Anyone who serves time for a federal crime will end up in what prison experts say is the best-run system in the country: the Federal Bureau of Prisons. But if you’re not a U.S. citizen, you could end up in one of 11 facilities that don’t have to follow the same rules – and are run by private companies instead of the government.
This hour of Reveal investigates medical negligence in this parallel private prison system for immigrants. We also expose the shift in criminal justice policy that helped fill up these prisons.
Medical negligence in immigrant prisons
For years, journalists and advocates have raised questions about medical care inside private federal prisons for noncitizens, especially in the wake of riots that inmates said were sparked by medical negligence.
This segment exposes the truth behind those complaints, relying on extensive medical files obtained by Investigative Fund reporter Seth Freed Wessler. The files show case after case in which lower standards and less-qualified, less expensive workers together create a medical disaster.
Relying on those files and the testimony of inmates and prison workers, Reveal’s Stan Alcorn and Wessler tell the story of one of those medical disasters: the case of Nestor Garay.
- Read: The consequences – sometimes fatal – of cost cutting at privatized prisons
When crossing the border is a federal crime
While politicians debate border security, criminal charges for crossing the border have been steadily increasing for decades. More people are prosecuted for immigration-related federal crimes than for all other categories combined – white-collar crime, drugs, weapons, etc. This population makes up 40 percent of the inmates in private prisons for noncitizens.
This segment explains how these prosecutions work and how they became so prevalent through the story of one man, tracked down by Investigative Fund reporter Seth Freed Wessler.
Eloy Flores ended up incarcerated at a private prison in Big Spring, Texas, but he got there through a circuitous journey. Retracing his steps takes us through Baltimore, a Border Patrol processing center and a courtroom proceeding that is like nothing you’ve heard before.
Through interviews and exclusive audio obtained from the U.S. District Court, Stan Alcorn tells the story of Flores and his family.
Border Patrol under fire and under the microscope
One consequence of the ramp-up in immigration enforcement has been a doubling in the number of Border Patrol agents on the U.S.-Mexico border. As the force has expanded, it’s come with problems such as corruption, abuse of power and questionable use of force – all documented in an internal investigation.
Host Al Letson talks to reporter Andrew Becker about the troubles and efforts to reform the agency, asking the question: Will the Border Patrol be able to rebuild its reputation for upholding the law on the border?
Support for Reveal is provided by The Reva and David Logan Foundation, the Ford Foundation, the John D. and Catherine T. MacArthur Foundation and Mary and Steven Swig.
- Camerado-Lightning, “True Game (Reveal show theme)” (Cut-Off Man Records)
- Harry Nilsson, “Everybody's Talkin' ” from “Midnight Cowboy OST” (United Artists Records)
- Jim Briggs, “The Prisons (part 1)” (Cut-Off Man Records)
- Jim Briggs, “The Prisons (part 2)” (Cut-Off Man Records)
- Heathered Pearls, “Beach Shelter” from “Loyal” (Ghostly International)
- Podington Bear, “Constellation” from “Music for Video” (Hush Records)
- Jim Briggs, “The Prisons (descent)” (Cut-Off Man Records)
- Tim Koch, “Salamander” from “Cornelius Drive, Laid-Back Pop, Technology, Cinematic Suspense” (Ghostly Songs)
- KILN, “Fyrepond” from “Dusker” (Ghostly International)
- Jim Briggs, “A Dark Closure” (Cut-Off Man Records)
- KILN, “Rustdusk” from “Dusker” (Ghostly International)
- KILN, “Tigertail” from “Dusker” (Ghostly International)
- Burial, “Rough Sleeper” from “Truant / Rough Sleeper EP” (Hyperdub)
- Aeroc, “My love, the wave break” from “Viscous Solid” (Ghostly International)
Reveal transcripts are produced by a third-party transcription service and may contain errors. Please be aware that the official record for Reveal's radio stories is the audio.
Section 1 of 3 [00:00:00 - 00:14:04] (NOTE: speaker names may be different in each section)
Al: From The Center for Investigative Reporting and PRX this is Reveal. I'm Al Letson. The number of border patrol agents guarding the US-Mexico border has nearly doubled in the last 10 years and the consequences for the people they catch have gotten more serious.
