chevron-down Created with Sketch Beta.
April 12, 2023 HUMAN RIGHTS

Migrant Detention, Corporate Profit

by César Cuauhtémoc García Hernández

When it comes to personalities, President Joe Biden’s kind demeanor is a stark contrast to President Donald Trump’s abrasiveness. But when it comes to their immigration law enforcement policies, both embrace prisons, just like former President Barack Obama did before them. Under democratic and republican presidents, the Immigration and Customs Enforcement (ICE) agency regularly locks up hundreds of thousands of people every year. To do this, ICE relies heavily on the problem-prone private prison industry to confine migrants. With private interests spread across the immigration prison system, cost-cutting in search of greater profits has created deadly risks, and there are people invested in this industry who might not even know that they play an important role.

Two weeks in the life of Kamyar Samimi highlight the deadly downside of prison profiteering. Four decades after arriving in the United States, ICE agents arrested Samimi, a green card holder since 1979, in 2017, claiming a 12-year-old conviction for possessing drugs made him deportable. Inside the private immigration prison in suburban Denver where he was held, Samimi’s health rapidly plummeted. He started suffering mentally too. At one point, he attempted suicide. Staff put him on suicide watch and sent him to a “designated suicide watch cell” to receive “constant, one-on-one monitoring.” Despite that attention, two days after Samimi tried to drink water from the toilet in his cell, a nurse left messages for the prison’s doctor, recommending Samimi be sent to a nearby hospital. The doctor never called back. He says he never got the messages. Eventually, a supervising guard, alarmed by Samimi’s poor condition, called for an ambulance. By then it was too late. Samimi didn’t survive another hour. He died 15 days after his arrest by ICE.

For Samimi, two weeks of imprisonment meant death. But to the GEO Group, the private prison company that operates the Colorado facility, it meant dollars. Together with CoreCivic and a handful of smaller private prison corporations, the private prison industry holds people for ICE while the government decides if they will be allowed to remain in the United States. With bipartisan support stretching across presidential administrations, ICE gets a substantial detention budget—$2.8 billion in 2022 alone.

The Immigration and Customs Enforcement agency relies heavily on the problem-prone private prison industry to confine migrants.

The Immigration and Customs Enforcement agency relies heavily on the problem-prone private prison industry to confine migrants.


Investments Funding Private Immigration Detention

With their physical buildings and heavy staffing needs, prisons are necessarily expensive. To run these high-cost operations, private prison corporations need cash and credit. Both CoreCivic and GEO Group—two of the biggest private prison companies—turn to outside investors. They are publicly traded, which means that private individuals—maybe you or me—benefit from retirement accounts invested in private prisons, including many that house migrants.

A few years ago, a student asked me, “Who owns these companies?” I stopped to think about CoreCivic and the GEO Group, both of which issue stock that investors buy. Then it occurred to me: I own stock. Maybe I have an ownership interest in private prisons. I participate in a retirement plan set up by my employer. The university contracts with an investment manager and even deposits tax-deferred compensation into my retirement account every month. All I do is set a target retirement date based largely on my age. The investment manager does the rest. Looking at my student, I mustered the best answer I could come up with, “I do, I assume.” Prompted by that question, I spent some time digging into my retirement account. It turns out I do invest in private prisons.

This is the messy reality of immigration imprisonment today. It’s a net that ensnares migrants behind barbed wire and catches unwitting investors in financial instruments that are too complicated for most of us to understand.

Since the 1980s, private prison companies have convinced the federal government that they are good partners in the business of locking up migrants. During the Reagan administration, a small group of entrepreneurs hatched thoughts of pushing the private industry into public imprisonment. Private prisons were “so foreign to most people’s experience,” private prison pioneer Thomas W. Beasley told a reporter for Inc. magazine. “Their first impulse is to say only the government can do it,” he added. 

But to Beasley, the former chairman of the Tennessee Republican Party and a founder of the private prison operator Corrections Corporation of America (CCA), the initial reaction he received just meant he had to sell the idea more creatively. “You just sell it like you were selling cars or real estate or hamburgers,” he said. That’s exactly what CCA, now CoreCivic, did in the 1980s and continues to do now with lucrative results. In 2021, the company reported $1.8 billion in revenue. GEO Group brought in $2.25 billion.

Pushback to Private Immigration Prisons

Private immigration prisons have decades of support in Washington, D.C., but activists and lawyers have recently shown that it is possible to push back. Activists have been trying to put private prisons out of business for years. They are starting to see some success. In 2019, allies in California’s state legislature enacted a law barring the state government from contracting with private prisons. That marked a major legislative victory, but in September 2022, the Ninth Circuit held the law unconstitutional, siding with GEO Group and the federal government. Separately, a growing list of major financial institutions, including Bank of America, JPMorgan Chase, and Wells Fargo, have said they will stop lending money to the private prison industry. One of the country’s largest teachers’ unions encourages pension funds to do so too. In Tacoma, Washington, activists are trying to shut down a nearby 1,500-bed facility. If selling private prisons is like selling hamburgers, then these are signs that some communities are changing their tastes.

Litigation is also beginning to show signs of success. In 2017, a jury in a Washington federal court sided with migrants confined at a Seattle-area private prison, concluding that GEO Group violated state minimum wage laws by paying detainees $1 per day. The jury issued a $23.2 million verdict in the migrants’ favor. More recently, a federal court in Colorado denied GEO Group’s motion to dismiss in a similar case involving operations at the Denver-area prison it owns—the same facility where Kamyar Samimi died in 2017 and, in October 2022, so did Melvin Ariel Castro Mendoza. [Disclosure: I am on the board of directors of Towards Justice, the organization that represents the plaintiffs in this case.]

Immigration Detention Remains Consistent Regardless of Party

In the White House, preferences change slowly. When former President Trump left office, ICE held fewer people in its prison system than ever in its 18-year history. That’s no longer the case. At the end of the first full fiscal year under President Biden, 2022, the agency held over 22,000 people every day, a far cry from the 50,000 held daily under Trump but more than when Democrats retook control of the Executive Branch.

The Biden administration hasn’t just recommitted to immigration imprisonment. It has backtracked on its promises to immigration advocates. On the campaign trail, Biden said his administration would end private detention. For a while, it seemed like he meant it. During his first week in office, President Biden ordered the Justice Department to gradually step away from the private prison industry by not renewing existing contracts once they expire. That mandate excluded ICE’s parent agency, the U.S. Department of Homeland Security (DHS). Nothing has changed since then. Under President Biden, the federal government is creating a two-tiered prison practice: profiting from confinement is impermissible if people are confined by the Justice Department, but it’s fine if they are confined by DHS.

There is every reason to imagine this dynamic continuing. Activists will continue to push the Biden administration to shutter private facilities and make good on the president’s campaign promise, while ICE will continue to rely on the private prison industry to detain migrants. Meanwhile, private prison companies will continue to reap the financial rewards of their long relationship with federal immigration agencies.

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

César Cuauhtémoc García Hernández

Gregory Williams Chair in Civil Rights and Civil Liberties, Ohio State University Moritz College of Law; Author, "Migrating to Prison: America’s Obsession with Locking Up Immigrants and Crimmigration Law"

César Cuauhtémoc García Hernández holds the Gregory Williams Chair in Civil Rights and Civil Liberties at Ohio State University Moritz College of Law. He is the author of Migrating to Prison: America’s Obsession with Locking Up Immigrants and Crimmigration Law.