NY Review of Books, Feb. 19, 2021
America’s Hidden Gulag
The nationwide federal detention of immigrants in county jails
perpetuates a profit-driven system of mass incarceration.by Jacob
Kang-Brown and Jack Norton
In the summer of 2018, Immigration and Customs Enforcement (ICE) agents
brought hundreds of people—flown thousands of miles from the Mexico–US
border—to the Albany County Jail in upstate New York. With the Trump
administration’s immigration policies in full force that summer, ICE and
Border Patrol agents were tearing families apart, putting children in
cages at the southern border, and moving their parents to private
detention centers, state prisons, and local county jails all over the
country. By July, 330 of these migrants detained by ICE were being held
at the Albany County Jail.
Albany County has a 1,040-bed jail across from the Albany Airport.
Originally constructed in 1931, the jail was rebuilt and expanded in the
1980s at a cost of $30 million, with renovations and further additions
in the years following. Over the last four decades, numerous other
counties—both across New York and nationwide—have been building new and
bigger jails at enormous cost. Altogether, these developments amount to
a vast expansion of carceral capacity, much of it in rural counties and
regional cities like Albany. Incarceration rates have been rising in
much of the country, even as incarceration rates in large metropolitan
areas have fallen. The jail boom in rural America, fueled in part by
federal policies, is being used by federal agencies like ICE and the US
Marshals Service (USMS).
There are over 3,000 counties in the United States, and almost every one
has a jail, usually run by the local sheriff’s department. ICE and the
USMS use space in many county jails to detain immigrants, people seeking
asylum, and those in pre-trial custody on federal charges. Federal
detention in county jails is an often-overlooked facet of mass
incarceration in the US. During the past four decades, this relationship
between federal agencies and county jails has encouraged jail expansion,
and has, in many cases, rewarded anti-immigrant policy among sheriffs
and county administrators. At the same time, increased jail capacity
nationwide has provided ICE with more sites for detention, forcing
advocates and organizers to find new approaches to combat the arbitrary
and capricious ways that federal agencies can transport people to jails
and detention centers all over the country.
The USMS and ICE’s practices of issuing per diem payments to sheriff’s
departments for the use of county jails has created incentives for local
administrators to build bigger jails and increase operating budgets. The
revenue this excess jail capacity generates then subsidizes the cost of
detaining and incarcerating local people, and, in many cases, offsets
the enormous local costs of jail construction or renovation. This $1.3
billion-a-year federal market for jail beds has resulted in a carceral
arms race, with counties competing to produce more capacity to lock
people up, in turn creating a geographically dispersed and flexible
resource for agencies like the USMS and ICE.
This federal jail bed market was created in part by the Comprehensive
Crime Control Act of 1984, a bill sponsored by Senator Strom Thurmond
and championed by then Senator Joe Biden and other Democrats, as well as
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
The 1984 act increased the average number of people detained by the
federal government by 32 percent within a year and increased demand for
flexible detention capacity in the United States. Federal criminal
caseloads almost doubled in the 1980s, growing from 28,921 in 1980 to
47,411 in 1990. The new “tough on crime” policy at national level soon
had an effect at the local level, too. Local jail capacity in the US had
grown by less than 1 percent each year between 1978 and 1983, even
declining in 1984. But in the wake of the 1984 act, counties began to
build, and jail capacity jumped by 4 percent in 1985 alone. Countrywide,
county jail capacity doubled over the following decade.
The 1996 act further increased the federal demand for flexible detention
space. This bipartisan legislation, which was supported by Biden and
signed by President Clinton, transformed immigration law and border
enforcement and expanded the federal detention market in two ways:
first, it defined new federal crimes related to border crossing,
offenses for which people are often held in USMS detention in local
jails. People charged under these provisions made up about 10 percent of
all bookings into federal pre-trial detention in 1996, but constituted
40 percent of USMS bookings in 2008 before the end of the Bush
presidency. They have remained at high levels across both the Obama and
Trump administrations.
The 1996 act also increased the number of people detained in Immigration
and Naturalization Service (later ICE) custody from under 80,000 in 1995
to more than 180,000 in 2000. The law tied criminal law to immigration
law more closely than ever before, increasing the number of people
subject to mandatory detention and summary removal from the country
without the right to appear before an immigration judge. And Clinton era
legislation intensified the effect of racist policing practices for
immigrants of color, who were thrust into a newly streamlined criminal
justice system–immigration enforcement pipeline.
