Detainees Charge "Slave Labor" at Detention Centers

UPDATES (May 25, 2014)
-A FOIA lawsuit to obtain more information on the work programs from ICE and the private firms was filed on May 6, 2014. 
-"One Dollar Per Day: The Slaving Wages of Immigration Jail Work Programs - A History and Legal Analysis, 1943-Present" (May 15, 2014, 160 pages) reviews these programs in detail and challenges the government's claim that they are legal.

One of the many dirty little secrets about ICE jails is that, depending on the facility, much or all of the work done to keep them going -- from handing out uniforms to buffing the floors to cleaning the toilets to baking the bread -- is being done for $1/day by the people who are locked up.

I've been planning on writing up my research on this topic for quite some time, including posting the response to my request under the Freedom of Information Act for the dollar amounts paid by the various facilities to these detainees.  It took over a year for ICE to respond to my request.   And then it took me several months to catch up to this piece of my research but at the instigation of a reporter I'm posting this response now and will provide more of the background research later.

In brief: the ICE jails are paying people $1/day for work that minimum wage laws would require compensated at  $29 - $58/day.   ICE bills this as a "volunteer work program" but nothing in this program fits the definition of this under federal employment law, including that people volunteer for a cause based on "humanitarian" reasons.  The prisoners are doing this work so that they can buy food and hygiene products.  If they don't have relatives on the outside to pump up their commissary accounts then they'll buff floors, as did U.S. citizen Mark Lyttle.  If they do, then, as "kidnapped Canadian Kenneth Danard" told me, they won't do this "slave labor."

The colossal "savings" from paying people a small fraction of the legal wage makes possible these centers.  How much exactly is being saved?  Here are the reports verbatim: you do the math.

Below is an excerpt for the monthly payments from just one detention center.  Each dollar is a day's payment's to one detainee, so July 2009 at 5,815 = 5815 individual days or shifts of labor.  Not all of the shifts are 8 hours but they go up to that.  If the range of hours worked for this example is 4 - 8 hours day, then the payments that should have been made for July 2009 under federal minimum wage laws would be $168,635 to $337,000.  Again, what actually was paid was $5,815.

El Centro Contract Detention Facility, California

(Actually, I will be writing more about the policy's history and why it is unconstitutional: in brief, the 13th amendment exempts prisoners from slave labor but it does not exempt people who are being held pending a hearing before an immigration judge.)

Correction:  The above table initially was identified as for the Varick, NY  facility; the tables in the FOIA response were not marked and these were included among the Varick documents.  Closer analysis revealed they referred to the El Centro Facility and a recently posted research paper reflects this, but I had forgotten that it had been mislabeled here.  Ahtna Technical Services, Inc has contracts for both facilities.  (Ahtna released documents indicating that they were running a detainee work program at Varick but the Varick contract omits the "Contract Line Item Number" and amount budgeted for the program in that time frame.)

New York City Resident and ICE Officer Attacked by Mentally Ill Man in Varick: ICE Attempts Coverup

Journalists have been sharing stories about the illegal and inhumane treatment of people with mental illnesses by Immigration and Customs Enforcement employees for several years. The problems range from suicide and suicide attempts to tortuous levels of anxiety for those in their custody to wrongfully rendering U.S. citizens stateless. (For more on ICE's unlawful imprisonment and mistreatment of U.S. citizens with mental illnesses, see "Thin ICE.")

People whose demons make life hard if not impossible to navigate not only suffer uniquely, but may pose special threats to those confined in their proximity, including ICE officers. In January and February New York residents and employees at the ICE lock-up on Varick Street in lower Manhattan were traumatized by this first-hand.

According to former Varick inmates, one man was persistently masturbating openly, and another had fixated on the idea of brutalizing another Varick inmate, Chao Chen, and set about doing just that, but only after he assaulted a female ICE deportation officer. (She was dissuaded from sending the assailant, H.Y., to jail by those in his pod who said he was mentally ill; by ignoring earlier complaints ICE and Ahtna Technical Services -- the private security firm managing Varick -- appear to have negligently exposed her to hazardous working conditions.)

According to Queens resident Chao Chen, private security guards and an ICE officer had first-hand knowledge that a man who was demonstrably violent was being held with the general population, but no one acted until after Mr. Chen was beaten, after which ICE tried to cover this up.

