U.S. Customs and Border Protection's Rio Grande Valley Sector via AP
Family detention centers run by the country's two largest for-profit prison operators are set to become some of Texas's biggest child-care providers, following a recent state appeals court decision. Under the ruling, the centers—which have been accused of enabling sexual abuse and allowing children to die in their care—will receive the same type of licenses granted to the state's daycares, potentially enabling them to detain children indefinitely.
It's a decision that benefits both the Trump administration and the corporations that run the facilities, which hold almost all families detained by U.S. Immigration and Customs Enforcement (ICE). Without further court action, the federal government will have succeeded in undermining a court settlement that for decades has limited its power to detain children and families en masse.
For the federal government, the Texas court's decision represents a possible workaround to the Flores agreement, a 1997 settlement to a Reagan-era lawsuit that sets many of the terms for youth migrant detention. The agreement mandates that children be detained as briefly and humanely as possible, in the least restrictive—essentially the least prison-like—possible setting. Flores has repeatedly vexed the Trump administration, which has attacked its restrictions in the media, in court pleadings, and with a September announcement in the Federal Register that it would unilaterally replace the agreement with more GOP-friendly regulations. (Advocacy groups have filed for an injunction against those regulations, and await the outcome of a November 30 hearing in the federal district court responsible for Flores’s implementation.)
Among the settlement's stipulations: child immigration detainees can only be kept in “secure,” unlicensed facilities—like those run by ICE—for a maximum of 20 days, after which they must be released or placed in “non-secure” facilities licensed for child-care. In 2015, a follow-up ruling found that the 20-day rule extended to families with children, not just unaccompanied minors.
Later that year, the Texas Department of Family and Protective Services (DFPS) announced a new rule requiring family detention centers to become licensed child-care providers, a designation typically granted to daycare centers, overnight youth shelters, and residential drug treatment programs targeting young people. The agency has agreed to relax some of the “minimum standards” associated with daycares for the centers, including a regulation that bars unrelated adults from sleeping in the same rooms as child detainees—strictly prohibited elsewhere in DFPS and a sticking point for some opponents of the licensing.
Implementation of the licensing was quickly suspended by state District Judge Karin Crump, who found that licensing the centers ran “counter to the general objectives of the Texas Human Resources Code.” The new ruling, issued in November, by the state’s Third Court of Appeals, which services the Austin area, reverses Crump’s decision and paves the way for both facilities to receive licenses. The Third Court also found that none of the plaintiffs in the suit—including advocates, parents, and, implicitly, the children named in the pleadings—had standing to challenge the law, throwing a wrench in the gears of any further appeal.
Together, the 2,400-bed Karnes County Residential Center and the 850-bed South Texas Family Residential Center—known as “Dilley” after the small town that hosts it—represent more than 95 percent of ICE's capacity for family detainees. (Another family detention center in Berks County, Pennsylvania, generally holds fewer than 100 people.)
Karnes and Dilley are run, respectively, by GEO Group and CoreCivic, the two titans of the private prison industry. CoreCivic operates an outright majority of U.S. private prison beds; GEO is its closest competitor. Both companies count ICE as their single biggest customer, ahead of the Bureau of Prisons, more than two dozen state prison systems, the Marshals Service, and other private-prison mainstays.
CoreCivic and GEO will be some of the country's best-paid child-care providers: they banked a combined $1 billion from ICE in 2017, and stand to earn considerably more if Trump makes good on promises to indefinitely detain all Southwestern border-crossers, including those seeking asylum. Their quarterly shareholder calls regularly discuss the possibility of additional detention needs, including the expansion of family detentions—the inevitable product of ICE’s key role in both companies’ bottom lines.
The child-care rule is only one facet of a broader, years-long effort to bypass the Flores agreement at the state and federal levels. In 2017, after the child-care rule was struck down, a bill appeared in Texas's House of Representatives relaxing requirements for child-care licenses. It would have made licenses available to CoreCivic and GEO despite the court decision: an end-run around the courts to enable an end-run around Flores.
The source of that bill? GEO Group, according to John Raney, the Republican state representative who introduced it. “I’ve known the lady who’s their lobbyist for a long time,” Raney told the Associated Press. “That’s where the legislation came from.”
Raney isn't alone. The private prison industry has cultivated close relationships with lawmakers and corrections officials in many of the 29 states where it operates. In GEO Group's home state of Florida, the company is a major backer of politicians including Republican Senator Marco Rubio, whose extensive support from GEO contributed to a statewide lobbying and appointments scandal.
“It's important to realize that there's a lot of power in what's happening at the local level,” says Lauren-Brooke Eisen, a senior fellow at the Brennan Center for Justice who has studied the private prison industry extensively. “People look at filings, at lobby disclosures. They think, ‘Well, ICE is federal. It all happens in Washington.’ But it’s not that simple. These are Texas towns. There are a lot of conversations happening on the ground that are not required to be reported.”
Many of the industry's local connections, Eisen argues, fly under the radar of watchdog groups and regulators—making it more appealing to fight restriction and regulations at that level. “The influence they're having at the state and local level is much harder to pinpoint,” she says. “It's the relationship. They don't have to report when a consultant for the private prison industry is taking out the director of corrections in a state. Talking to city councilmembers, just having conversations and being part of the conversation—it's very subtle.”
