Jailing the American Dream

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image by Eric Kayne / www.erickayne.com

The following is part of a series of articles on prisons and over-incarceration in America. For more, readGetting Smart on Crime andBusting Out. And to listen to an UtneCast interview with the author of this story, Tom Barry, at utne.com/Crimmigration

County clerk Dianne Florez noticed it first. Plumes of smoke were rising outside the small West Texas town of Pecos. “The prison is burning again,” she announced.

About a month and a half before, on December 12, 2008, inmates had rioted to protest the death of one of their own, Jesus Manuel Galindo, 32. When Galindo’s body was removed from the prison in what looked to them like a large black trash bag, they took two prison workers hostage, set fire to the recreation center, and occupied the exercise yard overnight. Using smuggled cell phones, they told worried family members and the media about poor medical care in the prison and described the treatment of Galindo, who had been in solitary confinement since mid-November. During that time, fellow inmates and his mother, who called the prison nearly every day, had warned authorities that Galindo needed daily medication for epilepsy and was suffering from severe seizures in the “security housing unit,” which the inmates call the “hole.”

I arrived in Pecos on February 2, shortly after the second riot broke out. I had driven 200 miles east from El Paso through the Chihuahuan Desert.

Pecos is the seat of Reeves County in “far west” Texas and home to what the prison giant GEO Group calls “the largest detention/correctional facility under private management in the world.” The prison, a sprawling complex on the town’s deserted southwest edge, holds up to 3,700 prisoners. Almost all are serving time in federal lockup before being deported and are what the Department of Justice and the Department of Homeland Security (DHS) call “criminal aliens.”

Although the term “criminal aliens” has no precise definition, its broadening use reflects a trend in dealing with immigrants. With the post-9/11 creation of DHS and its two agencies–Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP)–a wide sector of aliens increasingly became the focus of joint efforts by immigration and law enforcement officers. ICE’s Criminal Alien Program, working with local police, began targeting for deportation both legal and illegal immigrants with criminal records. And CBP’s Border Patrol began to turn over illegal border crossers to the justice system for criminal prosecution, instead of, as in the past, simply deporting them. Many criminal aliens are long-term legal residents of the United States and are also the parents, children, or siblings of U.S. citizens and lawful residents.

When the prison started burning again I was in the county clerk’s office tracking down the agreements, contracts, and subcontracts that establish the paper foundation of the Reeves County Detention Complex, one of the oldest county-owned immigrant prisons, constructed as a speculative venture and opened in 1988. Over the past eight years, immigration prisons such as Reeves have boomed along the border in Texas, New Mexico, and Arizona. Some hold ICE detainees, some U.S. Marshals Service (USMS) detainees, and others, like the one in Reeves, prisoners of the Federal Bureau of Prisons (BOP). But in the nine months I traveled along the Southwest border visiting 11 prison towns, all the prisons I saw had two common features: They were managed and operated by private-prison corporations–including two of the world’s largest, Corrections Corporation of America (CCA) and GEO–and they were located in remote rural areas, invariably described by locals as being “in the middle of nowhere.”

These immigration prisons constitute the new face of imprisonment in America: the speculative public-private prison, publicly owned by local governments, privately operated by corporations, publicly financed by tax-exempt bonds, and located in depressed communities. Because they rely on project revenue instead of tax revenue, these prisons do not need voter approval. Instead they are marketed by prison consultants to municipal and county governments as economic-development tools promising job creation and new revenue without new taxes. The possibility of riots usually goes unmentioned.

Sirens blared outside the complex as an array of law enforcement forces rushed toward it. Inmates had set fire to a housing unit this time. David Galindo, Jesus’ brother, told a reporter, “They’re afraid somebody might die there again.” According to one inmate, jailors placed a detainee, 25-year-old Ramon Garcia, in solitary confinement after he complained of dizziness and feeling ill. “All we wanted was for them to give him medical care and because they didn’t, things got out of control and people started fires in several offices,” said the inmate, who declined to give his name for fear of reprisals by officials.

As smoke billowed from the prison on that February morning, officials and staff at the county building expressed more resentment than concern. Florez complained that the inmates get three meals a day and a television to watch while they idle their time away. Not to mention that their rent and electricity bills get paid, while Pecos residents have to work every day to make ends meet. (In September 2009 the unemployment rate in Reeves County–whose 13,300 residents have an average per capita income of $10,800 a year–approached 14 percent.) Others worried for the jobs of more than 400 county residents who worked at the prison and the cost of repairing the damaged buildings.

“You can be sure that we will be paying for it,” lamented one county employee.

