Three years into the Biden administration, the number of people held in ICE detention continues to grow, and private prison companies hold an increasingly tight grip on the mass immigration detention system.

As the ACLU has documented before, the federal government’s immigration detention system overwhelmingly relies on private prison corporations. Private prison corporations, like the GEO Group, CoreCivic, LaSalle Corrections, and the Management Training Corporation have pocketed billions from ICE detention contracts in the past two decades.

As a candidate, President Biden promised to stop the use of private prison companies for immigration detention. In 2021, he announced that there should be “no private prisons, period,” when addressing protesters demanding the end to immigration detention.

Although the Biden administration issued an executive order in January 2021 directing the Department of Justice to phase out its contracts with private prison companies, it notably excluded ICE detention from the order. Since then, the number of immigrants detained by ICE — and revenues for private prison companies — have only increased.

As of July 2023, ICE detains on average 30,003 people each day. This is a significant increase from the start of the Biden administration in January 2021, when ICE held an average of 15,444 people in detention each day.

Under the Trump administration, 81 percent of people detained each day in January 2020 were held in facilities owned or operated by private prison corporations.

In the first two years of the Biden administration, this number remained relatively unchanged. In September 2021, 79 percent of people detained each day in ICE custody were held in private detention facilities.

In the last two years, however, this number has markedly increased: as of July 2023, 90.8 percent of people detained in ICE custody each day are held in detention facilities owned or operated by private prison corporations.

Contracts with ICE continue to make up a significant amount of revenue for private prison corporations like the GEO Group and CoreCivic. In 2022, the GEO Group made $1.05 billion in revenue from ICE contracts alone, or 43.9 percent of its total revenue ($2.4 billion). This includes 17 percent ($408 million) on programs involving electronic monitoring of immigrants.

CoreCivic similarly made $552.2 million in revenue from ICE detention contracts in 2022, representing 30 percent of its total revenue.

Despite calls from advocates to decrease funding for ICE detention, Congress appropriated $2.9 billion dollars to hold 34,000 people in ICE detention each day for FY 2023.

During the Trump administration, ICE expanded the immigration detention system by 50 percent, signing contracts to open over 40 new detention facilities. This expansion overwhelmingly benefited private prison companies, including contracts providing “guaranteed minimums,” where detention contractors receive a set amount of funds for detention, regardless of the number of beds used. These facilities included several known for poor conditions, understaffing, and safety issues that had led the Department of Justice to cancel its prison contracts in recent years.

The Biden administration has done little to reverse these trends. The Executive Order failed to end the use of private prisons for those in federal criminal custody, as private corporations found workarounds by contracting with local governments, who then contracted with the Department of Justice to extend their contracts. After the DOJ terminated its contract with the GEO Group, Inc., for the use of the Moshannon Valley Correctional Facility in Pennsylvania, it then became a new ICE detention facility. Similarly, the GEO Group touted the recent expansion of its contract at the Desert View Annex ICE Detention facility as helping to “offset” revenue decreases due to facility closures resulting from the Executive Order in its report to the Securities Exchange Commission.

The Biden administration has also kept open detention facilities that its own oversight agencies have recommended for closure in light of abusive conditions and safety risks. For example, ICE refused to close the Torrance County Detention Facility in Estancia, New Mexico (run by CoreCivic), even after the DHS Office of Inspector General issued a management alert calling for the immediate removal of all detainees at the facility, and the death of Kelsey Vial, an immigrant from Brazil, only months later.

At the Central Louisiana ICE Processing Center in Jena, Louisiana, run by GEO, Ernesto Rocha-Cuadra, a 42-year-old immigrant, died after suffering a heart attack. He had submitted dozens of grievances alleging that he was refused medical care, denied access to his personal detention records and was subject to mistreatment and negligence by guards.

Other facilities, such as the Baker County Detention Center in Macclenny, Florida, where the ACLU of Florida has documented sexual voyeurism by facility staff, denial of sanitary napkins to women as punishment, medical neglect and beatings, remain open, despite repeated calls for closure.

The Biden administration can reverse course on immigration detention. It should dramatically reduce the number of people in ICE detention, invest in alternatives to detention, and stop allowing private prison companies from profiting by the billions of dollars each year off the suffering of immigrants in detention.

Content warning: This piece includes disturbing details about the deaths of incarcerated people.

