Though BI is now the sole provider of electronic monitoring services for ICE, it is not the only corporate player in the game. Instead of contracting with ICE, Libre by Nexus acts as a middleman between the bail industry and immigrants eligible for bond.

While typically 10% of criminal bonds must be paid to secure release, immigration bonds must be paid in full and by someone with legal status in the United States. Traditional bail bond companies offer little help. Considering immigration bonds to be riskier than criminal bonds, particularly since cases can take much longer to resolve, they either charge steep interest rates or decline to post immigration bonds altogether.

Libre by Nexus was founded in 2013 to fill this vacuum. Libre relies on GPS technology to “reassure bond agencies that immigrant clients won’t run,” as The Washington Post’s Michael Miller put it. To be released from detention, an immigrant must pay 25–30% of the total bond amount to Libre, which takes a cut before passing the rest to the bond company.

On top of this upfront payment, Libre also charges user fees—until recently, it cost a Libre client $14 per day, or $420 a month, to “lease” an ankle shackle. These fees are nonrefundable, unlike the bond itself, which can be refunded if the immigrant abides by the terms of their bond. Michael Donovan, Libre’s cofounder and CEO, told The Post, “I care about our clients. It would be awesome to not have to charge them any money, but that’s not really the system we live in.”

Libre relies on GPS technology to “reassure bond agencies that immigrant clients won’t run.”

In recent years, Libre has faced mounting investigations and lawsuits, including a case brought last year by the Consumer Financial Protection Bureau, over allegations that the company deceives immigrants into signing predatory contracts, often in a language they cannot read, and paying exorbitant fees, often under the impression that payments are going toward the original bond.

Whether through misrepresentations or threats, many clients are led to believe that Libre is affiliated with ICE and that falling behind on fees will result in legal, financial, or even immigration consequences like redetention or deportation. Clients have reported skipping meals and rent payments to keep up with the monthly charges.

The growing fear that ICE would target him or his family members over his debt to Libre led one client to return to his home country, where he moves between relatives’ houses to avoid the gangs whose death threats led him to seek asylum in the United States in the first place. He told The Post, “[Libre] helped me get out of jail. But they only freed me so that they could imprison me all over again, and make me work for them.”

ICE’s own investigation into the company found no criminal wrongdoing. The agency’s report concluded that though the “alleged victims . . . may be in a desperate position,” the contracts had been “signed between [Libre and] competent adults.” In other words, Libre clients had made a choice.

ICE also frames participation in ISAP as a choice, according to Aly Panjwani, who authored a report on alternative-to-detention programs as a fellow with Just Futures Law and Mijente. Detained immigrants have to sign paperwork consenting to participation in ISAP. But to Panjwani, the choice between release on an ankle monitor and indefinite detention is a false one.

“It’s like the lesser of two evils,” said Eddy Zheng, founder and president of the New Breath Foundation. He was released on ISAP in 2007 after two years in immigration detention.

Zheng admitted his situation was unique. Before his time in ICE custody, he had spent 19 years in state prison. “I’d jump through whatever hoop that they had to put there because I wanted to be free, physically.” The hoops included being placed on an ankle monitor and reporting three times a week to an ISAP officer—on top of his weekly check-ins with his parole officer and occasional check-ins with ICE.

“It’s like the lesser of two evils.”

During his meetings with ISAP, Zheng had to share where he’d be and what he’d be doing until his next check-in, hour by hour. “I don’t know what I’m going to be doing on Saturday at 9 o’clock,” he remembered thinking. “But they don’t care. You have to write it down.”

Zheng was largely confined to his home outside of business hours, with curfews enforced by ankle monitor. Any call from ISAP could summon him back to ICE custody. The frequency of the check-ins wore on him, especially once he started working. Zheng’s attorney eventually helped him qualify for and post an immigration bond. The check-ins dwindled to once every six months.