In 1985 Reeves County became one of the first of a few dozen Texas communities to get into the speculative prison business, when Judge Jimmy Galindo (no relation to Jesus Manuel Galindo) persuaded the County Commissioners Court to take a bold step for Pecos’ economic future. At the time, Judge Galindo and other county leaders argued that Pecos could cash in on the surge in incarceration rates that accompanied the war on drugs. Years later, for the prison’s two expansions, the county and the private operators would rely on the federal government to send them immigrant inmates.

Indeed, immigrant detention has been central to the growth of the “privates” for more than two decades. The 1983 Immigration and Naturalization Service (INS) decision to outsource immigrant detention to the newly established Corrections Corporation of America gave birth to the private-prison industry; GEO Group (formerly Wackenhut) got its start imprisoning immigrants in the late 1980s.

While the nation’s nonimmigrant prison population has recently leveled off, the number of immigrants detained daily by ICE (formerly INS) has increased fivefold since the mid-1990s, and the annual number of detainees continues year after year to reach record highs. Assuming current trends hold, ICE will have detained more than 400,000 immigrants in 2009.

The federal government’s escalating demand for immigrant prison beds saved CCA and other private corporations that had overbuilt speculative prisons. Over the past eight years, the prison giants CCA ($1.6 billion in annual revenue) and GEO Group ($1.1 billion) have racked up record profits, with jumps in revenue and profits roughly paralleling the rising numbers of detained immigrants.

Initially, most speculative prisons were privately owned, a case of the federal government outsourcing its responsibilities. But prison outsourcing is rarely that simple anymore. The private-prison industry increasingly works with local governments to establish and operate speculative prisons.

Most of the time, these public-private prisons are speculative ventures only for bondholders and local governments, because agreements signed with federal agencies do not guarantee prisoners. For the privates, risks are low and the rewards large. Usually paid a set fee by local governments to operate prisons, management companies have no capital investment and lose little if inmate flows from the federal government decline or stop.

Prisons are owned by local governments, but local oversight of finances is rare, and the condition of prisoners is often ignored. Inmates such as those in Pecos are technically in the custody of the federal government, but they are in fact in the custody of corporations with little or no federal supervision. So labyrinthine are the contracting and financing arrangements that there are no clear pathways to determine responsibility and accountability. Yet every contract provides an obvious and unimpeded flow of money to the private industry and consultants.

In Hudspeth County, Texas, Judge Becky Dean-Walker signs the agreements and contracts that have, since 2003, made Sierra Blanca an immigrant prison-town. Situated 90 miles from El Paso, Sierra Blanca, population 650, hosts the West Texas Detention Facility, a 500-bed immigrant prison with another 500 still-unoccupied overflow beds in three adjoining structures. The prison, a public-private complex, is owned by bondholders until 2025.

In establishing the prison on the edge of town, Hudspeth County, where one family in three survives under the poverty line, incurred a $23.5 million debt in revenue bonds. Six years after the prison opened for business, the county still has a debt of $21.8 million. According to the Texas Bond Review Board, the payback on the bonds translates into a per capita debt ratio–debt divided by population–higher than the county’s annual average per capita income of $9,549, which is one of the lowest in the nation.

Emerald Companies, a Shreveport, Louisiana-based corrections management company, and its intermediaries promoted the prison as an economic development project, promising jobs and income growth. But only a few locals work at the facility; most employees are bused every morning from El Paso. When the bonds mature in 2025, the facility will be a badly depreciated investment, a community eyesore, and a reminder of the delusional dreams of prison-based economic development.

Bill Addington, who lives within easy sight of the prison in Sierra Blanca and who opposed the prison proposal, said the prison was approved by the county without any involvement in or specific knowledge of the bond agreement or operating agreements. In fact, no one in county government could find the agreement with the Marshals Service or the bond-issuing statement, or even remember their details.

Hudspeth is hardly alone in this regard. Local governments typically do not have anyone to keep track of the complex prison business. Not only had contracts seemingly disappeared in the counties I visited, none could locate a full accounting of prison-related expenses and income.

Despite dubious benefits to local economies, new prisons continue to spring up. District chairman Austin Nuñez of the Tohono O’odham Nation is planning to use tax-exempt project revenue bonds to finance a prison for immigrants on tribal land south of Tucson, Arizona, in the district of San Xavier.

The same team of private-prison intermediaries that interested the Tohono O’odham community in a prison also enticed a poor community in Montana. Two years after construction–with most of the bond fund depleted from payouts to the prison consultants, design and construction firms, and bond underwriters–the prison in Hardin, Montana, stands empty, and the development authority that issued the bonds has defaulted and is pleading with the Obama administration to consider holding Guantánamo Bay detainees there.

