Coming Your Way: Less Illegal Immigrant Detention, More Releases

By Dan Cadman on August 31, 2016

It was only a matter of time — and not much, at that. On Monday, Jeh Johnson, the secretary of the Department of Homeland Security (DHS), announced that he had tasked his advisory council with exploring whether DHS should scrap its reliance on private contract detention facilities for holding illegal immigrants under removal proceedings.

This followed, by less than two weeks, the August 18 announcement by the U.S. Department of Justice (DOJ) that it would be phasing out the use of privatized prisons that has been its primary method of alleviating overcrowding at federal Bureau of Prisons (BOP) facilities for nearly 20 years.

The DOJ announcement, in turn, followed an Office of Inspector General (OIG) report released on August 6 questioning whether the use of contract prisons was an effective, cost-saving method of spending BOP dollars. The auditors did not actually examine every contract facility; instead, their primary focus was an analysis of incident reporting. Here is what they found:

Our analysis included data from FYs [Fiscal Years] 2011 through 2014 in eight key categories: (1) contraband, (2) reports of incidents, (3) lockdowns, (4) inmate discipline, (5) telephone monitoring, (6) selected grievances, (7) urinalysis drug testing, and (8) sexual misconduct. With the exception of fewer incidents of positive drug tests and sexual misconduct, the contract prisons had more incidents per capita than the BOP institutions in all of the other categories of data we examined. For example, the contract prisons confiscated eight times as many contraband cell phones annually on average as the BOP institutions. Contract prisons also had higher rates of assaults, both by inmates on other inmates and by inmates on staff. We note that we were unable to evaluate all of the factors that contributed to the underlying data, including the effect of inmate demographics and facility locations, as the BOP noted in response to a working draft of this report.

The most singular thing about the OIG's examination of the facilities, from the viewpoint of those who study immigration, was this: "Many of the inmates incarcerated in these contract prisons are Mexican nationals with convictions for immigration offenses who have 90 months or less remaining to serve on their sentences. As of December 2015, contract prisons housed roughly 22,660 of these federal inmates, or approximately 12 percent of the BOP's total inmate population."

As I say, once I read that pertinent factoid, I realized it was only a matter of time before DHS would jump on the bandwagon, despite the fact that the DOJ OIG auditors only visited three facilities — apparently the ones holding criminal illegal aliens — and that, technically, what they were examining was BOP's oversight and monitoring of the contract facilities, as opposed to the facilities per se.

Certainly there were some well-documented and notable lapses on the part of both contract officials and BOP-assigned monitors to the facilities.

Even so, one wonders why "fewer incidents of positive drug tests and sexual misconduct" at contract facilities, versus BOP-owned institutions, received such short shrift compared to more incidents of contraband cell phones and tobacco. On a values scale, with the exception of major cartel figures who use the cell phones to continue their criminal enterprises (who are unlikely to be incarcerated in such low-security contract facilities), I'd rather be confiscating the phones and cigarettes than narcotics, or having to investigate and refer for prosecution prison rapists.

One also wonders why the resolution is to shut down the contract facility system in lieu of instituting an appropriate regimen of oversight and control. The BOP is unlikely to receive enough appropriated monies to make up for the bed space difference. According to the OIG report, "[T]he BOP currently operates at about 20 percent over its rated capacity, and costs spent on the federal prison system are predicted to continue to rise."

One might reasonably conclude that the basis for this radical resolution is that it serves two major politico-philosophical goals of the "transformative" Obama administration.

First, it helps keep the pressure on a recalcitrant House of Representatives, which has been reluctant to go along with the desire of the president (and, indeed, some of the leaders of both parties in both chambers of Congress) to "reform" the nation's criminal justice and penal systems by ensuring that "non-violent" offenders are released and, in the long term, not incarcerated at all. Unfortunately, from an objective point of view, many of those who have already been released through presidential pardons, commutations, and revision of sentencing guidelines are not the docile model prisoners they would like us to believe. The same would be true of the various legislative bills I've seen to "amend" sentencing of criminals.

Second, the DOJ decision opens the door to also closing down contract immigration detention, which, as in the case of the BOP, has been critical to DHS's ability to detain illegal aliens (when they do so at all any more), such as those swamping our borders from Central America. Apparently, the master plan is to make it impossible to deter illegal border crossers through the threat of detention, but simultaneously to render it unnecessary to do so by opening up the floodgates in the countries of origin through specious and inappropriate use of the immigration parole mechanism, as my colleagues Nayla Rush and Kausha Luna have documented (see here, here, and here).

In reference to the second point, voila!, right on cue comes Secretary Johnson's announcement. Given that there are precious few months left of this administration, one assumes that the advisory council will waste no time in getting back to him with an all but certain recommendation that accords with the outcome he is not-so-subtly signaling he desires.

The likely result? Coming your way: less detention and more releases of illegal aliens into communities across America.