For a brief moment, the future looked bleak for the multibillion-dollar private prison industry. Prison populations, while still large, had shown some signs of declining for a number of years. Discussions of criminal justice reform entered the political mainstream, and efforts to curb mass incarceration gained bipartisan support at both the federal and state level. Private prisons became the target of successful divestment campaigns, and the corners they cut for the sake of profit were publicly exposed with growing regularity.
In August, the Department of Justice announced plans to gradually phase out the use of private contractors to run its Bureau of Prison facilities. Although the announcement had a relatively limited immediate impact — affecting only 13 federal prisons and some 22,660 inmates — private prisons’ stocks plunged, and the Department of Homeland Security announced its own investigation into the use of private contractors.
Then Donald Trump won the election. Within hours, the same stocks that had plunged over the summer soared. The stock of Corrections Corporation of America jumped by 60 percent before leveling at 34 percent, and the GEO Group’s rose by 18 percent. Market pundits quickly declared private prison companies “a clear winner under Trump,” and rushed to predict his administration would walk back the DOJ’s phase-out of private contracts and expand immigrant detention to unprecedented levels.
At least some private prisons had seemed to put more than just their hopes in a Trump presidency. Just one day after the DOJ announced it would end its private prison contracts, a subsidiary of the GEO Group made a $100,000 donation to pro-Trump PAC Rebuilding America Now. That contribution, which a campaign finance watchdog reported to the Federal Election Commission, was potentially illegal because federal contractors are prohibited from making political donations while negotiating or performing contracts. Earlier in August, the GEO Group PAC — a political committee allowed to make contributions — also donated $50,000. Pablo Paez, a GEO Group spokesperson, defended the donation’s legality on the grounds that GEO Corrections Holdings Inc. is a subsidiary of the GEO Group and not the entity directly engaged in government contracts. “As a matter of long-standing policy, our company does not take a position on or advocate for or against any specific criminal justice, sentencing, or immigration policy,” he said in a statement to The Intercept.
Trump himself mentioned private prisons only once during the campaign, but his promises of “law and order” and his insistence, after being elected, that he would quickly deport — and “incarcerate” — 2 to 3 million people, left little doubt his presidency would be “a huge gift” to the private prison industry, according to Carl Takei, an attorney at the ACLU’s National Prison Project .
As The Intercept has reported, the system for incarcerating and deporting immigrants is very much in place and ready to be exponentially expanded, thanks largely to the already massive increase in immigration detention carried out under President Obama, though deporting that many people would cost billions and take years.
Abuse, Neglect, and Perverse Incentives
Even before the election, private prisons seemed well on track to recover from earlier setbacks. Despite its phase-out promises, the Bureau of Prisons quietly renewed two of its private contracts — for the CCA-run McRae Correctional Facility and the GEO-run D. Ray James facility, both in Georgia.
There were also signs that DHS would continue to be a loyal customer of the private prison industry. Immigration and Customs Enforcement, for example, has continued negotiating new or expanded contracts to house an immigrant detainee population that earlier this month reached a record 41,000 people. To house them, DHS Secretary Jeh Johnson said he authorized the agency “to acquire additional detention space” — even though the findings of DHS’s own review of private immigration detention are not expected until Wednesday. An ICE official told the Wall Street Journal in October that the agency was “scraping the bottom looking for beds.”
Just weeks after the DOJ announced it would end its partnership with private prisons, ICE took over one of those contracts and moved to reopen the Cibola County Correctional Center in Milan, New Mexico, as an immigration detention center to be operated by the same private contractor, Corrections Corporation of America, the country’s largest private prison company.
That facility, and CCA, have a history of medical neglect, including operating for months without a doctor on staff, which is one of the reasons the DOJ cut its contract short. “So it’s terrible, but it’s good enough for immigrants?” asked Danny Cendejas, an organizer with Detention Watch Network, a group that fights immigration detention and deportations nationwide.
Cibola was not the only problematic facility that ICE was working to keep open. Days earlier, the agency renewed its contract for the South Texas Residential Center in Dilley, Texas, the largest immigrant detention center in the country and a facility with a history of abuse.
There are more than 200 immigrant detention facilities across the country, most in remote areas, and more than half privately operated. Since the August DOJ announcement, Detention Watch Network has learned of at least 15 new or expanded contracts, with both private prisons and local jails, adding more than 3,600 beds.
“Criminalization of migrants has become a driving force for these facilities,” Cendejas said at a recent workshop on immigration detention. “The migrant crisis is something that this country has played a huge role in creating, but it doesn’t take responsibility; instead, ICE is running around trying to set up contracts with anyone that they can, trying to find more facilities to lock people in.”
As they seek out new contracts, private prisons are also diversifying their portfolio, and expanding their influence over the criminal justice apparatus with halfway houses and supervision programs like ankle monitoring systems.
“That’s something they’ve been doing for the past few years, because they saw the writing on the wall as both in Congress and in the states there was more and more discussion of getting people out of prisons,” said Takei. “The way these companies responded to these criminal justice reform discussions was to think about ways that they could continue to profit from the criminal justice system even if people were moved from prisons to other parts of the system.”
Private investment in reentry services and incarceration alternatives is hardly good news for people moving through the criminal justice system. Applying a profit motive to every step of the process gives service providers an incentive to keep people in the system as long as possible. “In that scenario, the only outcome that doesn’t generate revenue for corporate shareholders is if a person successfully exits the criminal justice system and does not return,” Takei said.
