April 10, 2020 Public Contract Law Journal

Contracting in the Era of Mandatory Immigration Dentention

by Amanda DeLaPerriere

Amanda DeLaPerriere is a 2020 J.D. candidate at The George Washington University Law School. She thanks Professor Sonia Tabriz and Meghan McConnell for their edits, advice, and encouragement throughout writing this Note.

I.  Introduction

On February 18, 2019, Immigration and Customs Enforcement (“ICE”) arrested and detained a six-month pregnant woman at an ICE detention center.1 Four days later, she went into premature labor at the detention center, delivering an unresponsive newborn who was pronounced dead soon after birth.2 While one premature death is more than enough to rethink the current way of contracting immigration detention, this story is not uncommon. In the three months between December 2018 and February 2019, three other deaths occurred in ICE contracted detention centers, two of whom were detained children.3 As stated by former Department of Homeland Security (“DHS”) Secretary Kirstjen Nielsen, the current system is at a “breaking point.”4 Yet, the government has made no substantive changes in the form of privatized contracted detention.5

Over the last few years, the media has amplified its coverage of the tragic stories of the treatment of immigrants in the United States along the nation’s southern border as President Donald Trump’s administration has specifically chosen to focus on immigrants entering the United States from Central America.6 President Trump has made statements such as “the United States cannot possibly absorb them all,” referring to immigrants, and that these immigrants, who include asylum seekers, pregnant women, and children, will be detained “until the deportation hearing” even if it means putting up “massive tent cities” to detain them.7 Further, in an attempt to keep immigrants from crossing the border into the United States, President Trump declared an official national emergency to divert appropriated funds into a funding source for building a wall as border security between the United States and Mexico.8 These statements and actions are just a few examples of the Trump administration’s stance on restricting the flow of immigrants into the United States.9 

While statements from President Trump and his administration draw attention to the U.S. detention policy, they do not encompass the consequences of the current structure for enforcing the detention policy on physically detained immigrants. Further, there is another option, electronic monitoring, that can fulfill a detention policy without being as restrictive as physical detention in a facility.10 While electronic monitoring is still a form of “custody,” it can reduce some of the negative consequences of physical detention.11

The level of enforcement of immigration policy, such as the zero-tolerance policy, can change at any time, and the federal government continues to use federal contracting to respond through privatization.12 The Federal Acquisition Regulation System (“FAR”) provides four objectives for the procuring agency which are guiding priorities for when an agency is making procurement decisions: (1) cost, quality, and timeliness of the product or service; (2) minimizing administrative operating costs; (3) integrity; fairness, and openness in business; and (4) fulfilling policy objectives.13 All of the above priorities are important for guiding procurement decisions, and while the current way of contracting for detention facilities is not in line with these priorities, contracting for electronic monitoring could follow these FAR priorities.14 Electronic monitoring can achieve these goals because it can be less costly for the government, it promotes a quality service, when compared to physical detention, and it would produce integrity, fairness, and openness in contracting.15 The current enforcement of detention policies relying primarily on physical detention facilities not only threatens immigrants’ health and safety, but also is inconsistent with the procurement guiding principles in the FAR.16

Part II of this Note discusses the background of immigration detention, including criticisms from scholars about contracted detention centers and the effects of laws surrounding detention in the United States. Part III describes the FAR guiding priorities along with three possible avenues of contracting for detention services. Part IV analyzes why electronic monitoring best fulfills the FAR guiding priorities listed in FAR 1.102(b), while also achieving policy goals and Part V concludes this Note.

Premium Content For:
  • Public Contract Law Section
Join - Now