President Donald Trump issued two executive orders on January 25 that will most likely contribute to the mass incarceration of immigrants in the United States.
One, titled Border Security and Immigration Enforcement Improvements, is best known for its provisions to build a wall on the U.S. border with Mexico. But it also includes sections for increasing the federal government’s capacity to incarcerate immigrants and provide greater opportunity to private prison companies.
Another, called Enhancing Public Safety in the Interior of the United States, is a ploy to force sanctuary jurisdictions to comply with requests to incarcerate immigrants past their release date, without charge or due process, while Immigration and Customs Enforcement (ICE) considers placing them in federal custody and deportation proceedings.
The executive order on Border Security and Immigration Enforcement Improvements directs the Secretary of Homeland Security to “immediately construct, operate, control, or establish contracts to construct, operate, or control facilities to detain aliens at or near the land border with Mexico.”
This order will build on the immigrant detention infrastructure expanded under the administration of President Barack Obama. Most immigrants are detained in federal prisons under contract with private prison companies, such as CoreCivic (previously known as Corrections Corporation of America) and GEO Group. Both companies have long records of prisoner abuse and facility mismanagement, especially in their immigrant detention centers.
One recent government audit found a CoreCivic immigrant prison had dangerously low staffing levels and hired inexperienced officers, whom they underpaid. Ninety-five percent of their personnel did not speak Spanish, and prisoners lacked access to adequate medical care. It also found the federal government was not properly overseeing the contract and the management of the prison, which allowed such conditions to permeate.
Other private immigrant prisons have serious issues with sexual assault and squalid living conditions, including family detention centers where children are incarcerated with their families in large, shared dorms. Despite a federal court order mandating such prisons be closed because they were not licensed to care for children, the Obama administration attempted to license them as childcare facilities so they could remain open.
The order commands the Secretary of State to “ensure the detention of aliens apprehended for violations of immigration law pending the outcome of their removal proceedings or their removal from the country to the extent permitted by law.” It terminated a policy known as “catch and release” which prioritizes the detention and deportation of immigrants who commit serious crimes, pose a threat to national security, or have violated previous deportation orders.
The executive order puts downward pressure on the number of immigrants granted parole and asylum, declaring it the “policy of the executive branch to end the abuse of parole and asylum provisions currently used to prevent the lawful removal of removable aliens.” The secretary is ordered to “ensure that the parole and asylum provisions of federal immigration law are not illegally exploited,” and that the government “take all appropriate action, including by promulgating any appropriate regulations, to ensure that asylum referrals and credible fear determinations […] are conducted in a manner consistent with the plain language of those provisions.”
The president directed the attorney general to establish prosecution guidelines and allocate resources to “ensure that federal prosecutors accord a high priority to prosecutions of offenses having a nexus to the southern border.”
The Folly of ICE Detainers
The other executive order, which takes aim at sanctuary jurisdictions, is part of Trump’s plan is to coerce compliance with ICE detainer requests. ICE detainers are not mandatory. They are requests to state and local law enforcement to keep an individual in custody up to 48 hours (excluding weekends and holidays) pending investigation into whether they will be taken into federal custody for deportation.
This order targets “jurisdictions that willfully refuse to comply” with detainers and seeks make them ineligible to receive federal funds, “except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.”
It orders the Homeland Security secretary to “better inform the public regarding the public safety threats associated with sanctuary jurisdictions” by publishing a “Declined Detainer Outcome Report” each week. The goal of these weekly reports are to “make public a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.”
Yet, if Trump’s plan is to ratchet up the use of detainers in service of mass deportations, available data shows such a strategy unlikely to succeed in anything but violating the rights of immigrants. It will also cost taxpayers millions of dollars.
While it was previously believed detainers were a key method of deporting immigrants, a new study from TRAC Immigration found, after an explosion in detainer requests during the Obama administration, surprisingly few requests result in removals from the country.
Specifically, only 5 percent of deportations were associated with a detainer in the first three months of 2016.
Unfortunately, data on detainers is becoming more opaque due to a change to disclosure rules made in the final months of the Obama administration. Data once provided by ICE is now ommitted, which is essential to link detainers to deportations and contribute to the public’s understanding of whether they are effective. TRAC notes the rule change appears to be “designed to drastically restrict the already limited flow of data the agency releases to the public.”
However, what evidence we do have suggests detainers routinely violate constitutional rights and prolong the detention of immigrants in non-federal jurisdictions at a steep cost for taxpayers.
As the American Civil Liberties Union points out, ICE detainers can imprison people without due process, without charges, or probable cause, and have “raised serious constitutional concerns.” Federal courts have ruled detainers violate the Fourth Amendment. In 2014, the Department of Homeland Security acknowledged the failures of detainers and directed ICE to restrict their use [PDF].
Detainers can lead to lawsuits, for which sanctuary jurisdictions are liable. In general, it is also very expensive to incarcerate people, and ICE does not reimburse costs entailed for holding people on detainers. One 2012 report [PDF] during the last surge in detainers under Obama found Los Angeles County taxpayers paid over $26 million per year to detain immigrants for ICE.
Trump To Build On Foundation Obama Left Intact
While there are absolutely differences between their enforcement of immigration policies, Trump is undoubtedly building on a foundation created or left intact by the Obama administration, which expanded infrastructure for detention and deportation.
The Obama administration may have prioritized enforcement, but the rise of private immigrant detention was an outgrowth of its adherence to a policy of deterrence, which surmised that the threat of detention and deportation, as well increasing danger in the borderlands, would dissuade people from crossing the border.
Operating under this logic, the Obama administration explicitly targeted families with children in response to a surge in the number of unaccompanied minors on the border. However, facing unimaginable violence in their home countries, many still made the trip anyway.
The Obama administration was celebrated when the Justice Department chose to wind down some contracts with private prisons and reduce the federal prison population. But the same decisions did not carry over to the Department of Homeland Security, and contracts for private immigrant detention centers were untouched. Now, the number of immigrants that will be incarcerated is likely to grow, and the private prison industry is poised for a renaissance under President Trump.