Speaker 2: Order in the court, all rise.
Al: Each year more than 70,000 people are prosecuted for immigration crimes.
Speaker 3: All the immigrant were looking around, everybody's locked off form their ankles, knees, waist and each other.
Al: They're filling up a new kind of federal prison, set up to save money. Inmates are paying the price, especially when it comes to medical care.
Speaker 4: What you're doing is you're putting barriers between that person who may have a medical emergency and the care.
Speaker 5: I know you want to ask me what would I do to correct the problem, I'd close this whole facility down and I'd start over again.
Al: Medical negligence in prisons that only house immigrants, that's coming up on Reveal.
Speaker 6: Reveal is supported by truebill.com. If you're like most people, you're paying every month for a service you don't use. True Bill is the easiest way to find, track and cancel subscription services and recurring bills. In less than a minute True Bill finds out who's billing you every month and gives you back control of your money. True Bill users save an average of $516 per year by cancelling unwanted subscriptions with a single click. True Bill's a free service, sign up today at truebill.com and see how much you can save. Reveal is also supported by Square Space, the simplest way to capture your passion with a beautiful website. If there's an idea or project that you're itching to show the world, you should. With Square Space's simple tools and captivating templates, showcasing your hard work is the easy part. Start your free trial today, visit squarespace.com/reveal, you should. Square Space.
Al: From The Center for Investigative Reporting and PRX this is Reveal, I'm Al Letson. Big Spring is a town of about 30,000 people at the edge of oil country in West Texas. It's the place down on his luck dishwasher, Joe Buck flees at the beginning of the 1969 cult classic, Midnight Cowboy.
Speaker 7: What are you going to do back to East?
Speaker 8: Hell, what do I got to stay around here for?
Al: Back then the towns economic engine was the Webb Air Force Base, but after the Vietnam War, the base shut down. Johnnie Lou Avery Boyd was president of the local Chamber of Commerce at the time and she says people thought the town was about to disappear.
Johnnie Lou: That's what scared them to death, I said, "You know, I only sold the roofing company and we're going to have all these vacant houses in town. There's not going to be anybody to repair these houses because there's nobody to sell them to." There's just that enormous pessimism that sets in when something really major bad is happening.
Al: Johnny Lou is no pessimist, she made calls and lobbied politicians to lower a new industry that took over the offices and dormitories in the heart of the old base. That industry was prisons, two low security federal prisons with one big difference. The first one was run by the government, and Johnny Lou describes it as the towns best friend. Inmates would come to church and decorate street lamps downtown at Christmas time, but the second federal prison.
Johnnie Lou: I don't think it was the same feel at all, I don't think it ever has been. It has not been something that is like a hated relative, it's more like well as a distant relative.
Al: That distant relative holds people convicted of federal crimes, but only ones who are not US citizens. It's run by a private company not the US government. It's one of 11 private prisons for non-citizens that the Federal Bureau of Prisons contracted starting in 2000 in the hopes of cutting costs. Recently, journalists and advocates have raised questions about how that cost cutting has affected the inmates after a series of riots.
Speaker 10: This is new at 10, an FBI affidavit details what happened during an almost 8 hour deadly riot.
Speaker 11: Housing units set on fire, inmates violently shaking the fence.
Speaker 12: The inmate told us they want the public to know the reason they're doing this is because an inmate was sick and they don't believe he was given the proper medical care.
Al: Inmates actually did so much damage to one prison, it had to be shut down and they did it in part over complaints of medical negligence. It's been nearly impossible to figure out what kind of medical care inmates are getting until now. Seth Freed Wessler, a reporter for The Investigative Fund, won a lawsuit to get a extensive set of medical files from these prisons. Then he spent a year tracking down the stories they contained, from Mexico to Mississippi to Big Spring, Texas. That's where Reveal's Stan Alcorn joins him on the story.