Abbott, the GOP governor who appointed DFPS head Hank Whitman, is one of the state's biggest recipients of private-prison largesse. Among Texas officeholders, Abbott is a perennial favorite of both GEO and CoreCivic (although he has competition). Both companies have shelled out millions of dollars, mainly on Republican candidates, in recent election cycles. The industry’s lobbying expenditures—those that do meet reporting requirements—have also ballooned.
GEO Group and CoreCivic have relied on lobbyists since they were founded in the 1980s—GEO as Wackenhut Corrections Corporation and CoreCivic as the Corrections Corporation of America. (They eventually took a page from Blackwater, the mercenary firm that successively rebranded as “Xe Services” and “Academi.”) From their early days, both companies boasted former state and federal corrections officials on their boards and in their executive suites.
In the 1990s, private prison companies expanded their lobbying efforts, notably joining criminal-justice task forces on the American Legislative Exchange Council (ALEC), the right-libertarian partnership between lobbyists, executives, and Republican lawmakers that remains a major force in conservative policy-making. The industry is no longer represented on ALEC, but still profits from Bill Clinton’s 1996 immigration bill, a landmark piece of bipartisan legislation that massively broadened federal immigration enforcement and detention powers.
But it's only as of the 2000s, with detention rates climbing, that an outright majority of immigration detainees have been housed in for-profit facilities. ICE is obligated by statute to maintain a minimum number of detention beds—more than 34,000, according to the National Immigrant Justice Center—most of which it pays private prison companies to provide.
Detention is considerably more costly to the state than alternatives, but likely more profitable to private prison companies than incarcerating criminals.
Immigration detention comes with considerably lower demands for programming: detainees don't need rehabilitation, continuing adult education, or comprehensive drug treatment, among other expensive programs many states require in prisons. Security requirements are also lower than in high-security criminal justice facilities.
Perhaps most importantly for CoreCivic and GEO, detainee numbers have consistently increased under Democratic and Republican administrations. As publicly traded firms, both need to maintain shareholder confidence in future revenues—even while mass incarceration is under attack left and right.
The federal government now depends on GEO and CoreCivic's detention infrastructure, just as the towns of Dilley and Karnes City depend on their detention centers for jobs in an area where jobs are not always easy to come by.
But both facilities have suffered from unstable occupancy in recent years, due in part to release requirements under Flores: when children are freed from the centers, their parents are usually released as well.
On GEO Group's shareholder earning calls, company executives emphasize the importance of “stable and predictable operational cash flows,” and advertise steady increases in ICE contracting, their single biggest source of revenue. For GEO and CoreCivic, Flores’s child detention limits mean uncertain occupancy—and getting rid of those limits is sound business.
The Texas decision and its threat to the Flores agreement—as well as the possibility of long-term youth detention at Karnes and Dilley —haven't garnered much press outside Texas.
But independent studies, news reports, and complaints from advocacy groups have drawn attention to allegations of systemic sexual assault and poor medical care in family detention. In 2015, mothers at Karnes alleged collective punishment after mounting hunger strikes against living conditions at the GEO Group facility.
Child-care licensing would require nominal improvements at both centers, although DFPS has already loosened standard child-care requirements for Karnes and Dilley. "The state agency changed the terms of the license to conform to the conditions that the private prison companies already had in existence," said Jerry Wesevich, an attorney who helped litigate the appeal. “Changes could be produced as a result of the license, but any time the [CoreCivic and GEO] find anything too expensive or inconvenient, they can ask for an exception—and the agency has showed its willingness to grant an exception whenever it's asked.”
The rule would require periodic inspections of the facilities by DFPS. But for the agency, already “massively underfunded” and facing privatization, Karnes and Dilley would represent its biggest ever monitoring assignments. It's difficult to imagine where DFPS would find the resources to robustly enforce the remaining rules, according to Wesevich. He calls the child-care rule a “fig leaf” for a plan to beat the Flores agreement.
It isn't certain whether Texas's implicit challenge to Flores will stand. On its face, state child-care licensing doesn't appear to satisfy the agreement's call for “non-secure” or minimally restrictive housing—a question GEO and CoreCivic have declined to address. And Dolly Gee, the federal district judge responsible for Flores’s implementation, hasn't hesitated to strike down the Trump administration’s challenges to the settlement in the past. But Gee’s jurisdiction doesn’t extend directly to the child-care rule.
Grassroots Leadership, the advocacy group that successfully challenged the licensing rule in 2016, is exploring avenues for appeal. It could seek a rehearing before the Third Court of Appeals, possibly before its full bench—in general, only three of the court's six judges hear a given case. The group could also seek review before Texas's Supreme Court, which a 2012 studyfound was the nation’s third most conservative state supreme court.
If the ruling does stand, it may open the door for family immigration detention to expand radically, emboldening the private prison industry with the promise of larger and more predictable family detention numbers. In June, ICE released a request for information on new family detention centers, inviting proposals for 15,000 additional family detention beds—almost five times its current capacity. CoreCivic and GEO have already fielded offers in response to another ICE detention request issued earlier this year.
Ultimately, the court decision enabling indefinite child detention wasn't directly attributable to Donald Trump, or to GEO Group, or CoreCivic. But it wouldn't have been possible without the combined efforts of the prison lobby, industry-friendly elected officials, and the White House, which have collaborated to build a detention infrastructure that profits everyone involved—except the families it detains.
