While Congress remains deadlocked on immigration, state legislatures across the country are advancing bills to curb private immigration detention facilities in their states.
California became the first to enact a law phasing out the use of U.S. Immigration and Customs Enforcement facilities run by private contractors in 2017. Illinois followed two years later.
The trend has accelerated: In the last two months alone, a bill banning private immigration detention was enacted in Washington state, and similar legislation advanced in New Jersey and Maryland. Within the last few weeks, Democrats proposed a private immigration detention ban in New York.
The concept has also gained traction in Congress. Last month, Sen. Cory Booker, D-N.J., and Reps. Pramila Jayapal, D-Wash., and Adam Smith, D-Wash., introduced legislation to end the use of private jails as immigration detention centers. The measure would promote “community-based alternatives to detention while also restoring due process for immigrants and increasing oversight, accountability, and transparency measures,” the trio said in a statement.
Private immigration detention has long predated former President Donald Trump, but policy analysts say the expansion of immigration detention under Trump may have driven the recent rise in pushback at the state level.
“I think it's more that legislatures, and frankly just the public, have become much more aware of the size of immigration detention in the United States,” said Mark Fleming, an associate director at the National Immigrant Justice Center.
In March 2016, during the final year of the Obama administration, roughly 31,000 immigrants were detained nationwide. By July 2019, that number swelled to more than 55,000, according to data collected by the Transactional Records Access Clearinghouse, a Syracuse University research center.
The last few years have also seen a number of public allegations of poor conditions and abusive practices in immigration detention facilities, culminating in COVID-19 outbreaks at detention centers across the country during the pandemic.
Federal inspectors found nooses hanging in cells for immigrants at a facility in Adelanto, Calif., according to a 2019 report by the Department of Homeland Security’s inspector general. The report also faulted the facility’s “improper and overly restrictive segregation” and “inadequate detainee medical care.”
More recently, a former nurse at a Georgia immigration detention facility alleged that women detained there had been subjected to nonconsensual gynecological procedures, prompting a government investigation. On Thursday, DHS announced it was closing the facility.
“Folks have recognized that this isn’t a problem that's simply going to go away with an election,” Fleming said.
Muzaffar Chishti, director of the Migration Policy Institute’s New York office, saw the recent push against private immigration detention as an “inevitable” consequence of related movements under the Trump administration to limit local cooperation with ICE, such as by refusing to honor detainer requests to hold immigrants past their release dates.
That trend, combined with more public awareness of poor conditions in immigrant detention, created a “perfect storm,” he said.
“The combination of all these things made it less and less viable to expand these facilities, at least. So we have clearly, I think in my mind, seen the high-water mark on private prison facilities on immigration in the country.”
'Loud message to ICE'
A push by activists in New York recently led to the introduction of a bill to bar state and local government entities from entering into, or renewing, contracts with private companies to run ICE detention centers in the state.
The legislation, put forth by Democratic Assembly Member Karines Reyes and state Sen. Julia Salazar, would also go further than some of its predecessors by barring local entities from subsidizing or receiving any payment from privately run immigration detention centers.
In a call last week with reporters, Reyes said the prolonged detention of immigrants creates “astronomical” costs for New York, “at the price of ruining people's lives, separating families.”
“We're going to humanize our immigrant brothers and sisters, and no longer allow them to be detained indefinitely by a rogue agency in our state,” Reyes said.
Melissa Galeano, an aide to Salazar, added that the bill offers “a loud message to ICE that we will not stand by as they use abusive tactics.”
César Cuauhtémoc García Hernández, a law professor at the University of Denver who specializes in the intersection between criminal and immigration law, said in an interview that the New York bill marks a “forceful step” toward eliminating immigration detention in the state.
But he noted the bill will likely draw fierce opposition from private prison giants, such as GEO Group and CoreCivic, on which ICE has relied to run its detention centers.
“The private prison companies, their entire business model depends on being able to operate freely across the country. So they have every incentive to resist this kind of legislation and to creatively maneuver around it,” he said.
While Democrats control New York’s legislature, Reyes acknowledged the bill may draw opposition from communities where many residents are employed by detention facilities.
“That is going to be a very heavy lift, and we recognize that,” she said. “But it's a fight we’re ready to take on. And we believe that we have the public support behind us.”
While bills to ban private immigration detention in bluer states like New York are likely to be successful, advocates say they still need congressional action to cement change nationally.
In states where private detention is banned, ICE may still have the option to contract with localities and utilize county jails. They can also choose to move their centers out of those states, which could leave immigrants in more remote areas, farther from family and their lawyers.
Action at the state level “only fixes around the edges,” said Fleming.
“We definitely have to see national legislation. I mean, there's no way about it. At the end of the day, immigration enforcement and detention is a federal issue,” he said.
The appropriations process may be an avenue where Congress can step in. In the spending bill for DHS, lawmakers can set funding levels for ICE and determine the number of detention beds funded for the following fiscal year.
The White House has yet to release its full discretionary budget request, but was scheduled to do so Friday.
With momentum in state legislatures across the country, the time may be ripe, advocates say.
ICE currently has a record low number of immigrants held in detention centers due to the pandemic, but numbers have ticked up slightly in recent months. Immigration arrests are also down, as the Biden administration continues to turn away asylum-seekers at the border under a public health directive, without first considering their claims for protection.
“There has been a lull in detention, and lull always creates opportunities for reflection and reform,” said Chishti.