Originally published by The NY Times
We’re familiar with grim stories about black-shirted federal agents barging into apartment complexes, convenience stores and school pickup sites to round up and deport immigrants. We’ve heard far less about the forced labor — some call it slavery — inside detention facilities. But new legal challenges to these practices are succeeding and may stymie the government’s deportation agenda by taking profits out of the detention business.
Yes, detention is a business. In 2010, private prisons and their lenders and investors lobbied Congress to pass a law ordering Immigration and Customs Enforcement to maintain contracts for no fewer than 34,000 beds per night. This means that when detention counts are low, people who would otherwise be released because they pose no danger or flight risk and are likely to win their cases in immigration court remain locked up, at a cost to the government of about $125 a day.
The people detained at these facilities do almost all of the work that keeps them running, outside of guard duty. That includes cooking, serving and cleaning up food, janitorial services, laundry, haircutting, painting, floor buffing and even vehicle maintenance. Most jobs pay $1 a day; some work they are required to do pays nothing.
Workers in immigration custody have suffered injuries and even died. In 2007, Cesar Gonzalez was killed in a facility in Los Angeles County when his jackhammer hit an electrical cable, sending 10,000 volts of direct current through his body. He was on a crew digging holes for posts to extend the camp’s perimeter.
Crucially, California’s Division of Occupational Safety and Health ruled that regardless of his status as a detainee, Mr. Gonzalez was also an employee, and his employer was found to have violated state laws on occupational safety and health.
Two of the country’s biggest detention companies — GEO and CoreCivic, known as CCA — are now under attack by five lawsuits. They allege that the obligatory work and eight-hour shifts for no or little pay are unlawful. They also accuse the companies of violating state minimum wage laws, the Trafficking Victims Protection Act and laws prohibiting unjust enrichment.
The plaintiffs have a strong case. Forced labor is constitutional so long as it is a condition of punishment, a carve-out in the slavery prohibitions of the 13th Amendment. But in 1896, the Supreme Court held that “the order of deportation is not a punishment for crime.” Thus, while private prisons may require work to “punish” or “correct” criminal inmates, judges in three cases have ruled that immigration detention facilities may not. It’s as legal for GEO to force its facilities’ residents to work as it would be to make seniors in government-funded nursing homes scrub their neighbors’ showers.
GEO’s own defense provides insights into just how much its profits depend on labor coerced from the people it locks up. In 2017, after Federal District Judge John Kane certified a class-action lawsuit on behalf of GEO residents in Aurora, Colo., the company filed an appeal claiming the suit “poses a potentially catastrophic risk to GEO’s ability to honor its contracts with the federal government.”
Court records suggest that GEO may be paying just 1.25 percent to 6 percent of minimum wage, and as little as half of 1 percent of what federal contractors are supposed to pay under the Service Contract Act. If the plaintiffs win, that’s tens of millions of dollars GEO would be obligated to pay in back wages to up to 62,000 people, not to mention additional payments going forward. And that’s just at one facility.
GEO’s appeal tanked. During oral arguments last summer, the company’s lawyer defended the work program by explaining that those held in Aurora “make a decision each time whether they’re going to consent to work or not.” A judge interjected, “Or eat, or be put in isolation, right? I mean, slaves had a choice, right?” The 10th Circuit panel in February unanimously ruled that the case could proceed.
On top of that, last year GEO was sued for labor violations in its Tacoma, Wash., facility. In October, United States District Judge Robert Bryan, a Reagan appointee (!), denied GEO’s motions to dismiss these cases and for the first time allowed claims under the state minimum wage laws to proceed, as well as those for forced labor and unjust enrichment.
On March 7, 18 Republican members of the House, 12 of whom have private prisons in or adjacent to their districts, sent a letter to the leaders of the departments of Labor, Justice and Homeland Security complaining about the lawsuits. They warned that if the agencies don’t intervene to protect the companies, “immigration enforcement efforts will be thwarted.”
Those who cheer this outcome should feel encouraged. The measures the representatives asked for — including a statement by the government that those who work while locked up are “not employees” and that federal minimum wage laws do not apply to them — won’t stop the litigation. Agency pronouncements cannot overturn statutes. As long as judges follow the laws, more of the true costs of deportation will be put into the ledgers.
If the price of human suffering does not deter the barbarism of rounding people up based on the happenstance of birth, then maybe pinched taxpayer wallets will.