The Director attached the “Report of the Subcommittee on Privatized Immigration Detention Facilities” dated Dec. 1, 2016, which has previously been released. I had seen this document. The most remarkable part is the “dissenting opinion” of Subcommittee Member Marshall Fitz of the Emerson Collective contained at FN 14:
“Separate views of subcommittee member Marshall Fitz on this recommendation:
Based on the review this subcommittee conducted, I respectfully dissent from the conclusion that reliance on private prisons should, or inevitably must, continue. I concede, as reflected in this recommendation, that overall enforcement policy, historical reliance on private prisons, and geographic concerns are presently driving reliance on private facilities. I also acknowledge that any shift away from such reliance would take years,carry significant costs,and require congressionalpartnership.As a result, I understand the position adopted by the s ubcommittee, but I disagree that these obstacles require our deference to the status quo.
First, in my estimation, the review undertaken by the subcommittee points directly toward the inferiority of the private prison model from the perspective of governance and conditions.To be sure, fiscal and flexibility considerations represented countervailing factors. However, on balance, my preliminary judgment, based on the evidence we actually gathered as part of this review, is that a measured but deliberate shift away from the private prison model is warranted.
Second, as the body of this report acknowledges, the short time line and tools at our disposal necessarily limited the depth of our review. As such, I emphasize the preliminary nature of my judgment above. I believe, however, that recommendation (1) likewise should have acknowledged that process constraints rendered any firm conclusion on the appropriate mix of detention models premature.
Third, a number of key issues that went beyond the scope of this review are too consequential and too integral to allow for a fully informed decision on federal versus private detention models. Ameaningful determination on the best detention model in light of all relevant factors demands deeper investigation. Any such investigation should consider a broader set of questions regarding the most effective and humane approach to civil detention as well as whether alternatives to detention could lead to diminished reliance on physical incarceration. Absent that type of thorough review, I cannot, in good conscience, agree that status quo reliance on the continuation of the private detention model is warranted or appropriate.
Aside from this fundamental question, I strongly concur in the remainder of the subcommittee’s recommendations regarding steps that should be taken immediately to improve the conditions, inspections, and oversight of extant facilities.”
Significantly, a substantial majority of the Committee that reviewed the Report and forwarded it to Secretary Johnson joined the dissent. Stripped of all the bureaucratic double speak, the Committee basically recommended that DHS get out of the private detention business.
The question is, with a change of Administrations in the offing, will anyone pay attention? Perhaps. Incoming DHS Secretary Gen. John Kelly impresses me as a thoughtful leader who does not want to spend his tenure fighting “wrongful death” and “substandard conditions” lawsuits, which is where this is going unless somebody in charge both adopts and expedites the exit from private detention.
Gen. Kelly also has a reputation as someone who was firmly committed to protecting human rights while in the military. So, I also have to doubt if he wants to have his reputation suffer just to save a few bucks on civil detention (which seems to have been the traditional DHS mode of operation). At least, that’s what I hope. Only time will tell.
The full Subcommittee Report and the original retired judges’ letter are at the links below.