Mary Johnson
Corporate Accountability and Social Justice
Professor Michelle Leighton
April 23rd, 2008
Privatization of Immigration Detention in the United States: Can The Corrections
Corporation of America Be Held Accountable for Violations of International Human
Rights Law Occurring at the T. Don Hutto Residential Center?
I.
Introduction
The detention of immigrants is the fastest-growing form of incarceration in the United
States, and, with the expansion of privatization, is swiftly becoming a lucrative business. Since
9/11, a perceived link between immigration and terrorism led to the complete restructuring of the
immigration and customs agencies and sweeping changes in U.S. immigration policy.1 Largely
due to these changes, the number of immigrants in detention increased 400% between 1994 and
2006. 2
Immigration and Customs Enforcement (ICE) has recently undertaken a series of raids
under the auspices of a plan known as Operation Return to Sender.3 These raids often occur in
violation of international human rights law,4 and are in large part responsible for the increased
1
Immigration and Customs Enforcement, or ICE, was created by combining the law enforcement arms of the former
Immigration and Naturalization Service (INS) and the former U.S. Customs Service. Policy changes include the
inception of Operation Return to Sender, Operation Gatekeeper, Operation Community Shield, and the passage of
the Secure Fence Act. See www.ice.gov.
2
Over-raided, Under Siege: U.S. Immigration Laws and Enforcement Destroy the Rights of Immigrants, Human
Rights Immigrant Community Action Network, National Network for Immigrant and Refugee Rights, (January
2008).
3
U.S. Department of Homeland Security, “ICE Apprehends More than 1,000 Criminal Aliens, Gang Members,
Fugitives, and Other Immigration Violators in Nationwide Interior Enforcement Operation,” (14 July 2006),
available at: http://www.dhs.gov/xnews/releases/press_release_0926.shtm
4
For more on the human rights violations arising from the ICE raids see Over-raided, Under Siege: U.S.
Immigration Laws and Enforcement Destroy the Rights of Immigrants, Human Rights Immigrant Community
Action Network, National Network for Immigrant and Refugee Rights, (January 2008).
1
Mary Johnson
Corporate Accountability and Social Justice
Professor Michelle Leighton
April 23rd, 2008
number of immigrant detainees. The practice of “catch and release”, where non-Mexican aliens
caught without legal documents were allowed to remain free inside the country while they waited
for a court appearance, was ended in 2006 because of the high rate of no-shows at scheduled
court appearances.5 Both of these significant policy changes are relatively recent and account for
the 79% increase in immigration detention between 2005 and 2006.6
Private companies began making in-roads into the detention business in the 1980s, when
the idea was in vogue that almost any private operation was inherently more efficient that a
government one. Private companies can build and run prisons cheaper and more quickly than the
government, largely because they don’t need to seek voter or legislator approval and because
they pay relatively low salaries.7
Corrections Corporation of American, or C.C.A., was founded in 1983 by a small group
of politically well-connected entrepreneurs, including a former chairman of the Tennessee
Republican Party and a former director of the state prison system in Arkansas.8 In the 1990s,
C.C.A. made a bid to take over the entire prison system of Tennessee, which failed because of
growing skepticism among state legislators. By the end of 2000, C.C.A.’s stock had hit an alltime low; but when immigration detention started to climb after 9/11, C.C.A. saw an opportunity
to revitalize and eagerly offered its empty beds.9
Margaret Talbot, “The Lost Children,” The New Yorker, (3 March 2008.)
Id.
7
Id.
8
Id.
9
Id.
5
6
2
Mary Johnson
Corporate Accountability and Social Justice
Professor Michelle Leighton
April 23rd, 2008
II.
