A Tale of Two Countries: The Privatization of Immigrant Detention in Germany and the United States
Sabrina Axster
Department of Political Science at Johns Hopkins University
Sabrina Axster was a DAAD/AICGS Research Fellow in May and June 2017. She is currently a doctoral student in Global Affairs at Rutgers University and will be transferring to join the Political Science Department at Johns Hopkins University in September 2017. Prior to joining Rutgers University, Ms. Axster was a research consultant at the United Nations Department of Economic and Social Affairs where she was directly involved in the substantive and intergovernmental preparations for the 2030 Agenda for Sustainable Development. She holds an MSc in International Development Studies from the University of Amsterdam.
Her research interests include critical international relations theory, migration, the role of private actors in migration, questions of sovereignty and border control, and the representation and categorization of migrants.
During her time at AICGS, Ms. Axster will be investigating the privatization of migration in the U.S. and Germany. Migration is big business and a variety of private actors profit from the movement of people across the borders. These actors span all aspects of the migratory process and may help to either facilitate or curb migration. Moreover, they exert different levels of political influence, operate at various levels of legality, and relate to the state in different ways. While some scholars support the increasing privatization of migration as an effective way to deliver government services, others question its effectiveness as well as the impact on migrant communities and the lives of migrants. Her fellowship at AICGS will seek to further explore the role private actors play in migration in Germany and the U.S. and with what effects.
Germany and the United States have the two largest migrant populations in the world. Almost 47 million immigrants lived in the United States in 2015 and around 12 million in Germany. Looking at the migrant share of the total population however, neither country makes it into the top 25. In each, the percentage of migrants vis-à-vis the total population hovers at around 14 percent.[1] Other comparisons have been made on the basis of the way that migrants have been received. German chancellor Angela Merkel’s statement that one million refugees would be welcomed and former U.S. president Barack Obama’s executive action on immigration are seen to hit a similar tone.
This essay further explores the differences and similarities between the two in the context of the privatization of immigrant detention. Immigrant detention is always a controversial issue. So is the privatization of detention facilities. However, the extent to which immigrant detention services have been privatized in the U.S. and Germany has received less attention than discussions around the privatization of other prison services—even though private actors are involved in immigrant detention in both countries. In the U.S., though, this trend is far more pronounced than in Germany. Nevertheless, and despite a narrative of rejecting the privatization of detention services, some similar trends can be observed in Germany, albeit to a lesser extent. Thus the questions are how stark these differences actually are and what explains the differences in privatization between the countries
Who Gets Detained?
It is difficult to directly compare the numbers of detained immigrants in Germany and the U.S. since they use somewhat different systems and approaches. People who can be detained in Germany include applicants for international protection in ordinary procedures (including rejected applicants); rejected applications for residence permits; immigrants detained at the border due to lack of required documentation; rejected asylum seekers; undocumented immigrants; people who have been issued a return decision; immigrants to be expelled; and immigrants that pose a (terrorist) threat to national security.[2] As such, one can broadly differentiate between two different types of immigrant detention including immigrant detention facilities for people who face deportation and reception centers for asylum seekers. Consequently, the number of immigrants who are detained for the purpose of deportation is relatively low. The largest group of non-citizens held in some form of immigrant accommodation are asylum seekers. For the purpose of this paper, I will include both forms of detaining immigrants.
In the U.S., there is a stereotype that only criminal immigrants are detained. However, this idea needs to be further unpacked. Immigrants get detained on trumped-up criminal charges,[3] and these so-called criminal offenses include immigration offenses such as entering the country without the required travel documents and visas or re-entering the U.S. According to one interviewee, immigrants can be incarcerated in regular prisons for up to ten years simply for the crime of re-entering the country. Overall, immigration offenses as a reason for imprisonment increased by 145 percent between 1998 and 2014.[4] Thus, the detained immigrant population in the U.S. is diverse and goes far beyond migrants who committed a serious crime. The largest group currently in immigrant detention are refugees from Central America. Moreover, there are stories of individual U.S. citizens of immigrant origin being detained on the grounds of immigrant violations.[5] According to 2017 figures released by the Department of Justice, 41,554 out of the total of 188,658 prisoners in the federal prison system were non-U.S. citizens. About 22,541 of them have been given immigration orders, while the cases of 13,886 detained immigrants are still under investigation.[6] Detention Watch Network reports that 441,000 immigrants were detained in 2013.[7] Another report highlights that 49.7 percent of all federal arrests made in 2014 were due to immigration offenses. It does not specify whether all of them were detained or not.[8] In sum, the bed mandate, established in 2006, demands that Immigration and Customs Enforcement (ICE) should have an average of 34,000 detained immigrants per day.[9]
Privatization in Germany and the U.S.
