Every day, ICE locks up over 20,000 people in a sprawling nationwide network of more than 200 detention facilities. The ACLU believes that this system of mass incarceration of immigrants should be dismantled — it’s unnecessary and inhumane. For as long as ICE maintains its detention network, though, it has a responsibility to create an oversight system that is actually effective at detecting, addressing, and deterring abuse of detained people. Our analysis of recent ICE inspection documents shows that ICE’s inspection system remains ineffective at identifying violations by detention facilities and ensuring compliance with detention standards, allowing facilities with clear records of poor conditions, including some of the deadliest facilities, such as the Stewart Detention Facility in Georgia, to evade accountability.

Virtually all detention facilities are required to adhere to detention standards that establish consistent conditions of confinement and ensure minimum standards of care for people who are detained by ICE. ICE currently monitors compliance with these standards primarily through external audits performed by a private contractor called The Nakamoto Group. Nakamoto’s fitness to serve as ICE’s auditor has been called into question by multiple oversight bodies. In 2018, the Department of Homeland Security Office of Inspector General (OIG) found that Nakamoto’s “inspection practices are not consistently thorough.”

ICE employees in the field and managers at headquarters told OIG that Nakamoto inspectors “breeze by the [detention] standards” and do not “have enough time to see if the [facility] is actually implementing the policies.” They also described Nakamoto inspections as being “very, very, very difficult to fail.” One ICE official suggested these inspections are “useless.” The House Homeland Security Committee issued a similarly scathing critique of Nakamoto. In September 2020, the committee’s majority staff reported that Nakamoto “has demonstrated a lack of credibility and competence.”

We reviewed every inspection report that Nakamoto issued in 2021 and found that little has changed. The same problems identified by OIG and the House Homeland Security Committee continue to plague Nakamoto’s inspections.

First, virtually no facility fails their inspections. Even facilities that are deficient in 30 or more components receive a rating of “meets standards.” Moreover, we found that inspections fail to account for clear indications of poor conditions. For example, Nakamoto’s inspection of the Stewart Detention Center in Georgia found that the facility “meets standards,” identified only one deficient component in the standard of “Correspondence and Other Mail,” and stated that “there were no areas of concern or significant observation.” Yet more detained people have died at Stewart than any other ICE facility in the last four years; since May 2017, eight people have died in custody at Stewart. Felipe Montes, a 57-year-old man from Mexico, died there only a few weeks before Nakamoto’s inspection. Yet Nakamoto’s inspection failed to note any concerns about the provision of medical or mental health care or COVID-19 protocols at the facility.

Second, Nakamoto continues to conduct only pre-announced inspections, often remotely or partially remotely, making a meaningful audit all but impossible. Pre-announced inspections permit facilities to temporarily cure or mask deficiencies to pass inspection. (This is on ICE though, because they are the ones that put this requirement into Nakamoto’s contract.)

Third, Nakamoto’s detainee interviews remain flawed, often occurring in non-confidential settings where detainees will feel less free to speak their mind about detention conditions. We also found that detainee complaints are rarely taken seriously.

Finally, Nakamoto inspectors appear to continue to trust, rather than verify, the representations of jailers and ICE officers. For example, at the Prairieland Detention Center in Texas, one detainee housed in the Special Management Unit (SMU), which is how ICE refers to segregation or solitary confinement, “stated he had not seen an ICE officer while housed in the SMU.” Nakamoto accepted the facility’s documentation that “ICE officers routinely visit the SMU,” even though “[d]ocumentation that an ICE officer had visited this particular detainee was not available.”

These and other examples make clear that Nakamoto’s inspections lack integrity. As appropriators in Congress have indicated, it’s past time for DHS to terminate its contract with Nakamoto.

ICE’s detention oversight problem is ultimately bigger than Nakamoto. ICE must ensure that it holds facilities accountable for violating ICE’s own standards. A meaningful inspection and monitoring system requires rigorous inspections of facilities and a commitment from the agency to impose sanctions, including contract termination, for facilities that do not pass inspection. And the public deserves transparency. We need to know which standards detention facilities are failing to comply with, and what consequences, if any, ICE imposes on them.

Effective oversight and transparency, though, are not enough. When the Immigration and Naturalization Service — ICE’s precursor agency — first rolled out its detention standards, the then-head of the agency told the New York Times that the goal was to “provide safe, secure and humane conditions of detention.” That goal is based on the flawed premise that detention can be safe and humane. It cannot. ICE’s record of abuse, neglect, and death proves that point. Ultimately, ICE must shut down its mass immigration detention machine.

