Last month, a federal judge in Colorado granted class action status in a lawsuit alleging that private prison company The GEO Group, Inc., forced immigrant detainees to work in a detention facility. While the case is ongoing, it comes amid ever greater concerns regarding the future of immigrant detention in the United States.
The suit, known as Menocal et al. v. GEO Group, was originally filed in October 2014 by a number of attorneys coordinated by Towards Justice, a Colorado-based nonprofit that provides direct legal services to low-wage workers. The suit was brought by nine named plaintiffs, all of whom had previously been detained in the 1,500-bed immigration detention facility run by GEO Group in Aurora, Colorado. The complaint alleges that the plaintiffs and other detainees held in Aurora worked in the facility under GEO Group’s ‘Detainee Voluntary Work Program’ – cleaning the facility’s medical unit and other areas, doing laundry, preparing and serving meals, and performing landscaping and barber services, among other jobs – and were paid just $1 per day for their labor. The detainees were also allegedly forced to comply with the center’s ‘Housing Unit Sanitation’ policy, which required six randomly selected detainees to clean the “pods” in which they lived each day, for no compensation at all. The plaintiffs allege that they were threatened with punishments, including solitary confinement, if they did not complete their assigned tasks. As such, the lawsuit alleges that GEO Group violated Colorado’s minimum wage laws, as well as the federal Trafficking Victims Protection Act which prohibits forced labor or “modern-day slavery,” and that the private company GEO Group was unjustly enriched by these unlawful practices, which “violated principles of justice, equity, and good conscience.” GEO Group moved to dismiss the case, but in July 2015 Judge John L. Kane partially denied that motion – while he agreed that Colorado’s minimum wage laws include an exception for prisoners (who are not considered employees), he allowed the plaintiffs’ forced labor and unjust enrichment claims to move forward.
Now the judge has granted the plaintiffs’ motion for class certification, meaning the eventual outcome of the lawsuit will affect not just the nine named plaintiffs but all immigrants who have been detained at the Aurora facility since October 22, 2004. In his order certifying the class, Judge Kane remarked that the detainees “are uniquely suited for a class action,” as “[a]ll share the experience of having been detained in the [Aurora] Facility and subjected to uniform policies that purposefully eliminate nonconformity.” Attorneys for the detainees rightly hailed the class certification as a landmark achievement, noting that “[t]his is the first time that a private prison company has ever been accused of forced labor, and this is the first time that a judge has ever found that the claims can go forward under the Trafficking Victims Protection Act and the bans in federal law on forced labor.” They estimate that as many as 60,000 current and former detainees may be affected by the eventual ruling.
GEO Group has denied the allegations and asserted that it complies with all federal regulations and standards. While U.S Immigration and Customs Enforcement (ICE) itself is not a party to the lawsuit, the ‘Voluntary Work Program‘ operating in GEO Group’s Aurora facility is a nationwide ICE program.
While this is the first lawsuit of its kind, this is far from the first time that detainees and advocates have complained about conditions in private immigration detention facilities. Multiple reports and lawsuits over the years have charged ICE and the private prison companies with which it contracts to have engaged in human rights abuses such as providing substandard medical care and rotten food to detainees, physical and sexual abuse by detention center staff, and insufficient investigations into unexplained detainee deaths. Much of the recent litigation has centered on family detention facilities – the largest of which (in Karnes and Dilley, Texas) are run by GEO Group and fellow private prison company CoreCivic (formerly Corrections Corporation of America), respectively.
Concerns about the use of detainee labor in immigration detention facilities are not new either. The $1 per day pay rate was set in the 1950s, when detention cost about 80¢ per person per day. Today, immigration detention costs about $164 per person per day. And those higher costs provide all the more incentive for these private companies to save money any way they can – perhaps by engaging in illegal forced labor practices. The New York Times reported three years ago that paying detainees nothing, or at least well below the federal minimum wage of $7.25 per hour, saved the government and private prison companies $40 million or more each year – savings that are especially important to private companies who have shareholders to answer to. It should also be noted that, unlike criminal prisoners who are incarcerated and sometimes work for substantially reduced wages after having been convicted of a crime, immigrant detainees are held for alleged violations of civil immigration law and are detained while their immigration court proceedings are ongoing; many individuals are ultimately able to stay in the U.S., either because they already have legal status or because they qualify for humanitarian immigration relief.
Alternatives to detention (ATDs), which involve releasing detainees and providing them with case management services to ensure their appearance at their immigration court hearings, have proven to be effective while also drastically reducing costs – sometimes to as low as 17¢ per person per day. But releasing more detainees to ATD programs would reduce the need for large privately run detention centers, shrinking the profits of companies like GEO Group, which reported almost $1.9 million in revenue in 2015.
And the Trump administration has thus far shown no interest in reducing the number of immigrant detainees in this country either. To the contrary, several of the President’s earliest executive orders dealt with immigration enforcement policies and mandate the construction of additional detention facilities “immediately,” in order to have room for the greater numbers of noncitizens deemed to be enforcement priorities and subject to detention under the new regime.
Most likely anticipating these developments, private prison companies have been big Trump supporters – GEO Group donated $250,000 to his inauguration, after previously donating $225,000 to a pro-Trump super PAC during the campaign. CoreCivic similarly donated $250,000 to the inauguration as well. Stock prices for the two companies have also soared since Trump’s election – GEO Group has increased by 98% and CoreCivic by 140%. That trend is likely to continue, as Trump’s new Attorney General, Jeff Sessions, recently rescinded a prior Obama administration memo to phase out the use of private prisons for criminal inmates. While that memo did not specifically deal with civil immigration detention, it seems rather unlikely that this administration will move forward with a Department of Homeland Security subcommittee’s recommendation that the government move away from private immigration detention as well.
Hence the importance of the class action lawsuit. While likely to remain pending for some time, this could be the first case in which a private prison company is forced to halt illegal labor practices. If GEO Group is made to either pay its detainees a fair wage, or else hire actual paid staff to perform the jobs currently handled by detainees, it could cost the company millions of dollars, potentially changing practices in other GEO Group-run facilities in other parts of the country as well. Perhaps hitting private prison companies in their wallets will achieve what appeals to morality have not been able to – a decrease on our country’s reliance on private immigration detention, or even a reduction in immigrant detention period.
Cover image by Justin Valas under Creative Commons License.