At first glance, Germany and the U.S. tell different privatization stories; however, closer analysis reveals some similar trends.
Germany has experienced more resistance toward privatizing prisons and its figures are different. However, in contrast to the often-touted myth that privatization of prisons in Germany is met with too much resistance, some privatization has occurred, especially in immigrant detention. This is one of the few areas of detention where the involvement of private actors does not violate German law.[10] For example, in 2015, more than half of the staff at JVA Buren, the then largest deportation detention center in Western Europe with 530 spaces, were privately employed.[11] When it comes to housing asylum seekers, Mediendienst Integration found that in five federal states, the facilities are not or only partly owned by the states. State governments are also rarely involved in providing the catering, maintenance, and security and monitoring for these centers. These tasks are predominantly carried out by private actors.[12] Thus, most privatization of immigrant detention takes place under so-called public-private partnerships where private actors supply parts of the service.[13]
In contrast, the U.S. has openly pursued the privatization of all of its prison services, including detention facilities for immigrants. There were some changes under the Obama administration, which said it would reduce and phase out the use of private prisons. Yet, current Attorney General Jeff Sessions reversed this decision and explained that the Justice Department will return to an increasing use of private detention facilities.[14] Currently, ICE predominantly sub-contracts county jails and private prisons for immigrant detention purposes. It is not clear how many of the immigrant detention facilities in the U.S. are privately owned and numbers are conflicting. In a 2014 report, the American Civil Liberties Union (ACLU) reported that 25,000 non-citizens are held in private facilities.[15] Another report found that 17 percent of the immigrant detainee population is in private facilities.[16] According to the Detention Watch Network, 62 percent of all immigrant detention facilities are privately operated.[17] Another report states that out of the detention centers that only detain immigrants, 11 percent are owned by ICE, 18 percent are owned by private companies, and 24 percent are owned by state and local governments, which may also be subcontracted to private companies. The remaining amount of beds for immigrants are located in facilities that also detain other people.[18] The two biggest private immigrant detention facility providers are Geo Group and Core Civic, which changed its name from Corrections Corporations America (CCA).
This lack of reliable and clear data is due to the different levels of responsibility. Both in the U.S. and Germany immigrant detention is an issue that is dealt with largely at the local and state levels. Country-wide reporting standards are therefore lacking.
There is resistance to the privatization of immigrant detention in both countries. Criticism focuses on the actual achievement of stated policy goals, the effects of privatization on the safety and well-being of migrants, and the incentive structures it creates. Instituted to cut costs and make immigrant detention more efficient with the overarching goal of deterring immigrants, activists and scholars point out that these goals have not been achieved. Rather, they underscore the need to question what makes immigrant detention such a lucrative business. In 2015, 18 percent of revenues of one of the two largest private prison groups—GEO Group—came from ICE, making ICE its largest individual customer.[19] The three main corporations operating private immigrant detention centers in the U.S. made nearly $4 billion in revenue in 2012.[20] In Germany, private service providers have been able to take advantage of the need of local governments to urgently find accommodation for asylum seekers and the lack of national standards. This has led to vast cost discrepancies across the country.[21]
In terms of safety of migrants and the protection of their rights, ample evidence exists in the case of the United States of how migrants’ rights are being violated and how migrants are mistreated or do not have access to necessary services. Due to the decentralized nature of immigrant detention, enforced standards are lacking in both countries. According to one interviewee, the American Bar Association helped develop standards in 2002. These were minorly updated in 2008 and then again in 2011. However, they still do not cover all facilities, especially as contracts with providers determine the standards they need to adhere to and ICE has no power to alter existing contracts. Similarly, the decentralized nature of immigrant detention in Germany means that there are no federal standards in place. Only a few states have standards and these are rarely enforced.[22]
This does not automatically mean that all private prisons are worse. An interviewee highlighted how some of the private facilities in the U.S. are better run than county jails. They gave an example of a county jail that switched over to immigration from a prison that previously did not allow for visitation. As such the only way that people could visit was through a telephone and with a screen, which was not appropriate for immigrant detention. In ten of the sixteen German federal states, immigrants were initially detained alongside regular prisoners due to the lack of specific immigrant detention facilities until the practice was outlawed by European Union regulations.[23] Nevertheless, there are serious concerns around the use of private prisons and their impact on detained immigrant populations. The largest number of deaths in the U.S. occur in private facilities and a reported 155 people have died in immigrant detention since 2003.[24] In its 2014 report, the ACLU speaks of discrimination and racism against immigrants; lack of quality medical care; lack of opportunities or chances for recreation or education; the use of isolation units that was not consistent with the American Bar Association’s Standards for the Treatment of Prisoners; and sexual assault.[25] Several mistreatment scandals of immigrants have occurred in Germany and critics bemoan that private staff members are often not held to the same standards as government staff.[26]
Explaining the Differences: Two Stories of Privatization
The question is what explains the differences between the two countries both in terms of the extent to which prison services have been privatized and also in the way that issue is discussed and presented. Reasons for this include political, normative, structural, cultural, and historical factors.
