06.20.14 9:45 AM ET
Private Prisons Rule With Little Oversight on America’s Border
TUCSON — The smell in the courtroom is overpowering.
About 40 men and two women fill seven rows of benches in the special proceedings courtroom at the U.S. District Court in Tucson—fewer than the maximum of 70 who shuffle through here every weekday at 1:30 pm. Their ankles are shackled, the handcuffs on their wrists attached to chains around their waists. They look exhausted, confused, and ashamed. They range in age from 18 upwards, but the majority look no older than 25. Most of them are Mexican, more than a handful are Honduran and Guatemalan, and all of them were caught illegally crossing the U.S.-Mexico border.
Some of the men and women have spent the past two or three days in detention without showering or changing their clothes. Others were picked up by Border Patrol in the desert this morning, their skin and clothing still caked in dirt and sweat.
Before entering the courtroom today, these men and women were given about 20 minutes, an hour at most, with a court-appointed attorney. The lawyers are contracted and paid upwards of $100 an hour to explain the charges against the detainees and, in almost every case, encourage them to plead guilty.
Everyone in the room today is being charged with two crimes: the petty crime of illegal entry and the felony of re-entry after removal. In other words, they’ve all been deported at least once before and they were all caught trying to cross again. Some look at their feet, or gaze around the courtroom, others stare blankly at Judge Bruce McDonald as he explains the penalties they face: a maximum of six months in prison and a $5,000 fine, a criminal conviction, and deportation. A translator echoes the judge’s words into Spanish through plastic headsets that hang below their chins like broken stethoscopes. When McDonald asks if everyone can understand him, one man raises his hand and explains that he speaks an indigenous language and doesn’t understand Spanish very well. The judge tells him to sit tight and wait for his case to be individually handled at the end of the proceeding. Then he moves on.
McDonald calls the defendants to stand before him in groups of five at a time. Their court-appointed defense attorneys stand a step behind them, sometimes with a hand on their backs. As each group of five gets up, the remaining defendants scoot to the end of the bench, waiting their turn. McDonald goes down the line asking each defendant the same questions and receiving the same answers:
“Do you understand the charges against you?”
‘Are you pleading guilty voluntarily?”
“Are you a citizen of Mexico (or Guatemala or Honduras)?”
“Did you enter the U.S. through a designated port of entry?”
“How do you plead?”
Judge McDonald doles out sentences, ranging from 20 to 180 days in prison, and one by one and the defendants are escorted out of the courtroom by U.S. Marshals, only to be replaced by the next five. After less than two hours, all of the day’s defendants have been sentenced and escorted out of the courtroom by U.S. Marshals except one: the man who could not understand Spanish or English at the beginning of the hearing. Judge McDonald asks the U.S. prosecutor, Chris Lewis, if he wants to reschedule another court appearance for this man and try to find a translator who speaks his native language. Without much of a pause, Lewis chooses to drop the charges against this man. McDonald attempts to impart on him the severity of the consequences he will face should he find himself back in this courtroom.
“Do not try to cross illegally again,” he says.
This is a scene that takes place every weekday in federal courtrooms in every state along the U.S.-Mexico border except California. Criminal convictions for illegally crossing the border are issued in bulk proceedings that take no more than a couple of hours. It’s part of a program called Operation Streamline, which was introduced under the Bush administration in 2005 as a means of expeditiously slapping a criminal conviction on every person caught illegally entering the country without technically denying their basic rights to due process. In the nearly 10 years that it’s been around, the number of new Operation Streamline cases has increased by 300 percent. According to Syracuse University’s Transactional Records Access Clearinghouse (TRAC) Immigration, 97,000 new cases were filed in 2013—an all-time, nationwide high.
These group court proceedings are just one part of the U.S.’s larger “zero-tolerance” criminalization policy that, over the past decade, has catapulted immigration past drugs, firearms and white-collar crime as the most prosecuted federal offense in the country. The goal is to deter illegal immigration by raising the stakes: Not only do illegal border crossers face criminal charges and deportation if caught, they face prison time. Whether it works depends on whom you ask. Indisputable—though largely unrecognized—however, are the unprecedented numbers of incarcerated immigrants the policy has produced—and the increasing need for more space to house them.
Enter private prisons: a booming industry that is capitalizing on that need.
Over the past decade or so, the responsibility of housing convicted immigrants along the southwest border has increasingly been contracted out to private prison companies on the American taxpayers’ dime. Between 2002 and 2010, the number of ICE detainees held in private prisons grew 206 percent, while the U.S. Marshal Service sent 322 percent more of its detainees to private prisons. According to the American Civil Liberties Union, the Bureau of Prisons spent about $600 million on private prison contracts in fiscal year 2013.
In some respects, those shackled and shuttled through the courtroom en masse are the lucky ones. Tuscon Border Patrol apprehended 65,962 people on the Arizona side of the Mexican border over the past eight months—that’s an average of 360 people per day. But the U.S. District Court in Tucson can only handle up to 70 defendants at each Streamline hearing. Which of those 360 cases makes it onto the Streamline pile is completely random, but those who do are almost all encouraged to plead guilty and agree to serve a shorter sentence (up to six months) in exchange for having the felony re-entry charge waived. On this day, everyone has signed a plea agreement and when they leave the courtroom today, they will be in the custody of the U.S. Marshal Service. At least 30 percent of them will serve their shortened sentence in a private prison.