Two cases being heard today by the Michigan Supreme Court deserve close attention because of the widespread impact their outcomes could have on policing, the right to privacy, and the ever-expanding technological capability of law enforcement to collect, store, and use our personal data. The cases also highlight an issue that has plagued America for as long as police have existed: Black people being disproportionately stopped and searched by authorities with badges and guns, creating a climate of fear, instilling trauma, and poisoning relationships between law enforcement and the communities they are sworn to protect.

The discrimination is particularly disturbing when the targets are children, which is what Keyon Harrison and Denishio Johnson were when, in separate instances a decade ago, police in Grand Rapids, Michigan violated their constitutional rights by photographing and fingerprinting them on the side of the road, even though they had done nothing wrong. Keyon Harrison was 16 years old when stopped by police while walking home from school in 2012. Denishio Johnson was just 15 when police detained him at a bus stop in 2011. But they were far from being the only ones to have their rights violated.

For more than 30 years, police in this western Michigan city have engaged in the egregious, unconstitutional practice of fingerprinting and photographing people they stopped for being “suspicious,” even when no crime occurred, and no arrest was made. Even when people answer officers’ questions and identified themselves, police have routinely fingerprinted them if they happen not to be carrying an ID. As a result, biometric information wrongfully taken from potentially tens of thousands of people remains stored in a police database.

As argued in the lawsuits, this practice violates the United States Constitution’s Fourth Amendment protections against unreasonable searches and seizures. In an opinion piece recently published in the Detroit News, we explain why what’s happening in Grand Rapids is so concerning:

“We should all be alarmed by the privacy implications of policies that allow the police, just by deeming someone suspicious, to deploy advanced technology that will collect and analyze highly sensitive biometric information and store it in a law enforcement database indefinitely.”

The two cases being heard today by the Michigan Supreme Court — Harrison v. VanderKooi and Johnson v. VanderKooi — are about photographs and fingerprints, but soon we may be confronting iris scanners or even DNA harvesting.

The ACLU has been tracking the development of biometric identification technology — for fingerprints, DNA, retinas, voices, faces, and even gait, among others — for many years, urging caution in its deployment and stringent safeguards in its use. These simple measurements add up to an extraordinary threat to privacy when they are collected, analyzed, and stored in readily searchable databases.

What’s at stake is anonymity as we know it.

Clearly, anyone stopped by the police but innocent of any wrongdoing should never have their biometric information placed in such a database. Which is why one of the goals of the lawsuits in front of the Michigan Supreme Court is to force the destruction of such data wrongly collected by Grand Rapids police. The photographs and fingerprints of Mr. Harrison and Mr. Johnson, and everyone else who had their information similarly taken, should be purged from police records so that privacy can be restored, and justice served.

Unfortunately, this threat to privacy is not borne equally by all of us. What can’t be over-emphasized is the extent to which Black people and other people of color are disproportionately singled out for this sort of abuse. A review of 439 stops under this policy from 2011 and 2012 found that 75 percent of the people stopped by Grand Rapids police were Black, while just 15 percent were white. This is a huge disparity from the city’s overall racial makeup, which is 21 percent Black and 65 percent white.

The unconstitutional fingerprinting program widens the disparities even further for young people of color, who are less likely to be carrying an ID because they aren’t old enough to drive, can’t afford an ID, or rely on public transit and so have no need for one. Subjecting these young people to unconstitutional fingerprinting and storing their identifying data in a police database is stigmatizing, traumatizing, and increases the chances of police interactions in the future.

As we have seen repeatedly, a simple interaction with law enforcement on the street can turn deadly for Black and Brown people. We need to reduce interactions with law enforcement, not enable police to gather even more information about people during often harassing stops on the street.

As we have explained — supported by amicus briefs from a diverse array of organizations, including the Cato Institute, the Washtenaw County Prosecutor, and the NAACP Legal Defense and Education Fund — the Michigan Supreme Court can put a stop to these unconstitutional practices once and for all. If police have probable cause for an arrest, they have long been able to capture fingerprints as part of the post-arrest booking process. But allowing police to compel a person to provide fingerprints while going about their business on the street puts people at the mercy of police whims whenever officers wish to gather this sort of sensitive biometric information, for practically any reason or, in some cases, seemingly no reason at all.

We all have the right to be free from the fear of that happening to any of us.