Introduction
Since the 1980s under the Reagan administration, privatized prisons have slowly gained traction as one of the main forms of detention centers for criminal detainees.[1] By the mid-nineties, privatization of immigration detention centers slowly became more common, as new legislation expanding the United States immigrant detention systems went into effect.[2] Today, the United States has the largest detention regime in the world, with over 40,000 individuals being detained per day.[3] Currently, more than 90% of the individuals being detained daily are housed in private, for-profit detention centers.[4]
While seemingly a good idea, as the privatization of immigrant detention centers should allow for the allocation of more resources to detainees, the reality is the conditions of these detention centers are not only inadequate, but often dangerous.[5] While shows like Orange is the New Black have brought the issue of privatized detention centers to the mainstream, these institutions still remain in full swing, especially in the world of immigration.[6] For example, in January 2021, the Biden administration issued an executive order regarding government contracts with privately operated criminal detention facilities.[7] The executive order directed the Department of Justice to begin phasing out its contracts with privately operated criminal detention facilities, as they tend to underperform in terms of correctional services, programs, and resources when compared to federal facilities.[8] Notably, privately-owned immigration detention centers were excluded from this order, despite having many of the same issues as criminal detention facilities.[9]
The conditions of these privately-owned immigration detention centers do not simply pose a threat to the conscience of the Executive branch, but rather are a direct violation of the Universal Declaration of Human Rights (UDHR), and therefore should be abolished from use in the United States.
Current Conditions of For-Profit Immigration Detention Centers
To understand why privately-owned immigrant detention centers in their current state violate the UDHR, one must first understand the conditions that immigrants are being held in. There are three main areas where these facilities fail in meeting their obligation to human rights under the UDHR: (1) lack of adequate medical care; (2) unsafe food handling and preparation; and (3) discrimination and abuse of power by immigration officers.[10]
Immigrants in for-profit detention centers are not given access to adequate medical care. In Louisiana, for instance, Ernesto Rocha-Cuadra, an immigrant who was held at a privately run immigration detention center died after being denied healthcare in relation to a heart attack.[11] Prior to his death, Rocha-Cuadra had submitted several grievances regarding his denial of medical care, and mistreatment by guards at the facility.[12] In Michigan, a detainee was allowed back into the general population with an open wound following his surgery, despite still having surgical drains in place and no follow-up appointment scheduled.[13] At facilities operated by the Office of Immigration and Customs Enforcement (“ICE”) in Alabama, detainees are forced to live in unsanitary conditions, with reports of “communal nail clippers with ‘blood on the blades,’” and “medical exam rooms with no hand-washing sink.”[14]
Further, the denial of medical care to detainees may be exacerbated if the individual is a member of a minority group, such as women, people of color, members of the LGBQTIA+ community, or those with disabilities.[15] In detention centers like the Baker County Detention Center in Florida, reports of sexual voyeurism by staff or denial of sanitary products as a form of punishment are entirely too common.[16] Prior to the closing of the Otero County Processing Center due to its inhumane treatment of detainees, reports regarding unanswered calls for medical attention, especially for transgender individuals, flooded the Department of Homeland Security’s civil rights office.[17]
In addition to regular denial of access to medical care, immigrants in for-profit detention centers are often exposed to unsafe food handling and preparation. For example, in 2021 the Torrance County Detention Center in New Mexico failed its inspection regarding facility conditions.[18] The report identified twelve instances of health and safety violations in regard to food preparation and sanitation.[19] When detainees sought to peacefully protest conditions in the detention center through a hunger strike, guards responded by using chemical agents.[20] Complaints ranged from comments about the food being hard and inedible, to the dishwasher being unable to reach temperatures hot enough to properly sanitize the dishes.[21]
Finally, for-profit immigration detention centers allow for the abuse of power and discretion by immigration officers. For instance, in New York, officers were reported as addressing the female detainees as “assholes” and “bitches” in addition to comments like “if detainees do not like the treatment, they should not have come to our country.”[22] One inspector for York County reported that isolation was often used as a form of punishment against the female detainees, often for unknown or inadequate reasons.[23] If the women cried or showed any form of emotion, staff would order them to stop and place them on suicide watch simply for expressing emotion.[24]
The current conditions immigrant detainees are held in at private, for-profit immigration detention centers is not only reprehensible, but it is a direct violation of Article 25 of the Universal Declaration of Human Rights, as detainees are denied the right to certain standards of living, like access to medical care, edible food, and necessary social services.