Chao Chen Stalked and Beaten
Following several days of verbal threats and feints with a ball point pen that was taken away, at 2:30 a.m. on February 2, H.Y. waited in the dark on an empty bed, #155, on the far side from where he was supposed to be. A grievance written by the occupant of bed #156, B.D., states that he was disturbed by H.Y.'s menacing presence and asked him to return to his own side of the room. H.Y. told B.D. that "he wants to attack Mr. Chen Chao, who was sleeping at that time" in bed #158. H.Y. offered noodle soup to the occupant of bed #125 to "help him beat up Mr. Chen Chao, which he refused," B.D. wrote, "and told him to stop acting crazy."

That night the occupants of B-1 were able to protect Mr. Chen from H.Y., who went back to his bed. But later that same day, after lunch, H.Y. lunged and stomped on the bed of the napping Mr. Chen. When he turned toward the noise, H.Y. began ferociously punching him in the left eye. Through a translator, a friend whom he had met at Varick Street, Mr. Chen described how others described the beating to him, "According to a witness, it seems like he had a rush of blood and just ran over and attacked." He began moving his fists up and down rapidly and said this went on for about ten seconds, "My eye was very swollen, like a panda."

(Mr. Chen's friend, Huck, is in his fifties, and speaks nostalgically of the olden days, including his time in Europe, when all you needed to travel between countries was some cash and legs strong enough to land the jump from a ship to a harbor boat. He was carrying a New York Times and spoke with disgust of the increase in deportations under President Obama, whom he described as "an empty vessel." Both he and Mr. Chen are waiting for work permits before resuming jobs in the restaurant industry. Mr. Chen was brought to Varick last June by New York City Police. When I asked him why he was stopped he said, "It was late, 11:30, and they saw me parking." I asked if the police gave him a ticket and he said no. Instead the NYPD was doing the work of ICE. Mr. Chen was released on ICE parole and had missed a 2005 meeting; this showed up when the NYPD ran a check on him.)

Mr. Chen said he and others at Varick were angry because everyone knew H.Y. had a mental problem: "Everybody was nervous because it was obvious he was dangerous and had a problem because he would walk on people's beds with his shoes." Even after the incident, Mr. Chen said that others conveyed that "Lt. Smith went to B-1 and told everybody that they did not have space to keep [H.Y.] in isolation and that it wasn't their problem." Shortly after that, H.Y. was gone.

Chunyu Jean Wang, Mr. Chen's attorney, is upset, "He was sleeping and attacked by a mentally incapacitated person who should have been isolated. ICE is responsible for [Mr. Chen's] safety, but as a result of what they did there was bruising to his eye, which was blind for a few days."

Dirty ICE
The events above were unfolding just before ICE relented to pressure from the ACLU and escorted me on a February 16 tour of the Varick facility, the very day ICE released Mr. Chen.

Based on reports that ICE deportation officers at Varick were holding people without authority by not meeting with Varick inmates and thus not following up on new legal documents, I asked about specific incident of an individual who said his deportation officer had not seen him in three weeks. ICE New York Field Office Director Christopher Shanahan, who has an office in the same building as the ICE prisoners, denied this was possible, "We wouldn't want to put someone in a dorm and leave them there. That's not good for them or for us." And yet Mr. Chen was held months beyond when he should have been released and went for long stretches without seeing his deportation officer.

Moreover, the tour guides' eagerness to emphasize the quality of their medical and psychological care seemed excessive and compensatory. Dr. Peter Dorazio told me that everyone had a psychiatric exam within 12 hours of being admitted, but didn't mention that he had recently read a report on Mr. Chen's attack and assailant indicating these tests were either inadequate or ignored.

The week before another Varick inmate had told me a version of the story I later heard from Mr. Chen himself. When I called Mr. Shanahan after the tour to ask follow up questions I mentioned this attack. I had some of the facts wrong but the basic outline was correct. Instead of explaining the incident fully, Mr. Shanahan categorically denied that anything resembling what I had described had happened. I asked whether, if something like this had happened, he would have been informed or whether I should follow up with someone else . He said that had anything like this he certainly would have known about it, and discouraged me from making further inquiries.

By the time Mr. Chen contacted me, the information was too late for inclusion in The Nation Comment I wrote about ICE's lawless refusal to regulate its detention operations.