It has become increasingly common for immigration judges to consider alternatives to detention during bond proceedings, according to Mary Holper, who directs the Immigration Clinic at Boston College Law School.

Before proposing electronic monitoring to a judge, Holper and her clinical students take care to confirm a client would prefer to be shackled with an ankle monitor than detained. “We want to make sure the client is on board with this and what this means—this idea that you are kind of going to be living in an electronic cage.”

More tensions await at the next step: convincing the immigration judge that release—or at least release on an electronic monitor—is a good idea. Holper and her students found themselves borrowing promotional language from the websites of ankle monitoring companies. Their arguments would sound something like: “You can let [our client] go because you can rest assured that someone will be watching him every moment when he’s in one of these electronic bracelets.”

Holper’s discomfort at cheering on “Jeremy Bentham’s panopticon” reflects what she has since deemed the “Faustian bargain” that electronic monitoring offers detained immigrants and their advocates.

Still, Holper acknowledges that getting clients out of detention and onto an ankle monitor can feel like a “huge win”—especially during the early days of the COVID-19 pandemic, when release became even more of a life-or-death matter. In addition to being able to return to their families and communities, nondetained immigrants have greater access to legal representation and therefore better chances in court.

“So long as option one is detention, everything is going to be better by comparison,” observed Jesse Newmark, an attorney at Centro Legal de la Raza. “But that doesn’t mean that it’s okay.”

Detention has not always been “option one.” Before the 1980s, detention was the exception, not the norm, in immigration enforcement. That changed during the war on drugs. As told by legal scholar César Cuauhtémoc García Hernández, “Congress sought to punish drug activity and the noncitizens who legislators thought were, to a great extent, its purveyors.”

Shortly before President Reagan announced his administration’s war on drugs, he ordered the mandatory detention of Haitian asylum seekers arriving at U.S. shores. Over the next two decades, Congress followed his lead, enacting laws codifying and expanding the use of mandatory detention. These policies targeted immigrants convicted of certain crimes, which presumptively made them dangers to the public or flight risks in the eyes of the law.

The agency that was charged with immigration enforcement at the time ran with this new presumption of detention, applying it not only to immigrants fitting Congress’s criteria but to all immigrants already in detention. If you had been detained, you were to stay put.

“The only way that alternatives to detention make sense is if you assume that everyone has to be in detention,” Holper noted. “If there’s a presumption of detention, then of course any alternative to that seems like a gift, but if you don’t start with that presumption, then why do you need an alternative?”

As with so many elements of civil immigration enforcement, electronic monitoring first took root in the criminal legal context, where it was envisioned as a “progressive alternative to imprisonment.”

Michelle Alexander, civil rights lawyer and author of The New Jim Crow, takes issue with this characterization. In in a 2018 op-ed titled “The Newest Jim Crow,” she wrote, “Many reformers rightly point out that an ankle bracelet is preferable to a prison cell. Yet I find it difficult to call this progress. As I see it, digital prisons are to mass incarceration what Jim Crow was to slavery.”

Alexander warned of “a system of ‘e-carceration’ that may prove more dangerous and more difficult to challenge than the one we hope to leave behind.” “E-carceration,” coined by activist and writer Malkia Devich-Cyril, is “the use of technology to deprive people of their liberty.” The term encompasses a whole host of technologies, ranging from license plate readers to risk assessment algorithms, but electronic ankle shackles remain the most familiar example. Through the lens of e-carceration, electronic monitoring is not an alternative to incarceration as much as it is an alternative form of incarceration.

The experiences of immigrants on ankle shackles bear this out. A 2021 study found that the effects of ankle monitoring mirror the effects of detention: physical harm, mental trauma, social isolation, financial hardship, and destabilized families and communities.

Many respondents to the study’s survey grappled with still feeling confined despite their release from physical incarceration. One individual summed it up: “I’m happy for my freedom, but I don’t feel free. I want to be free, free.”