Statement of Facts – Human Rights Violations at the T. Don Hutto Residential
Facility
The T. Don Hutto Residential Center (Hutto), owned and operated by the Corrections
Corporation of America via a contract with ICE, sits in a desolate part of rural Texas northeast of
Austin. It should be noted at the outset that C.C.A. did not have a pristine past when the
government undertook to contract with them to operate Hutto. C.C.A. operated a prison in
Youngstown, OH, where in its first year of operation there were 6 inmate escapes and 20
stabbings, 2 of them fatal.10 In 2004, inmates rioted and set fires at a C.C.A. prison in Colorado,
where only 33 officers were on duty to oversee 1100 inmates. Those officers were paid onethird less than employees at state prisons.11
When ICE entered into its contract with C.C.A. to operate Hutto as an immigration
detention center, red flags should have gone up. During initial consultations it was clear that
Hutto, a former medium security prison, was not suited for family detention.12 It is a white
concrete complex with slit windows, razor wire, and a shadeless yard with floodlights. Families
arriving there are processed and given a medical screening including an x-ray, for which
pregnant women were reportedly not given a lead screen; they are then led to their tiny cells.13
Although the ACLU recently reached a landmark settlement that released many families and
children from the Center, conditions are still unacceptable.14 Many of the detainees are waiting
10
Id.
Id.
12
Id.
13
Locking Up Family Values: The Detention of Immigrant Families, report by Women’s Commission for Refugee
Women and Children and Lutheran Immigration and Refugee Service, (February 2007).
14
American Civil Liberties Union, “Landmark Settlement Announced in Federal Lawsuit Challenging Conditions at
Immigrant Detention Center in Texas,” (27 August 2007), available at:
http://www.aclu.org/immigrants/detention/31469prs20070827.html
11
3
Mary Johnson
Corporate Accountability and Social Justice
Professor Michelle Leighton
April 23rd, 2008
for their asylum claims to be processed, having fled the dangers of their home countries only to
be confined in prison-like conditions, a highly traumatic experience for adults as well as
children.
Prior to the ACLU settlement, families were housed in former inmate cells with exposed
toilets, and husbands and wives were not allowed to visit each other in their separate cells.15 A
laser detection system monitored detainees’ movements after curfew, and detainees were ordered
to remain in their cells during headcounts, which took place seven times a day, meaning
effectively that detainees were in their cells 12 hours a day.16 When children broke rules, the air
conditioning would be turned up to extreme cold and the hot water turned off, and children were
threatened with separation from their parents.17 Detainees were roused at 5:30 each morning,
given only 15 minutes to eat each meal, and made to wear monochrome uniforms similar to
prison garb.18 Children were offered only one hour of education a day, and at times were not
allowed outside for days.19
III.
Sources of International Human Rights Law Governing Private Immigration
Detention
The United States is a party to the International Covenant on Civil and Political Rights
(ICCPR), article 10 of which requires that “[a]ll persons deprived of their liberty shall be treated
Locking Up Family Values: The Detention of Immigrant Families, report by Women’s Commission for Refugee
Women and Children and Lutheran Immigration and Refugee Service, (February 2007).
16
Id.
17
Id.
18
Unnati Gandhi, “From Texas Cell, Canadian, Nine, Pleads for Help,” The Globe and Mail, (3 March 2007).
19
Margaret Talbot, “The Lost Children,” The New Yorker, (3 March 2008.)
15
4
Mary Johnson
Corporate Accountability and Social Justice
Professor Michelle Leighton
April 23rd, 2008
with humanity and with respect for the inherent dignity of the human person.”20 The Human
Rights Committee issued General Comment 21 in 1992, which was deliberately designed to
ensure that article 10 applied to private institutions.21 The Comment provides that “[s]tates
parties should ensure that the principle stipulated [in article 10] is observed in all institutions and
establishments within their jurisdiction where persons are being held.”22
The United States has made various reservations, understandings, and declarations to the
ICCPR, the most significant for the purpose of this inquiry being Declaration 1: "That the
United States declares that the provisions of articles 1 through 27 of the Covenant are not selfexecuting.”23 Treaties that are not self-executing, meaning that they require federal
implementing legislation in order to be given effect, are not automatically binding domestic law
and cannot be directly enforced in U.S. courts.24 This is despite the fact that the Constitution of
the United States explicitly states that treaty law “shall be the supreme Law of the land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State
to the Contrary notwithstanding.”25
There are other international legal instruments that contain substantive provisions similar
to article 10 of the ICCPR that may govern the conduct of C.C.A. at Hutto. However, these
20
GA res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966); 999 UNTS 171; 6 ILM 368
(1967).