Through the early 2000s, the federal government continued to fuel local
jail capacity expansion with planning support and direct capital
funding. That aid has since shifted to a different model: now, funding
flows to counties via payments for detaining immigrants and people
facing federal drug charges—people criminalized as a consequence of
racist federal policies. This is incarceration as a service, whereby the
federal government pays local agencies for jail cell space, and counties
use the money from the federal government to secure funding on the
municipal bond market, via convoluted nonprofit shell companies and
lease-purchase agreements. As a result, only a small share of people
detained by the federal government are held in federally run facilities,
with most people facing federal criminal charges held in the growing
network of mostly rural jails.
Although the increased demand for flexible detention from the 1980s to
the present is staggering, contracts between local governments and
federal agencies for detaining immigrants date back to 1950. In this
way, ICE and the USMS work in tandem. This was the case for Albany
County, which had signed a contract with the USMS, and not with ICE,
long before the immigration policies of Jeff Sessions, Stephen Miller,
and Donald Trump. By fiscal year 2019, almost half of all people
detained pretrial while facing federal criminal charges were charged
with immigration-related “crimes” created in the 1990s such as illegal
border crossing, up from about one in three in 2016. As a recent
Government Accountability Office report to Congress confirms, ICE staff
believe that using USMS contracts are “the fastest and easiest option”
for the agency to expand detention capacity.
During the summer of 2019, when federal detention (by both ICE and the
USMS) was at a peak, there were nineteen states in which all of those
facing federal charges or deportation were locked up in local jails.
Another fourteen states used a combination of local jails and a few
state prisons for federal detention. Only two states primarily used
federal facilities, and four primarily employed private facilities. The
geographic extent of federal detention and the local jail bed market
laid out here is based on documents obtained from the US Marshals by a
Freedom of Information Act application and from ICE through new
congressional disclosure requirements, and has not been previously reported.
Federal agencies often circumvent contracting directly with private
prison companies by using local governments as an intermediary. To avoid
open-bid requirements that come with more public transparency and
accountability, federal agencies will contract with a local government,
which in turn contracts directly with private, for-profit detention
providers. Money then passes through to the company, with the local
government taking a cut for administrative services. For example,
through a contract with Tallahatchie County in the Mississippi Delta,
the USMS has used a CoreCivic prison to incarcerate people from all over
the US and US territories, including Puerto Rico, South Texas, and the
District of Columbia. ICE’s contract with CoreCivic for a detention
facility in South Texas was run through the city of Eloy, Arizona—a
practice that the Department of Homeland Security’s own inspector
general found contravened federal procurement regulations. For the ICE
detention facility in Charlton County, Georgia, operated by the GEO
Group, ICE’s contract is with the county, which takes a small $2,500
fee, before passing on a $1.9 million per month payment to the GEO
Group, according to the Atlanta Journal Constitution.
In the wake of President Biden’s recent executive order directing the
Department of Justice not to renew contracts with private prisons, there
have been calls to end the use of private immigrant detention facilities
by the Department of Homeland Security, whereby private companies
administer a larger share of detention capacity compared with that of
either the USMS or the Bureau of Prisons. As the geographer and
abolitionist Ruth Wilson Gilmore has explained, however, private prison
companies are parasites on the publicly owned system, fed by the 1984
crime act and the 1996 immigration act. This federal funding has also
helped to reshape local politics across the United States, shoring up
county elites that organize to invest in jails and police in lieu of
real economic and social development. While the private prison industry
may be a soft target for some progressive politicians, the underlying
problem has always been racist criminalization and public investment in
policing, detention, and incarceration.
Over the course of 2020, prison and jail populations across the country
did decline, as the Covid-19 pandemic made incarceration even more of a
public health crisis and the national wave of Black Lives Matter
demonstrations and accompanying demands to defund the police and
#FreeThemAll influenced policy. Jail and prison populations went down 13
percent between early 2020 and the end of September, while federal
prison populations dropped by 15 percent, as a recent report from the
Vera Institute, for which we work, found.
ICE detention has fallen steeply since January 2020, thanks in part to
border closures and in part to the “Remain in Mexico” policy that forces
asylum seekers to wait in Mexico for their cases to be heard in
immigration hearings held remotely. (ICE’s budget has not been
substantially reduced, however, and some advocates fear that the agency
will increase detentions as border restrictions are relaxed and asylum
seekers are allowed to reenter under the Biden administration’s
restoration of pre-Trump era immigration protocols.) The number of
people detained by the USMS fell only slightly before increasing again
at the end of the year. There are now more people detained by the USMS
than at any time in the agency’s history: nearly 64,000. Any reduction
in the incarcerated population from the past year remains a fragile gain
in 2021—jails and prisons nationwide are still open, their budgets fully
funded.