For Zheng, the hardest part was the constant reminder that he might be deported. After being locked up for 21 years, he had looked forward to living as normal a life as possible. But while enrolled in ISAP, he did not feel free to plan for the future. Buying a car or a house seemed pointless when he was wondering if he was about to be “put on a plane.”

“E-carceration . . . is opaque. It represents in my mind a kind of slow violence,” Devich-Cyril reflected during a recent webinar discussion on the future of surveillance and mass incarceration. “It’s framed as humane but, to me, it’s the very mundanity of it—of these tools—that is actually so incredibly brutal.”

“I’m happy for my freedom, but I don’t feel free. I want to be free, free.”

The specter of choice, the abstractness of technology, and the isolation of its subjects all work to hide the harms of e-carceration—as well as those behind the harms. As Holper put it, unlike a detention facility, an ankle monitor is “not something you can stand outside and protest.” On the webinar, Devich-Cyril referred to this as “invisibilization . . . the invisible nature of this kind of coercive power and the danger of that.”

Another core feature of e-carceration, as Devich-Cyril conceptualizes it, is “this way [it] helps states become indebted to corporations and corporate power.”

Public-private partnerships, real and imagined, power e-carceration. In the immigration context, the state-sanctioned partnership is the contractual relationship between ICE and BI. Though Libre now clarifies on its website that it is a “private, for-profit organization,” the experiences of past and present clients reveal that the company has long traded on its mistaken affiliation with ICE.

It’s no wonder why corporations like BI and Libre have found their way to the ankle monitoring of immigrants. The profits are enormous. BI’s new $2.2 billion, five-year contract with ICE averages out to $440 million per year. Under the Trump administration’s draconian immigration policies, Libre’s yearly income doubled to more than $60 million.

The market structure is also ideal. BI, as the sole contractor running ICE’s primary alternative to detention, and Libre, which appears to be the only provider of its kind so far, face no competition in the niches they have carved out for themselves in this market.

As corporations, however, BI and Libre always have their sights trained on even more profit. And there are several ways to get there. To maximize their earnings from electronic monitoring, these corporations still have a stake in the increased detention of immigrants—so that more individuals overall can be considered for alternatives offered by BI or require bonding out by Libre.

Back in 2017, Libre CEO Donovan said he wasn’t concerned that President Trump’s plans to build more detention centers might hurt his business. For private prison companies also in the business of detention, like BI’s parent company GEO, this means that campaign contributions and lobbying expenditures made with an eye toward detention policies continue to serve them well.

As it turns out, they can have the best of both worlds. Though advocates of alternatives to detention—including the Biden administration—maintain that such alternatives will shrink the population of detained immigrants, a comparison of the available data shows that, at least prior to the COVID-19 pandemic, the very opposite had been true.

Any fluctuations in the number of immigrants in detention have paled in comparison to the rise in the number of immigrants enrolled in alternatives. Instead of replacing detention, electronic monitoring has offered a way for ICE to track immigrants who would have never been detained in the first place. This expansion of the pool of candidates for so-called “alternatives to detention” has led to rapid growth in the use of electronic monitoring—and the profits available.

During the early years of ISAP, ICE enrolled only immigrants who fell within specific, selected categories:

(1) [those] who are in removal proceedings but have not yet been issued final orders of removal and may be at risk to flee; (2) [those] who have been issued final orders of removal and are considered dangerous, but who cannot legally be held in custody any longer; and (3) [those] with final orders of removal who have been released from custody on general orders of supervision, but who have violated their orders by committing crimes or otherwise failing to comply with release conditions.

And in 2009, the first year of ISAP’s nationwide expansion, ICE issued policy guidelines stating that an immigrant should be released entirely from detention if “[their] identity is sufficiently established, [they] pose[] neither a flight risk nor a danger to the community, and no additional factors weigh against [their] release.”

Now, however, these “low-risk individuals,” including asylum seekers with extensive community ties and mothers released from family detention, are routed into ISAP.

