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Public Contract Law Journal

Public Contract Law Journal Vol. 49, No. 2

Contracting in the Era of Mandatory Immigration Dentention

Amanda Delaperriere


  • Discusses federal contracting for immigrant detention.
  • Analyzes criteria for evaluating proposals for federal immigration detention contracts.
  • Examines health and safety aspects of federal immigration detention contracts.
Contracting in the Era of Mandatory Immigration Dentention

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I. Introduction

On February 18, 2019, Immigration and Customs Enforcement (“ICE”) arrested and detained a six-month pregnant woman at an ICE detention center.Four days later, she went into premature labor at the detention center, delivering an unresponsive newborn who was pronounced dead soon after birth. 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. As stated by former Department of Homeland Security (“DHS”) Secretary Kirstjen Nielsen, the current system is at a “breaking point.”Yet, the government has made no substantive changes in the form of privatized contracted detention.

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. 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. 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. 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.

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. While electronic monitoring is still a form of “custody,” it can reduce some of the negative consequences of physical detention.

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. 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. 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. 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. 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.

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.

II. Contracted Immigration Detention, Its Criticisms & Consequences of the Detention Policies

The following Part is comprised of two sections to give background on immigration detention, its criticisms, and its legality. Section A gives an overview of detention in the United States by discussing detention’s legislative history, past policies, and the zero-tolerance policy. Section B focuses on the criticisms and shortcomings of immigration detention centers including the influence of private prison contractors on U.S. immigration policies, the deficiencies in health, safety, and security at these facilities, the cost of the facilities, and the lack of oversight. Section B also discusses the criticisms around the legality of the indefinite detention of immigrants in these centers.

A. History of Immigration Detention in the United States

Detention policies have shifted and changed over time with different presidential administrations. One of the major statutes governing immigration policy in the United States is the Immigration and Nationality Act (“INA”), which provides that the Attorney General “shall take into custody” criminal foreign nationals arriving in the United States that are inadmissible, and that the Attorney General may detain foreign nationals while decisions are pending for whether they can remain in the United States. Congress expanded this instruction and amended the INA, which “introduce[ed] mandatory civil detention” for individuals who have final removal orders, who are inadmissible because of lack of proper documentation, or who are legal permanent residents but have removal orders because of a previous criminal conviction. Individuals seeking asylum or fleeing their countries because of a “credible fear” of violence have been included in the group that is detained for lacking proper documentation when arriving at the U.S. border.

Under the INA, the government can enforce civil and criminal penalties for illegal entry into the United States. Civil penalties apply to individuals in the United States who do not have legal status, either from entering illegally or violating visa terms. When the government imposes civil penalties, the individual is “placed in formal or streamlined removal proceedings.” Under the INA, criminal penalties can apply to individuals “who enter or attempt to enter the United States illegally between ports of entry,” “who elude examination or inspection by immigration officers,” or “who attempt to enter or obtain entry . . . through fraud or willful misrepresentation.” If the government imposes criminal penalties, then the individual is placed into the Department of Justice’s custody within a criminal detention facility, where, after trial and after serving criminal sentences if convicted, ICE gains custody while the individual faces removal proceedings. DHS interprets this provision of the INA to mean that it is mandatory to detain individuals who fall into this category.

When the Trump administration announced the zero-tolerance policy, no formal statute was amended or added to the immigration laws. Rather, the zero-tolerance policy was announced as a heightened level of enforcement compared to the Bush and Obama administrations’ enforcement of the immigration laws. Under the announced zero-tolerance policy, “all illegal border crossers apprehended between U.S. ports of entry would be criminally prosecuted for illegal entry or illegal re-entry.” Unlike previous administrations, the zero tolerance policy did not make exceptions from criminal prosecution for asylum seekers.

Federally contracted immigration detention centers are used as an alternative to federal prisons as immigrants’ cases are pending in immigration court. Civil detention of immigrants has served a non-criminal purpose. Even though immigration detention served a civil purpose, ICE primarily contracted with companies that manage and operate private prisons for the majority of immigration detention centers.