Stan: If you want to know what's going on inside a prison, you can't just walk in the front door and look around. In the case of Big Springs private federal prison you can get a pretty good look at the soccer fields. From the road through a couple barbed wire fences, you can see men in khaki and white streaming out of the squat tan building. Playing soccer, walking around in pairs around the track, the short guy by the soccer goal, he's playing an accordion.
Seth: I've been looking into what happens in these prisons for years, this is the closest I've gotten to getting inside.
Stan: From here Seth and I can see clues about what makes this prison different from the government run prison next door. The inmates are mostly speaking Spanish, again they're all non-citizens. The sign out front says Geogroup Inc., that's the private company hired by the Federal Bureau of Prisons to run the place. Inside the prison, especially when it comes to medical care, the big difference is in the rules they have to follow.
Seth: Generally speaking when prison experts talk about the Bureau of Prisons, they say that it's the best functioning prison system in the United States, but the kinds of rigorous policies that the Bureau of Prisons has developed to regulate staffing patterns and what kinds of workers do what in the provision of medical care. Those rules aren't applied to the BOP's private prisons.
Stan: Seth wanted to find out how that effects patients, so he filed a public record request that got him over 9,000 pages of medical files and internal investigations. Covering the entire 15 year history of these private prisons for non-citizens.
Seth: With handwritten notes from nurses and doctors, they're literally detailing minute by minute what's happening inside of medical clinics, inside of these prisons.
Stan: Seth had doctors read all these files and they found a pattern, cases where lower standards and less qualified, less expensive workers came together to produce a medical disaster. Seth and I came to Big Spring to tell the story of one of those cases. To understand what happened it helps to start before things went wrong, when the guy in charge of healthcare was Dr. John Farquhar. Between 2010 and 2014, he was the one doctor for the more than 3,000 inmates.
Dr. Farquhar: Technically I worked a 40 hour week, but you can't practice medicine on a 40 hour week, that's me.
Stan: Dr. Farquhar has rigid posture and a military haircut.
Dr. Farquhar: Hello.
Stan: At 85 years old, he's still practicing medicine full time, 7 days a week if he needs to.
Dr. Farquhar: I've always had a 7 day approach to medicine and I didn't see anything unusual about that.
Stan: He was unusual, when compared to the other doctors in the prison medical files.
Seth: He was writing more notes than just about any other doctor in any of the other prisons. He was there all the time.
Stan: Whereas in other private prisons for non-citizens medical notes were being written and medical decisions were being made by low level medical workers, often licensed vocational nurses with only a year of training.
Seth: The minute I started reading what he was writing.
Stan: Some of Dr. Farquhar's notes start normally by describing someone's symptoms or vital signs. Then they just go off, railing against his bosses. Especially when they blocked him from transferring inmates out who were too sick to take care of in his limited prison clinic.
Seth: In one case he wrote, "This man will almost certainly die." The Bureau of Prisons would, he wrote, "Rushed to find someone to blame, blithely ignoring the casual and repeated ways he has been dumped on to Big Spring."
Dr. Farquhar: There were times when I was critical, I'm a critical person, starting with myself.
Seth: You actually wrote at one point, "I feel bad for his shabby care."
Dr. Farquhar: I stand by that statement, I don't know who it's about and I can't comment on any single record of any person, but there were times when the care was not what I wanted for any patient, period.
Stan: You told us there was constant pressure to keep cost down, for instance, early on his higher ups told him to look at the number of times the prison had paid for an ambulance to take an inmate to the hospital.
Dr. Farquhar: They said, you know is there a way that we can cut this down and I said, "Probably, yes."
Seth: I could imagine that could result in a pressure to not call when somebody really needs to go to the emergency room.
Dr. Farquhar: It's always a risk, that's why professional judgement take professional training and professional experience, because you cannot leave it up to anybody.
Stan: When Dr. Farquhar was clinical director he was the one making those decisions. He was effectively always on call, and doctors who reviewed the medical files said, he seemed to be doing as good a job as he could. After four years he said he was very tired and he quit.
Seth: Then not long after he left the prison there's a case that exhibits all of the problems that he was worried about.
Stan: The case of Néstor Garay. Back in 1998, when he was 25, Néstor came from Mexico City to a wine country, Napa Valley, California.
