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In Search of Justice: How DHS PREA Standards Don’t Necessarily Protect Immigrants From Assault
This is the second article in a two-part series. Read the first article in the series here.
Trying to understand the systems in place intended to protect immigrants in federal custody from sexual abuse is like navigating a maze, and Laura Monterrosa’s story is one example of how complicated it can get.
Rewire.News partnered with Latino USA on this two-part investigation of her abuse allegations at the T. Don Hutto detention center in Taylor, Texas. In part one, we looked into Monterrosa’s story and the federal investigation into her claims of repeated sexual abuse by a female guard at Hutto in 2017. For part two, we examine the nuts and bolts of a Prison Rape Elimination Act (PREA) audit and how the process can fail survivors of sexual assault.
As we noted in part one, PREA is one of the main mechanisms for justice for immigrants in custody if they are sexually abused. Under PREA, officials with U.S. Immigration and Customs Enforcement (ICE) investigate the allegations in the short term, and auditors hired by ICE review each facility’s handling of allegations every three years.
What we learned about this process, based on Monterrosa’s experience, raised additional questions about the potential biases and conflicts inherent when an agency is tasked with overseeing its own investigations and audits.
Laura Monterrosa’s PREA Investigation
According to an ICE spokesperson, when an allegation of sexual assault or abuse is reported involving an ICE employee or contractor, the Department of Homeland Security’s (DHS) Office of Inspector General (OIG) has “the first right of refusal” to investigate an allegation. Investigations declined by OIG are investigated by ICE’s Office of Professional Responsibility (OPR).
In Monterrosa’s case, OPR investigated the PREA allegation—which was prompted by an anonymous call in November 2017, several months after the abuse allegedly began—and worked with the Williamson County Sheriff’s Office, the local law enforcement agency that had jurisdiction over Hutto, on its criminal investigation, sometimes jointly conducting interviews.
Erica Gammill, a prisoner advocate at the Texas Association Against Sexual Assault, where she monitors detention centers to ensure they’re handling sexual assault allegations properly, told Rewire.News and Latino USA that PREA clearly outlines the steps agencies need to take when conducting a sexual assault investigation. It can be “confusing,” however, to determine which agencies step in and why, even for her, and she’s worked on issues related to PREA for years. It can also be difficult to understand who has what information and who is sharing that information with others, she said.
But it is clear that when a PREA investigation launches, there are two sets of interviews: “one administrative, one criminal,” Gammill said in an email. “One investigation can conclude in a finding sooner than the other, and the conclusions can differ.”
For Monterrosa’s investigation, the first set of interviews appears to have been part of a criminal investigation with the Williams County Sheriff’s Office, during which OPR officials interviewed Monterrosa, her alleged abuser, and three witnesses Monterrosa named. The second set of interviews appears to have been part of OPR’s final administrative report on the PREA allegation, during which investigators interviewed current and former Hutto employees.
Both investigations reached the same conclusion: Monterrosa’s allegations were unsubstantiated. The criminal investigation concluded in November 2017, while the administrative investigation concluded in August 2018.
But what happens if new information emerges in the second set of interviews? Would that prompt investigators to take another look at criminal charges? That doesn’t appear to be the case given that a former guard called into question the testimony of Monterrosa’s alleged abuser during the second set of interviews. The former Hutto employee explained in a November 8, 2018 interview that when she resigned from her role at the detention facility about a year prior, she confronted Monterrosa’s alleged abuser and told her she was going to report the “suspicions she had regarding the ‘relationship’” between her and Monterrosa. But it seems this admission did nothing to prompt investigators to take another look at Monterrosa’s allegations.
Although the interviews did not support Monterrosa’s claim, the transcripts, which Rewire.News and Latino USA obtained through a Freedom of Information Act (FOIA) request, shed light on the way ICE officials handle these cases.
