Thursday, July 9, 2015

Colorado District Court Green Lights Historic Lawsuit: Private Prisons Using Forced Labor of ICE Residents Ruled Illegal

Related: Recently Released Documents Show California OSHA 2008 Final Decision Ruling ICE Resident in Employer-Employee Relation with ICE Jail

In an historic decision, on July 6, 2015 Senior U.S. District Judge John Kane issued an order telling Defendant GEO Inc, that if people in their custody under deportation laws could prove they were forced to work, and that GEO was enriching itself as a consequence of this, then plaintiffs in a class action lawsuit would be entitled to millions in damanges. 

This is the first time a court has told a private prison firm housing people under U.S. immigration laws that it couldn't force them to work and that if it did, restitution and damages for this "unjust enrichment" could be pursued.

GEO holds more U.S. residents in custody under immigration laws than any other private prison firm, with the Corrections Corporation of America running second.  The case was brought against the GEO facility in Aurora, Colorado following attorneys reading a New York Times article featuring a link to my working paper, a revised version of which is now forthcoming in the Georgetown Immigration Law Journal.

After previous reporting on my FOIA findings failed to elicit legal interest, I decided to map out the program and legal history to help attorneys navigate a program that survived heretofore because of obscurity and ICE stonewalling on releasing information. Attorney Brandt Milstein saw the Times article, read my paper, and then contacted Andrew Free, FOIA attorney for the Deportation Research Clinic.  (Free is referenced in my paper's acknowledgements and footnotes for his insights based on his review of relevant government documents released under the FOIA).

Free, co-counsel on the case, provided legal research and arguments for the Plaintiff brief, submitted as well by co-counsel Nina DeSalvo, Executive Director of Towards Justice, and co-counsel Andrew Turner, and the rest really is now history.  Regardless of whether the appellate court overturns the decision, the United States now has on record a judicial order stating that private prisons may not force those in custody under immigration laws to work, and that firms can be held responsible for financial penalties if they are found to have done so.  The actual proof of these forced labor episodes is the low fruit--it is copiously documented--and the determination on these points of law will stand as a signficant developement in the history of civil rights accomplishments.

In the 1830s, prosecutors episodically attempted to hold slave owners, and those Whites who rented slaves, liable for criminal charges of cruelty or homicide.  Juries and judges were confused and voted or ordered in an ad hoc fashion--they were appalled by the specific events but also sensitive to the excuse that if people were property their owners could do with them as they pleased.  The legal theories in these cases helped crystallize intuitions about the inherent injustice of slavery and were part of the developing public debates in movements for its abolition.  Using the law to thwart injustice is a long-standing tradition in the United States, as is resistance to this and backlash.  This order is part of that tradition.

For the original complaint, and key excerpts, please go here.  The case is Alejandro Menocal et al. v. The GEO Group, Inc.,  1:14-cv-02887-JLK (D. Colo.).

 Less encouraging, and somewhat confusing, was Judge Kane's decision to follow the Alvarado Guevara precedent and those of Colorado state prison cases in finding that the Plaintiffs were not entitled to damages under Colorado's Minimum Wage Order.  (The specificity of findings related to the private prison profits seem inconsistent with the deference to the 1990 decision in the context of a federal government run facility, and the judge did not grapple with this distinction as it pertains to the definition of a labor market.)

In the event, this was the first case filed; a related cases is pending Suffolk County, Massachussetts and at least one more is being prepared.

New Documents Show ICE Knew Cal OSHA Ruled Mira Loma Work Program Fell Under Cal OSHA Jurisdiction: Employer-Employee Relation Found

Finally, according to information released to me recently through FOIA litigation I am now updating the forthcoming article to reflect the fact that in 2007 Cesar Gonzalez Baez, an ICE resident working for the Los Angeles Sheriff Department while housed at its Mira Loma facility, died after his jackhammer hit a power line and 10,000 volts of direct current charged through his body. Other horrified workers witnessed this.  After immediate brain damage Mr. Gonzalez died two days later.

The purpose of his labor?  Holes for new fence poles needed to expand the facility's perimeter responsive to ICE's demand for more bed space.   Cesar Gonzalez died so that ICE could lock up more U.S. residents.  (The Mira Loma facility was for those detained in the L.A area; when I observed hearings in 2009, everyone was a long-time resident of the United States and had extensive family ties; most were teenagers who'd grown up in the area and were picked up on minor or pretextual misdemeanor charges.)

There are numerous other episodes reflected in grievances released to me in this 501 page document. A full analysis is forthcoming in the law review article, but one point bears mention here: ICE's persistent confusion of its public affairs office with a propaganda outfit.  In the same time frame in which ICE was claiming to journalists, myself included, that the program was completely legal and that the ICE residents working in the facilities were not employees, the ICE top brass knew of a 2008 Caslifornia OSHA final decision finding that Cesar Gonzalez WAS in an employee-employer relation and that the LA County Sheriff had violated California's OSHA law.

ICE needs to stop pretending this work program is legal and at the very least immediately reflect the policy implications of the Cal-OSHA finding in its California private prison contracts, including with GEO's Adelanto facility, near Vacaville, the location to which the Mira Loma residents were transferred when that contract expired in 2012.

The Deportation Research Clinic, housed in the Buffett Institute for Global Studies at Northwestern University, conducts research informed by the emerging paradigm of forensic intelligence, whereby scholarship is tied to analyzing and creating new legal discourses and facts.

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