by Matt Clarke

The non-partisan Government Accounting Office (GAO) issued a report in February 2021 entitled, Immigration Detention: Actions Needed to Improve Planning, Documentation, and Oversight of Detention Facility Contracts. Key findings in the report included a failure of Immigration and Customs Enforcement (ICE) to follow its own guidelines when contracting for immigrant detention beds and lax contract oversight putting the health and safety of immigration detainees at risk. The report concluded that ICE contracts and pays for thousands of immigrant detention beds it does not use wasting hundreds of millions of dollars each year.

Although ICE detains an average of 48,500 foreign nationals each day and is the lead agency responsible for providing safe, secure, and humane confinement for detained foreign nations, it does not build and operate its own immigration detention facilities. Instead, when ICE needs to acquire detention space, it primarily uses Intergovernment Service Agreements (IGSAs) with local governments to reserve bed space for ICE detainees. 59% of ICE detainees are housed in IGSA facilities.

Alternatively, ICE may enter into an agreement with U.S. Marshals Services (USMS) to have a rider on the USMS contract with a local prison, jail or private detention facility allowing ICE access to unused USMS detention beds to house immigration detainees. 17% of ICE detainees are held in USMS-contracted facilities.

ICE may also contract directly with a private prison company such as CoreCivic, GEO Group, or LaSalle Corrections for immigration detention bed space. Such direct contracts are subject to Federal Acquisition Rules (FAR) requirements and take longer to process than the IGSAs. They account for 24% of ICE detentions.

The Department of Homeland Security Act of 2020 provided about $3.14 billion for ICE to operate its immigration detention system. That is close to the 2018 annual budget for the Texas prison system when it held nearly 150,000 prisoners. ICE spends $64,742 per detainee each year. One must question—is ICE spending its money wisely?

ICE likes IGSAs because they can be completed quickly with little oversight or competition. In a typical IGSA, ICE contracts with a local entity such as a sheriff’s department to provide beds for detainees. Generally, the contract contains a daily charge per detainee and a minimum number of guaranteed beds. ICE will pay for guaranteed minimums regardless of how many detainees are actually being housed. In another type of IGSA, ICE pays a fixed amount for all of the beds in a facility to be reserved for ICE detainees.

The local partner often contracts with a private prison company to operate the detention facility. They will pay the private prison company the full amount that ICE pays them and receive a fee back from the private prison company for administering the contract. For instance, the City of Adelanto, California received about $1 million annually from GEO Group in IGSA administration fees consisting of $50,000 per year plus $1 per detainee per day and about $339,000 for additional police officers to handle detention facilities-related issues.

ICE has IGSAs with 133 facilities and direct contracts with ten. In fiscal year (FY) 2019, about a third of those facilities were operated by private prison companies. ICE also had 85 USMS riders for the use of both public and private facilities and ten direct contracts with private facilities.

According to the GAO report, from FY 2017 to FY 2019, ICE increased the number of IGSAs and contracts with guaranteed minimums by 38%—from 29 to 43—but had no strategy for its acquisition of beds. This increased the minimum number of beds ICE was obligated to pay for from 19,342 in FY 2017 to 28,043.

ICE has consistently used fewer than the minimum amount of beds it is obligated to pay for. In FY 2017, about 147 of those beds went unused. Between May 2019 and May 2020, the amount of unused beds had grown to 207. According to the GAO, “As of May 11, 2020, ICE was paying for 12,027 empty beds a day, on average, at a cost of $20.5 million for the month.” That would be $246 million annualized.

That amount does not take into account the 13 facilities where ICE pays a guaranteed flat rate instead of a daily amount for each bed. The average daily population of ICE detainees did not meet the guaranteed minimum at 11 of those facilities. Those 11 facilities were paid $41.2 million in May 2020 while ICE used only 387 of the beds it paid for. Thus, ICE paid $25.5 million for beds it did not use in May 2020. Annualized that would be another $306 million. The dollar amounts add up quick. ICE may have paid well over a half a billion dollars for beds it did not use between May 2019 and May 2020.

Even looking at individual facilities, the amount of money wasted is astonishing. ICE paid one facility, only identified as Facility D, a flat monthly fee of $3,950,885.89 for 1,100 beds. That is $118 per bed per day. The same ICE field office had contracts with other facilities for daily rates ranging between $72.96 and $81.50 per bed per day. Worse still, on average ICE only used 762 beds per day at Facility D. That means ICE paid $1,213,999.48 in one month for beds it did not use at one facility.

The report noted that ICE did not follow its own procedures when acquiring additional detention space. ICE procedures require local field offices to assess how many additional beds are needed and write up a white paper justifying the figures. The ICE process requires them to calculate costs for detention space requirements. It is then sent to the ICE Enforcement and Removal Operations headquarters for evaluation.

From FY 2017 through May 11, 2020, ICE initiated 40 new agreements for detention beds, 28 of which had no white paper or other documentation showing a local need for additional detention space. GAO interviews with local field office staff showed that when they raised concerns about their lack of input or questioned the need for the new contracts, headquarters ignored them.

This included: when local field office staff pointed out that the guaranteed minimums were not supported by current detainee populations; facilities were remote and therefore difficult to staff and would require an expensive expansion of the transportation network; or facilities were too remote from specialized or chronic medical care facilities.

One field office objected to contracting with a facility with a history of understaffing and insufficient health services that led to prisoner unrest in 2012. Twenty prisoners and staff were injured in the uprising and one guard was killed. Headquarters ignored all of the objections. Further, some field office staff told the GAO that headquarters ordered them to write white papers to justify contracts that had already been awarded without a white paper.

The GAO also found that ICE poorly tracked contract violations, rarely used enforcement tools such as fines, and often ignored or overruled local staff responsible for contract oversight. This lack of effective oversight led to unsafe conditions for detainees and staff. “At the end of the day, immigration detention is an inhumane, brutal, and unnecessary system that allows continued death, misery, and abuse,’’ tweeted Eunice Cho, staff attorney for the National Prison Project of the American Civil Liberties Union. “Private prison corporations and local law enforcement profit by the billions. Shut it down.” So far no one in any branch of government seems the least bit concerned about the hundreds of millions of dollars ICE is wasting on empty detention beds, much less has any plans or thoughts on stopping it. 

Sources: gao.gov, The Independent