LaShawn Thompson died late last year while being detained pretrial in Atlanta’s Fulton County jail. He was incarcerated there — and died — because he could not afford $2,500 in bail for a misdemeanor charge. An autopsy confirms that his death was a homicide caused by neglect, malnourishment, and that his body was literally eaten by bugs. It took eight months for this gruesome and horrible truth to come to light.

Tragically and shamefully, Mr. Thompson is not the only person to recently die in the Fulton County jail. Just this week, 40-year-old Montay Stinson was found unresponsive in his cell. He had reportedly been in the jail for nearly a year, with bail set at $3,000. And last month, Noni Battiste-Kosoko, who was only 19 years old, was found dead in her cell In Fulton County custody just last month. Far less has been revealed about the circumstances of her death. What we do know is that Ms. Battiste-Kosoko was in custody because she had been accused (not convicted) of damaging walls and tables in a high school: for acting like a teenager.

Credit: ERIK S LESSER/EPA-EFE/Shutterstock

Since the beginning of 2022, at least 18 people have died in Fulton County’s custody that we know of. These tragic deaths are not just unacceptable, they were preventable. As the ACLU and our partners have been pointing out for years, there are a considerable number of people incarcerated in Fulton County and across the country solely because they are too poor to post cash bail. In such cases, these people have been determined to not be a threat to the public, and they have not been convicted of a crime.

While much of the blame for unlivable jail conditions in Atlanta has rightly been placed with the local Sheriff’s office and those who oversee the facility, numerous elected officials in Fulton County are equally if not more responsible for the conditions in the jail. Following the unanimous passage of a bipartisan bail reform bill in 2018, Georgia law requires that judges consider an individual’s financial circumstances — their income, their expenses and debts, and whether they have dependents — when setting bail. A system where some people are indefinitely detained and others are allowed to go home and await trial with their families, simply because of their access to wealth, is unconstitutional. Unfortunately, individuals who cannot afford bond are routinely held in custody for months or years, despite a judge finding they are not a risk to the public. This doesn’t just contribute to jail overcrowding and deadly conditions: it is a primary cause of Fulton County’s current humanitarian crisis.

Much of the public debate around criminal law reform stems from our collective desire to live in safe, stable communities. Yet far too little attention is paid to the incredible harm that occurs because of incarceration, particularly in crowded jails like Fulton County’s. Assaults, including sexual assaults, are rampant; medical care is abysmal; conditions are squalid; and death tolls are rising in jails nationwide. These cascading harms traumatize and stigmatize all who are exposed to them. That trauma follows people to their communities after they are eventually released.

In addition to worsening the racial disparities in the criminal justice system, holding individuals awaiting trial increases the chances they will commit crimes in the future, according to a Georgia-based, bipartisan commission of judges, prosecutors, and policy experts. This two-tiered system of justice is intolerable and is making Atlanta less safe. Additionally, there is a financial and human cost on communities when people are incarcerated simply because they are unable to pay their bond. Low-income Fulton County residents who are incarcerated will have to rely on their friends and families scraping together whatever funds they have to pay unnecessarily high bonds, taking that money out of the community. The cost of this unnecessary detention is part of the $14 billion that Americans spend every year to incarcerate legally innocent people.

Despite bipartisan calls for reform, and full awareness of the financial and human crisis caused by overcrowding, Fulton County officials have not meaningfully acted to address the issues in the jail. In New York City, there is a growing and serious possibility that oversight of the Rikers Island jail complex will be taken over by a federal receiver. Fulton County jail is currently under investigation by the U.S. Department of Justice.

If county officials want to avoid similar federal intervention, including the millions (if not billions) of tax dollars such a receivership would cost, there are several urgent steps they can take. Law enforcement should focus on arrests only where individuals are a threat to others use their authority to issue citations for such crimes instead of needlessly jailing them. Prosecutors should decline to prosecute or pursue pretrial diversion more often, particularly in cases that involve addiction, mental illness, or poverty. Judges must provide timely and complete hearings to anyone arrested and jailed to ensure that anyone who can be safely released is not being unnecessarily incarcerated.

