In 1996, President William Jefferson Clinton signed sweeping immigration reform legislation into law: the “Illegal Immigration Reform and Immigrant Responsibility Act” (IIRAIRA). Two of the law’s central components were the creation of mandatory detention of certain immigrants charged with criminal grounds of removal, and the establishment of a program that permits state and local law enforcement to arrest, detain and interrogate noncitizens believed to be in violation Federal immigration laws.
These two components paved the way for the expansion of the cottage industry of jailing immigrants in for-profit private prisons.
Once the 1996 law was in place, President Clinton took the advice of then senior advisor Rahm Emanuel, who devised a strategy for the President to “achieve record deportations of criminal aliens.” In just two years after signing the law, the Clinton administration nearly doubled the number of immigrants held in immigration detention, and by 1998 the average number of immigrants held in deportation jails increased from 6,785 to 15,447.
Flash forward to 2009. Hillary Clinton’s “friend and mentor” former Sen. Robert Byrd (D-WV) added language to the Department of Homeland Security’s annual spending bill that required the Federal government to “maintain a level of not less than 34,000 detention beds” at all times. This is commonly referred to as the “detention bed quota,” and needless to say the Obama administration endeavored to fill every single bed.
As the number of detained immigrants increased, a corresponding increase in the length of time it takes to process an individual through the deportation process also occurred. In many instances, it takes months for a detained immigrant to get their day in court to assert defenses to removal. Furthermore, because of mandatory detention, no immigration judge has the jurisdiction to release a detained immigrant while they are fighting their case. This has led to an annual cost of $2 billion to taxpayers, or approximately $5.5 million per day.
Not to be outdone, and rather than making good on his campaign promise to make immigration reform a top priority of his first term, President Obama appointed Emanuel as his Chief of Staff and proceeded to establish an artificial 400,000 per year deportation quota that resulted in the detention of noncitizens on a scale that has never been seen before, with the President now being labeled “the Deporter-in-Chief.”
By 2012, the private prison industry, one of the main beneficiaries of this detention strategy, had fully wrapped its tentacles around the Democratic Party—blanketing them in a mutually beneficial quid pro quo for Democratic support of policies that increased profitability. For example, Democratic National Committee Chair Rep. Debbie Wasserman Schultz notoriously sided with the Corrections Corporation of America over her constituents concerning the construction of a for-profit prison to jail immigrants.
But it doesn’t end there. In 2013, Senate Democrats spearheaded new immigration reform legislation called the “Border Security, Economic Opportunity, and Immigration Modernization Act.” It was sold to the American public as commonsense immigration reform with a pathway to citizenship for the undocumented. In reality, it was designed as a windfall for the private prison industry. Moreover, the pathway to citizenship was little more than a Lucy-held football due to a series of barriers to legalization that would result in a large percentage of the undocumented population failing to achieve lawful permanent resident (green card) status, let alone citizenship, and ultimately once again facing the prospect of incarceration and deportation.
The Congressional Budget Office scored the 2013 law, estimating that it would cost $3.1 billion to detain, prosecute and incarcerate offenders from 2014 to 2023. The federal prison population was also expected to increase by 14,000 inmates annually by 2018 at a cost to taxpayers of $1.6 billion over a decade.
In 2014, the Democrats lost the Senate, and there were whispers that Republicans intended to introduce immigration reform legislation that would cure the onerous 3- and 10-year bars created in President Clinton’s law that trapped the undocumented population inside the United States, preventing legalization and subjecting them to the possibility of detention and removal. If successful, Republicans would have greatly reduced the number of individuals inside the United States unlawfully, sharply cutting into the profitability of the private prison industry, while also being cast as champions of the undocumented community in advance of the 2016 Presidential election.
When the Democrats lost the Senate, despite Republicans pleading with President Obama to wait for Congress to act, he enacted a series of executive actions that had the end result of killing any prospect of immigration reform, and further cementing the public’s perception of Republicans as obstructionists.
Now we are on the eve of the 2016 Presidential election, and the private prison industry has become a central focus of the Democratic primary, with Bernie Sanders vowing to put an end to the “private, for-profit prison racket.” Hillary Clinton, the presumptive Democratic nominee, countered Sanders, returning the money her campaign received from the private prison industry and also making a $8,600 donation to a women’s prison charity, or roughly the equivalent of two minutes of a single speech to Wall Street bankers. What she neglected to mention is that despite the token donation, the Clinton campaign still benefits from lobbyists from the for-profit prison industry, and her policy of refusing donations only includes direct donations to her campaign, but not donations to her super PACs or State and Federal Democratic committees.
For example, before the Clinton campaign said it would no longer take money from the private prison lobby, an October 2015 VICE article reported that the campaign had received as much campaign money as Marco Rubio’s campaign from groups affiliated with private prison companies:
It is hard to predict where we will be once we have a new occupant in the White House. But what has become abundantly clear is that until we do, Democrats will continue to keep the focus on Republicans using sleight-of-hand misdirection to prevent us from discovering that when you pull back the covers, you will find a strange bedfellow cozied up next to them in the Lincoln Bedroom, and a private prison industry checkbook on the nightstand.
Matthew Kolken is an immigration lawyer and the managing partner of Kolken & Kolken, located in Buffalo, New York. His legal opinions and analysis are regularly solicited by various news sources, including MSNBC, CNN, Fox News, The Washington Post, Forbes Magazine, and The Los Angeles Times, among others. You can follow him @mkolken.
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