Conflict Between the Current Practice and the Universal Declaration of Human Rights
The Universal Declaration of Human Rights (“UDHR” or “the Declaration”) is a document adopted by the United Nations General Assembly outlining the rights and freedoms of human beings in general.[25] While not a legally binding document, the UDHR sets the standard for inherent human rights standards.[26] Under Article twenty-five (25) of the Declaration, “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”[27]
It is important to note the interpretation of Article 25 of the Declaration is not to be interpreted in a manner that requires the government to provide every individual with these resources, but only that they must take adequate measures to ensure the government does not impinge on an individual’s basic human rights.[28] The declaration simply sets a threshold for which no human being should fall below.[29] For instance, according to the United Nations Human Rights Office of the High Commissioner, the right to food does not equate handing out free food to everyone.[30] Instead, the government may not prevent access to adequate food.[31]
Under the current regime, immigrants held in for-profit detention centers are being denied their rights under Article 25 of the Declaration. Detained immigrants are being denied the right to “a standard of living adequate for the health and well-being of himself… including food… medical care and necessary social services, and the right to security in the event of… disability.”[32] This is demonstrated through the denial of medical care, meal provisions being inedible, and the general abuse and mistreatment of detainees.[33]
Options for Resolving the Conflict
While the Universal Declaration of Human Rights is not a binding document, its contents may still have an impact on how the United States conducts itself.[34] The United States is a member of the United Nations at the time of the ratification of the Declaration.[35] Due to this, the United States seemingly agreed to be governed by the Declaration, despite the fact the document imposes no legal obligations onto any country.[36]
In order for the Declaration to have any real power over the practices of the United States in relation to its implementation of privately owned immigration detention centers, a human rights complaint would have to be filed with the United Nations Human Rights Council (“the Council”).[37] The Council was founded in 2006 by the United Nations in order to assess the current status of human rights in the member states of the UN.[38] If a violation is found, or a complaint is filed by an individual or organization against a member state, an investigation surrounding the potential human rights abuses is launched by the Council.[39] Once the complaint has been reviewed and determined to be bona fide, a debate is held and if human rights violations are found, a condemnation is issued.[40] It is the Council’s intent that the offending member state work with the United Nations to remedy the human rights violation, but if that is not possible, the United Nations may pass a resolution condemning the violation.[41]
In order for the complaint to be deemed bona fide by the Council, it must first meet several admissibility requirements.[42] In this instance, the only admissibility requirements that may be difficult to meet are the first and fourth requirements. First, domestic remedies must be exhausted, ineffective, or unreasonably prolonged.[43] The first requirement poses an issue, as President Biden previously issued an executive order in January of 2021, directing the Department of Justice to phase out contracts with private detention centers.[44] However, the order notably excluded immigration detention centers.[45] While initially it may seem like this remedy was ineffective for immigrants, it is likely the United States would argue that the domestic remedies were not exhausted, as a similar executive order could be passed for immigration detention centers. However, the United States has seemingly taken no steps towards this remedy, let alone even recognizing the current state of immigrant detention centers as a human rights violation.
Additionally, the United States may argue that there already are detention standards in place to ensure all facilities, both government-run and privately-owned, meet a set standard.[46] These standards, however, are not always met.[47] In fact, when examining facilities, inspectors found several instances of violations, including negligent medical care and unsafe or filthy conditions.[48] Due to this, the Council should determine the first admissibility requirement as completed as the remedy the United States has proposed is ineffective.
The fourth admissibility requirement states that the complaint must not be politically motivated or based on reports disseminated by mass media.[49] This requirement would seemingly make it difficult for an organization to independently file a complaint against the US. However, if an organization were to file a complaint, first-hand testimony from immigrants who have been detained in these types of facilities would be crucial to meet this admissibility requirement. It is likely the Council would rule the fourth admissibility requirement was met, if the organization or individuals who filed the complaint are able to support their testimony with resources outside of the news articles regarding for-profit detention centers.
It is likely that the United States would argue filing a complaint with the Council is an ineffective and unnecessary measure, as they are not the ones responsible for running the privately-owned immigration detention centers. However, the United States, and specifically the U.S. Immigration and Customs Enforcement, is responsible for the well-being of the individuals being detained.[50] Due to this, the United States is ultimately responsible for ensuring that facilities, even those privately contracted, meet a certain standard when caring for detainees.[51]
While the human rights complaint mechanism implemented by the Council may seem extreme, it is likely the only path outside of domestic legislation that will influence real change. An organization such as the American Civil Liberties Union (“ACLU”), or even immigrants who have experienced first-hand the aberrant treatment of detainees at private immigrant detention centers would be the ideal entities to file the complaint with the Council. It is likely that an organization like the ACLU would need to be involved in filing the complaint, as many immigrants in privately-owned detention centers do not have access to resources that would allow them to independently file a complaint.[52]
Ideally, once a complaint is filed, the Council will conduct an investigation and determine the United States has committed a violation of the Universal Declaration of Human Rights. Once this has been determined, the United States would need to work with the United Nations to either abolish the use of privately-owned immigrant detention centers or revise the current detention management system.
Conclusion
Privately-owned for-profit immigration detention centers are a violation of Article 25 of the Universal Declaration of Human Rights.[53] Immigrants in for-profit detention centers are subjected to atrocities no human being should be subjected to, such as denial of basic medical care, denial of access to edible food, and abuse at the hands of immigration detention officers.[54] In order to remedy this human rights violation, a complaint should be filed against the United States with the United Nations Human Rights Council, and an investigation into the practice of the United States in relation to privately-owned immigration detention centers should be conducted.
[1] A short history of immigration detention, Freedom for Immigrants, https://www.freedomforimmigrants.org/detention-timeline#:~:text=1983%20%2D%20The%20Reagan%20administration%20forms,2016%20to%20CoreCivic%2C%20was%20formed (last visited Nov. 14, 2023).