First, one major factor is the difference in the overall privatization of government services, which is loosely summarized under the term New Public Management. While this trend has been embraced in the U.S., Germans have been warier of privatizing various government sectors. This is particularly true for the debate around prisons. There has been strong resistance to privatizing prison services in Germany. This sentiment is also reflected in the legal structure and it is safe to assume that Germany’s history plays a role in this. Interestingly enough though, when taking the current situation into account, this emphasis seems to focus predominantly on prison services for citizens. When it comes to non-citizens, the resistance is less visible and the issue seems to be discussed less.
Second, and closely related, is the political influence that private actors yield. In the U.S., private prison providers can influence politics in two major ways. One is through the American Legislative Exchange Council (ALEC), “America’s largest nonpartisan, voluntary membership organization of state legislators” which brings together state legislators, policymakers, and businesses to advance “dynamic and innovative ideas that reduce the cost of everyday life and ensure economic freedom.”[27] Critics have argued that ALEC provides private businesses with an opportunity to influence legislators to embrace policies that favor and benefit the private sector. Private prison representatives pay as much as $6 million to be members of ALEC.[28] This is particularly relevant as most contemporary immigration policy is now made by the executive branch agencies and states rather than Congress.[29] This makes immigrant-related policymaking even more vulnerable to the influence of private prison companies.
Another way for private companies to influence politics is through political donations. In its 2014 report, the ACLU states that the three main private prison providers spent more than $32 million on federal lobbying and campaign contributions.[30] In the wake of the Trump victory, GEO Group and Core Civic donated $250,000 to support Trump’s inaugural facilities. Moreover, and according to FEC filings, GEO Group also gave $275,000 to the pro-Trump super PAC Rebuilding America Now and a $100,000 donation was given to Trump the day after the Justice Department announced it would cease using private detention facilities.[31] Incidentally, stocks of Core Civic and GEO Group have doubled since Election Day: Core Civic is up by 140 percent and GEO Group up by 98 percent.[32] Interestingly, Moreno Saldivar and Price found that political donations of private prison providers happen across party lines and that prison providers focus heavily on states with copycat bills of the restrictive Arizona immigration bill SB 1070.[33]
Such structures of engagement for private actors do not exist in Germany and voters are more skeptical of donations and the influence of the private sector in German politics, whereas these practices are largely accepted in the U.S. Lobbying in Germany traditionally took the form of representation through business associations. But these trends are changing and lobbying is becoming similar to the American model in Germany, even though the financial amounts involved are still much lower.[34]
A third and last major difference between the two countries is the way that migration is equated to crime. Driven by a number of restrictive policies that started in the 1990s and intensified after 9/11, immigration offenses became increasingly seen as criminal offenses and were treated as such. This narrative of the criminal immigrant disregards any of the existing evidence showing that foreign-born residents in the U.S. are actually less likely to engage in criminal behavior and ignores the structural factors that may drive them to do so. Consequently, American immigrant detention has a strong law and order taste to it. In contrast, in Germany, immigrant detention is not seen purely as a penal measure. Rather, it is considered an administrative issue.[35] The only times in which immigrant offenses are penalized as crimes are when immigrants that had been ordered to leave return. However, the German discourse on migration is shifting. Moving away from a focus on economic and labor concerns, we now witness the same “migrant as terrorist” language emerge as well as other narratives centering on the idea of migrant men as sex predators.