As our analysis of the Fulton County jail crisis showed last year, increasing the jail’s footprint and adding beds will not solve issues of community safety. Subjecting our community members to the dangers of incarceration is not making us safer, and no number of additional beds will fix the problem. Fulton County did ultimately obtain additional jail beds at the Atlanta City Detention Center, where Noni Battiste-Kosoko died. The complacency and failure to act on the policy failures that cause overcrowding will result in more deaths, bankrupt our communities financially and morally, and continue to make us less safe in Fulton County. We demand our elected officials do better, and the time to act is right now.

From banning books to restricting classroom discussions about race and gender, politicians across the country have been busy censoring speech in the name of “protecting the children.” Now they also have their eyes on limiting access to social media.

Arkansas recently passed the Social Media Safety Act, which requires every person to verify their age before they can access existing social media accounts or create new ones. If a user cannot show they are at least 18 years old using a “commercially reasonable age verification method” — potentially including biometric screening or requiring government-issued ID — the law requires them to obtain parental consent to use social media. As the ACLU, the ACLU of Arkansas, and the Electronic Frontier Foundation explained in a friend-of-the court brief we recently filed in a challenge to the law, these requirements violate the First Amendment. They rob users of anonymity, pose privacy and security risks, and could be used to block some people from being able to use social media at all.

American Civil Liberties Union

ACLU Supports Challenge to Arkansas Law that Places Unconstitutional Age-Verification and Parental Consent Requirements on Social Media Users | American Civil Liberties Union

Arkansas’s “Social Media Safety Act” stifles freedom of expression.

A wealth of communication and expression takes place online. Children and adults use social media to share news, opinions, and ideas; participate in social movements; interact with government representatives; explore their spirituality; and express themselves creatively.

While social media can create echo chambers, it can also expose people to ideas they wouldn’t otherwise encounter. Roughly 23 percent of adult social media users told Pew researchers that they “have changed their views about a political or social issue because of something they saw on social media in the last year.” Some social media use might harm a user’s body image, but it also allows people who don’t see their body types represented in mainstream media to share their talents and lived experiences with the world.

While social media can have negative consequences for some teens’ mental health, for others, it can be a lifeline. Paula Sojo’s TikTok account, for example, has become a community for people with chronic illnesses who might otherwise feel isolated and alone. And many young LGBTQ+ people who face discrimination and judgement offline turn to social media for community, exploration, and support. The First Amendment protects the right to engage in all of this speech.

If allowed to go into effect, the Arkansas law would prohibit users from accessing social media anonymously or under a pen name. Age verification requirements can deter even adults from engaging on social media because they worry about sharing additional personal data with social media companies, which could misuse the information or get hacked. And those who don’t have government-issued identification — undocumented immigrants, for example — might be unable to access social media at all. Additionally, the parental consent requirement violates kids’ rights to speak and receive information as well as adults’ right to hear what they have to say. Courts have struck down past government attempts to “protect the children” from all kinds of “dangerous” new communication technologies, from drive-in movies to video games, for these reasons.

American Civil Liberties Union

NetChoice v. Griffin | American Civil Liberties Union

Arkansas’s so-called “Social Media Safety Act” requires users to verify their ages before using social media.

The ACLU consistently fights against laws that purport to protect kids, but ultimately censor and chill speech. After the 1996 Communications Decency Act (CDA) made it a crime to engage in “indecent” or “patently offensive” speech online if the speech could be viewed by a minor, we filed what would become a seminal case on First Amendment rights in the digital age: Reno v. ACLU. We argued, and the Supreme Court ultimately held, that the First Amendment applies with full force online, and the risk that minors will see indecent communications doesn’t justify censoring the internet when alternatives that restrict less speech are available.

The same is true for parental consent requirements. In 2011, the Supreme Court struck down a state law that prohibited the sale or rental of violent video games to minors — but allowed adults to purchase games for minors — on First Amendment grounds. The court explained that the law was not simply enforcing parental authority over what their kids could access; it was imposing what the government thought parents ought to want their kids to see.

Of course, some parents (and some minors) might decide that the negative consequences of social media use outweigh the benefits. They might choose to impose limitations on their children’s — and their own — social media use. For example, they might forbid their children from using social media until they reach a certain age or level of digital literacy, impose time limits, or leave all devices in a separate room before bed. But those decisions are not for the government to make.

We urge the Western District of Arkansas to protect adults’ and kids’ right to access social media. We all have the right to speak and read about everything from upcoming protests to violin tips to challenging Arkansas’ law.