Lobbying could explain this shift. In 2021, BI’s parent company, GEO Group, disclosed $3.6 million in lobbying expenses, focused on “promoting the benefits of public-private partnerships” not only in “the delivery of support services in secure correctional and detention facilities” but also in “electronic and location monitoring services.”

Libre’s founders are themselves former lobbyists on behalf of the bail bond industry. They now hire their own lobbyists. CEO Donovan told The Post that his company is pushing for immigration reform “that would put [Libre] out of business.”

But in a country that has failed time and time again to pass comprehensive immigration reform, his solution centers not policy proposals but business development: “What we’re going to end up with is internment camps along the Southern border, and people wasting away in them. And I know that we are the only hope that a significant number of those people will have. . . . So I’ve got to figure out a way to grow our business to serve more of them.”

Libre and BI’s profits further depend on the length of time an immigrant is being monitored. “They try to keep the ankle monitor on as long as they can,” Zheng said. “They’re not trying to get it off of you.”

There is no formal limit on how long an immigrant can be sentenced to an ankle shackle in the civil immigration system, but the criminal legal system has embraced lengthier and even permanent ankle monitoring. Some Libre clients are shackled for so long that their total fee payments have surpassed the amount of their original bond.

This of course also has to do with the high fees set by Libre, another avenue to increasing profit. The federal government currently pays BI for the costs of electronic monitoring. However, electronic monitoring in the criminal context has seen the rise of “no-cost contracts” for the government, which live up to their name by passing costs onto the people being monitored. This model could become the latest trend imported from criminal enforcement to immigration enforcement, which would allow BI to charge user fees like Libre.

The profiteering by BI and Libre is not all that surprising. After all, it is a corporation’s existential purpose to maximize profits—its value to shareholders. In fact, its directors and officers have legal duties to ensure that they act in the interest of those shareholders.

Corporate law offers no protection to other constituencies, leaving the job to other areas of the law—like government regulations or private contracts. But it is difficult to see how that plays out in the context of immigrant e-carceration, where the government cedes oversight of state functions to corporations and where the contracts present a false choice.

Some immigrants subject to electronic monitoring by Libre have found success with consumer protection laws. A class action by Centro Legal de la Raza and its partners led to a $3.2 million settlement in 2020 that included payments and debt relief to current and former Libre clients.

Libre also agreed to certain changes to its business practices—including no longer using ankle shackles. As part of the settlement, the company committed to transitioning to “wrist bracelet monitor[s] or other similarly less intrusive monitors, such as cellular telephones or periodic check-ins.”

Reflecting on the case, Newmark, Centro’s litigation director, said, “Most meaningful to me, we were able to get a number of policy changes that our clients thought were most important.” Ending Libre’s use of ankle monitoring was one of those priorities for the four plaintiffs who brought the class action on behalf of their fellow Libre clients.

Still, when going up against corporations, class actions and other civil litigation offer a limited tool. Lawsuits are geared toward winning financial compensation for discrete harms rather than wholesale changes in corporate policies and practices, according to Newmark.

“You can look for things that break specific regulations. . . . ‘Don’t do this. You’re clearly violating this. You have to stop that,’” Newmark explained. “But in terms of ‘Hey, we’d like to see less of this, more of this’ or ‘This practice has to be done better,’ when those practices are problematic but not unlawful, it’s difficult to get that done through a class action. The only option is to negotiate to try to get the corporation to agree to those changes, using its liability for any actual legal violations as leverage.”

Like virtually all settlement agreements, the one between Centro’s plaintiffs and Libre also clarifies that it does not represent “an admission or concession by [the] Defendant of the validity of any claims or of any liability or wrongdoing or of any violation of law.”

In addition, corporations have plenty of legal maneuvers up their sleeves that can limit their liability from the get-go. The ankle monitor that almost cost Jesus his foot was provided by Libre. He told The Post that Libre had promised to cover his $1,500 hospital bill. And in exchange for a few months of fee forgiveness, he signed a document agreeing not to sue Libre.