Before the rise of privatization of detention, the majority of migrants were detained “in ICE-contracted bedspace in local jails and state prisons,” but the government now relies on private prison companies for almost seventy-five percent of immigration detention. Fifteen percent of detained immigrants are housed in local jails where, even if they are being detained for administrative violations, they are housed with people who have committed criminal violations. Federally-owned facilities house the remaining percentage of detained immigrants. The Obama administration began reducing the use of federal contracting with private prisons for detention, but in 2017, the Trump administration reversed course and now heavily relies on federal contractors to run migrant detention centers. Further, because of the policy shift from President Trump’s executive orders on immigration enforcement, ICE anticipated detaining more immigrants during fiscal year 2018 and raised the average daily population of detainees by forty-nine percent from fiscal year 2016. Anticipation of a higher average daily population raised ICE’s budget to $3.6 billion dollars for fiscal year 2018.

ICE also contracts by using Inter-governmental Service Agreements (“IGSA”) and U.S. Marshals Service Intergovernmental Agreements (“IGA”) as well as Dedicated Intergovernmental Service Agreements (“DIGSA”) to house detainees. The Inspector General of DHS refers to IGSA’s, IGA’s, and contract detention facilities (“CDF’s”) when looking at the relationship between ICE and the detention facility.

B. Criticisms and Shortcomings of Federally Contracted Immigration Detention Centers

Although government contracts for immigration detention centers allow flexibility for quickly responding to policy shifts towards immigrants, they are heavily criticized. Scholars call it a “subject of intense moral and political debate as well as public scrutiny,” as privatized detention has issues of oversight. Discussed below are a few of the main criticisms of federally contracted immigration detention centers.

1. Detention of Immigrants for Private Profit

The first criticism is that private prison contractors use immigrants for profit. Because of their private nature, private contract detention facilities are heavily criticized for their involvement and influence in U.S. immigration policy. Critics suggest that these contractors gain their influence from the millions of dollars that they spend on lobbying and campaign donations. One reason for this criticism is the idea that increasing political advocacy will shift the focus of detention to increasing profits for private companies rather than the government carrying out its public function. Further, the influence is concentrated in three contracting groups who manage more than “[ninety-six percent] of the total number of private prison beds.” The private money and influence involved as well as the concentration in the industry has led to this criticism concerning the use of detention services for private profit.

2. Deficiencies in Safety, Security, and Health Due to Lack of Monitoring

Not only is the influence of the private detention center industry criticized, but private prisons and immigration detention centers are known to have deficiencies in safety, security, and health. Scholars suggest that the current way of contracting with privatized corporations is deficient when compared to federally run facilities because of the lack of monitoring in evaluating private prisons. Critics argue that one reason for the deficiency is because the government’s interests cannot align with private companies’ interests, such as their profit motive. Without effective monitoring, the government cannot control what is happening within the facility, or discover what changes need to happen.

One area where this deficiency in monitoring has been observed is in con- tractors understaffing facilities in order to achieve cost savings. For example, at Reeves County Detention Center, one of GEO Group’s managed criminal detention centers in 2008 and 2009, there were no minimum staffing requirements because of an incentive to achieve significant cost savings. Due to insufficient staffing to control safety and security at the facility, the inmates rioted, with over 2,000 of them engaging in the fighting which resulted in two workers taken as hostages and part of the facility being set on fire. While minimum staffing requirements were eventually imposed retroactive of the riots, critics suggest that when there is an incentive to save money by a private company, the government can intervene but that intervention would happen after the safety and security of detainees has already been jeopardized.

Although many deficiencies in contracted facilities are known, government inspections have demonstrated that “ICE does not adequately hold detention facility contractors accountable for not meeting performance standards.” When deficiencies are identified by the government, ICE’s Detention Standards Compliance Unit is supposed to prepare and deliver action plans in order to take corrective action for the deficient facilities. However, the Office of the Inspector General at DHS admits that this method is not effective for correcting the deficient centers.

An example of failed accountability is ICE’s use of quality assurance surveillance plans (“QASP”) within the detention contacts. A QASP “is a standard template that outlines detailed requirements for complying with applicable performance standards, including detention standards, and potential actions ICE can take when a contractor fails to meet those standards.” ICE can issue Discrepancy Reports, where the government issues fines for non-compliance in the deficient facilities for violation of the QASP. While QASPs in theory seem effective, the DHS Inspector General has found that not only is ICE inconsistent in including QASPS’s in the detention contracts, but also when discrepancy reports are issued, ICE hardly ever issues financial penalties for the deficiencies discovered.