The bureaucratic follow up noted on Mr. Chen's complaint states: "Referred to CSS and Dr. Dorazio on 2/4/10." (I am unfamiliar with Christoper Shanahan's middle initial, if any, and it may not be "S.")

In a recent email responding to my questions, Mr. Shanahan did not confirm or deny that his initial is "S" or that he had been notified of these events.

Again, the underlying problem is not Varick or even Mr. Shanahan but Secretary of Homeland Security Janet Napolitano's failure to obligate ICE detention operations to the rule of law, itself delusional reckless behavior threatening to different degrees the safety of the mentally ill, and everyone else in ICE detention operations -- those with shackles and keys alike.

It is likely that Mr. Chen will be filing a lawsuit and that ICE will settle it for an undisclosed amount. This is not justice but stupidity, the biggest dunces being the U.S. public who are eager to toss billions of dollars to government and private security, militarized borders, and payments for kooky practices instead of reaping the benefits of free movement. ICE and before that the INS have been happy to use the taxpayer's checkbook to fund their thuggery.

INS Agent Willie Witt Cost Taxpayers Big Bucks
An experienced San Francisco Bay Area attorney pointed me to the numerous lawsuits in the 1980s against INS because of agent brutality, and mentioned one in particular, Willie Witt, Jr., was a special problem:"[INS] kept promoting him. It cost them hundreds of thousands of dollars in lawsuits. But they just kept paying out the lawsuits and promoting him."

A quick google and Lexis search confirms these observations. A 1989 article in the Los Angeles Times describes a trial against INS for failing to punish employees for abuses:

Despite repeated allegations of misconduct, the INS has investigated only one allegation of misconduct during a factory raid since 1982, said Steven A. Brick, an attorney for the plaintiffs. During that period, no INS agent was disciplined for violating the rights of the accused, he said.

The article continues to describe the single investigation during this period:

The sole investigation involved actions of one agent at Modern Mode Inc., a furniture factory in the Alameda County city of San Leandro. About 20 INS and Border Patrol agents arrived on the morning of July 20, 1983, and began questioning, then handcuffing workers.

When Jose Mendes, plant superintendent and a legal U.S. resident from Portugal, demanded a copy of the warrant, an agent replied, "You don't have no rights to ask me what's going on," Mendes testified.

Forced to Ground

INS agents told Mendes that he would be arrested unless he went away. Mendes' run-in might have ended with him walking away. But as he left, he told the judge, he cursed the agents. One agent then ordered another to "get him."

Before Mendes could turn, Agent Willie Witt Jr. grabbed him around the neck, forced him to the ground, then threw him from a loading dock to the ground, about three feet below.

Mendes began hyperventilating as he sat, handcuffed, in an INS van. When he asked agents to roll down the windows, one of them replied, "You should have thought about that before." Mendes was arrested on suspicion of assaulting a federal officer. Prosecutors declined to issue charges, but Mendes spent a night in San Francisco County Jail.

Anthony Ratto, owner of Modern Mode, wrote to President Reagan about the incident. Describing himself as a "loyal Republican," he said: "Mr. President, something wrong occurred at my plant on July 20, and I believe the facts should be brought to light."

As a result, the INS investigated--but not until more than a year later, according to documents released to the plaintiffs. An INS internal affairs investigator interviewed none of the witnesses and never contacted Mendes. Instead, the investigator relied on notes an FBI agent took in interviews with INS agents and Mendes, and on depositions of some of the workers.

The INS found no evidence of wrongdoing when the investigation was concluded in September, 1984. INS Commissioner Alan C. Nelson wrote Witt that the charge was "unsubstantiated," and he "sincerely regretted any hardship or inconvenience you may have experienced."

That's the last line in that article, but the story wasn't over for Mr. Witt. A 1999 article in the SF Chronicle, "When the Case Is About Lawyers," shows how Mr. Witt applied lessons learned from watching INS settlements and sued for race discrimination. Mr. Witt is African-American. Another INS agent in the office, who was white, also sued. Witt's case settled for $55,000 and his agreement to retire.

Mr. Chen's Condition
A photograph taken last week shows that two and a half months later Mr. Chen's left eye remains somewhat dark and swollen in contrast with his right eye, and his vision is still blurred: "Its like a curtain that you open up, and there's another curtain," he explained.