Néstor: It's beautiful here.
Stan: Where he moved in with his parents Avra and Indy.
Néstor: [Spanish 00:10:17]
Speaker 17: [Spanish 00:10:18]
Stan: Seth and I visited them at their house, just a couple blocks from the natural food stores and bike shops of Main Street Saint Helena. When Néstor first moved here, he was like peas in a pod with his younger brother Enrique.
Enrique: They say when we answer the phone we sound the same and we smile kind of the same.
Stan: They worked out at the gym together and they worked together at the Sunshine Food Market. Néstor was in the cheese section, Enrique cut meat. While Enrique went on to get a better job, buy his own house, and become a US citizen. Néstor just stayed in the same bedroom in his parents house.
Enrique: He was very strongly attached to my mom and dad. To be with them is like a pet. He wanted to be with them the whole time, but in a good way because Néstor was a good son and all that, regardless of his addiction.
Stan: His addiction, it started with alcohol but turned to meth. He started dealing to support his habit, sold to an undercover cop, and was sentenced to 5 years in prison and because he'd never become a US citizen, at 41 he ended up in the private Geogroup prison for non-citizens in Big Spring. His parents have stacks of letters Néstor sent them from prison, each of them with a hand drawn and colored cartoon on the envelope. There's a jack-o-lantern for Halloween, an orange cat with a bow on its head opening a gift for Christmas.
Speaker 17: Indy.
Stan: His dad Indy opens one.
Indy: [Spanish 00:11:41].
Stan: The letter starts, just to say hello and tell you all is well in Texas, and then early one Thursday morning, Indy told us they got a phone call.
Indy: [Spanish 00:11:54].
Stan: It was Néstor's cellmates, calling from inside the prison in Big Spring.
Indy: [Spanish 00:12:01].
Stan: With bad news.
Irineo: [Spanish 00:12:03].
Stan: Seth tracked down 3 of these cell mates, including Irineo Espinoza.
Irineo: [Spanish 00:12:08].
Stan: Speaking by phone from Mexico, Irineo says it all started when he and the other men in the cell were asleep.
Irineo: [Spanish 00:12:15].
Stan: At 1 in the morning Néstor starts moaning.
Irineo: [Spanish 00:12:19].
Stan: Irineo says Néstor is trying to speak, but he can only make signs with his hands. Irineo and the other cellmates carry him to a lower bunk, and realize he's wet himself. They open the door and tell the guard outside that Néstor needs medical attention.
Irineo: [Spanish 00:12:39].
Stan: Irineo says about a half hour later a nurse arrives, it's licensed vocational nurse Gary Austin. The only medical professional at the prison that night, and it's his note that begins the medical file. It says, "Upon arriving to inmate room, inmate lying on bottom bunk looking straight ahead, but not responding to name." He writes that Néstor's sweaty, he has a weak grip on one side and the cellmates think he's had a seizure. The cell mates are told to carry Néstor downstairs to the buildings bare bones clinic and there instead of calling 911 Gary phones the physician assistant who's on call that night, Russel Amarou.
Russel's at home asleep, but he wakes up and over the phone makes two key decisions. First, he tells the nurse to give Néstor Dilantin, an anti-seizure medication, and then when Néstor cannot swallow the pills, the notes show he gives a new order. "Send back to unit and place on mattress on floor." The cellmates are asked to carry Néstor back upstairs, but Irineo says.
Irineo: [Spanish 00:13:48].
Stan: The cellmate said no.
Irineo: No, [Spanish 00:13:52]
Stan: He says, "He needs professional medical attention. Ask for a helicopter, a ambulance that can take him to a clinic to get the care he needs."
Irineo: [Spanish 00:14:02].
