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The $1 Per Day Issue

“Given the endless current debates on immigration-related topics, the ‘$1 Per Day Issue’ issue has, at times, arguably been lost amid other questions that are frequently raised about our current immigration policies.”

On July 19th, which was perhaps the hottest day of this past summer—at least in Eastern Pennsylvania—two freshman Democrats, Reps. Madeleine Dean and Mary Gay Scanlon, showed up unannounced to the Berks County Family Residential Center, one of three facilities in the United States that houses families of undocumented immigrants. The Center, which is operated by Berks County through a contract with Immigration and Customs Enforcement (ICE), housed, at the time of the trip, 25 undocumented immigrants, 13 of whom were children. 

The trip itself was widely covered in the Pennsylvania media. In a press conference following their tour of the facility, the two members of Congress described their conversations with those housed inside, reported that the Pennsylvania facility boasted far better conditions than other facilities they had visited closer to the border, and fielded questions about the similarities and differences of immigration detention policies under the Obama administration, as compared to those under President Trump. This was particularly relevant given that the Berks facility has operated in a similar fashion (holding families) since 2001—thus spanning three presidential administrations. 

However, one topic of discussion that was raised by Rep. Dean, which tends to escape the attention it arguably warrants is that of the labor performed by undocumented immigrants during their time in ICE custody. Rep. Dean described individuals housed in the facility working for wages in the ballpark of one dollar per day, a point that had previously attracted notice when it was similarly raised by The Wall Street Journal in July, 2018. Andrew Free, a lawyer who has represented plaintiffs litigating against owners of detention centers where detainees work, indicated to The Wall Street Journal that, while it might be reasonable, in his view, for prisons to require work of their inmates, it is a different matter when it comes to those held for immigration-related reasons because, “…immigration detention is civil in nature.” 

This $1 per day policy is nothing new and has existed in a similar fashion since 1950. It would later be codified into law by the 1978 Appropriations Act. Although the practice has now been in place for decades, wages have not kept pace with inflation. ICE, however, has indicated its belief that this current rate of pay is legal, citing the 1990 Fifth Circuit decision in Alvarado Guevara v. I.N.S. The Court, in this case, ruled that the Fair Labor Standards Act (FLSA) did not apply to those working while in INS (the pre-2003 precursor to ICE) custody (“alien detainees whose work is described by no statute authorizing use of taxpayers’ money to pay government employees cannot claim such status”). However, there have been subsequent legal challenges, such as Washington State Attorney General Bob Ferguson’s 2017 lawsuit against The GEO Group, the owner of the Northwest Detention Center in Tacoma, Washington. Ferguson has argued that the company should be required to pay detainees Washington State’s minimum wage of $12 per hour; however, on September 24th, The Associated Press reported that U.S. District Judge Robert Bryan planned to dismiss the lawsuit. 

The issue of labor performed in ICE custody takes place in the broader context of the ongoing debate regarding labor in regular prisons, at both the federal and state level. For instance, Lester Holt, the anchor of NBC Nightly News, gained attention for his September 6th comments regarding Louisiana State Penitentiary (Angola): “Every inmate at Angola is sentenced to hard labor. These men, like hundreds of others, worked in the fields. While picking carrots on the former slave plantation…” Holt’s comments also came one month after a Marshall Project report about work conditions at a Georgia prison, and, similarly, Rep. Tulsi Gabbard received considerable attention for her hard-hitting criticism of Sen. Kamala Harris on night two of the second Democratic debate on July 31: “…[Sen. Harris] put over 1,500 people in jail for marijuana violations and then laughed about it when she was asked if she ever smoked marijuana…She kept people in prison beyond their sentences to use them as cheap labor for the State of California.”

However, there are numerous defenders of inmates and detainees working in government custody, and many of the defenses extend far beyond fiscal arguments about offsetting the cost of detention. Some defenses have come from inmates themselves. To this effect, Chandra Bozelko, a former inmate at York Correctional Institution in Niantic, Connecticut, penned a powerful 2017 op-ed in The Los Angeles Times suggesting that, “It’s people on the outside who rail against prison work assignments,” before continuing on to argue that such work provides inmates with a sense of purpose and meaningfulness: “My prison job made me feel like I was fulfilling my existential duty to society: I was contributing. It doesn’t surprise me that prison work assignments are credited with reducing recidivism.” This is a view that perhaps the late Senator Daniel Patrick Moynihan may have shared as well, given his belief that, “In an industrial world that has not yet come to terms with the question of leisure, men without work are deprived of an essential condition of human dignity.” 

Given, however—as Andrew Free observed—that those held in ICE custody are detained for civil reasons rather than criminal, it is unlikely that public support for their working would receive the degree of support as prison inmates—even if such work might help to offset the cost of their living in the facility. So, the voluntary element of work is likely rather important. However, some detainees have suggested that though work may nominally be voluntary, a variety of pressures exist to prod detainees into choosing the work option. This often takes the form of using commissary items as the bargaining chip. To this effect, Wilhen Hill Barrientos, a detainee from Guatemala who lived at Stewart Detention Center in Lumpkin, Georgia (and who is a member of a class action suit filed by the Southern Poverty Law Center against ICE contractor CoreCivic, Inc.) has suggested that strong pressures existed to push detainees towards working: “If I didn’t work, I would never be able to call my family.” Furthermore, Barrientos alleges that upon arriving at the Stewart Facility that he, “was faced with an impossible choice….Either work for a few cents an hour or live without basic things like soap, shampoo, deodorant, and food.” Detainees such as Barrientos have also reported being awoken at odd hours to do work, including to perform tasks that are strenuous. 

As the debates continue on the degree to which the work is voluntary—and whether or not minimum wage ought to apply to detainees—some critics have argued that to focus on these aspects is to miss the broader point. Instead, they argue that greater consideration should be given to the financial incentives of ICE contractors to use detainees for labor at the facilities, which can become a considerable cost-saver in preventing them from having to pay for outside labor to maintain the facility. As the concern goes, this increases the bottom line of these companies, some of which already have extensive lobbying arms, and these cost-savings might further their expansion. In the minds of their critics, the existence of these private facilities is at-odds with providing immigration solutions that are in the best interest of those who find themselves detained in such facilities. Critics, including journalist Victoria Law, are quick to observe that, “in 2017, contracts with ICE comprised 25 percent of [CoreCivic’s] $1.76 billion in revenue. For GEO Group, ICE contracts comprised 19 percent of its $2.26 billion revenue in 2017.”

Given the endless current debates on immigration-related topics, the”$1 Per Day Issue” issue has, at times, arguably been lost amid other questions that are frequently raised about our current immigration policies. However, the work issue—and the aforementioned legal and financial questions it brings with itremains pressing and was rightfully worth the attention of those two members of Congress in Eastern Pennsylvania in the depths of this past summer.

Erich J. Prince is the editor at Merion West. Allen Zheng is an intern at Merion West.

Update: On October 9th, the Associated Press reported that U.S. District Judge Robert Bryan had reversed course and, contrary to his September statements, decided instead that the case can continue. 

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