The Biden administration’s January 26 Executive Order to phase out the use of private prison contracts is a vital step in the larger effort to end a perverse financial driver behind mass incarceration. For-profit prisons have little incentive to focus on anything other than ensuring profitability for their shareholders, and are lightning rods for human rights atrocities. The for-profit system includes Criminal Alien Requirement (CAR) facilities -- segregated prisons that only incarcerate immigrants prosecuted for federal crimes, mostly for entering or reentering the country without authorization. 

The Biden administration must extend this policy to the Department of Homeland Security (DHS) to immediately halt all ongoing expansion efforts and begin terminating ICE detention center contracts as a first step in phasing out the use of immigration detention entirely. Ending for-profit detention is necessary to eliminate the racism and corruption that has infected the U.S. immigration system and reimagine a system that upholds the values of human rights and racial justice. The administration must also ensure that its Executive Order extends to U.S. Marshals Service facilities. These facilities, many of which detain immigrants on behalf of DHS’s Immigration and Customs Enforcement (ICE), were excluded from the Obama administration's 2016 private prison ban.  

DHS has previously recognized the harm caused by profit-driven detention of immigrants. President Biden’s order reinstates a policy that began under the Obama administration, which was reversed by the Trump administration. In 2016, DHS initiated its own review of its use of private detention facilities, and the Homeland Security Advisory Council (HSAC) released a report in response to a Congressional request for a review of DHS’s over-reliance on private prisons. While the council’s original draft report suggested that DHS maintain the status quo, the vast majority of the Council ultimately voted to adopt the position that DHS should adopt a “measured but deliberate shift” away from the use of private prisons. 

Since the HSAC convened, more than 50 people have died in DHS’s adult detention centers, the majority in privately run facilities, as a result of medical neglect, and taxpayers have paid billions of dollars to detain immigrants in these dangerous facilities. CoreCivic Inc. and GEO Group - the two largest private prison companies operating immigration jails – got a boost of $85 million and $121 million respectively from FY 2015-2019, as government contract spending for immigration enforcement and detention skyrocketed. From October 2015 to June 2018, ICE paid contractors operating the 106 detention facilities subject to review by the DHS Inspector General more than $3 billion. 

As of today, more than 590 of the over 14,000 people detained by ICE, the majority in private detention centers, have COVID-19. The status quo is no longer tolerable.

Today, ICE’s detention system is overwhelmingly outsourced to for-profit prison companies. As of January 2020, 81 percent of people detained in ICE custody nationwide were held in facilities owned or managed by private prison corporations. Much of this growth is driven by the for-profit prison industry, which has spent more than $25 million lobbying lawmakers and federal agencies over the past ten years, including $3.8 million just in 2018. Allowing private detention to continue leaves in place the looming threat of ICE detention expansion, which corresponds to ramped-up interior enforcement operations. In its own Congressional Budget Justification for FY 2021, ICE states plainly that it wanted more funds for detention expansion because it intends to increase interior enforcement. 

Detention has no place in a just and fair immigration system. People in immigration proceedings should be able to pursue their immigration court cases in community, not behind bars. We urge the administration to end private ICE contracts as a vital step towards dramatically reducing the number of people in immigration detention and then phasing the system out altogether. DHS should terminate or set in motion termination of ICE contracts with private prisons, as well as county jails, and should refrain from entering into new detention contracts. The reduction of the use of jails and prisons for immigrants in favor of release and community-based alternatives to detention would promote family unity, ensure fairness, and save taxpayers millions.

Key recommendations: 

• The White House and DHS must immediately extend the Executive Order phasing out the use of private prisons to DHS and specify that U.S. Marshals contracts are included in the original Executive Order. 
• With regard to DHS, any Executive Order or policy regarding private prisons must require that all contracts be terminated within a certain period of time (we recommend two years or less). The January 26 Executive Orders calls on DOJ not to renew contracts with private prisons; that approach is unacceptable in the immigration context, where DHS regularly enters into unbelievably prolonged or even indefinite contracts. 
• Ending the use of private prisons in the immigration context must be part of a roadmap toward full phase out of the immigration detention systems. ICE’s practice of contracting with county and local jails for immigration detention also leads to perverse economic incentives, as counties end up relying on the jailing of immigrants for their economic well-being, an unsustainable and unjust model for growth.  

Jesse Franzblau is a senior policy analyst at NIJC.