In the end, the council left Secretary Jeh Johnson with both the report and the dissent and no clear guidance on the next steps. Given that any move away from private facilities would require years of planning, any wholesale policy changes will likely be left to the administration of President-Elect Donald Trump, who has advocated for harder-line immigration policies and has spoken in favor of private prisons.
In August, Johnson had asked the Homeland Security Advisory Council to examine whether his agency should pull back from the use of private facilities. That move followed an announcement by the Department of Justice that it would gradually phase out its own use of private facilities, calling them less safe and less effective.
The panel’s report said that DHS must realistically continue using the private facilities for the time being, despite significant problems with government oversight and anecdotes provided by advocates about rights abuses and safety problems.
“Much could be said for a fully government-owned and government-operated detention model, if one were starting a new detention system from scratch,” the report said. “But of course we are not starting anew.”
The report was a result of a two-month review — one that involved visits to detention facilities and meetings with former detainees and advocacy groups. The report’s determination shows how entrenched the private industry has become in immigration detention, growing into the default option for successive governments, including the Obama administration, that have sought to get tougher along the border without building federal facilities. Karen Tandy, a former Drug Enforcement Agency chief who led the committee examining the private prison policy, said the government would need to spend $5 or $6 billion to create an entirely federally-run detention system for immigrants.
“It would not make economic sense,” Tandy said.
Still, the Thursday afternoon meeting provided a window into one of the most controversial aspects of U.S. detention policy.
Marshall Fitz, an advisory panel member and a senior fellow at the Center for American Progress, wrote in a dissent to the report that the group’s research pointed to the “inferiority of the private prison model from the perspective of governance and conditions.”
“I also acknowledge that any shift away from such reliance would take years, carry significant costs, and require congressional partnership,” Fitz wrote. Still, he said, “a measured but deliberate shift away from the private prison model is warranted.”
Some 65 percent of immigrant detainees are kept in private facilities — as opposed to 15 percent of federal inmates — and in recent months immigration officials have scrambled to sign new deals with private companies as a wave of Haitians and Central Americans arrive at the southern border. In one case, the Department of Homeland Security drew up an agreement with private operator CoreCivic to reopen a facility in Milan, N.M. — one that had been shuttered only weeks earlier by the Department of Justice after a series of questionable inmate deaths. The ACLU called it “one of the most problem-prone prisons in the nation.”
Nine of the U.S.’s 10 largest immigration detention facilities are privately run, operated primarily by two companies, the GEO Group and CoreCivic, known until recently as Corrections Corporation of America. Two years ago, both companies were also awarded contracts to hold mother and child asylum seekers, in unusual deals offering fixed payments to the firms no matter how many beds are occupied.
A spokesman for the GEO Group said that the advisory panel's report “confirms our long history of providing culturally responsive, safe, and humane environments that meet the non-penal needs” of immigrant detainees.
The review of immigrant detention policy came at an awkward time, just weeks before the inauguration of Trump, who has pledged to deport a massive wave of undocumented immigrants. Such a step would require an even greater reliance on detention, because immigrants are held in facilities while awaiting flights back home. Since Trump’s Nov. 8 election victory, the stocks of both companies have soared more than 35 percent. Trump’s victory has also cast doubt on whether the Justice Department will carry out its phase-out of private prisons.
“I do think we can do a lot of privatizations and private prisons,” Trump said in March during an MSNBC town hall event. “It seems to work a lot better.”