United States.
The same is true for unauthorized immigrants who are convicted of other crimes — or legal immigrants who lose their immigration status once they're convicted of a crime.
The federal government puts these immigrants in separate facilities from other inmates. These facilities only house non-citizens, most of whom will be deported after their terms are completed — meaning the federal government is willing to set lower standards for their treatment in some respects than they do for other inmates.
Furthermore, these immigrant prisons are all operated by private companies: the Corrections Corporation of America (CCA), the GEO Group, and the Management and Training Corporation (MTC). This puts private immigration systems at the intersection of two shadow justice systems: the private prison system, and the immigration enforcement system.
The national ACLU and the ACLU of Texas have just released a report on these private immigration prisons, after years of work to uncover what's really going on there. They found that prisons were jammed, healthcare was inadequate, and guards were cruel. But the report also lays out some of the reasons that the private immigration prison system is set up in a way that makes the mistreatment of inmates all but inevitable.
Here are five major problems the report identified at the heart of the private immigration prison system:
1) These prisons are built to rely on solitary confinement cells
Even though these immigration prisons are supposed to be low-security, the federal government requires that all of them have 10 percent of their beds in solitary confinement cells. That's twice as many as most prisons have.
As a result, when the prison is more than 90 percent full, the prison has to start putting inmates in solitary confinement — even if they haven't done anything wrong. Some prisons just started putting inmates in solitary cells as a first stop when they arrived in prison, until they'd found permanent placed for them a few weeks later.
This also encourages prison staff to put inmates in solitary for bad reasons, like complaining about insufficient medical care — or, after one disturbance, crying when guards sprayed pepper spray inside the prison.
2) Private companies have incentives to overcrowd their facilities
The overcrowding problem is made worse by the fact that prisons are actually paid a bonus per prisoner after the prison reaches 90 percent capacity — all the way up to 115 percent. Not only is "100 percent capacity" not a hard limit on how many inmates can be put in a prison, but companies get more when the prison is overfull than they do when it's less full.
3) These prisons don't provide drug treatment to prisoners — because they're not citizens
The federal Bureau of Prisons has certain standards for inmate vocational training, drug treatment, and other programs designed to help them cope with life after prison. But these standards don't apply to facilities that house noncitizens.
The assumption is that since these immigrants will be deported from the United States after they've served their prison sentences, it's not a benefit to the American people to help them with their problems.
That might be an ethically questionable assumption. But it's also, as the ACLU points out, not necessarily correct. Many of these immigrants have family who are US citizens, and might be able to return to the country legally at some future date. Even if they can't, deportees with relatives in the US are extremely likely to try to come back to the US illegally — because they consider the United States their home.
So is it really cost efficient not to offer drug treatment, or job training, to someone who's going to return to the United States if at all possible?
4) Basic info about private immigration prisons is considered a "trade secret"
It's always harder to hold a private prison accountable for mistreating inmates than a publicly-owned prison. A pair of Supreme Court decisions keep them from being sued for violating inmates' constitutional rights.
But in these cases, the ACLU had a hard time even figuring out what was going on inside private immigration prisons. When the ACLU submitted Freedom of Information Act requests for information about immigration prisons' use of solitary confinement, the state of their medical care, or even just the size of their contracts, the requests were blocked by a FOIA exemption for "trade secrets."
5) No one knows if private prisons are more cost-effective
The lack of transparency makes it impossible for the public to evaluate whether private prisons are even a cheaper alternative to federally-run prisons at all — i.e. whether the biggest argument in favor of prison privatization is actually true.
Furthermore, it turns out the federal government doesn't actually know that either. A Government Accountability Office report found that the government doesn't collect enough information about private prisons to determine if they're cost-effective or not. And when the GAO explained what further information the Bureau of Prisons would need to start collecting, the Bureau of Prisons said it wouldn't do it — because it would cost more money to collect that much data.
The ACLU report makes it clear that private immigration prisons aren't doing what prisons are supposed to do: rehabilitate criminals, deter others from crime, and keep the public safe. But given the perverse incentives and lack of accountability baked into the system, it would be surprising if they did.