21
Andrew Clapham, Human Rights Obligations of Non-State Actors, Oxford University Press, 330 (2006).
22
Human Rights Committee, General Comment 21, ‘Replaces general comment 9 concerning humane treatment of
persons deprived of liberty (Art. 10), (4 October 1992).
23
International Covenant on Civil and Political Rights, Declarations and Reservations, available at:
http://www2.ohchr.org/english/bodies/ratification/4_1.htm
24
See Medellin v. Texas, 128 S. Ct. 1346 (2008).
25
USCS Const. Art. VI, Cl 2.
5
Mary Johnson
Corporate Accountability and Social Justice
Professor Michelle Leighton
April 23rd, 2008
treaties, such as the Convention on the Rights of the Child26 and the International Convention on
the Protection of the Rights of All Migrant Workers and Members of Their Families27 have not
been signed or ratified by the United States, effectively making direct enforceability of their
provisions in U.S. courts impossible. As will be seen below, however, they can still serve as
important evidence of international consensus that their provisions have achieved customary
international law status, a crucial step in making a case under the Alien Tort Claims Act.28
The work of the United Nations High Commissioner for Refugees (UNHCR) and the
United Nations Working Group on Arbitrary Detention give further evidence of this consensus.
The UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention
of Asylum Seekers states that detention of asylum seekers is “inherently undesirable,” and that
“minors who are asylum seekers should not be detained” unless it is the only means of
maintaining family unity (emphasis in original).29 If minor asylum-seekers are detained, “they
must not be held under prison-like conditions,” they have a right to education, and provision
should be made for their recreation.30
The United Nations Working Group on Arbitrary Detention has addressed immigration
detention and called for an “urgent deliberation on illegal immigrants and asylum-seekers in
detention around the world, in view of their specific vulnerability.”31 The Working Group
26
G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force Sept.
2 1990.
27
GA res. 45/158, UN GAOR, 45th Sess., UN Doc. A/45/49 (December 18, 1990, entered into force July 1, 2003).
28
28 U.S.C. §1350.
Office of the United Nations High Commissioner for Refugees, UNHCR Revised Guidelines on Applicable
Criteria and Standards Relating to the Detention of Asylum Seekers, (February 1999).
30
Id.
31
Report of the Working Group on Arbitrary Detention, UN Document A/HRC/7/4 (10 January 2008).
29
6
Mary Johnson
Corporate Accountability and Social Justice
Professor Michelle Leighton
April 23rd, 2008
recommends that States detain immigrants only as a last resort, and encourages States to explore
alternatives to detention.32 While the working group has not addressed the privatization of
immigration detention directly, its reports reflect a growing concern for the human rights of
detained migrants generally, which informs the greater landscape of the issue.
IV.
The Alien Tort Claims Act as A Mechanism for Corporate Accountability
The above-cited treaties, guidelines and reports approach the protection of immigrant
detainees as being a positive obligation of the State as against private corporations. History
teaches, however, that States cannot be relied upon to ensure effective human rights protections,
especially in the case of migrants to the United States, where the right to life is being violated at
the hands of the State because of the government’s restrictive border policy.33 In order to avoid
reliance on the State for ensuring compliance, the Alien Tort Claims Act is an important tool to
hold corporations directly accountable for human rights violations they commit against foreign
nationals, although it too has significant limitations.
The Alien Tort Claims Act, or ATCA, provides “that the district courts shall have
original jurisdiction of any civil action by an alien for a tort only, committed in violation of the
law of nations or a treaty of the United States.”34
As stated above, if treaties are not self-
executing, they cannot by themselves provide a basis for suit under the ATCA, but they can be
submitted to establish customary international law or the “law of nations.”35
32
Id.
