Audit of the Department of Justice, Office of the Federal Detention Trustee

Audit Report No. 05-04
December 2004
Office of the Inspector General

Two components within the Department of Justice (Department or DOJ) - the U.S. Marshals Service (USMS) and the former Immigration and Naturalization Service (INS) - were historically responsible for the detention of persons in federal custody awaiting trial or immigration proceedings. However, two components performing essentially the same function resulted in a fragmented management structure over federal detention. To centralize the detention function with the Department, Congress acted upon the DOJ's recommendation and established the Office of the Federal Detention Trustee (OFDT) in Fiscal Year (FY) 2001. This centralized command structure was envisioned as key to realizing cost-savings and gaining efficiencies. However, detention in the DOJ changed in 2003 when the INS was transferred to the newly formed Department of Homeland Security (DHS). Detention of aliens is now the responsibility of the DHS Bureau of Immigration and Customs Enforcement (ICE). This change has presented major challenges for the OFDT. However, this change is only one of the numerous obstacles that the office has encountered in its short existence. In this Introduction, we provide background information on detention and the establishment of the OFDT. The INS transition to DHS and the other obstacles faced by the OFDT are discussed individually in Finding 1. Nature of Detention Detention refers to the temporary holding of individuals charged with federal crimes or pending immigration hearings or removal proceedings. Ideally, detainees are housed near court locations in the proper jurisdiction or in proximity to alien removal locations. Detention facilities can be federal, state or local, or private. The USMS and ICE have housed detainees in all three types. According to the OFDT, detainee housing and subsistence in non-federal facilities constitutes about 90 percent of its total program costs. Detention space in state or local jails is obtained through the execution of Intergovernmental Service Agreements (IGAs). These are agreements whereby state and local facilities provide bed space for federal detainees on a per diem basis. Once the daily rate is negotiated and the IGA is signed, the jail provides bed space as available and needed; however, bed space is not guaranteed. The USMS and ICE have established over 1,500 IGAs across the country, about half of which are utilized at a given time. In contrast to detention, incarceration refers to the confinement of individuals convicted of and sentenced for federal crimes. The Federal Bureau of Prisons (BOP), whose primary responsibility is incarceration, has played a supporting role in detention activities by housing a portion of federal detainees in BOP stand-alone detention centers and units in correctional facilities.7 Detention differs markedly from incarceration in terms of population stability. Detention is temporary in nature and entails the constant movement of detainees in and out of facilities, while incarceration is more long-term and involves less movement of individuals. Growth of Detention As shown in the following graph, federal detention has grown significantly. On average, the number of detainees increased at an annual rate of almost 12 percent between 1994 and 2003, resulting in a total increase of over 171 percent. Detained Criminal Defendants and Aliens8 [Image Not available electronically] Source: Office of the Federal Detention Trustee Such growth has generated the need for additional funding for bed space, transportation, medical costs, support services, and associated personnel. In FY 1994, when 25,675 detainees were being held by the Department as of September 30, a total of about $690 million was expended for detention. In comparison, when the FY 2003 budget was prepared, the administration requested over $1.3 billion for detention, about $700 million for the USMS and $600 million for the INS.9 Over this same 10-year period, the average per diem rate for non-federal detention beds in use rose from about $54 to $61. This represents a modest 13-percent increase compared to the 171-percent increase in the number of detainees. The OFDT attributed the growth in detainees to new law enforcement initiatives, departmental and agency policies, and laws enacted by Congress that resulted in increasing numbers of arrests or apprehensions of illegal aliens or individuals suspected of violating federal laws. The Detention Problem Longstanding Department concerns with the cost, efficiency, and safety of federal detention resulted in detention space being considered a "material weakness" and one of the Top Management Challenges facing the Department. Over the years, the Department has examined these problems with studies, reports, and the Detention Planning Committee (DPC), which was created in 1989 and headed by the Deputy Attorney General. In 2000, the DPC found that the Department lacked a systemic method of identifying or coordinating bed space needs. For example, the USMS and INS used different means and methods to predict detainee populations, making it difficult to plan for overall detention needs in the Department. Additionally, the USMS and the INS were acting independently and did not utilize a standard procurement process to obtain detention space. As a result, the two agencies were not able to benefit from potential economies of scale that might be realized during negotiations for detention space. In addition, the DPC found that the Department lacked consistent detention standards that applied to non-federal facilities utilized by each component. The lack of standards led to inconsistent practices, confusion among detention providers, and lack of accountability. Also, these facilities were not adequately monitored to ensure safe, secure, and humane conditions of confinement. Standards for inspections were inconsistent, inspection staff lacked subject matter expertise, and no system existed to ensure corrective action and follow-up. The DPC concluded that a central command structure would be the key to realizing cost savings and gaining efficiency in managing detention activities. As a result, in FY 2000 the Department asked the Office of Management and Budget (OMB) for approval to establish a "Detention Trustee" to oversee detention functions within the Department. OMB concurred and forwarded the request to Congress. Establishment of the OFDT In response to the Department's request and in recognition of the continuing difficulty in planning for and obtaining detention space, Congress established the OFDT in FY 2001. The law provided that the OFDT was to: [E]xercise all power and functions authorized by law relating to the detention of Federal prisoners in non-federal institutions or otherwise in the custody of the United States Marshal Service and the detention of aliens in the custody of the Immigration and Naturalization Service...10 According to the OFDT, the initial objective of the office was to centralize responsibility for detention to better manage and plan for needed detention resources without the prospect of unwanted duplication of effort or competition with other Department components. With this broad authority and responsibility, the OFDT stated that it was expected to implement business process improvements and identify areas where operational efficiencies and cost-savings could be realized. Language in a House of Representatives report related to the legislation creating the Detention Trustee directed the OFDT to focus on two regional detention pilot projects ("hot spots") to examine the efficiency of centralizing detention operations into a single office.11 According to the OFDT, the office was also tasked with conducting a needs assessment of detention and detainee handling requirements and describing the present efficiency and effectiveness of all aspects of detention and detainee handling. This assessment would establish a baseline against which subsequent process improvements and the efficiency of consolidation would be measured. Additional responsibilities included developing and implementing consistent detention standards that would apply to non-federal facilities utilized by the Department. Also, the OFDT was responsible for ensuring that these non-federal facilities complied with the standards by carrying out a quality assurance inspection program. Further, the OFDT was to develop and implement a national repository for state and local governments and private detention space providers to electronically post space availability, rates, and any included services such as transportation and health care programs. Audit Objectives The objectives of this Office of the Inspector General (OIG) audit were to: 1) review the funding and the accomplishments of the OFDT since its inception in FY 2001; 2) determine how the OFDT coordinates and oversees detention activities within the Department; and 3) examine the OFDT's plans and goals for managing detention needs. Details of our scope and methodology are presented in Appendix I. Footnotes Funds for detainees held in BOP facilities are included in the BOP's budget. Population counts represent the population on September 30 of each year. As of July 31, 2004, the total population was 72,956; 52,951 were in USMS custody and 20,005 were ICE detainees. Since the INS was transferred out of the DOJ in March 2003, the FY 2003 budget was the last time federal detention costs were budgeted together. The DOJ detention budget for FY 2004 was originally approved in January 2004 at $814 million. Public Law 106-553, enacted on December 21, 2000. House Report 106-680 was silent as to the exact locations of the "hot spots" to be addressed; however, the pilot projects were to be located in the Midwest and along the Southwest Border. The OFDT selected the specific locations as Chicago, Illinois, and El Paso, Texas/Las Cruces, New Mexico. More information on these projects can be found in Appendix II.