There is no paper trail that explains how these speculative prisons secure federal contracts. But like most scenarios in which public governance meets private business, the partnerships are usually the product of connections and influence, highly paid friends in the right places.

Though speculative prisons come with no guarantees, all along the Southwest border–from Florence, Arizona, to Raymondville, Texas–business is good. Since early 2003, the criminal justice and immigration enforcement systems have merged, breaking the long-standing tradition of treating immigration violations as administrative offenses and creating hundreds of thousands of new criminal aliens.

While the growth in immigrant detention is in part due to the country’s increased immigrant population, the shift in immigration policy away from regulation and toward enforcement, punishment, and deterrence is more significant. Unwilling to pass a reform bill that would effectively regulate immigration, Congress and the executive branch have turned to the criminal justice and penal systems.

New anti-immigrant laws and ICE and CBP practices subject immigrants, legal or illegal, to double jeopardy, punishing them twice for the same offense. In 1996 the Republican majority in Congress led approval of three anti-immigrant and anti-crime laws that spurred INS to start cracking down on and deporting immigrants. These laws, together with the executive branch’s increased authority to devise repressive immigration procedures under the post-9/11 pretext of a war on terror, have created an enforcement regime in which noncitizen legal immigrants face immigration consequences (as well as criminal consequences) for past or present violations of criminal law. In other words, illegal immigrants and even noncitizen permanent residents may be jailed and deported for committing crimes or other offenses, violent or not. DHS and the Justice Department are not only combing the criminal justice system for legal and illegal immigrants to be detained and deported, but are also working together to transfer illegal immigrants into federal courts and prisons.

Legal scholars have taken to calling this increasing merger of criminal and immigration law and the integration of the criminal justice and immigration systems “crimmigration.”

The private-prison industry’s executives are particularly upbeat about new criminal alien programs such as CBP’s Operation Streamline and ICE’s Secure Communities. GEO chairman George Zoley told Wall Street analysts in an August 2009 investment conference call, “The main driver for the growth of new beds at the federal level continues to be the detention and incarceration of criminal aliens.”

Operation Streamline was launched in 2005 as a pilot project of the Del Rio sector of Texas and extends east to the southern Rio Grande Valley and west to Yuma, Arizona. It is part of a national immigrant crackdown that CBP and ICE variously call “enhanced enforcement” and “zero tolerance.” The program directs Border Patrol agents to turn captured illegal border crossers over to the Marshals Service for prosecution, breaking with the usual practice of simply returning Mexican immigrants to Mexico and releasing non-Mexican immigrants with an order to appear in immigration court.

A few mornings each week, detainees pack the federal courtroom in Del Rio, Texas, where they plead guilty to illegal entry and are sentenced as criminals. On April 17, 2009, more than four dozen young men and eight young women shuffle into the courtroom before Judge Dennis Green. The clinking of chains fills the room as the accused are ushered into their seats.

The scene was shocking the first time, but now I have witnessed it in three courts of justice in the borderlands: shackled immigrants filling up the courtrooms, and then, after an hour or two, shuffling out, where they are taken back to USMS detention centers or a BOP prison.

At these mass convictions and sentencings, I was in a small minority: the judges, the marshals, the lawyers, the security guards, and me–all white and older, with jobs and homes. And them: criminal aliens, all young and lean, most with strong arms and calloused hands, all with black hair and weathered brown skin. These courtrooms are where the South encounters the North, where the exclusionary institutions on one side of the global economic divide collide with collective desperation on the other. The power imbalance, so starkly visible, is startling.

Judge Green enters–“All rise,” intones the court sergeant at arms–and the immigrants stand up in unison, following the Spanish-language echo of their bilingual courtroom manager.

Over the past day or two, each prisoner has told his or her story in a few minutes to a paralegal who has organized a two-sentence defense.

Unlike the U.S. criminal justice system, immigration law provides no guarantees that all accused have the right to a court-appointed lawyer. Those facing criminal charges in federal court for immigration violations do get free legal defense, but it is pro forma–a windfall for many regional attorneys who thrive on government fees for nominal defense work.

One by one, the defendants are escorted to the front of the court. A CBP lawyer tells the judge that the accused has crossed the border between ports of entry without inspection and recounts any previous record of illegal entry or criminal conviction.

More than 50 individual criminal hearings are streamlined–a possible explanation of the operation’s name–with the same judge, same public defender, and same outcome: guilty as charged and remanded for incarceration.

Before each case is heard and before each defendant is sentenced, Judge Green asks them en masse if they have had time to consult their attorney, if they have been forced or threatened to plead guilty, if they have knowingly violated the laws of the United States of America by crossing without inspection. They reply in a chorus of and no.