See Mary Johnson, “Protecting the Human Rights of Migrant Workers: at Borders, during Immigration Raids, in
Detention Centers, and in the Workplace,” available at: www.humanrightsadvocates.org.
34
28 U.S.C. §1350.
35
Jama v. Esmor, 343 F. Supp. 2d 338, 358 (2004).
33
7
Mary Johnson
Corporate Accountability and Social Justice
Professor Michelle Leighton
April 23rd, 2008
After the United States Supreme Court’s opinion in Sosa v. Alvarez-Machain, it has
proven difficult to convince a court to expand the torts covered by the ATCA beyond those the
First Congress intended when the statute was enacted, which were only three: violation of safe
conduct, infringement of the rights of ambassadors, and piracy. 36 The Court stated that “courts
should require any claim based on the present day law of nations to rest on a norm of
international character accepted by the civilized world and defined with a specificity comparable
to the features of the 18th century paradigms we have recognized.”37 Furthermore, the Court
explained that “the determination whether a norm is sufficiently definite to support a cause of
action should (and, indeed, inevitably must) involve an element of judgment about the practical
consequences of making that cause available to litigants in the federal courts.”38 This last
statement has been interpreted as an admonition that alternative remedies ought to be pursued in
lieu of an ATCA action whenever possible to avoid opening the floodgates of ATCA litigation.39
V.
Jama v. Esmor40 and the Viability of the ATCA in Private Immigration
Detention Litigation
Jama v. Esmor arose out of a somewhat similar factual scenario to the situation at Hutto.
In Jama, alien plaintiffs, who were detainees in a private New Jersey immigration detention
facility run by Esmor, alleged that conditions in the facility amounted to cruel, inhuman, and
36
Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).
Id. at 725.
38
Id. at 732,733.
39
Andrew Clapham, Human Rights Obligations of Non-State Actors, Oxford University Press, 449 (2006).
40
Jama v. Esmor, 343 F. Supp. 2d 338 (2004).
37
8
Mary Johnson
Corporate Accountability and Social Justice
Professor Michelle Leighton
April 23rd, 2008
degrading treatment.41 Plaintiffs grounded their claims that the behavior of Esmor and Esmor
officers and guards violated the law of nations by referring to the Universal Declaration of
Human Rights,42 the International Convention on Civil and Political Rights, and the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment.43 The District Court issued
an opinion in October 1998 stating that “it is evident that the totality of the treatment to which
plaintiffs were subjected violated customary international law as it is now established.”44
After Sosa, however, the court revisited the case under the more rigorous standards set
out by the Supreme Court and granted Esmor’s motion for summary judgment as to the claims
against the individual Esmor guards. The claims against Esmor as a corporation and against its
officers, however, survived summary judgment and the court allowed them to proceed, stating
that “the law of nations as evidenced in the various conventions, treaties, declarations and other
sources cited by the Jama plaintiffs can be said to have reached a consensus that the inhumane
treatment of a huge number of persons accused of no crime and held in confinement is a
violation of the law of nations.”45
In allowing the claims against Esmor and its officers to survive summary judgment, the
District Court judge carefully assessed whether there would be alternative remedial measures
available to the plaintiffs and weighed the risk of opening the floodgates of ATCA litigation.
41
There was evidence to support allegations of physical abuse, deprivation of food, sexual harassment, lack of
privacy, inadequate clothing, deprivation of hygienic products, inadequate medical care, denial of access to counsel,
and interference of the right to exercise religion, among others. Jama v. Esmor, 343 F. Supp. 2d 338, (2004).
42
G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948).
43
G.A. res. 39/46, [annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984)], entered into force
June 26, 1987.
44
Jama v. Esmor, 22 F. Supp. 2d at 363 (1998).
45
Id. at 361.