ICE in collaboration with Williamson County detectives conducted the first set of interviews on November 6, 2017. But they didn’t go quite as Monterrosa expected. A fellow detainee Monterrosa named as a witness denied having any knowledge of a relationship between Monterrosa and her alleged abuser or that any abuse had occurred. The guard Monterrosa accused of abuse claimed during her interview that it was actually Monterrosa who had complimented her “eyes and eyebrows.” The guard said she informed Monterrosa “she was not a lesbian.” And she said that she had never had a sexual relationship with Monterrosa, “had never physically touched her in any way, sexual or non-sexual,” and had never been touched by Monterrosa or verbalized any romantic feelings toward her.
Monterrosa said in her interview that she was denied access to her attorney for the first 10 minutes of the interview, which she explained in an affidavit. The documents obtained by Rewire.News and Latino USA reference this. Williamson County detectives wrote in its report of the day that “Monterrosa was uncertain as to whether she wished to speak with both detectives” and “Monterossa inquired about having her attorney present.”
Monterrosa also said the questioning from investigators “felt like an interrogation.”
“The interviewers acted as if I were lying or as if I had committed a crime, instead of treating me as victim of sexual assault and sexual harassment,” Monterrosa said in the affidavit.
At times, the investigation conducted by ICE and Williamson County does read as if Monterrosa was the one being examined. According to the detectives who interviewed Monterrosa, detainees came forward to Hutto officials with “volunteer statements” about Monterrosa, saying she “harrasses” them to the point of being “annoying.”
The detectives’ report seems to build support for the guard that allegedly abused Monterrosa. In it, they write that the guard is a “well-respected employee by both the staff and residents” and that she has “never been subject of investigation at the facility.” The report also noted that Monterrosa’s alleged abuser “identifies as hetereosexual and is married to a man.”
Ultimately, it seems the deciding factor in the criminal investigation was a lack of evidence.
As Rewire.News reported in part one of this series, the Mexican American Legal Defense Education Fund (MALDEF) filed a complaint against Hutto on Monterrosa’s behalf, alleging that several video cameras at the detention center do not function and “CoreCivic does not maintain a sufficient number of cameras to properly monitor the recreation area,” where Monterrosa alleges she was assaulted.
A spokesperson with CoreCivic, the private prison company that contracts with ICE and employed the alleged abuser, said MALDEF’s claim is “patently false.”
“The facility’s camera security system and video retention processes and policies adhere to our government partner’s requirements. They are subject to their oversight and approval,” the spokesperson said in a statement to Rewire.News.
According to the documents obtained by Rewire.News and Latino USA, a detective with Williamson County attempted to access Hutto’s surveillance system to review activity in the gymnasium for July 17, 2017, when Monterrosa alleges she was assaulted. But Hutto officials working for CoreCivic told the detective that “the surveillance system only holds data/recordings for 90 days before recording lapses.” The detective also noted in the final report that data from the surveillance system is not stored in a cloud or server “unless it has been extracted.”
Because there was no footage to prove Monterrosa’s allegations, in the end it was Monterrosa’s word against her alleged abuser’s. But, as the detective explained in the report into her allegations, it wasn’t enough. “This investigation has been closed due to no evidence supporting any offense has occurred.”
PREA Audits: “Where the Rubber Meets the Road”
Overseen by the U.S. Department of Justice, PREA rolled out in prisons in 2003. It took DHS 11 more years to adopt PREA for ICE detention centers. And because PREA audits of ICE facilities are conducted every three years, ICE didn’t begin conducting PREA audits of detention facilities until 2017.
Gammill explained to Rewire.News and Latino USA that DHS adopted its own standards rather than apply the same ones used by the DOJ. “On their face,” said Gammill, DHS’ standards are “good” and, in theory, the policies and procedures would “hold perpetrators accountable and get resources to survivors.”
“Unfortunately, what we’ve seen is the policies that exist are not being placed into practice,” Gammill said. “And that’s really where the rubber meets the road.”
While digging into Monterrosa’s case, Rewire.News and Latino USA learned that DHS audits are carried out by private companies, raising its own set of issues.
According to an ICE spokesperson, DHS standards require that “an independent, third-party auditor” conduct the PREA audits. The spokesperson said OPR oversees these audit contracts and the auditors must undergo specific training and become certified by the DOJ. Where things get dicey is that ICE helps coordinate the training and certification of PREA auditors.
