Rowman and Littlefield International

The Difference that Detention Makes

Published on Wednesday 12 Oct 2016
In a memo released by U.S. District Attorney General Sally Yates on 16 August 2016, the U.S. Department of Justice announced that it would be phasing out the use of private or “contract prisons” to house its inmate population. Yates pointed to a recent and damning U.S. Office of the Inspector General report concluding that contract prisons incurred more safety and security incidents per capita than comparable Bureau of Prisons institutions. They also did not post significant fiscal savings, as promised. Although echoing earlier[1] investigations[2] into contract immigrant prisons[3], the report’s findings that contract prisons are failing on security, resources allocations, and cost savings seem to have propelled the DOJ into taking action. Since contract prisons house approximately 12 percent of federal inmates, the DOJ announcement is significant to people interested in prison and justice reform in America.

I am interested in justice reform as it pertains to non-citizens incarcerated while awaiting resolution of their immigration statuses. As I detail in my chapter in The Ethics and Politics of Immigration (ed. Alex Sager), the official US detainee population rose from approximately 70,000 individual detentions in 1996 to its current 380,000 – 442,000 persons. Likewise, while 1995 saw 7,500 daily beds available for detentions, the US Congress now funds a minimum of 34,000 beds through a 2009 Congressional order known as the ‘bed mandate’ or ‘mandated bed quota’. Following the DOJ’s 16 August memo, the Department of Homeland Security announced on 29 August that it would be reexamining its use of private prison firms to hold immigration detainees.

Immigration detention is at once a hidden corner of American justice and a highly visible ‘spectacle’ to project an image of control over borders, territory, and bodies.[4] Detention is also big business in the United States. When The Washington Post leaked the DOJ memo,[5] the stock prices of the two largest private prisons firms – Corrections Corporation of America and GEO Group - nosedived by 25 percent.[6] This precipitous fall relates to a circular dependence developed between the Immigration and Customs Enforcement (ICE) Agency and for-hire prisons firms. As I explain in my chapter, private prison firms have a bloated influence on the policing, arrests, and incarcerations of non-citizens in the United States. These firms lobby for stricter laws and policies, including mandatory detention and transfers to out-of-state facilities. A more notorious development is the bed mandate, which was inked through contracts with three private firms, who had, in turn, pushed for its implementation.[7] By 2014, privately-owned facilities incarcerated 19 percent of US detainees.

Logistically, this deep interdependence will be hard to undo. A senior official told the Wall Street Journal that if the Administration tore up its private prisons contracts, it would “require an 800% expansion of ICE capacity” to replace the privately-run facilities; this likely would cost “billions of dollars.”[8] ICE director Sarah Saldaña likewise told the House Judiciary Committee that eliminating private detention infrastructure – including its buildings, guards, and institutional known-how - would "pretty much turn our system upside down."[9] Not surprisingly, then, states like California are awaiting further instruction before severing ties.[10]

On a more theoretical level, this interdependence can be imagined as a “corporate veil”[11] dropped over the detention system. The veil ultimately insulates the Administration from responsibility for goings-on inside the detention system. So if something goes terribly wrong at a GEO Group-run prison, the Administration can blame and fire GEO Group, hire Corrections Corporation of America, and continue “business” as usual. Roxanne Lynne Doty and Elizabeth Shannon Wheatley argue[12] that the rise of the so-called industrial immigration complex diminishes oversight and democratic accountability; it also conceals the violence of sovereign power. Likewise in this chapter, and in another article on Europe coauthored with my colleague, Cetta Mainwaring, I argue[13] for a greater normative and political recognition of the significance of involving third-party actors in detention’s co-creation. Phasing out contract prisons would help remove the veil, and removing the veil would necessitate admission that detainees are being incarcerated for days, weeks, months and even years for “administrative purposes”. It would also indicate once and for all that the jailer of thousands of innocent but irregularly resident immigrants is not truly Corrections Corporation of America or GEO Group, but the U.S. Administration.



Stephanie J. Silverman is a 2015-2017 SSHRC Postdoctoral Fellow at the Graduate School of Public and International Affairs at the University of Ottowa, and a contributor to The Ethics and Politics of Immigration, edited by Alex Sager, out now.













[13] ttp://