Deliberate indifference: The public-private relationship and the spread of COVID-19 in US immigration detention

HALLAM TUCK  |  8 MAY 2021  |  OXFORD MIGRATION CONFERENCE 2021

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Picture by Patrick Feller on Flickr (CC BY 2.0).

On 2 March 2020, officers from US Immigration and Customs Enforcement (ICE) arrested Santiago Baten-Oxlaj at the Municipal Probation Office in Marietta, Georgia. Baten-Oxlaj, a 34-year-old father of three, had emigrated to the United States of America in 2005, and was living with his family near Atlanta. Once in ICE custody, Baten-Oxlaj, who had diabetes, was transferred first to Irwin County Detention Center and then to Stewart Detention Center in Lumpkin, Georgia. On 13 April, guards from CoreCivic, the private contractor that operates the detention centre placed Baten-Oxlaj into a ‘cohort’, a practice whereby a large number of detainees suspected to be suffering from COVID-19 are isolated in a single dormitory. Four days later, he was transported to Piedmont Columbus Regional Hospital. On 25 May, after spending more than a month in hospital, Baten-Oxlaj died from complications related to COVID-19. In a public statement confirming his death, ICE noted dryly that ‘fatalities in ICE custody, statistically, are exceedingly rare and occur at a fraction of the national average for the U.S. detained population’.

 

While COVID-19 has spread through carceral facilities across the United States with terrible consequences, Baten-Oxlaj’s tragic death highlights the distinct ways in which the spread of COVID-19 has been experienced by people in immigration custody. From February 2020 to March 2021, 9,753 people in US Immigration and Customs Enforcement detention facilities tested positive for COVID-19. Data collected by the New York Times found that, from June 2020 to March 2021, ICE facilities had an average infection rate five times higher than state and local prisons. During this time period, 81% of the people within ICE’s immigration detention system were held in facilities operated through contracts with private entities. In total, twenty-one people died in ICE custody in 2020, more than double the total for 2019.

 

Although all carceral systems across the United States operate through some kind of relationship between public and private entities, ICE’s detention system is uniquely reliant on a complex and contingent relationship between federal agencies, state and local governments, and private contractors. As former Obama administration special advisor Dora Schriro observed, ICE lacks ‘the organizational infrastructure, the will, and the way’ needed to effectively manage and oversee a large, national system of custodial confinement. This complex public-private relationship has shaped the spread of the pandemic in critical ways. 

 

In a primary sense context, ICE’s unique reliance on state and local governments and private contractors shapes the ways in which people in custody move through the detention system. These patterns of mobility have played a key role in the spread of COVID-19. While detention is often imagined as a form of sedentarization – as Zygmunt Bauman puts it, a means of sealing off unwanted people in ‘tightly closed containers’ – in reality, ICE custody entails a closely surveilled process of circulation. The capacity to circulate people between Customs and Border Protection (CBP) custody, criminal custody, and immigration custody has become a key aspect of the ‘crimmigration’ regime. The vast majority of people enter ICE custody through transfers either from US Customs and Border Protection or from state and local criminal custody – of the 510,854 people booked into ICE custody from October 2018 to October 2019, only 39,000 were apprehended ‘at large’ by ICE officers. Critically, ICE’s reliance on contracts with private companies and local governments to expand detention capacity has created a significant imbalance between the regions where most individuals were apprehended, and those where most detention facilities were located. In practice, this means that the smooth function of the detention estate requires the constant circulation of people to alleviate overcrowding. 

 

COVID-19 has thrown this delicate juxtaposition of containment and mobility into disarray. As Dr Scott Allen, a Department of Homeland Security (DHS) medical subject matter expert and key whistleblower, testified to the Senate: ‘Jails, prisons, and detention facilities are not islands – in fact, they are more like bus terminals with people coming and going’. Despite advice from Dr Allen and other medical experts, ICE refused to halt transfers into and across detention facilities during the pandemic. Indeed, evidence gathered as part of federal litigation over ICE’s response to the pandemic shows that no substantial reduction in transfers occurred during the period from February to October 2020. Moreover, evidence suggests that ICE continued to transfer detainees to ensure minimum bed space requirements in contracts with private operators were met during the period from February to May 2020. ICE’s refusal to halt transfers exacerbated the spread of COVID-19. In July, nearly 90% of detainees at the Farmville Detention Center in Virginia tested positive for COVID-19 after the transfer of 74 detainees from Florida and Arizona. In October, a leaked report showed that ICE internally acknowledged the role played by transfers in spreading the virus. 