Mr. Chen's attorney, Ms. Wang, is outraged, not just because of the attack but because Mr. Chen never should have been in custody. He is among those for whom China will not issue travel documents. (The Supreme Court has prohibited ICE from keeping people locked up solely because of statelessness or because a country refuses to issue travel documents to one of its citizens, but ICE routinely ignores this.) "Because ICE held him past a reasonable time, past the time legally allotted," she said, "they gave a mentally incapacitated person an opportunity to attack him."

ACLU Demands Varick Jail Tour for Nation Reporter: ICE Backs Down

Last week I wrote about ICE's long history of denying media requests for tours at its Varick Street jail, including my own requests since November 16, 2009. (The ICE lock-up is on the fourth floor of the federal building at the corner of Varick and Houston, a half block from the Film Forum.)

The facility will be either closing or changing to new management (ICE) on February 27, 2010, depending on the source, but it's not going to be what it is and that's why I had been pressing for ICE to finally and for the first time, allow a press tour.

Yesterday the American Civil Liberties Union and the New York Civil Liberties Union, on behalf of the Nation, the Nation Institute, and me sent a letter to ICE pointing out that its failure to approve any media tours at the Varick Street ICE jail was violating its own procedures as well as the First Amendment.

This morning, I received a note from ICE indicating that my request for a tour had been approved. It's scheduled for Tuesday, February 16.

This is great because it shows that there is some rule of law and that with enough mobilization the government, including ICE, may even follow it.

Thank so much to Lee Gelernt and the ACLU, Udi Ofer of the New York Civil Liberties Union as well as Betsy Reed, my editor at The Nation and Esther Kaplan of the Nation Institute for the thoughtful work that went into putting their imprimaturs on my request. Thanks also to Ben Wyskida at the Nation and Maria Archuleta at the ACLU for figuring out how to make the public aware of ICE's policies.

And thanks also to David Schulz, a media attorney who supervised the diligent efforts of students at the Yale Law School Media Freedom and Information Access Practicum. It's a new practicum, just started this year and two of its founding members, Adrienna Wong and Nabiha Syed, along with a new member Stephen Gikow assembled the underlying information that went into the letter.

I had been pressing the same arguments that appear in the letter for almost three months, but it took the efforts of Yale Law School students and backing from my colleagues at the Nation and the ACLU to make them heard.

"The Prison at Varick Street": Coming Soon, to an ICE Lock-Up Near You. (ICE Censors Previews)

The problem with locking up people indefinitely who have not committed a crime is that....

Okay, so at this point there are several million answers, at least one for every single individual who has been ripped away from his or her home and community and locked up by this government, exacerbated because men and women with guns and uniforms who break the rules know they can hide the violations from the public in real-time and later deport the evidence.

At least in prisons, the convicts stay in your country and you know they might figure out a way to get your badge, or worse.

Civil rights attorneys and journalists have been diligent in exposing the abuses that occur in these places, but as the articles and reports below indicate, it's a little like Whack-a-Mole. The government shuts down one evil facility but then opens up two more.

The public finds out about San Pedro's deadly mold and human rights violations? The ACLU wins some lawsuits? No problem. Just stick the people held there in another miserable place, perhaps a basement of a federal building, B-18 in Los Angeles.

People learn about the Hutto Detention Center treating kids like felons? The government's right on it. Close it down and lock the kids up in Pennsylvania, or better yet, steal them from their parents and place them in foster homes, as attorneys in southern Arizona observe is now happening when mothers are placed in detention centers.

Folks protesting at a NY detention center and filing a lawsuit because of poor conditions?

Open Varick. That's right. OPEN Varick. See for yourself, from an amazing, must-read 1993 ACLU report that appears in PART ONE and PART TWO:

The recent protests about Varick and the plan to shut it down, as well as the reports and reports on reports and reports on reports on reports since the 1980s reveal two things:
1) This particular failure of self-governance is an embarrassment to the U.S. Constitution and the concept of democracy. It is disgusting that this irrational and cruel system is so impervious to the rule of law.
2) We gotta make the Moles feel like they are surrounded by bright sunshine and that everywhere these creepy beasts pop up it is easy for journalists and anyone else to show up, making ICE lock-ups so queasy about their very existence that they die out or mutate into something a democracy can live with.