Section 2 of 3 [00:14:00 - 00:28:04] (NOTE: speaker names may be different in each section)
Al: ... Take him to a clinic so we can get the care he needs. Ultimately [Nesta 00:14:04] isn't returned to their cell, so the cell mates go to sleep thinking Nesta was taken to a hospital. [Indi Neol 00:14:13] says the next day they find out what happened. Nesta was just brought to another cell nearby and was left on a mattress on the floor until the morning shift arrived. By now, five hours have passed since Nesta started mourning and he's transformed, he cannot move his right side. His attempts to speak have become smirking sounds. The morning shift nurse, a more highly trained registered nurse calls the prison's clinical director, a doctor and they send Nesta to the nearest ER, where a cat scan shows a massive stroke.
He's then helicoptered to the Midland Memorial hospital. We wanted to find out what happened to him there. Seth and I went to the hospital and tracked down the neurologist who treated him that day. Hi doctor, how are you?
Dr. John: Hi, how are you?
Al: Good. Dr. John Foster. If someone comes in having just had a massive ischemic stroke, how soon would they need to come in here for you to be able to do anything for them?
Dr. John: Well, to me I think aggressive to them within three hours.
Al: As each hour passes ...
Dr. John: Each minute.
Al: Each minute.
Dr. John: Each minute you have thousands of brain cells die.
Al: If someone does come in five hours later, what can you do at that point?
Dr. John: For us, man, nothing.
Al: Nesta's parents say the prison finally called them that afternoon but they didn't tell them that Nesta had had a stroke much less the details they'd heard hours earlier from the cell mates. The next day as they were preparing to fly to Texas, Nesta's dad Indi called the prison to get more information.
Indi: What was her capital name?
Al: His grand daughter recorded some of the call.
Speaker 4: Do you know how long we're going to be here?
Indi: I don't know, not sure, it depend, how is Nesta?
Speaker 4: I haven't heard nothing today.
Al: In the hospital Nesta was shackled to the bed and two prison guards were keeping watch when his family arrived. His dad Indi, his brother Enrique and his mum [Olvera 00:16:18].
Olvera: When we got there I restrained myself, I didn't want to scream, I didn't want to yell because I really felt that my son could hear me. I didn't want him to hear me upset.
Enrique: As soon as my mum start talking to Nesta, my mum hug Nesta and Nesta cry. That's something that I'm never going to forget, somehow he was still there.
Al: The doctors told them that tear was just a reflex, Nesta was already gone, he was brain dead. His body was just being kept alive by the life support.
Olvera: Look at the cruelty here, it wasn't until after they took him off life support that they took the shackles off. It was as if they were saying, if you're still alive then you're under my control.
Al: The prison did it's own internal review of what happened to Nesta [Garai 00:17:19] and we got a copy. It found diagnosis was delayed, treatment was inappropriate, documentation was unacceptably incomplete. When Nesta didn't get better the nurse or the physician assistant should have contacted the prison's doctor or top nurse. In other words, many things went wrong. According to the four physicians we had independently review the medical file, the right thing to do was simple.
Carolyn: Call 911 is what he should have done.
Al: That's neurologist Carolyn Martin.
Carolyn: If he had gotten there right away, he would have had a chance of survival. Not getting there right away, his chance for survival was really terrible. That prisoner was right, they should have called 911.
Al: One reason they didn't call 911 could be the level of training of the only medical professional at the prison that night, Garry Austin. He's only a licensed vocational nurse or LVN.
Roberta: LVNs are essentially supervised so they are not working independently.
Al: Roberta Lavin is a nursing professor who used to work at a government run federal prison. She says LVNs are usually supervised by a more highly trained registered nurse. While that higher level nurse would know how to help someone with a gunshot wound say, an LVN would help after they'd been stitched up, when it's time to give out the next dose of pain killers.
Roberta: Or it's time to change that bandage.
Al: She says to put LVNs alone on overnights at prisons responding to emergencies may save money but it endangers inmates.
Roberta: Having a person who has a more narrow scope of practice and is less prepared to deal with emergencies, what you're doing is you're putting barriers between that person who may have a medical emergency and the care.
Al: You don't see this barrier to care in the government run federal prisons, they have rules that specify what LVNs can do but those rules don't apply to these private prisons. In a state GEO Group said they strive to meet all the same standards, practices and policies of government run federal prisons. But after interviewing corrections officials and reviewing thousands of pages of medical files, Seth found something different.