As each faces the judge, their collective defense attorney reads from a sheet his assistant has prepared with the abbreviated stories and pleas for mercy from this mass of immigrants. No one has more than an eighth-grade education, three out of four cite medical emergencies, all crossed to seek work and food, and many hoped to reunite with families who need them. Story after abbreviated story of fathers, mothers, wives, and children with brain tumors, heart conditions, crippling accidents, no work, and little to eat.

Judge Green occasionally expresses sympathy, encourages them to secure a visa the next time they want to come to the United States–a near impossibility for Latin Americans with no bank accounts and no property, and utterly out of the question for these detainees, imprisoned and eventually deported for illegal entry–and then asks if they are guilty of breaking the law by entering the United States without permission. One after another they say “culpable” or “guilty.”

Before sentencing, the judge warns those who have never been previously deported that they will be judged felons if they are caught in the future. Depending on the time they have already spent in jail, they are sentenced up to 12 days. Those with a record of previous illegal crossings get harsher sentences, routinely as much as 180 days and sometimes several years. Although the charge is always illegal entry or reentry, the sentence varies based on the number of illegal entries, whether the charged immigrant has a criminal record, and the judge’s discretion.

Between apprehension and removal, an unauthorized immigrant who is criminally prosecuted is technically in the custody of, first, CBP or ICE, then the Marshals Service, and finally BOP or the Marshals Service again. Immigrants may spend anywhere from a week to several years in detention before being deported.

With its staggering administrative, legal, and detention costs, Operation Streamline is certainly not quick and easy. But it is less about law than about strategy. The idea is that, having suffered the humiliation of being branded criminals and spending time in prison, these immigrants will not come back once they are deported and will tell others that the price of immigration is too high. As DHS secretary Michael Chertoff explained in 2008, “We are working to get [Operation Streamline] expanded across other parts of the border” because “it has a great deterrent effect.”

Measured by the number of immigrants apprehended in the Del Rio sector and others, immigration flows have decreased markedly, although no one can say to what extent the drop is a result of deterrence as opposed to recession. But four years after the program’s initiation, immigrants keep crossing the river at Del Rio. What strategy of deterrence could stop those who are forced to leave their families from attempting, even at the risk of increased jail time, to return to their loved ones back home in the United States?

The prison industry occasionally runs into not-in-my-backyard opposition. In Otero County, New Mexico, residents of Alamogordo blocked a proposed immigrant prison because the intended site was within the city limits. Several years later, a new proposal for a USMS immigrant prison 70 miles away on the far south side of the county was approved by the Otero County Commission with little protest. The county liked the business–a half-dollar a day per immigrant in the 630-bed prison–so much that it signed on in 2008 to build an ICE-fed, 1,100-bed detention center next to the existing prison.

Poverty partly explains the willingness to scrape a couple of dollars off federal per diem payments and in the process incur massive bond debt. The prison industry introduces the governments of desperate communities to what some call “backdoor financing”: project revenue bonds in the tens of millions of dollars that suddenly make them feel like economic players.

Since funding is provided by project revenue bonds rather than general obligation bonds, the county faces no direct liability if the speculative prison fails. “Money for nothing” is a common refrain when county officers are asked about the advisability of prison deals. This answer, however, is as naive as it sounds. Even though the bondholders cannot hold the issuing government responsible if the speculative prison fails, there are still real costs, as Reeves County is experiencing. Its overall bond rating was downgraded in 2003 when the prison expansion went unfilled, and now, as residents and local officials predicted, the county must cover millions in repairs in the wake of the prisoner protests.

Since the 1970s crime control has become a central theme in U.S. politics and society. In the words of Berkeley law professor Jonathan Simon, we are “governing through crime”–isolation and exclusion in an expansive penal system is the dominant response to tough social problems. Although the crackdown on immigrants raises specific concerns, it mirrors and merges with the broader wars on drugs and crime in terms of increasing costs, expanding law enforcement, high incarceration rates, and dismal cost-benefit ratios.

Addressing immigration, a contentious social issue lacking any easy policy solution, through increased enforcement and incarceration has flooded the federal courts with nonviolent offenders, besieged poor communities, and dramatically increased the U.S. prison population.

Hundreds of thousands of immigrants like Jesus Manuel Galindo will be caught in the profit-driven public-private–prison complex. In the end, though, the human cost of the system is unlikely to bring it down. It may only be when citizens and politicians start questioning the financial cost of incarcerating immigrants that the public-private prisons will go bust.

Excerpted from Boston Review (Nov.-Dec. 2009), a publication unafraid to go long on investigative stories that demand deep reporting and analysis.www.bostonreview.net

For more, listen to an UtneCastinterview with the author of this story, Tom Barry.

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