New NIJC litigation challenges a sham accountability process, misuse of funds, and egregiously neglectful conditions
The United States immigration detention system is notorious for inhumane conditions, profiteering, and impunity for abuses. A new lawsuit filed this week by the National Immigrant Justice Center and pro bono attorneys at Sidley Austin LLP, on behalf of four people facing unacceptable conditions in a county jail in Clay County, Indiana, is challenging that system. The litigation exposes how local officials in Indiana unlawfully misappropriate federal dollars meant for the care of immigrants detained in their jail to pad their own budgets. The lawsuit also sheds light on U.S. Immigration and Customs Enforcement (ICE)’s deeply flawed oversight that allows private companies and local jails like Clay County to misuse federal taxpayer dollars while non-citizens suffer in egregiously poor conditions.
Herrera Cardenas et al. v. ICE et al. is a new legal challenge filed in the U.S. District Court for the Southern District of Indiana against federal officials who turned a blind eye to the Indiana jail’s blatant violations of federal detention standards, and local government officials who are unlawfully using federal dollars meant for the care and custody of noncitizens for other purposes.
Clay County is one of many counties that receives payments to allow ICE to use its jail
In 2006, Clay County officials entered into an agreement with the U.S. Marshals Service (USMS) to hold prisoners in the county jail for the federal government at a rate of $45 per day per person. In 2013, ICE joined the U.S. Marshals in using the Clay County Jail for detention purposes through a “rider” on the Marshal’s contract. Such “rider” arrangements are commonplace in the immigration detention system; around 17 percent of people detained by ICE are held under a U.S. Marshals contract that ICE has joined on a rider. ICE’s current rate of payment to Clay County is $55 per day for each person held in ICE custody.
Clay County – like counties across the country - is unlawfully profiting off the detention of immigrants
As the plaintiffs in the lawsuit state in their complaint, federal contracts like the one with Clay County are not supposed to be blank checks for counties to spend as they see fit. In fact, Congress expressly limited ICE’s authority to make payments under such agreements to those “for necessary clothing, medical care, necessary guard hire, and the housing, care, and security” of persons detained by ICE (see 8 U.S.C. § 1103(a)(11)(A)). Clay County stands in clear violation of these restrictions, however, regularly using the money it receives from ICE to pay for unrelated county expenses and services.
In 2020, for example, the county took in approximately $1.4 million taxpayer dollars in ICE payments intended for the custody and care of ICE detainees (see invoice records released through Public Records Act requests). But, the county spent approximately 56 percent of those payments on county budget items unrelated to ICE detention. According to public statements by Clay County Commissioner Allender, ICE’s payments allowed the Clay County Council to “give county employees a 3% raise…plus a bonus of 2%” and to purchase a new $83,000 chiller in the county courthouse, a building that is not used for any immigration related purposes.
Clay County officials openly brag about profiting off immigration detention. In 2018, Clay County Sheriff Harden confirmed that the county was making a profit on its arrangement with ICE. In November 2021, Clay County Commissioner President Paul Sinders said: “Basically, these inmates are going to go someplace. We might as well take advantage of the situation…It is going to increase our income and allow us to do more at the county level.” County Commissioner Marty Heffner added that if “Clay County passes on the opportunity to profit from holding more detainees, a nearby county ‘is waiting to scoop it up.’”
The Clay County commissioners are now pushing forward a bold $20-$25 million proposal to expand the jail. Records produced in response to an Indiana Public Records Act (PRA) request reveal that the county anticipates receiving up to $7 million per year with the planned expansion of the jail.
Counties and localities across the country routinely engage in the same unlawful conduct this litigation challenges at Clay County. In one egregious example, an Alabama sheriff pocketed more than $750,000 that was budgeted to feed people in ICE custody in his jail in Etowah County, and then purchased a $740,000 beach house.