Conclusion
Based on these findings, we can see two overarching trends. First, the extent of the privatization of immigrant detention and the focus of immigrant policies per se is influenced by a variety of factors. Societal and cultural factors, such as the overall embrace of the privatization of immigrants and the different narratives of crime in each country, matter. In this sense, Germany portrays resistance to “tough on crime” approaches, away from overt incarceration of immigrants, and away from an emphasis on privatization—three aspects that are more openly embraced in the U.S. Nevertheless, Germany does use private actors in its immigrant detention. The major difference between the two countries thus may lie more in the way they present their privatization efforts and how they link this to the criminalization of immigrants.
This brings us to the second point looking at how the level of privatization in immigrant detention in Germany points to a discrepancy between the official language and what is happening on the ground. As discussed here, local and state governments are using private actors in immigrant detention—a trend that has gone relatively unnoticed by the larger population. Several factors can help explain this disconnect between the emphasis on resistance to privatization of prison services and the extent to which it is happening. First of all, local and state-level actors are overburdened due to a lack of coordinated long-term planning on behalf of the entirety of the German government. Driven by the need to respond quickly to increasing immigrant figures—which were not entirely unexpected given the geopolitical situations and conflicts across the world—authorities turned to private actors. Second, there are discrepancies between the ways people expect citizens and immigrants to be treated. Just because they reject a trend for the treatment of citizens, does not mean they are necessarily opposed to it when it comes to immigrants.
Current policy changes in Germany include a stronger emphasis on immigrant policy enforcement and deportation. It will thus be interesting to see how Germany handles these and the requirements they will automatically create and what that means for its use of private service providers in immigrant detention.
[1] “Top 25 Destinations of Immigrants,” Migration Policy Institute, http://www.migrationpolicy.org/programs/data-hub/charts/top-25-destinations-international-migrants.
[2] Janne Grote, “The use of detention and alternatives to detention in Germany,” Working Paper 59 (2014), Federal Office for Migration and Refugees <https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/networks/european_migration_network/reports/docs/emn-studies/11a-germany_detention_study_september2014_en.pdf>.
[3] David Nakamura, “With an immigration deal possible, advocates mount new push to end deportations,” The Washington Post, 3 February 2014, <https://www.washingtonpost.com/politics/with-an-immigration-deal-possible-advocates-mount-new-push-to-end-deportations/2014/02/03/ee6feaa8-8ce7-11e3-98ab-fe5228217bd1_story.html?utm_term=.af82b570d84c>.
[4] American Civil Liberties Union, Warehoused and Forgotten: Immigrants Trapped in our Shadow Private Prison System (New York City: American Civil Liberties Union, 2014).
[5] Amnesty International, Jailed Without Justice: Immigrant Detention in the USA (New York City: Amnesty International, 2008).
[6] Lydia Wheeler, “DOJ releases data on incarceration rates of illegal immigrants,” The Hill, 2 May 2017, <http://thehill.com/latino/331619-doj-releases-data-on-incarceration-rates-of-illegal-immigrants>.
[7] “Immigrant Detention 101,” Detention Watch Network, <https://www.detentionwatchnetwork.org/issues/detention-101>.
[8] Mark Motivans, “Federal Justice Statistics, 2013-2014,” U.S. Department of Justice, March 2017, <https://www.bjs.gov/content/pub/pdf/fjs1314.pdf>.
[9] Nick Miroff, “Controversial quota drives immigration detention boom,” The Washington Post, 13 October 2013, <https://www.washingtonpost.com/world/controversial-quota-drives-immigration-detention-boom/2013/10/13/09bb689e-214c-11e3-ad1a-1a919f2ed890_story.html?utm_term=.0878dc02144b>.
[10] Deutscher Bundestag, “Privatisierung im Strafvollzug,” WD 7-076/07 (2007), <https://www.bundestag.de/blob/407046/27f9d04e8dc54423e2696a2cc058251f/wd-7-076-07-pdf-data.pdf>.
[11] Ibid.
[12] For an overview of services carried out by private actors in each federal state, consult Mediendienst Integration, “Erstaufnahme-Einrichtungen: Wie werden Asylbewerber in Deutschland untergebracht?” Informationspapier, 31 October 2014, <https://mediendienst-integration.de/fileadmin/Dateien/Informationspapier_MEDIENDIENST_INTEGRATION_Unterbringung_von_Asylbewerbern.pdf>.
[13] “Germany Immigration Detention Profile,” Global Detention Project, 2014, <https://www.globaldetentionproject.org/countries/europe/germany>.