In Monterrosa’s case, this means that when she came forward with her allegations of sexual abuse, OPR had to investigate her alleged abuser, who was an employee of CoreCivic Essentially, an office within the agency that contracts with private companies to operate detention facilities is tasked with overseeing auditor trainings and contracting with the private companies that will conduct them.
There is a financial incentive for these private companies to give detention centers a passing PREA audit, especially if they want to continue receiving these federal contracts.
Of the 31 PREA audits of ICE facilities publicly available by publication time, 23 were carried out by the private, Maryland-based company the Nakamoto Group, whose clients include DHS and the DOJ. On its website, Nakamoto promises these agencies that it will “ensure” their “federal funding is not jeopardized due to PREA deficiencies.”
In 2017, each of the ICE detention centers audited by the Nakamoto Group were found to be in compliance with PREA, even those that had multiple allegations of sexual assault emerge in news reports during the year the audit was conducted.
Linda McFarland, executive director of Just Detention International, which is working to end sexual abuse in prisons and detention centers, trains PREA auditors. She told Rewire.News and Latino USA that they must abide by the PREA handbook, which outlines strict methodologies for conducting audits of detention centers. Auditors are supposed to be at the detention center for several days, look over as many documents as possible, and speak to as many people as possible, including detainees, detention center staff, and outside advocacy groups.
If the facility is found to have PREA violations, the auditor provides a corrective action plan and ICE has 180 days to bring the facility to code. Once this process is complete, ICE makes the final PREA audit public on its website.
Of the 23 PREA audits Nakamoto Group carried out in 2017, only four detention centers required a corrective action plan. As an example of how confounding this is, the notorious Eloy Detention Center in Arizona was not one of them. During the audit period, Eloy had at least 30 reports of sexual abuse. But the detention center’s PREA audit was just 12 pages, and the facility passed with no red flags.
The average Nakamoto Group audit is about 13 pages. In August 2018, when McFarland spoke to Rewire.News and Latino USA, the executive director said she had just completed a mock PREA audit; it was 190 pages.
McFarland said there has been a “lack of consistency amongst auditors” and, simply put, some are “really just not doing their job.”
The OIG had warned against the Nakamoto Group in a June 2018 report on the ways that ICE’s inspections and monitoring of detention facilities “do not lead to sustained compliance or systemic improvements.” While this is a different context in that these inspections are not PREA related, but rather have to do with the overall function of ICE’s detention facilities, the report provides insight into how the Nakamoto Group operates. According to OIG, “Nakamoto inspectors are not always thorough.”
“Because the Nakamoto inspection scope is too broad, ICE’s guidance on procedures is unclear, and Nakamoto’s inspection practices are not consistently thorough, its inspections do not fully examine actual conditions or identify all compliance deficiencies,” according to the report.
A new piece at Yahoo News from an investigator at the Project on Government Oversight examined the OIG report and noted Nakamota’s criticism of its findings. The company argued that the OIG doesn’t have the proper credentials to examine detention facilities. The investigator also quoted a former DHS official, Scott Shuchart, who said, “Nakamoto is not wrong that the OIG lacks specialized expertise in detention.” But, he added, “Nakamoto has no credibility because of the volume of problems it has failed to uncover at multiple facilities over multiple years …. It is a checklist driven, superficial inspection process.”
One of OIG’s most troubling observations of inspectors with Nakamoto Group is that they do not seem to speak to detainees who do not know English. According to the report, Nakamoto’s statement of work (SOW) with ICE requires inspectors to interview detainees who do not speak English, but OIG did not observe any interviews Nakamoto inspectors conducted in a language other than English, “nor any interviews in which inspectors used available DHS translation services. In fact, inspectors selected detainees for interviews by first asking whether they spoke English.”
Information related to the languages spoken in detention facilities is “hard to come by,” as Quartz reported in June 2018, but increasingly, detained migrants speak neither English nor Spanish. One study published in May 2015 found that almost 30 percent of families released from detention in Arizona that year spoke an indigenous language, and that figure was around 40 percent for families coming from Guatemala. The study found that migrants who speak indigenous languages have no way to communicate with federal immigration agencies or detention center staff.