Those who are not sent to Operation Streamline (or are and choose not to plead guilty) are put through a normal criminal proceeding, where they must face a felony re-entry charge head on and where they almost always lose. These people, along with undocumented immigrants caught in the interior of the country, plus some drug offenders, make up the 25,000 non-citizens housed in the country’s “Criminal Alien Requirement,” or CAR, prisons. There are 13 CAR prisons in seven U.S. states, five of them in Texas. All of them are owned by one of three private companies: Corrections Corporation of America, the GEO Group, and Management and Training Corporation.
The minimum sentence at one of these prisons for the felony of illegal re-entry is two years. The maximum is 20. Isolated in remote towns, away from the inmate’s family members, lawyers and NGO watchdogs and unencumbered by federal prison standards or open-record laws, CAR prisons are shrouded in secrecy.
It’s this inherent lack of oversight that enables widespread mistreatment of inmates at CAR prisons around the country, according to a multi-year investigation by the ACLU’s National Prison Project. A report released last week compiles testimonies from CAR prison inmates who describe overcrowded, unsanitary facilities, discrimination and verbal abuse from guards, inadequate food and substandard medical care. Some living quarters, like those at the Willacy County Correctional Center in southeast Texas, are nothing more than Kevlar tents filled with closely-packed rows of bunk beds, overflowing toilets, and plenty of bugs.
According to the ACLU, Bureau of Prisons contracts require that all five of Texas’s CAR prisons set aside 10 percent of their bed space for isolation cells—that’s double the percentage of beds used for isolation in regular, BOP-managed prisons. With such a large portion of beds reserved for isolation—and no shortage of inmates—prisoners report being sent to isolation for little to no reason at all. Some say anything as small as complaining about medical care, requesting new shoes, or even speaking Spanish has landed them in isolation. Others report being sent directly to isolation cells upon arrival—not because they’d done anything wrong but because that’s where the only available beds were—and remaining trapped there for days or weeks after they arrived.
Only once they’ve finished their prison sentence are these immigrants sent into removal or deportation proceedings. For those who may have valid claims to asylum, this will be their first opportunity to raise them.
“This is a story about the consequences of the criminalization of immigration,” said Carl Takei, of the ACLU’s National Prison Project. “It enriches the profit prison industry to a huge cost to the taxpayers, allows shocking abuses without oversight, and it tears families apart.”
MTC and the GEO group both refuted the ACLU’s claims in emailed responses to The Daily Beast. A spokesperson for the Federal Bureau of Prisons wrote that the BOP is taking “seriously the allegations made” by the ACLU report, but explained that the bureau’s low-security prisons are extremely overcrowded and that contracting with private companies has proven “an effective means of managing low security, specialized populations.” Because “criminal aliens” will, in most cases, be deported after completing their sentences, they are considered “an appropriate group for housing in privately operated institutions where there are somewhat fewer programs offered to prepare offenders to successfully reintegrate into U.S. communities.”
Wanda Day is a contract attorney in Tucson who has been handling four to five Operation Streamline cases daily since the program started. Her oldest client was 70 years old, but she says they range in age from 18 upwards. Day has represented the same clients more than once—one man even remembered her name when he saw her at the courthouse. Still, she’s confident that the program is successfully discouraging people from crossing the border illegally.
“People tell me they don’t want to be arrested again,” she told me outside the courtroom following the hearing. “I tell them, ‘Don’t come back.’”
While supporters of criminalizing illegal immigration and harsh punishments for offenders point to the fact that Border Patrol apprehensions of undocumented migrants near the southern border have reached an all-time low as proof that the strategy is working, opponents cite anecdotal evidence from deported immigrants determined to cross again as evidence that it’s not. A May 2013 Human Rights Watch report compiled 191 interviews with immigrants who had repeatedly entered the U.S., people who had been charged with illegal entry or re-entry, as well as interviews with immigration attorneys, prosecutors, criminal defense attorneys, judges and humanitarians whose experiences suggest that the threat of prison is not an effective deterrent for potential migrants or returning deportees.
“Meanwhile, the costs of the increased prosecutions are significant and growing,” the HRC report states. “The costs include an estimated $1 billion annually in incarceration costs alone and lasting damage to the lives of migrants and their family members, tens of thousands of whom are U.S. citizens or permanent residents.”
If passed by the House of Representatives, the comprehensive immigration reform bill that passed the Senate last year would triple the budget for Operation Streamline, upping the quota of people shuttled through the courtrooms in shackles to 210 per day. More illegal entry prosecutions will likely lead to more CAR prison contracts, says the ACLU’s Takei.
All of Tucson Public Defender Margo Cowan’s clients are non-citizens but she does not participate in Operation Streamline and is very critical of attorneys who do. “All it is public humiliation of these abjectly poor people, as well as criminalization,” Cowan says. “But the thing they feel the most is this incredible public humiliation. It reminds me of the days when people were put in stocks in the square. It’s off the charts.”