Seth: We see over and over again low level medical workers often Licensed Vocational Nurses are providing the bulk of medical care. Doctors who reviewed the files raise questions about whether those Licensed Vocational Nurses were operating beyond the kind of care that they're trained provide.
Al: Seth got the medical files of 103 men who all died in these private federal prisons for non-citizens and doctors who reviewed those files and additional evidence said 25 of those men likely died as a result of inadequate medical care that they got in prison.
Seth: One of these cases, a man called Claudio [Fahatho Hoseo 00:20:06] was seen repeatedly over and over again complaining of headaches and back pain and nausea and was only ever treated with Ibuprofen and Tylenol and sent back to his bed. He's nearly only seen by LVNs.
Al: In fact, there's no record of him ever being sent to the prison doctor. After nearly two years of this, he's finally sent out to a hospital where within days he dies with an Aids-related brain infection. Doctors who reviewed the files said he should have been diagnosed with HIV long before. That case happened at another private prison for non-citizens about two hours west of Big Spring called [Reeves 00:20:44]. Last year, that prison was investigated by the Inspector General of the Department of Justice, a watchdog for the Bureau of Prisons and we've described Claudio's medical treatment and death to the Inspector General himself, Michael Horowitz.
Michael: It certainly doesn't surprise me what you're saying.
Al: His review didn't look at their use of LVNs, but it did look at the number of total medical staff and it found that in 34 out of 37 months the prison had failed to meet the minimum required by it's contract.
Michael: I think it raises two concerns, how does it impact individual inmates and what does it mean for their health and safety. The second is, why was it happening for 34 to 37 months? Why wasn't that caught before we showed up?
Al: He's asking not just why this company was breaking the rules but why the federal bureau of prisons which is supposed to enforce the rules fail to notice any problems for three years straight? Since Nesta's death, his parents have kept his bedroom in the Napa Valley Home the way he left it.
Olvera: I'll be honest with you, we sleep in this room.
Al: They sleep surrounded by Nesta's things. His mum Olvera shows us Nesta's pants in the dresser, his hat on the door. She picks up a pair of his gym shorts from the closet, smells them before she puts them back.
Carlos: His clothes I think we should get rid of it give it someone who needs it but we want to keep him too.
Al: That's Nesta's older brother, Carlos and he wants to help his family move on. He also wants to know why his brother wasn't taken to the hospital sooner.
Carlos: I can make a list of people that were involved, but who's really responsible? Who's the boss? I want an answer from the person who contracts these companies and I want an answer from the warden.
Al: The Federal Bureau of Prisons which contracted GEO Group to run the prison wouldn't agree to an interview and didn't respond to written questions. The GEO Group and it's medical subcontractor Correct Care Solutions said because of privacy concerns, they were unable to comment on individual medical files. Garry Austin, the Licensed Vocational Nurse who was at the prison that night didn't return our messages. Russell [Amaru 00:23:16] the physician assistant who the medical file says gave the order of the phone to send Nesta back to his cell instead of a hospital ...
Al: Are you Mr. Amaru?
Russell: I could be and who are you?
Al: My name is ...
Seth and I visited his house in a condo complex 40 minutes outside Big Spring Texas.
Russell: Let me ask you guys a question, how did you find out about me?
Al: At first he refused to speak with us ...
Russell: We're not supposed to talk, that's one of the problems with the prison system.
Al: Eventually, he let us into his kitchen and spoke for several hours because he wanted the world to know about all the other factors that he said prevented the medical staff and Big Spring from doing their jobs as well as they should.
Russell: There would have been a more aggressive care for that patient and other patients too if we had better training, better staff. It's just so many things are wrong there.
Al: He explains the decisions he made the night Nesta died, decisions doctors and the prison's own review said were wrong by pointing to a failure of communication. He says all the information he had was what he was told over the phone by Garry Austin, the Licensed Vocational Nurse at the prison. Garry wrote on the file that Nesta was unresponsive and had a weak grip. Russel says he was told something different ...
Russell: He was up and communicating, it just he was not real lucid.
Al: He pins that miscommunication on Garry's lack of training, the fact that he was an LVN also called an LPN.
