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Clinton’s inaccurate claim that immigrant detention facilities have a legal requirement to fill beds

During a recent immigration discussion, Democratic presidential candidate Hillary Clinton claimed that detention centers privately contracted with the federal government have a legal requirement to fill beds. (Video: C-SPAN)

“I also think that we have to reform our detention system. … I’m not sure a lot of Americans know that a lot of the detention facilities for immigrants are run by private companies and that they have a built-in incentive to fill them up, that there is actually a legal requirement that so many beds be filled. So people go out and round up people in order to get paid on a per-bed basis.”

–Hillary Rodham Clinton (D), immigration roundtable discussion, May 5, 2015

The United States has broad authority to hold immigrants in civil custody while determining whether they legally entered the country. As such, there is much debate over whether current detention policies and practices are effective, fair or efficient. The Fact Checker takes no stance on the matter.

During her recent immigration discussion, the Democratic presidential candidate called for a “better, fairer and more humane” immigrant detention system. Detention centers privately contracted with the federal government have a legal requirement to fill beds, she said, which makes no sense and is “not the way we should be running any detention facility.”

How accurate are Clinton’s statements?

The Facts

There are more than 200 detention facilities that are owned or operated by the Immigration and Customs Enforcement, state and local governments, or private contractors. These prisons, jails and detention centers are used to hold immigrants — men, women, families with children, people with or without criminal backgrounds – for hearings before a federal immigration judge. ICE spends nearly $2 billion a year on detention, most of it going to for-profit prisons contracts.

Under the 2015 DHS Appropriations Act, the Department of Homeland Security is required to “maintain a level of not less than 34,000 detention beds.” This language was added to the federal budget in 2009 by then-Sen. Robert Byrd (D-W.Va.). Since then, Republican members on the House Appropriations Committee largely have defended this requirement, saying it compels ICE to enforce the law.

This requirement, the “bed quota” or “bed mandate,” is criticized by immigration, human-rights and civil-rights advocates, and many House Democrats. They call it an arbitrary quota that leads to inhumane jailing practices, noting that the majority of the detainees are not violent offenders. Detention should be driven by need, not to meet a quota, they say.

The House Appropriations Committee said the law requires DHS to provide 34,000 beds per year on average, and does not require every bed to be filled.

Still, there has been dispute over what exactly this requirement should entail in practice: Whether DHS should simply maintain capacity for 34,000 average daily detainees, or actually detain that many people per day (i.e., 34,000 beds a day, versus 34,000 heads in beds a day).

For years, ICE officials interpreted the mandate as the latter, leading to a record number of immigrants being jailed. The daily detention population increased as Congress increased bed space funding (as shown below). In March 2013, then-ICE Director John Morton testified to Congress that the agency interpreted the mandate as a requirement to detain 34,000 people a day.

A year later, however, newly-appointed DHS Secretary Jeh Johnson shifted course.

Rep. John Culberson (R-Tex.), a member of the House Appropriation Committee who repeatedly has said he wants all 34,000 be filled, questioned Johnson during a March 2014 hearing about the DHS request to cut the bed mandate by 10 percent. Johnson replied: “I would interpret that [the law] to mean that we have to maintain 34,000 detention beds. Some of those beds might be empty at any given time, but we have to maintain 34,000 detention beds.”

The agency appears to be moving away from the previous interpretation, as Johnson indicated. In April 2015, ICE Director Sarah Saldana answered a similar question from Culberson: “We’re working to use them [34,000 beds]. Every day, people are out there trying to find [detainees], particularly with respect to persons with criminal records and those that meet our priorities. … The important thing is to make the right decisions as required by law as to whether we can detain someone or not. The sole purpose and goal is not to fill a bed; it’s to fill it in the right way. That’s my view.”

The average daily detainee population in fiscal 2015 was 26,374, according to DHS.

What about Clinton’s statement that private companies have an incentive to fill their facilities, and “people go out and round up people in order to get paid on a per-bed basis”?

Clinton’s campaign pointed to several news reports showing the bed mandate was driving the companies’ profits and creating an incentive for two major private prison corporations to expand their immigrant detention business. They also noted an April 2015 report by Grassroots Leadership, which advocates an end to for-profit incarceration, showing the impact of lobbying by the private prison industry on immigration policies.

The Government Accountability Office found that ICE had inconsistent oversight of its detention facilities. Some privately-run facilities do have guaranteed minimum populations as a part of their contract. So field officers were directed to send detainees there, since ICE pays for the beds regardless of whether they are used, and the per diem cost goes up if the minimum is not met. Some state-level contracts with private prisons also include obligations for the companies to fill beds to 100 percent capacity.

ICE agents must detain high-priority migrants — i.e., those who are a flight risk, have violent criminal records , are repeat offenders — but have discretion over other, lower-risk categories. The bed mandate was affecting the agency’s ability to efficiently use and expand its alternative program for lower-risk offenders, according to another GAO report. The average cost of the alternative program was $10.55 per day, compared to the average daily cost of detention: $158.

Clinton’s statement may conflate the role of ICE and the facility operators, but it highlights a genuine problem that ICE has congressional pressure and contractual incentives to fill detention beds, according to Mark Noferi, enforcement fellow at the Immigration Policy Center.

Matthew Kolken, immigration attorney, said the administration’s goal of 400,000 deportations a year adds incentives for detention instead of alternative options for lower-risk offenders: “The administration can simply let those beds go empty, but it chooses not to. The political spin is that the Obama administration’s hands are tied by Congress, and that is why so many immigrants are being detained, which is simply not reflective of a plain unambiguous reading of the law.”

ICE spokeswoman Marsha Catron said: “ICE remains committed to sensible, effective immigration enforcement that focuses its limited detention space on those who fall within our previously stated priorities, including recent border crossers, convicted criminals and other public safety threats.”

The Clinton campaign declined to comment on the record.

The Pinocchio Test

Clinton’s description of the bed mandate is outdated and inaccurate.

DHS did, indeed, interpret the mandate as a requirement to fill up detention facilities. After the mandate was added into the budget, the average daily detainee population increased and correlated with number of beds funded. However, the House Appropriations Committee confirmed to The Fact Checker that the law does not require every bed to be filled. Johnson and Saldana said the same to Congress, and the agency appears to be moving away from its original interpretation. The fiscal 2015 daily detainee number hovers at 78 percent of the 34,000 bed quota, so it is clear that not all the beds were used.

Private facilities play a big role in immigrant detention, and there are some concerns over contractual agreements and minimum population guarantees. The GAO also has pointed out several shortfalls in DHS oversight of the facilities. But her statement that people are rounding up detainees to get paid on a per-bed basis is a stretch.

Three Pinocchios

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For more Fact Checks on Clinton and immigration:

Fact Checker: Clinton’s claim that illegal immigrants pay more in taxes than some corporations

Fact Checker: Clinton’s claim that no GOP candidate has consistently supported a path to citizenship