After Jesus returned home from the hospital, Libre never paid his medical costs. However, the company did dispatch employees to his door with a replacement shackle, which they placed on his other foot.

Even if Jesus had planned on suing Libre for his injuries, he could have found himself battling a hydra. Libre, in reality, is not one corporate entity. There are several: Libre by Nexus, Nexus Services, and even Homes by Nexus. Libre by Nexus is a wholly owned subsidiary of Nexus Services, and both are incorporated in Georgia. Libre’s use of corporate “alter egos” came to light in a lengthy legal dispute with RLI Insurance Company.

As a surety bond company, RLI was responsible for posting the immigration bonds of Libre’s clients. RLI sued Nexus Services for failing to pay when clients breached their bonds. According to the judge in the case, when RLI demanded information about the company’s financial status, Nexus “wall[ed] off access to the records of the related entities, Libre and Homes, denying they were alter egos for Nexus” or parties to any agreement with RLI.

But Libre and Nexus have identical officers and directors, including CEO Donovan, and commingled their money—Libre’s funds frequently were used to pay off Nexus’s expenses without proper accounting. Additional details about the company’s finances finally did come to light over the course of the lawsuit, including corporate spending on shopping sprees at Saks, Bloomingdale’s, and Versace—and a $83,000 Ferrari.

Even if Jesus managed to nail down the right corporate entity, it could declare bankruptcy. Corporate law then would place him, as a tort victim, last in line to be compensated, well behind Libre’s creditors. Typically, banks get first dibs, followed by groups like suppliers and contractors. Following in RLI’s footsteps, other former business partners have since brought their own multimillion-dollar lawsuits against Libre for debts over ankle shackles and legal fees.

As for BI, its contract with the federal government stipulates that BI’s ISAP officers cannot speak with or allow the presence of attorneys at their check-ins with immigrants in the program—check-ins that can result in redetention by ICE and affect immigration case outcomes.

There is also little transparency regarding the authority ICE has delegated to BI over ankle shackles. Though ICE decides first whether to impose ankle monitoring as a condition of release, it remains unclear who—ICE officers or ISAP officers—can remove (or reimpose) the shackle, with anecdotal reports suggesting that both have some discretion.

But rules on the collection and use of GPS data from electronic monitoring are lacking, which effectively renders it “a form of unregulated state and corporate surveillance.”

When state functions like immigration enforcement are privatized, the corporations involved can—in the words of Devich-Cyril—“shield themselves from contestation . . . hid[ing] themselves inside of government so they become hard to see, and yet they have indebted states to them.”

ICE’s dependence on BI reached a new level on August 7, 2019, the day of one of the largest immigration raids in U.S. history. In coordinated sweeps across six cities in Mississippi, ICE arrested nearly 700 people at different food-processing plants.

Unsealed search warrants later revealed that the agency, for the first time, had relied on GPS data from the ankle monitors of dozens of immigrants to target the operation. Immigrant advocates immediately raised concerns about ICE’s authority to do so. But rules on the collection and use of GPS data from electronic monitoring are lacking, which effectively renders it “a form of unregulated state and corporate surveillance.”

The partnership between state and corporation makes meaningful accountability even more elusive. Panjwani noted that a corporation is not subject to the same level of oversight by the government as ICE is. “Even the regulatory oversight that ICE has over it is still not sufficient in ensuring that there’s any real accountability,” he said. “And then you introduce a corporation and a private entity that is not required to play by the same rules, which makes it even worse.”

In effect, ICE’s partnership with BI loosens the rest of the government’s hold on the agency. And their shared discretion blurs the responsibility for certain decisions, making it harder not only for congressional committees to take ICE to task but also for immigrants to request removal of their shackles.

And the possibility of broader surveillance compounds the harms of e-carceration. Holper noted that an immigrant on an ankle monitor may believe that they could, at any point, “turn in” their communities, including loved ones who are undocumented.