[2] Id.
[3] Id.
[4] Eunice Cho, Unchecked Growth: Private Prison Corporations and Immigration Detention, Three Years Into the Biden Administration, ACLU (Aug. 7, 2023), https://www.aclu.org/news/immigrants-rights/unchecked-growth-private-prison-corporations-and-immigration-detention-three-years-into-the-biden-administration.
[5] Tom Dreisbach, Government’s own experts found ‘barbaric’ and ‘negligent’ conditions in ICE detention, NPR (Aug. 16, 2023), https://www.npr.org/2023/08/16/1190767610/ice-detention-immigration-government-inspectors-barbaric-negligent-conditions.
[6] Maria Elena Fernandez, Why Orange Is the New Black Brought the Immigration Crisis to Litchfield, Vulture (Jul. 29, 2019), https://www.vulture.com/2019/07/orange-is-the-new-black-immigration-storyline-bts.html
[7] Press Release, The White House, Executive Order on Reforming Our Incarceration System to Eliminate the Use of Privately Operated Criminal Detention Facilities (Jan. 26, 2021), https://www.yalelawjournal.org/files/Volume132StyleGuiderev.2022.11.02_nqty59xo.pdf.
[8] Id.
[9] Eunice Cho, supra note 1.
[10] Tom Dreisbach, supra note 3.
[11] Eunice Cho, supra note 1.
[12] Id.
[13] Tom Dreisbach, supra note 3.
[14] Tom Dreisbach, supra note 3.
[15] Eunice Cho, supra note 1.
[16] Id.
[17] David Ryder, Serious health care lapses found in detention center housing trans migrants, Reuters (Mar. 2, 2020), https://www.nbcnews.com/feature/nbc-out/serious-health-care-lapses-found-detention-center-housing-trans-migrants-n1147101.
[18] Leonardo Castañeda, Understaffed, Unsanitary ICE Facility in New Mexico Fails Annual Inspection, ACLU (Sept. 28, 2021), https://www.aclu.org/news/immigrants-rights/understaffed-unsanitary-ice-facility-in-new-mexico-fails-annual-inspection.
[19] Id.
[20] Id.
[21] Id.
[22] Tom Dreisbach, supra note 3.
[23] Id.
[24] Id.
[25] Universal Declaration of Human Rights, UN General Assembly, (Dec. 10, 1948), https://www.un.org/sites/un2.un.org/files/2021/03/udhr.pdf .
[26] Id.
[27] Universal Declaration of Human Rights, UN General Assembly, art. XXV, (Dec. 10, 1948), https://www.un.org/sites/un2.un.org/files/2021/03/udhr.pdf.
[28] Press Release, UN OHCHR, Universal Declaration of Human Rights at 70: 30 Articles on 30 Articles – Article 25 (Dec. 4, 2018), https://www.ohchr.org/en/press-releases/2018/12/universal-declaration-human-rights-70-30-articles-30-articles-article-25#:~:text=Article%2025%20of%20the%20Universal,widowhood%2C%20unemployment%20and%20old%20age.
[29] Id.
[30] Id.
[31] Id.
[32] Id.
[33] Brian Tashman, Two-Thirds of Voters Want to Stop the Expansion of For-Profit Immigrant Detention, ACLU (Jan. 12, 2022), https://www.aclu.org/news/civil-liberties/two-thirds-of-voters-want-to-stop-the-expansion-of-for-profit-immigrant-detention
[34] Universal Declaration of Human Rights, Amnesty International, https://www.amnesty.org/en/what-we-do/universal-declaration-of-human-rights/#:~:text=The%20UDHR%20is%2C%20as%20its,constitutions%20and%20domestic%20legal%20frameworks (last visited Sept. 15, 2023).
[35] Id.
[36] Id.
[37] Louise Smith, When a Country Breaches International Human Rights Law, About Human Rights (Jul. 1, 2023), https://www.abouthumanrights.co.uk/when-country-breaches-international-human-rights-law.html#:~:text=If%20the%20UN%20receives%20a,consent%20of%20the%20country%20involved
[38] Id.
[39] Id.
[40] Id.
[41] Id.
[42] Human Rights Council Complaint Procedure, UN OHCHR, https://www.ohchr.org/en/hr-bodies/hrc/complaint-procedure/hrc-complaint-procedure-index (last visited Sept. 15, 2023).
[43] Id.
[44] Eunice Cho, supra note 1.
[45] Id.
[46] Detention Management, U.S. ICE, https://www.ice.gov/detain/detention-management#:~:text=U.S.%20Immigration%20and%20Customs%20Enforcement%20(ICE)%20Enforcement%20and%20Removal%20Operations,detention%20system%20in%20the%20world (last visited Sept. 15, 2023).
[47] Tom Dreisbach, supra note 3.
[48] Id.
[49] Louise Smith, supra note 34.
[50] Detention Management, supra note 43.
[51] Id.
[52] Tom Dreisbach, supra note 3.
[53] Universal Declaration of Human Rights, supra note 24.
[54] Tom Dreisbach, supra note 3.