Another part of the problem for private companies like Nakamoto seems to be the amount of work that must be completed by a small team in a short timeframe. The OIG report outlines how under its SOW with ICE, Nakamoto must determine compliance with all 39 to 42 applicable detention standards by examining more than 650 elements of the standards at more than 100 facilities a year. Typically, according to the report, three to five inspectors have only three days to complete the inspection, interview 85 to 100 detainees, brief facility staff, and begin writing their inspection report for ICE. Nakamoto inspectors told OIG “it was difficult to complete their work in the allotted time.”
McFarland walked us through Eloy’s audit, explaining how each section of the report should respond to a specific standard laid out in the PREA guidelines. McFarland said of the investigative standard in an audit, there are more than a dozen separate provisions, but in the Eloy audit, it said “nothing.”
“What the auditors are required to do is to describe in their report how they know that the facility met each provision of a standard,” McFarland said.
The multiple sexual abuse allegations at Eloy were documented in the PREA audit, but the auditor is supposed to look into what ICE did to investigate the allegations and whether the allegations were properly investigated, according to McFarland. In terms of the quality of the audit, McFarland said she could only “presume it was terrible.”
“Basically, it says nothing,” the executive director said. “This isn’t helpful to the PREA compliance manager at the facility. This doesn’t help them do better.”
ICE told Rewire.News and Latino USA that DHS standards “are silent as to whether an ongoing investigation into sexual abuse during a PREA audit should be referenced in the audit report” and that the DHS standards “do not preclude finding of facility compliance when sexual abuse allegations have been made at a facility.”
Latino USA producer Maggie Freleng was able to contact a representative from Nakamoto in August 2018. The representative, whose name is being withheld because they were not supposed to speak to media, said the “criticism wasn’t fair” and that they wouldn’t “look at someone else’s audit and say, ‘that wasn’t thorough.’”
The representative also responded to McFarland’s critique about the lack of information found in the Eloy audit by saying “she’s wrong,” and that auditors are only required to do what the PREA Resource Center (PRC) “tells them to do.”
“If we didn’t do what we were supposed to do, the Resource Center wouldn’t have approved and given the facility certification. They would have sent it back to us… so obviously she’s wrong,” the representative said.
The representative seemed to be under the impression that the PRC had final say regarding PREA audits of ICE’s facilities. But this isn’t correct, both McFarland and ICE say.
PRC provides assistance to those responsible for PREA audits and serves as as a “central repository” for research, trends, prevention, response strategies, and best practices addressing sexual abuse in prisons, detention centers, and other facilities. The center is the lead organization helping to implement national PREA standards, but at the end of the day, it’s OPR that reviews the audit reports to ensure the audits include all of the information required by DHS standards.
If bad PREA audits that do not meet reporting standards continue, McFarland pointed out, the buck stops with the DOJ, which certifies the PREA auditors employed by private companies that are contracted by ICE.
“To say [the PRC] wouldn’t have accepted the [PREA audits] is a little disingenuous because it wasn’t their job,” McFarland said. “The PRC is not their supervisor.”
Currently, McFarland said, there seems to be no mechanism for direct oversight of PREA audits of detention centers. When there is no oversight for poorly done audits, it is detained immigrants like Monterrosa who pay the ultimate price.
Hutto’s Audit and Creative Corrections
At 20 pages, the PREA audit of Hutto released in February is one of the most thorough audits ICE has ever published. And yet, despite years of documented abuse at the facility, Hutto passed its PREA audit.
The audit was done by another private company—Creative Corrections, LLC. Creative Corrections also conducts many of ICE’s death reports when a detainee dies in custody.
Monterrosa’s case is mentioned in passing in the Hutto audit—the auditor acknowledges three allegations of sexual abuse that occurred during the review period.
“At the time of the audit, one case remained open and a finding had not been determined. Due to this case remaining open, the auditor was unable to review it,” the auditor wrote. “However, the Auditor could review the two cases that were closed during this review period. They included one unsubstantiated resident on resident touching case, and one unsubstantiated staff on resident sexual abuse case.”