[14] Matt Zapotosky, “Justice Department will again use private prisons,” The Washington Post, 23 February 2017, <https://www.washingtonpost.com/world/national-security/justice-department-will-again-use-private-prisons/2017/02/23/da395d02-fa0e-11e6-be05-1a3817ac21a5_story.html?utm_term=.e2a1326dc919>.
[15] American Civil Liberties Union, Warehoused and Forgotten: Immigrants Trapped in our Shadow Private Prison System (New York City: American Civil Liberties Union, 2014).
[16] Roxanne Lynne Doty and Elizabeth Shannon Wheatley, “Private Detention and the Immigration Industrial Complex,” International Political Sociology 7 (2013), 426-443.
[17] “Immigrant Detention 101,” Detention Watch Network, <https://www.detentionwatchnetwork.org/issues/detention-101>.
[18] Sharita Gruberg, “How For-Profit Companies are Driving Immigration Detention Policies,” Center for American Progress, 18 December 2015, <https://www.americanprogress.org/issues/immigration/reports/2015/12/18/127769/how-for-profit-companies-are-driving-immigration-detention-policies/>.
[19] “2015 Annual Report,” The GEO Group, 2015.
[20] American Civil Liberties Union, Warehoused and Forgotten: Immigrants Trapped in our Shadow Private Prison System (New York City: American Civil Liberties Union, 2014).
[21] Julia Friedrichs and Bettina Malter, “Flüchtlinge als Geschäftsmodell,” Correctiv, 12 May 2016, <https://correctiv.org/recherchen/flucht/artikel/2016/05/12/was-kosten-fluechtlingsheime/>.
[22] Kay Wendel, “Unterbringung von Fluechtlingen in Deutschland,” ProAsyl, August 2014, <https://www.proasyl.de/wp-content/uploads/2014/09/Laendervergleich_Unterbringung_2014-09-23_02.pdf>.
[23] “Germany Immigration Detention Profile,” Global Detention Project, 2014, <https://www.globaldetentionproject.org/countries/europe/germany>.
[24] “Immigrant Detention 101,” Detention Watch Network, <https://www.detentionwatchnetwork.org/issues/detention-101>.
[25] American Civil Liberties Union, Warehoused and Forgotten: Immigrants Trapped in our Shadow Private Prison System (New York City: American Civil Liberties Union, 2014).
[26] Germany Immigration Detention Profile,” Global Detention Project, 2014, <https://www.globaldetentionproject.org/countries/europe/germany>.
[27] “About ALEC,” American Legislative Exchange Council, <https://www.alec.org/about/>.
[28] Roxanne Lynne Doty and Elizabeth Shannon Wheatley, “Private Detention and the Immigration Industrial Complex,” International Political Sociology 7 (2013), 426-443.
[29] Anita Sinha, “Arbitrary Detention? The Immigration Detention Bed Quota,” Duke Journal of Constitutional Law and Public Policy 12 (2017), 77-121.
[30] American Civil Liberties Union, Warehoused and Forgotten: Immigrants Trapped in our Shadow Private Prison System (New York City: American Civil Liberties Union, 2014).
[31] Matt Zapotosky, “Justice Department will again use private prisons,” The Washington Post 23 February 2017, <https://www.washingtonpost.com/world/national-security/justice-department-will-again-use-private-prisons/2017/02/23/da395d02-fa0e-11e6-be05-1a3817ac21a5_story.html?utm_term=.e2a1326dc919>.
[32] Heather Long, “Private prison stocks up 100% since Trump’s win,” CNN Money, 24 February 2017, <http://money.cnn.com/2017/02/24/investing/private-prison-stocks-soar-trump/>.
[33] Karina Moreno Saldivar and Byron E. Price, “Private Prisons and the Emerging Immigrant Market in the US: Implications for Security Governance,” Central European Journal of International and Security Studies 1 (2015), 28-53.
[34] See Turning American,” The Economist, 14 May 2015, <http://www.economist.com/news/business/21651270-corporate-lobbying-booms-stronger-regulation-needed-turning-american> and Rudolf Speth, “Lobbying in Germany,” Transparency International, October 2014, <https://www.transparency.de/fileadmin/pdfs/Themen/Politik/Lobbying_in_Germany_neu2.pdf >.
[35] Michael Welch and Liza Schuster, “Detention of asylum seekers in the US, UK, France, Germany and Italy: A Critical View of the Globalizing Culture of Control,” Criminal Justice 5:4 (2005), 331-355.