This means telling ICE its rules on visiting detention centers and press tours have got to go. Partly that's been done (it's called the First Amendment) but it needs to be followed and if it's not followed, then we need to make them follow it.

Right now ICE stonewalls on allowing press tours of any detention center and, in the case of Varick, simply prohibits it altogether. Varick lets in other groups for tours, just not the press, and that's unconstitutional discrimination. That's the policy implemented by ICE Propagandist Richard Rocha, who, according to two ICE agents, denied my request for a press tour.

(He also has said, in an interview with the Los Angeles Times, "ICE does not detain U.S. citizens," a lie sufficient to earn him this special, though not unique, title.)

And yes, the government locking up U.S. citizens at Varick also was happening in 1993:

Deja Vu All Over Again

"A startling petition arrived at the New York City Bar Association in October 2008, signed by 100 men, all locked up without criminal charges in the middle of Manhattan. In vivid if flawed English, it described cramped, filthy quarters where dire medical needs were ignored and hungry prisoners were put to work for $1 a day."

--Nina Bernstein, "Immigrant Jail Tests U.S. View of Legal Access," New York Times (November 1, 2009).

Hmmmm...

I bet Lucas Guttentag, Judy Rabinovitz and Lee Gelernt -- all still with the ACLU Immigrant Rights Project, which published the 1993 report -- do not find this petition that startling. They were moved to write their report because in the spring of 1990, guess who approached them with their problems?

Right, the Varick Street detainees.


(I was at Varick Street recently and a woman visiting her boyfriend told me he was concerned about a Chinese cellmate. He didn't have anyone on the outside sending him money and without being able to buy snacks from a commissary account people go hungry.)

Well, at least the government might do something, right?

"In response to ongoing reports of abuse, INS Commissioner Doris Meissner appointed a Citizens' Advisory Panel in March to review complaints. It is still too soon to gauge the impact this 15-member group will have on an entrenched system."

Well, not really.

The passage is from a terrific piece of investigative journalism Alisa Solomon wrote for the Village Voice. It appeared on August 8, 1998.

12 years later it seems fair to say that the group had no impact.

Still Groundhog Day. Again

[D]ozens of protesters gathered outside a Greenwich Village detention center on Thursday to demand the release of Jean Montrevil, a Haitian immigrant rights advocate and a community leader in New York who has been detained since December while awaiting deportation.

Kirk Semple, "Demonstrators Press for Haitian Advocate’s Release," The New York Times, January 14, 2010. article in The New York Times,

That was now.

This is then:

On Sunday, 150 people gathered outside the Immigration and Naturalization Service's detention center on Varick Street in Manhattan to protest the inhumane treatment of those held inside.

This is from an opinion piece Alisa Solomon wrote that appeared in the New York Times on Saturday, June 11, 1994: "The Prison on Varick Street." Solomon's essay describes the plight of Lulseged Dhine, who had been held at Varick for four years. At 4:30 a.m. he was awakened and sent to Arizona, according to INS, to "accommodate his request for fresh air."

What's Next? OR Next Year's Punchline?

26 years later, it seems the government is listening, sort of. Semple writes: "[F]ederal immigration officials announced that they would close the center, in part because it lacked access to open-air recreation."

New York Times staff writer Nina Bernstein also had her request for a tour turned down -- she writes about this in "Immigrant Jail Tests U.S. View of Legal Access," November 1, 2009.

And, yes, in the 1990s, Alisa Solomon said, she, too was turned down when she requested a tour.

President Obama Thinks Transparency Means He Disappears on Constitutional Rights

If the government has its way, on February 26, 2010 the "Prison on Varick Street" will end its run and the press will have never set a foot inside. And an important if shameful part of New York City's history since 1984 will vanish without specific documentation of its mildew, lack of fresh air, light, and unsanitary conditions that all sound vague and abstract as described here because I have never been allowed to see what it's really like in there and the people who are allowed in are not supposed to write about this. (These descriptions are third-hand summaries from my conversations with visitors at Varick and second-hand reports by Ms. Solomon and Ms. Bernstein.)

This would be not only a crime against history, but also a violation of the First Amendment. As long as a prison, or any other government agency, provides access to one group, as has been the case at Varick for law students, judges, and attorneys, then it cannot discriminate against the press.

I presently have a new request pending and am hoping for a different result. If you have been on a tour at Varick some point, please write and let me know!