Many who oppose the use of private prisons in the United States cheered when the Department of Homeland Security (DHS) announced on Monday that it is reviewing its use of private immigration detention facilities. The news came after the Justice Department's (DOJ) decision to phase out its use of private facilities, given concerns about safety — but it may be too soon to celebrate.
It's likely that DHS Secretary Jeh Johnson felt some pressure to respond to the DOJ's announcement given the thousands of immigration detainees held in private facilities. Yet the form is telling: Instead of announcing a phaseout plan as proposed by the DOJ, he has asked the Homeland Security Advisory Council to review the issue by Nov. 30.
A referral to a committee is an age-old procedural delay. But why punt, especially when the safety of detainees is in question?
The DOJ move came after an Inspector General report, which noted that private facilities had more safety and security incidents per capita than Bureau of Prison (BOP) facilities. In the DOJ announcement, Deputy Attorney General Sally Yates said the phaseout would allow Justice to "better allocate our resources to ensure that inmates are in the safest facilities and receiving the best rehabilitative services." That logic should apply to private immigration detention centers as well.
Both public and private immigration detention centers have had their share of problems, including poor medical care and mistreatment of detainees. Some private detention facilities have been recognized for their innovations in promoting civil detention — the premise that immigration detention facilities should not look like prisons or treat detainees like prisoners.
There's another significant difference: Only 11 percent of BOP beds are in private facilities, while Homeland Security depends heavily on the private sector. According to one estimate, on any given night, over 70 percent of immigration detainees are held in private detention centers.
So DHS has nowhere else to put its detainees, while BOP has reduced the prison population and now has space to move people from private to government-run facilities. To begin a phaseout of private detention centers, DHS would have to build more facilities — unlikely to be funded in this congressional climate — or contract more county jails, where conditions and detention practices are often substandard.
Of course, there's a third option: decrease the number of people taken into immigration detention. How about U.S. Immigration and Customs Enforcement (ICE) releasing families with young children, asylum seekers, and other people who shouldn't be detained in the first place? That would reduce the detainee population.
The sole legal purpose of holding people is not to punish, but to ensure that they participate in their immigration court proceedings. And that doesn't always require that they be detained; there are many other options, but they have been left woefully underdeveloped. The result is a knee-jerk resort to detention in thousands of cases where it is completely inappropriate, and an unmanageably large population of detainees.
Cutting this population would give DHS breathing space to determine whether to reduce its use of private immigration detention facilities. Then, if DHS decides to maintain its relationships with some of the better, more humanely designed private facilities, it should ensure that it's overseeing them effectively to ensure the health, safety and dignity of detainees.
So the first question for the advisory council should not be where detainees are housed, but about whether they should be detained at all.
Ginatta is the U.S. advocacy director at Human Rights Watch. Follow him on Twitter @amginatta.
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