In response to the 2021 survey, one mother reported that fears surrounding surveillance caused people to distance themselves from both herself and her family: “[T]he parents of my daughter’s friends were afraid to meet with her. . . . [T]hey were afraid of being discovered by ICE due to being close to me.”

Another parent shared that her experience of being shackled “greatly impacted the mental and emotional health of [her] 9-year-old daughter who is still undergoing psychological therapy.”

Yet BI’s slogan is “strengthening communities through innovation.” On the company’s website, the phrase appears over looped footage of parents playing with their children. Between stock photos of families, Libre’s website boasts, “Over 20,000 families reunited!”

Despite their perpetuation of e-carceration’s harms against the immigrants they shackle and their communities, the very fact that these corporations are in the business of electronic monitoring allows them to co-opt decarceral logic. So far, the Biden administration has bought in.

Since President Biden took office, the number of immigrants monitored by ICE in alternatives to detention has more than doubled—though the technology used to monitor them is changing. According to Panjwani’s report, there appears to be a shift underway from BI’s ankle shackles to BI’s “SmartLINK” app.

ICE claims that unlike an ankle monitor, the app does not track a person’s location in real time. But the software behind the two remains one and the same. Called “BI TotalAccess,” it enables ISAP officers to monitor the current GPS coordinates of their clients.

“A lot of the very same physical, emotional, and mental trauma that ankle shackles cause also result from the SmartLINK application,” Panjwani said. “Even though it’s not a physical object necessarily on your body, it does have physical and mental consequences, knowing that an app is constantly watching you and possibly hearing what you’re saying at any given time.” He shared that he’s received anecdotal reports of ISAP officers at check-ins referencing topics of prior conversations that SmartLINK users have had in the privacy of their homes.

Libre is not far behind. After the company agreed to stop using ankle shackles in settlements with Centro’s clients and other litigants, a 2020 press release announced Libre’s move from “body affixed GPS devices” to “an innovative mobile app that will revolutionize the way the company provides assistance and relief for its clients nationwide.”

“Even though it’s not a physical object necessarily on your body, it does have physical and mental consequences, knowing that an app is constantly watching you and possibly hearing what you’re saying at any given time.”

There was no mention of lawsuits. Instead, the statement focused on the loss of a client to COVID-19. CEO Donovan shared his anguish over Libre’s inability to remove the client’s monitor from his body before his death, due to the hospital’s pandemic precautions. This experience, he said, led the company to accelerate an already-planned transition to an app.

The press release went on: “[O]ver 7,000 program participants will have the opportunity to have their electronic monitors removed—marking the single largest known liberation event in the history of electronic monitoring in the United States.”

It appears there is a new lesser evil on the horizon. Ankle monitors are out, and apps are in. As immigrants are presented with more “choices”—between walls and shackles, between shackles and apps—the words of e-carceration survivor and expert James Kilgore offer a compass: “We’re fighting for people to be free. It’s not an either-or . . . . It’s not either jail or a monitor. The third choice is freedom.”

From The [F]law:

• Emma Leibowitz, First Make A Profit: Health Care and the True Price of For-Profit Immigration Detention
• Tala Alfoqaha, Marketplace of Violence: Bidding for Brutality Among Minnesota’s Police
• Adriel Williams, The Costs of Carceral Communications: How a Prison Telecommunications Company Exploits Incarcerated People and Their Loved Ones
• Anna Bower, Shots Fired, and Profited On: Inside the Campaign against “ShotSpotter” in Chicago

 

From The Systemic Justice Journal:

• Austin Nielsen-Reagan, The Profitability of Inhumanity: How Corporate Power Gives Rise to Forced Labor in Privatized Immigration Detention
• Adira Levine, Can’t Get Back Up: The Growth and Toll of Private Probation
• Harvard Law Student, Corporate Racial Justice Washing: Explaining Corporate America’s Coalition with Racism’s Meta Script