When contractors do not follow government standards, detainees’ health and safety is violated. For example, in June 2019, the DHS Inspector General released a report detailing the results from unannounced inspections at four ICE detention facilities that showed “egregious” non-compliance with ICE standards. Among the violations, the DHS inspectors found “spoiled and moldy food” and “open packages of raw chicken leak[ing] blood all over refrigeration units.” Also, individuals were placed in improper restraints and in premature disciplinary segregation that was not consistent with government policies or standards. Further, immigrants were deprived of outdoor recreation time. Rather, individuals were confined to enclosures “with mesh cages at the top to allow in outside air.” While the government was able to make a few corrections during its visits, the egregious violations had already jeopardized individuals within the facilities.

3. Indefinite Detention Without Bond for Immigrants

The third major criticism is how the current way of contracting for immigration detention causes immigrants to be held in detention for long periods without bond. On February 27, 2018, the Supreme Court of the United States decided Jennings v. Rodriguez. In Jennings, the Court reversed the decision of the Ninth Circuit, which found that there was an “implicit 6-month time limit on [a] [migrant’s] detention” and “that an [immigrant] must be given a bond hearing every six months” and if the government wanted to detain past six months, then it must prove that the “detention is justified.” The Jennings Court struck down mandatory bond hearings for detained immigrants, and deferred any Fifth Amendment questions for the Ninth Circuit. However, because the Supreme Court did not rule on the constitutionality of whether there was a right to mandatory bond hearings, immigrants can continue to be held indefinitely without bond hearings, which can make them feel as though they are facing hopeless and indefinite detention.

One reason that being held without bond can seem indefinite is due to the long backlog of cases in immigration courts, and immigrants can be held with- out bond “until a final decision is made in the case.” In 2018, the Government Accountability Office (“GAO”) produced testimony before the Committee on Homeland Security and Governmental Affairs in the U.S. Senate titled “Progress and Challenges in the Management of Immigration Courts and Alternatives to Detention Program.” In this testimony, the GAO found that in 2015, there were over 400,000 cases in immigration courts’ case backlogs. Further, because of the long backlog, migrants waited on average 404 days before their cases were heard in immigration court.

4. Detention Is Not Cost Efficient

A shortfall of the current way of contracting detention is that detention facilities are not cost efficient. In addition to the mental health cost considerations of the individuals detained, indefinite detention has significant monetary and administrative costs for the government. To calculate ICE’s detention budget, the GAO multiplies the national bed rate cost and the average daily population of detainees by the number of days in a year. With the Jennings decision currently standing as precedent, fewer immigrants may get released on bond as there is no mandatory right to a bond hearing. Thus, this decision suggests that there will be more physical detention without bond for indefinite amounts of time, which may drive up the costs of detention.

When compared to other forms of detention, detention facilities are not necessarily a cost-efficient solution. The GAO reports that it costs on average $158 a day per person to administer a detention program. However, it only costs on average $10.55 per day to monitor an immigrant through ICE’s Alternative to Detention Program. Through the Alternative to Detention Program, foreign nationals are “released into the community” rather than being detained. The program includes multiple options for release that are up to ICE’s discretion. The Alternative to Detention Program creates a monitoring alternative where ICE officials or an immigration judge decides that an alternative to detention is appropriate, rather than detention. Monitoring under the program includes “office visits, unscheduled home visits, and electronic monitoring.” The Alternative to Detention Program (“ATD”) costs much less than detention, but immigrants’ cases in the program are not prioritized. Thus, because the length of time for detained migrants may be less, detention is not always more expensive because judges prioritize detained immigrants’ proceedings over those of non-detained immigrants in the ATD program.

III. Far Guiding Priorities & the Three Different Avenues for Contracting Immigration Detention

This section introduces the purpose and history of the FAR guiding priorities along with the different avenues for contracting for migrant detention. The FAR provides that the factors of cost, quality, and timeliness of the product or service should guide federal procurement decisions. These factors will be discussed before introducing three possible options for federal contracting for immigration detention: temporary detention centers, permanent detention facilities, and electronic monitoring devices.