*
When hundreds of people were sent to the Albany Jail that summer of
2018, local immigrants’ rights advocates mobilized to provide support.
Today, immigrants in detention can access a New York State–funded
attorney once their case goes before an immigration judge through the
New York Immigrant Family Unity Project. When people were transferred
from the border to Albany in 2018, however, they still had to earn the
right to have their asylum cases heard by an immigration judge. First,
they needed to demonstrate that they had a “credible fear” of returning
to their home countries. Local advocates—led by the Immigration Law
Clinic out of the Albany Law School, the New York Immigration Coalition,
and the Legal Project—coordinated with Albany’s Sheriff Craig Apple to
connect the detained people with legal support. In the end, 93 percent
of those detained were deemed to have demonstrated credible fear and
were able to bring their asylum cases to court. Most were then
represented by Family Unity Project attorneys, who went on to fight with
them for the right to remain safely in the United States.
For his part, by the fall of 2018, Sheriff Apple had persuaded the
county legislature to redirect some of the revenue from ICE to services
for immigrants. The legislature agreed to allocate $170,000 of the
nearly $4.8 million in per diem payments toward immigrant legal
representation, community outreach, and training for law enforcement.
The county also allocated over $940,000 in revenue from ICE to provide
property owners in Albany with a tax cut in 2019. For the Albany Times
Union, Mallory Moensh reported Sheriff Apple saying: “We’re going to
continue to show compassion, mercy, kindness and restore human dignity
to these people by simply reinvesting a tiny bit of money that we’ve
made off of their incarceration.”
In the spring of 2019, the sheriff sent a letter to the US Citizenship
and Immigration Services Albany Field Office stating that the Albany
County Jail would no longer house people who had not been arrested on a
judicial warrant, effectively limiting ICE, which makes arrests on
administrative warrants, from using the facility. By the summer of 2019,
ICE was no longer sending immigrants to the Albany County Jail. “ICE
didn’t feel they had control of the facility [the Albany County Jail],
and it was interfering with their bottom line, which is deportation,”
one local advocate told us.
But because increased federal demand has helped spur new capacity since
the 1980s, federal agencies have options. ICE now sends people to the
Federal Detention Facility in Batavia, in western New York, and to the
Rensselaer County Jail. ICE is also currently using the Orange County
Jail, the Clinton County Jail, and the Montgomery County Jail, and has
the ability to detain people in Chautauqua, Allegany, and Monroe
Counties. And that is just in upstate New York.
The Rensselaer County Jail is a 473-bed jail in South Troy, across the
river from Albany. Built in 1992, it was expanded by 192 beds in 2007.
In January of 2018, Rensselaer County Sheriff Pat Russo signed a 287(g)
agreement, a provision in the federal immigration code allowing local
law enforcement to be deputized as ICE agents, giving them the power to
detain and deport people based on immigration status under
administrative warrants. Rensselaer County is the only county in New
York State, and one of only seventy-five in the country, to have such an
agreement with ICE.
Back in 2007, Rensselaer County commissioners and the sheriff looked to
the revenue that the nearby Albany County Jail was generating from the
US Marshals Service. The local paper, the Troy Record, quoted a
statement from the then Albany County Sheriff: “Thankfully, the members
of the Albany County Legislature had the foresight to look to the future
while they planned the renovation and expansion of the old jail.”
Counties that built enormous jails have indeed planned for the
future—one in which incarceration rates in rural and small metropolitan
areas are now more than double those in large metro areas. They were
also ready for the Trump administration, which, however incompetently,
used the infrastructure on hand to increase federal detention by 30
percent. After decades spent in the Senate pursuing tough-on-crime
policies that encouraged and resourced jail construction, President
Biden has now committed his administration to advancing racial equity,
supporting underserved communities, and welcoming immigrants. To make
good on these promises, he will have to overturn his own legacy.
Jacob Kang-Brown is a researcher at the Vera Institute of Justice and
lives in Brooklyn. He is the lead researcher on the Incarceration Trends
project, which tracks the changing use of jail and prison in the United
States. (May 2019)
Jack Norton is a researcher for the Vera Institute of Justice’s In Our
Backyards project, an initiative exploring the shifting geography of
incarceration in the United States. (June 2020)
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