ICE has engaged in deeply flawed inspection practices to continue its contract with Clay County, practices endemic throughout the detention system
The Herrera Cardenas plaintiffs’ experiences demonstrate that the Clay County Jail fails to provide the most basic necessities or adequate levels of care. People held at the jail are constantly hungry. The jail does not provide proper clothing, leaving people to take desperate measures like using their socks as sleeves to stay warm. The jail gives out sheets with holes in them, which they sometimes have to use both as bedding and as privacy screens when they go to the bathroom. People are crammed together in cells in overcrowded conditions. The jail is filthy. The walls are riddled with mold and graffiti, the air is dusty, and the showerheads barely work. The toilets, which are already insufficient in number, are broken for weeks at a time. The jail staff, who are supposed to clean, neglect their responsibilities, leaving it to detained people to clean the cells, showers and toilets using a makeshift mix of their own soap, shampoo, and toothpaste, because the jail does not provide adequate cleaning supplies. They are never given gloves, even to clean the toilets in their cells.
Based on these and other blatantly inadequate conditions Clay County failed its annual inspection in May 2021. Among other things, the inspection team (working for The Nakamoto Group, a privately contracted inspection company) found that sanitation levels throughout the jail were inadequate and the jail was not providing basic necessities like sufficient toilets. This and other violations were repeat deficiencies from the prior inspection.
The jail’s failed inspection created a problem for ICE, largely because of a provision in federal appropriations law that bars ICE from continuing to contract with any facility that fails two consecutive annual inspections. In order to avoid triggering the contract termination requirement, ICE and the county worked together to avoid documenting a second failed inspection.
Following the failed May inspection, ICE Assistant Director for Custody Management Russell Hott directed ICE Chicago Field Office Director Enrique Lucero to make sure that the county was notified in advance of upcoming inspections, giving the jail staff the chance to temporarily resolve or hide any issues. Not only was the county notified of the next overall inspection date ahead of time, but the inspection was rescheduled at the jail staff’s request. In addition, ICE conducted two interim inspections in the lead up to the second overall performance evaluation, presumably as a way to give the County a chance to clean up any identified continued deficiencies.
Finally, in December 2021, Nakamoto conducted the second overall performance evaluation of the jail. After all of ICE’s efforts to prepare the Jail, the inspectors still found serious violations of ICE’s own standards - 21 deficient components across 8 standards. Among other things, the Nakamoto inspection team concluded that “sanitation levels and conditions of confinement were observed to be unacceptable in housing units dedicated to ICE detainees.” Despite the evidence of clear violations of the national standards, Nakamoto recommended to ICE that it give the Jail an overall “Meets Standards” rating for its December 2021 evaluation. ICE, in turn, rubber-stamped Nakamoto’s recommendation.
That ICE gave Clay County a passing rating on the Jail's second inspection, despite ongoing, egregiously inadequate conditions, is illustrative of ICE's inspections system, long shown to be a sham. ICE’s oversight system operates as a “theater of compliance,” constructed to cover up abuses and avoid accountability. ICE has several tools that are supposed to identify and correct deficiencies in detention centers; yet inspections involve performative reviews of detention facilities designed to ensure unabated federal funds for local counties and private contractors.
ICE’s annual inspection program regularly uses the type of preannounced visits used at Clay, allowing operators to hide evidence of abuse ahead of time. Congress reported in September 2020 that the contractors paid to conduct these inspections generally fail to identify deficiencies, and DHS rarely does anything when they do. ICE employees told federal investigators that Nakamoto inspectors “breeze by the standards” and described the inspections as being “very, very, very difficult to fail.” One ICE official suggested they were “useless.” In practice, therefore, the appropriations inspections mandate has done little more than incentivize ICE to ensure that its inspections are meaningless.
Repeatedly botched oversight measures by a federal agency must not go unchecked. This lawsuit emphasizes that the Clay County Jail should not have been given a passing grade for its December 2021 overall performance evaluation. Given that, and in light of the failed May 2021 inspection, the continued use of federal funds for the detention of non-citizens at the jail violates the law. The Herrera Cardenas plaintiffs call for ICE to stop using federal funds to pay for detention at the county jail, and to stop ICE from detaining the plaintiffs and other people at the jail.
The scathing complaint exposes the troubling lack of accountability within the immigration detention system, and should be considered in the context of the sweeping movement to do away with the system altogether. Detention Watch Network Executive Director Silky Shah writes about recent landmark victories, including successful campaigns by organizers and advocates to end ICE detention at almost a dozen county jails just in the past year. Organizers with the Indiana-based Communities Not Cages Coalition have been tirelessly fighting back against the proposed expansion of the Clay County jail, and working to kick ICE out of their communities. These campaigns are the heart of the movement and represent hope for a just immigration system.