And while Monterrosa’s alleged abuser remained employed at Hutto during the investigation, the PREA auditor determined that the detention facility met the policy requirement for investigating the allegation with appropriate oversight. This is because Monterrosa and the guard were transferred to different units.
PREA guidelines dictate that auditors must attempt to communicate with community-based or victim advocates who may have insight into relevant conditions at the facility. Creative Corrections did not contact Grassroots Leadership, which runs a Hutto visitation program and advocated on behalf of Monterrosa and other women who say they were sexually abused while detained at Hutto, according to organizers with the group. Gammill also said she did not hear from the auditor.
Further, Monterrosa’s attorney with MALDEF told Rewire.News and Latino USA that Hutto was in direct violation of PREA in one instance that should have been included in the report: Standard 73 says the agency should notify the detainee of the result of their investigation when the detainee is still in detention. This did not happen in Monterrosa’s case.
As Rewire.News reported, we informed Monterrosa of the outcome of the investigation during a phone interview shortly after she was released from Hutto in March 2018. She said that no one, including ICE, informed her the investigation had concluded while she was still detained at Hutto. In fact, Monterrosa said she was under the impression that the investigation was ongoing.
Overall, however, experts with Just Detention International who reviewed the Hutto PREA audit for Rewire.News and Latino USA said the auditor did a “good job” and, generally speaking, Creative Corrections audits appear to be more thorough than Nakamoto’s. But Creative Corrections’ audits also should be taken with a level of skepticism, as a previous incident involving one of its auditors shows.
In 2014, Kurt Pfisterer conducted a PREA audit of the Boston juvenile detention facility Casa Isla. In news reports at the time, Pfisterer was cited as an “independent auditor” certified by the DOJ. He toured Casa Isla, interviewed staff, and four boys detained at the facility. According to a local news report, Pfisterer wrote in his audit that all the boys at the facility felt “very safe” and that, “All youth knew multiple ways to report abuse and felt very confident that any complaint they made would be properly addressed.”
In the same month of Pfisterer’s audit, the Massachusetts Department of Youth Services shut Casa Isla down amid reports of physical abuse, and the Suffolk County District Attorney’s Office charged eight Casa Isla employees with assaulting adolescent boys at the facility. Pfisterer’s defense was that he was auditing the facility for sexual abuse, not physical abuse.
Since then, Pfisterer has conducted at least one PREA audit of ICE detention centers for Creative Corrections; he audited the Mesa Verde Processing Center in December 2017.
In January of this year, Williamson County officially stopped contracting with ICE and CoreCivic for the T. Don Hutto Residential Center. Advocates say Monterrosa, whose case received an unprecedented amount of community support and media attention, likely influenced the decision, though officials with Williamson County would not confirm the role her case played in the decision.
While media reports largely framed this as a win, it also means that the Williamson County Sheriff’s Office will no longer investigate allegations of sexual assault that emerge from Hutto. Keep in mind, CoreCivic contracts with ICE to run Hutto, so in cases where guards are accused of abuse, OPR may be the sole agency investigating its own contractor.
When Monterrosa spoke to Latino USA and Rewire.News through a translator in July 2018, she said she knows that what happened to her is happening to other women in detention and they’re too afraid to speak out. Above all else, she hoped her case would shine a light on the fractured system to prevent abuse in immigration facilities from happening.
“ICE can manipulate and do as they want. The detention center does not protect anyone’s rights,” Monterrosa said.
Maggie Freleng, producer at large for NPR’s Latino USA, contributed to this report.
CORRECTION: This piece was updated to clarify the source at Nakamoto whom Freleng spoke to is a representative, not an auditor; to remove a comparison between DHS and DOJ auditors, since DHS auditors also must be former correctional officers; and to clarify that both Monterrosa and her alleged abuser were transferred to different units after the PREA allegation.
This article was originally published March, 13, 2019, on Rewire.News in collaboration with Latino USA; reprinted with permission. Subscribe to Rewire.News’ free newsletter or follow Rewire.News on Facebook or Twitter for daily updates. Copyright 2019 Rewire.News