A. History and Purpose of the FAR Guiding Priorities

The FAR “is the primary regulation for use by all executive agencies in their acquisition of supplies and services with appropriated funds.” The FAR came into effect on April 1, 1984 with the purpose of “provid[ing] for coordination, simplicity, and uniformity in the Federal acquisition process.” FAR 1.102 states various guiding principles for federal acquisitions and provides that the FAR should create a system where “the best value product or service” is “deliver[ed] on a timely basis . . . while maintaining the public’s trust and fulfilling public policy objectives.” FAR 1.102 continues by stating it will: “(1) [s]atisfy the customer in terms of cost, quality, and timeliness of the delivered product or service”; (2) “[m]inimize administrative operating costs”; (3) promote “integrity, fairness, and openness” in business; and (4) “[f]ulfill public policy objectives.”

The FAR lists examples of how to fulfill these priorities and maintain the public’s trust by stating that the government should strive to maximize the use of commercial products and services, use contractors with successful past performance, and promote competition. These priorities are broad and while they are not mandatory obligations on the government, such as regulations containing the words “must” or “shall,” the government can use discretion in achieving these priorities when making procurement decisions. However, achieving all of the priorities should be the goal of procurement decisions, and as discussed below, choosing the correct form of contracting makes these priorities achievable.

B. Three Options for Contracting Detention

Three possible contracting responses the United States can use when carrying out its detention policy are: (1) temporary detention centers, (2) permanent facilities, and (3) electronic monitoring. The first possible contracting response is to contract temporary detention centers when there is an emergency need. During an interview, President Trump has referred to temporary detention centers as “tent cities,” where detained individuals will be held in custody until their case is heard in immigration court. A “tent city” was used in 2018 to house immigrant children at a center in Tornillo, Texas. These centers are from the government’s grant for temporary facilities to house unaccompanied minors, and the grant was under the Department of Health and Human Services (“HHS”) rather than the DHS. However, the data can still be useful to predict whether this type of facility would fulfill the FAR contracting priorities of best cost and quality on a larger scale of contracting for immigration detention for adults. These tents were used during a time of crisis when the government was taking in thousands of children, within six months, without a permanent facility.

The second possible response is to contract for permanent facilities, which includes CDF’s, IGSA’s, and IGA’s where individuals are processed and detained until their case is heard in immigration court. As noted, the federal government currently relies primarily on private prison groups in order to respond to immigration. The three private contractors who have received the most government contracts for their administration of their detainment facilities are GEO Group, Inc., CoreCivic, Inc., and Management and Training Corporation. The Trump administration encourages contracting for private-permanent facilities. The type of detention contracts vary as the government has used fixed-price contracts, and other contracts were given to a sole-source under FAR 6.302-1(a)(2)(ii). To prepare for these contracts, ICE issues Requests for Information seeking information on turnkey ready facilities for detainees before the agency solicits Requests for Proposals and issues awards. When analyzing the facilities, scholars look at both the private prison data and immigration detention facility data because they are run by the same corporations. Further, Congress has done investigations through the GAO, and the DHS has investigated through the Office of the Inspector General on practices surrounding immigration detention.

The third possible response to immigration is to contract with private companies to administer electronic monitoring through Global Positioning System (“GPS”) monitoring devices and case management for individuals rather than physically detaining them in a detention facility. While this type of contract would not be for physical detainment like the temporary and permanent facilities, ICE has used electronic monitoring in the past and it is the only program used as an “official Alternative-to-Detention (ATD) Program.” Further, when electronic monitoring is used to fulfill detention policy, even high risk individuals could be released while still in custody.

To contract out this program, the government would have the choice to utilize a contract for either a “technology-only” version from the contractor, or a “full-service” where the contractor provides not only the technology to monitor, but also administers and manages the program. The full service model of monitoring is done by the contractor “either through use of an ankle bracelet that enables Global Positioning System (GPS) monitoring or voice recognition software for telephonic reporting.” In the past, the government has contracted both the technology only version and the full service version of electronic monitoring under the Intensive Supervision Appearance Program.

IV. Analysis of Contracting Options Under the FAR's Guiding Priorities

This section analyzes temporary contracted detention centers, permanent contracted detention centers, and electronic monitoring under the FAR guiding priorities for procurement decisions. The analysis studies the reason the government should contract for a different form of privatized detention: electronic monitoring. Not only does electronic monitoring fulfill the FAR priorities guiding federal procurement decisions for mandatory detention, but also, the other forms of contracting have consistently failed to achieve the government’s goals and necessities.

