The Department of Homeland Security (DHS) and its component agency U.S. Immigration and Customs Enforcement (ICE) have a long-standing and poor track record when it comes to transparency and accountability in immigration detention. A recent investigation from the DHS Office of the Inspector General (OIG) confirms these concerns and further exposes problems with ICE’s management of immigration detention.
While ICE uses hundreds of sites to detain immigrants, only a small fraction of these detention facilities are directly operated by ICE. The OIG investigation focused on 106 detention facilities with contracts managed directly by ICE (as opposed to those managed by the U.S. Marshals Service) and sought to determine whether ICE holds its immigration detention facilities accountable using its contracting mechanisms.
The results of the OIG inspection were clear and even damning. In its final report, the OIG states:
“ICE does not adequately hold detention facility contractors accountable for not meeting performance standards… Despite documentation of thousands of deficiencies and instances of serious harm to detainees that occurred at these detention facilities, ICE rarely imposed financial penalties.”
ICE is not only responsible for spending billions in taxpayer dollars, but also ensuring the wellbeing of the thousands of people it detains. ICE has paid more than $3 billion to the contractors of the 106 detention facilities since October 2015. And these facilities hold thousands of people, with an average daily population of more than 25,000 people in fiscal year 2017.
The OIG investigation shows the agency falls short of its responsibilities in concerning ways. Here are four of the most egregious findings from OIG.
1. ICE fails to penalize contractors that don’t meet key detention standards.
All facilities with an ICE contract are supposed to follow national detention standards. The standards generally define the facility’s responsibilities, services, and safety and security requirements. ICE’s own inspection process—which the OIG previously found to be inadequate—uncovered more than 14,000 instances of deficient standards at the contract facilities between October 2015 and June 2018.
Despite identifying deficiencies, such as failing to notify ICE of sexual assaults or allegations of staff misconduct, ICE imposed a financial penalty on bad contractors only twice. That’s 0.014 percent of identified deficiencies.
2. ICE does not use available tools to ensure contract compliance.
ICE has the option to include a quality assurance surveillance plan (QASP) in its contracts. This provision outlines requirements and potential consequences for failing to comply with detention standards, including financial penalties. ICE only included this important compliance tool in about a quarter (28 out of 106) of its contracts.
3. ICE waives detention standards for noncompliant contractors.
Instead of issuing financial penalties, ICE often allowed contractors to bypass some of the standards. According to the OIG report, ICE “frequently issued waivers to facilities with deficient conditions, seeking to exempt them from having to comply with certain detention standards.”
ICE approved 96 percent of waivers submitted to the agency between September 2016 and July 2018. This included requests to waive safety and security standards. In one case, the ICE-approved waiver allowed a detention facility to replace pepper spray with tear gas—a substance that is 10 times more toxic.
4. ICE has no official approval process for issuing waivers and often grants them indefinitely.
To make matters worse, ICE has no official policies, procedures, or guidelines for the waiver process. According to the OIG, the vast majority of approved waivers had no expiration date, meaning the standards were waived indefinitely. The result is deeply concerning. ICE is giving facilities an open-ended way to evade standards meant to ensure the safety, security, and rights of people held in detention.
Although ICE has committed to taking steps to improve its contracting tools and hold contractors more accountable, their track record is weak. Congress must take this investigation seriously and ensure that ICE takes responsibility for these failures. Any federal funding for immigration detention must include strong accountability measures that are regularly and robustly enforced.