 

Beyond the circulation of people, the public-private relationship shapes the material circumstances within detention facilities in basic ways. As Lauren Martin puts it, ‘carceral enclosures enable the marketization of biological reproduction – the process of staying alive – by categorizing, pricing, and mobilizing migrant life’. A lawsuit filed by men detained at Stewart Detention Center in Georgia describes how CoreCivic – the private contractor tasked with operating the facility – runs a ‘deprivation scheme intended to force detained immigrants to work for nearly free.’ 

 

The drive to extract value through the administration of incarceration has shaped experiences of COVID-19 in unique ways. Primarily, the structure of ICE contracts has incentivised local jails and private contractors to keep facilities at high occupancy levels to increase revenue, while reducing expenditures on staff and healthcare to reduce costs. Unsurprisingly, this exacerbated the spread of COVID-19. In a national survey conducted by the DHS Office of the Inspector General in April 2020, staff from 188 detention facilities across the country raised concerns about their ‘inability to practice social distancing among detainees’, the chronic understaffing of medical personnel, and shortages of personal protective equipment. At Adelanto ICE Processing Center in California, housing units continued to hold dozens of detainees, including the medically vulnerable, in conditions that made social distancing impossible. Remarkably, until a federal judge ordered the GEO Group to change practices in September, detainees at Adelanto were still required to pay for basic cleaning supplies and sanitary products, and to clean and sanitise their housing units by themselves. 

 

The public-private relationship also shapes how detainees contest the circumstances of their confinement. Since 2001, ICE has refused to enforce a single binding detention standard, arguing that the current system of four non-binding regulatory standards is needed to afford private contractors and local governments the necessary flexibility to operate efficiently within their purview. Unsurprisingly, during the pandemic ICE has cited its relationship with local jails and private contractors to excuse its failure to follow CDC guidance on social distancing in confined settings. Strikingly, a series of judgements in the Fraihat v ICE case have found this practice of deferring regulatory responsibility ‘delayed mandating adoption of the CDC guidelines, and unreasonably delayed taking steps that would allow higher levels of social distancing in detention’. Failing to set a clear regulatory standard makes it far more difficult for detainees and advocates to contest conditions of confinement. On a basic level, it is hard to show that a rule has been broken if it is not clear what the rule is. 


The spread of COVID-19 has provoked new and unprecedented forms of detainee political mobilisation. More than 2,000 people at ICE facilities across the country have refused meals since March in protest over the response to COVID-19. While hunger strikes are an established method of contesting detention conditions, participation in these forms of mobilisation has increased significantly. Similarly, COVID-19 has added new impetus to legal challenges over the scale, scope, and conditions of ICE custody. For example, on 20 December a federal court issued a second preliminary injunction in the Zepeda Rivas v Jennings case stating that ‘ICE cannot currently be trusted to prevent constitutional violations at these particular facilities without judicial intervention’, deeming the conduct of ICE and the GEO Group ‘abominable’. Due both to this class-action litigation, and a shift in ICE enforcement priorities, the number of people detained nationally is currently the lowest it has been in twenty years. In this sense, the COVID-19 pandemic has shown us the deep contradictions inherent to the immigration detention system. Perhaps it may also offer us a starting point towards abolition.

Hallam Tuck

Hallam Tuck is a DPhil Candidate at the Centre for Criminology, researching the intersections of citizenship, privatisation, and migration control within the US federal prison system. Before graduate school, he served as Legal Initiatives Associate at the New York Immigration Coalition, and as a community organizer at a refugee resettlement program in Syracuse, NY.

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