A. Prioritizing Costs to Evaluate the Best Way to Contract Immigration Detention

To analyze which of the federal contracting options is the best option when prioritizing FAR guidance, the first factor this Note evaluates is the cost. The FAR priority for cost overlaps with the FAR priority for timeliness in that when agencies have time to prepare, there is more competition and a higher likelihood that the government will get a good price. To analyze cost, this Note will look at the contract’s average cost to detain an individual per day. This Note will also use the “Defense Contracting Type Continuum,” adapted to be a continuum applied to emergencies, to look at how the cost of contracting is affected depending on whether the government is in “peacetime” versus “hostilities.” Peacetime is defined as the “status quo where the desired outcome is maximum transparency,” and is when contracting is often slow but it should be the “most transparent.” Hostilities are emergency situations in which “emergency acquisition flexibilities that are available only under prescribed circumstances” can be used. During these emergency situations, scholars show that without advance planning, a frantic agency can waste appropriated funds in an attempt to respond without adequate preparation. When a situation becomes stable, the government should refocus on transparency, and attempt to achieve better and more cost effective contracts.

As to cost, the temporary detention centers used to house an immigrant child cost HHS approximately $775 per day whereas the cost to house an individual in a permanent facility is on average $158 a day. The third option, electronically monitoring an immigrant through ICE’s electronic monitoring programs, cost under $10 per day. While the steep cost of the temporary detention center can partially be attributed to the fact that the center housed children rather than adults, the cost is reportedly much higher than the cost of a long term ICE facility that houses adults and children, which is approximately $298 per day. Temporary facilities are associated with responses to unexpected national emergencies, such as the tents procured in order to respond to the influx of immigrants at the border.

At Tornillo, the Inspector General of HHS stated that the temporary facility was used as a response to a national emergency of an influx of immigrants. While contracts during emergencies are able to organize and respond quickly, these are not effective long-term solutions for situations that can be anticipated because of the high cost and lower quality goods and services that occur when proper procurement procedures are not followed. This shows that it is likely that if temporary facilities were contracted for on a large scale for adults when an emergency hit, the cost would be higher than the other options for contracting such as the long term facilities because the long term facilities, by nature, are not suited for emergency situations. The Tornillo facility was not the result of advance preparation, hence its impermanence, and when contracts are rushed, agencies can waste appropriated funds in an attempt to respond without adequate preparation.

Thus, contracting for temporary detention centers on a large scale is not in the government’s best interest for achieving the best cost priority in the FAR. Although the permanent facilities are less expensive than the temporary facilities, they are not the most cost effective choice for the government. Electronic monitoring poses the best cost-effective choice for the government. Under ISAP II, the contractor only charges $0.17 per day per participant for Telephonic monitoring, $4.41 per day per participant for GPS monitoring, and $8.37 per day per participant for the Full-Service option. Even when the most expensive option of electronic monitoring, the full-service version, is chosen, the cost would be the best price for the government when compared to the other options.

B. Quality of Immigration Detention Centers and the Promotion of Integrity and Fairness in Business Dealings

To analyze which of the federal contracting options is the best option when prioritizing FAR guidance, this Note will evaluate the quality of the contracted good or service and how the quality impacts the integrity in the contract. Quality evaluation looks at oversight, enforcement, and transparency in the facility. Further, the FAR priority of fulfilling the policy objective relates to the quality of the good or service because it should be a combination of achieving the government’s policy goals and achieving the standards and contract terms put into the contract by ICE and agreed to by the contractors. The quality of medical services at contracted detention centers is heavily criticized by human rights scholars and immigrant rights groups for substandard performance. In the analysis below, there is overlap between the human rights implications and the quality of the services and supplies provided. This overlap shows that the lack of quality from not meeting federal standards in detention facilities leads to less integrity within the contract. While the human rights issues such as health, safety, and security of the individuals being detained have been discussed at length from a human rights perspective, these factors are important to evaluate from a contracting perspective because they relate directly to the quality of the goods and services procured as well as to whether the contract promotes integrity.