To mark its expansion into a broader array of criminal justice services — and, critics say, to obfuscate its explicit connection to the caging and surveillance of people — CCA announced last month that it was rebranding as CoreCivic, a “government solutions company.” “Rebranding as CoreCivic is the culmination of a multi-year strategy to transform our business from largely corrections and detention services to a wider range of government solutions,” Damon Hininger, the company’s CEO, said in a statement.
Meanwhile, as immigrant detention booms and private prison companies explore new ventures, reports of abuse and neglect also continue. At least 165 people have died in ICE custody since 2003, including 11 this year. The latest in a series of investigations into the detention conditions, released last week by a coalition of immigrant rights groups, details systemic denial of due process as well as inhumane conditions at six facilities — both privately and publicly operated — across the South. Based on interviews with 300 immigrants, the report includes allegations of ICE officials using force on detainees who refused to sign documents, denial of medical treatment resulting in at least five deaths, and detainees receiving food contaminated with mold, worms, and insects. The report warns that flooding the system with hundreds of thousands of additional people would inevitably lead to “a grave human rights crisis.”
“Our investigation yielded a disturbing pattern of prison mismanagement,” Paromita Shah, director of the National Immigration Project at the National Lawyers Guild, one of the groups behind the report, said in a statement. “Sadly, President-elect Trump will inherit immigration agencies that have perfected the art of abandoning responsibility for their sprawling detention centers, leaving people vulnerable to abuse.”
Prisons Under President Trump
In addition to pledging to deport 2 to 3 million people, the president-elect also said he plans to end so-called “catch and release” practices — funneling even more people into detention and keeping them behind bars until their cases are heard. The ACLU estimates that would require an additional 100,000 detention beds in the first year alone. Separately, Trump’s support for a proposed bill that would set a mandatory five-year minimum sentence for certain groups of immigrants illegally re-entering the country would also require the addition of nine new federal prisons. These estimates are extremely conservative and assume Trump’s administration would also fund severely backlogged immigration courts, something the president-elect has never talked about.
As with most of his proposals, it’s still unclear how Trump plans to implement his campaign promises and how his presidency might impact the DOJ phase-out of private contracts. As for the seemingly inevitable expansion of ICE detention, Trump might turn prison construction into an “enormous, WPA-style, public works program,” or he might turn to the private prisons industry, “consistent with the way that the agency has filled its expansion over the last two decades,” Takei suggested.
Last week, the Trump camp’s recurring talk of a national registry for immigrants from Muslim countries took an even more sinister turn when one of the president-elect’s surrogates cited World War II-era Japanese-American internment camps as a “precedent” for the proposal.
Outrageous as that notion is, the immigration detention system Trump is about to inherit is not so far removed. At the Dilley South Texas Family Residential Center, children and mothers, most of whom have fled violence in Central America, are counted three times a day and exposed to frequent “bed checks.” Guards wake up the children every day at 5.30 a.m. with shouting and lights. There are no toilets or showers inside the housing units.
“I visited the Dilley family detention camp in 2015, and it was striking to me how much it resembled the World War II Japanese-American prison camps,” said Takei, whose own family was detained in such a camp during that war. “It essentially is a modernized, updated version of that, down to the way in which the living space is constructed, with multiple unrelated families being housed in the same barracks together, and children having to walk to separate latrines exposed to the elements.”
The Word War II internment camps were built by a public agency created for the purpose — the War Relocation Authority – and guarded by U.S. Army soldiers. But if Trump is looking for precedents, he does not need to go that far back in time. “Whether you could have an internment camp ran by a private prison company, the answer to that is something that the Obama administration created,” Takei said.
Is Criminal Justice Reform Dead?
More broadly, criminal justice reform at the federal level is now in question. Jeff Sessions, Trump’s pick for attorney general, is hardly a fan, and Trump has promised a return to heavier-handed policing and more incarceration.
“We had a moment and an opportunity to pass a federal deal on criminal justice reform — the Sentencing Reform Corrections Act,” said Breon Wells, a director of the incarceration reduction campaign #cut50, while speaking at a criminal justice workshop shortly after the election. “We still have the lame-duck session, but let’s be real, it’s going to die. Then we have Trump coming in, and all we know in terms of his criminal justice plans are three words, law and order, which have not worked well for brown and black people.”
But while progress on criminal justice reform at the federal level is likely to stall, the president and Department of Justice have relatively little power over the decision-making of state prisons and local jail systems, which account for the bulk of the country’s mass incarceration problem. As evidenced by some ballot initiatives passed on election day, criminal justice reform is still moving forward at the state level, and even in more conservative jurisdictions, the enormous cost of incarceration has not been lost on elected officials and prison is becoming an increasingly unpopular resort.
The federal government can threaten to withhold funds from states and local governments refusing to align to its guidelines — and Trump has already promised to do so with cities resisting his anti-immigration policies — but justice advocates have already promised to ramp up their local efforts to fight off the impact of Trump’s presidency one state at the time.
“All is not lost, we just to change our focus.” said Wells. “All politics is local, let’s go back to the ground game.”
Update: Nov. 28, 2016
This story has been updated to include comments from CoreCivic and the GEO Group provided after publication.