9
Mary Johnson
Corporate Accountability and Social Justice
Professor Michelle Leighton
April 23rd, 2008
The court determined that under Correctional Service Corporation v. Malesko,46 no
constitutional tort for cruel and unusual punishment under the Eighth Amendment could lie
against a private corporation, thus closing off alternative routes of complaint for the Jama
plaintiffs.47 Regarding the concern that allowing the Jama case to proceed would open the door
to a host of cases concerning conditions of detention in the United States, the court emphasized
that this case “involves the alleged gross mistreatment, not of criminals or persons accused of
crime, but rather of persons who have committed no crime but are awaiting a decision on their
applications for asylum.”48 Furthermore, inmates in prisons serving sentences pursuant to
convictions who wish to raise claims of mistreatment are able to avoid ATCA litigations since
they are afforded an alternative civil rights remedy in §1983.49
The ATCA claims against Esmor and its officers eventually went to the jury, which
found no liability. Still, any case that survives summary judgment indicates a strong potential
for liability, and at this stage in litigation many cases will settle to avoid a judgment. Jama thus
serves as a salient precedent for the finding that proceedings may continue under the ATCA
against a non-state actor for violations of human rights law.50 More narrowly, what Jama teaches
is that ATCA claims against a private entity that allege gross mistreatment of immigrant
detainees who have committed no crime may survive summary judgment if a sufficient showing
of international law prohibiting the alleged mistreatment can be made.
46
Correctional Service Corp. v. Malesko, 534 U.S. 61 (2001).
Andrew Clapham, Human Rights Obligations of Non-State Actors, Oxford University Press, 449 (2006).
48
Jama v. Esmor, 343 F. Supp. 2d 338, 361 (2004).
49
42 U.S.C. §1983.
50
Andrew Clapham, Human Rights Obligations of Non-State Actors, Oxford University Press, 449 (2006).
47
10
Mary Johnson
Corporate Accountability and Social Justice
Professor Michelle Leighton
April 23rd, 2008
Thus, Jama may be relied upon as applicable precedent in making a case against C.C.A.
for human rights violations occurring at Hutto. Many similarities exist between the two cases to
suggest that, at the very least, an ATCA claim against C.C.A. would survive summary judgment.
Plaintiffs in both cases have not committed any crimes, and many at Hutto are seeking asylum,
as the Jama plaintiffs were. There is a substantial body of international law prohibiting the
conduct that has occurred at Hutto, only part of which is referenced above in part III, to make a
showing of international consensus as the plaintiffs in Jama were able to do. The main obstacle
lies in analogizing the facts of actual alleged violations. While the human rights violations
occurring at Hutto are many and grave, it is not hard to imagine a court distinguishing the facts
from those alleged in Jama. Nonetheless, the Jama court’s emphasis on the egregiousness of
subjecting asylum seekers to inhumane treatment is a strong endorsement for the potential for
accountability.
VI.
Conclusion
Enforcing human rights obligations on non-state actors is not an easy task. The law has
developed slowly and begrudgingly, and many loopholes exist by which even the most evil of
corporate actors can escape accountability and continue to operate with impunity. International
law has been gutted of its binding force in United States courts, especially since the recent
Supreme Court decision in Medellin v. Texas.51 The Alien Tort Claims Act has been available
only in a very limited set of circumstances, and even then cases often settle before good
precedent can be created.
51
Medellin v. Texas, 128 S. Ct. 1346 (2008).
11
Mary Johnson
Corporate Accountability and Social Justice
Professor Michelle Leighton
April 23rd, 2008
After Jama, however, there is a narrow set of circumstances by which a corporation
running a detention center for asylum seekers may be held accountable for human rights
violations that are in contravention of the “law of nations.” The case with C.C.A. and the
detainees at the T. Don Hutto Residential Facility in Taylor, TX, presents a strikingly similar set
of circumstances, and many of the alleged violations are covered by the same sources cited by
the Jama plaintiffs, which “can be said to have reached a consensus that the inhumane treatment
of a huge number of persons accused of no crime and held in confinement is a violation of the
law of nations.”52 Using this as a starting point, it is possible that corporate accountability under
the ATCA can continue to expand until the role that non-state actors play in global society is
fully recognized by imposing upon them obligations commensurate with their sphere of
influence.
52
Id. at 361.
12