One option for contracting detention is to respond to an influx in immigration by procuring a temporary detention center. Scholars suggest that when the government contracts in times of emergency, transparency is at its lowest, like what happened at the facility in Tornillo. Because the facility was an emergency influx care facility, it was not licensed in Texas. Further, even though policies required FBI fingerprint background checks for staff, no background checks were conducted on the approximately 1,300 staff, which included contractors and employees. Also, the facility failed to conduct the required Child Abuse/ Neglect Background Checks. The Child Abuse/ Neglect Background Checks were waived by the ORR director because “the urgent time constraints that the facility was under in order to be operational in a short time.” The Tornillo facility shows that when the government has an urgent time constraint, less transparency in the contract results in the lower quality of the detention center as evidenced by the facility remaining unlicensed and background checks not being performed. Further, when the public discovered these deficiencies, immigrant advocates, Democratic lawmakers, and the media did not hesitate in criticizing the Tornillo center. Waiting to procure detention centers until after an influx of need neither provides a quality good nor does it promote integrity because of the shortcuts and non-transparent procedures used in administering the detention facility.

The second option to evaluate is the permanent immigration detention facilities, which currently house close to seventy-five percent of immigrants. When the government contracts for the facilities, they generally require the contractor to provide housing, medical care, and other daily needs for detained immigrants. Even when the government has contracted for specific services and needs, there is often a lack of information flowing between the facility and the government which can result in the facility not being up to government standards. When evaluating the quality of privatized detention facilities, the Inspector General has compared private prisons to federally run prisons based on similar population size, location, and security levels. Scholars argue that the report drew causal inferences based on insufficient analysis of the qualitative factors because there was a failure “to communicate essential information” between the facility and the government in contracted detention facilities.

Not only was the quality deficient based on a lack of transparency, but detention centers also have failed to meet medical care standards established by ICE. An investigation into the facilities found that the failure to meet medical standards “played a significant role in eight in-custody deaths.” When the deaths were looked into, the Office of Detention Oversight found that the deaths were related to “noncompliance with internal policies.” Further, when deficiencies are found in these facilities, DHS has found that ICE does not impose consequences for non-compliance with quality standards. To enforce quality standards, ICE can use QASPs, issue discrepancy reports, or impose financial penalties on contractors. Yet, DHS has found that many of these tools have been waived, which has led to situations for “contract facilities to circumvent detention standards” and for the inhibition of contract oversight tools. Because ICE cannot consistently enforce its quality standards, the contracts lack the integrity and transparency that should be in place.

Immigrants’ health and safety are also violated in permanent detention centers. As found by the Inspector General at DHS, the facilities had varying conditions, but were not in line with ICE standards for health and safety of immigrants. During unannounced visits to four facilities, the Inspector General found “nooses in detainee cells, overly restrictive segregation, inadequate medical care, unreported security incidents, and significant food safety issues.” Other violations at the facilities included not allowing outdoor recreation for immigrants, “dilapidated and moldy” bathrooms, and failure to provide immigrants with “appropriate clothing and hygiene items.”

With a requested budget of over three billion dollars for immigration detention, ICE should focus more on the quality of the goods and services it is procuring in order to achieve its goal and promote integrity and fairness within its contracts. As seen by the examples above, these privatized centers lack oversight and monitoring, have health and safety violations, and fail to meet medical standards set by the government when taking care of individuals who are the government’s responsibility. Thus, when making procurement decisions based on the quality of the good or service, permanent detention centers are not the best option because they are difficult to monitor and often fail to meet federal standards when caring for the individuals.

The third option for contracting immigration detention is to continue contracting for electronic monitoring devices by expanding ISAP II. Under this program, electronic monitoring provides a quality service for the government because the program had a 99.9% compliance rate for individuals attending their immigration court hearings, and there was a 79.4% compliance rate with deportation orders. Further, electronic monitoring as an alternative to detention in a facility offers a higher quality of life for the individuals in the program because it allows them more liberty. Electronic monitoring as a way of contracting for detention is able to avoid the health violations that arise in detention facilities because of its very nature of not having physical detention health standards and protocols. While electronic monitoring was first implemented back in 2004 as ISAP I, as of 2014, ISAP II only had 10,833 active Technology-Only immigrant participants and only 11,368 Full Service immigrant participants. Because of the high-quality of this good and service, its low cost, and the integrity it promotes by not being physical detention in a facility, the government should prioritize contracting for electronic monitoring.

V. Conclusion

If the government continues to enforce immigration detention policy through government contracts, utilizing electronic monitoring devices is the best way to proceed to achieve the FAR objectives under a detention policy. Contracting for temporary and/ or permanent physical detention facilities neither provides a quality or cost effective good nor fosters a sense of trust from the public concerning the integrity of procurement decisions. When the FAR is followed in government procurement decisions, rights can be elevated for detained immigrants while also achieving policy objectives for the government.