Russell: You had a LPN right out of school, new in corrections trying to make an assessment. He did not have the skills. I don't blame them as a person, I blame the management system that puts him in that position.
Al: It's easy to blame the person and the four positions who reviewed Nesta's file and the prison's own review did find fault with both Garry, the LVN and Russell the physician assistant. If you blame only the person, you let the system that put them in that position off the hook and the system that Russell describes is one that puts its staff and its inmates in a position that's always just one mistake away from a catastrophe.
Russell: Basically what you have in essence is people that are under-trained doing jobs that they shouldn't be doing. We do not have an infirmary for 24 hour observation. Charts are often temporary lost for a couple of days or a week or so and so the companies that I work for, all the way up to BLP and they've got the model of how the place is supposed to be run and they seem to allow it. I know you want to ask me what would I do to correct the problem? I'd close this whole facility down and I'd start over again.
Al: The Department of Justice's Inspector General is currently reviewing all the contracts for private federal prison for non-citizens but, it can only make suggestions to the decision makers at the Bureau of prisons. Those decision makers can pull the plug on the Big Spring and Reeves prisons because both of those contracts are up for renewal in 2017. The decision about whether or not to extend them is expected later this year. You can read the investigative fun reporter Seth Freed Wesler's full investigation in the Nation Magazine. After the break, we'll turn to the question of where these prisons came from in the first place. It's a story of a major shift in criminal justice policy, and also a story of a father risking everything for his sons, that's coming up next on Reveal. From the Center for Investigative Reporting and PRX.
Julia: Hi, I'm Julia Beecher from Reveal. You're hearing a lot about problems in America's prison system, and in January, president Obama banned solitary confinement for minors in federal prisons. The practice isolated kids in a small cell for 23 hours a day. Our animation, the box, tells a story on one teen who spent time in solitary at [Rectors 00:27:13] Island. It's a visceral look at how he experienced his time alone. watch at Revealnews.org\thebox.
Al: From the Center for Investigative Reporting and PRX, this is Reveal. I'm Al Letson. We're going to continue our investigation with Seth Freed Wesler of the Investigative Fund into the little known system of private prisons that hold non-citizens convicted of federal crimes. We're going to turn to the crimes that put them there because this might be the most surprising thing about these prisons. The latest stats show 40% of the more than 20000 inmates are not there for robbery, fraud or even drugs ...
Section 3 of 3 [00:28:00 - 00:54:23] (NOTE: speaker names may be different in each section)
Al Letson: Mates, are not there for robbery, fraud, or even drugs. They're serving time for the federal crime of illegally crossing the border. Now, most people caught crossing the border are not sent to prison, they're just deported, but criminal prosecution has been climbing through the Bush and Obama administrations. It's a part of a policy called Enforcement with Consequences. We're going to show you the change and the consequences by following one man who's lived it, Eloy Flores. Seth tracked him down, and he talked with him, and Reveal's Stan Alcorn.
Seth Wessler: How many times do you think you've crossed total?
Eloy Flores: Maybe like 20, 20 times or more.
Seth Wessler: So it's like almost once a year.
Eloy Flores: Yeah, pretty much once a year, or two times a year.
Al Letson: To be clear, all these times he was crossing illegally. He never had an employer or a family member who could sponsor him for a green card, and so he says he never really tried.
Eloy Flores: To get a Visa in Mexico, you got to be a rich man, or get bank account and houses and good jobs.
Al Letson: When Eloy first crossed, he said he never even had a job, he was a teenager looking to escape from the slow, violent divorce of his parents, and so, New Year's eve 1990, he and six other guys waded across the Rio Grand, naked.
Eloy Flores: Naked, yes. You got to get naked, and you got to get your clothes on top of your head, that way they don't get wet.
Al Letson: They get to the other side, Brownsville Texas, dry off, put their clothes back on, and walk to a Kmart parking lot. There, they squeeze into the beat up Mustang of Eloy's best friend, but then, the car won't start.
Eloy Flores: So, we got to get off the car, and we got to push it, the car, and behind us cross a Border Patrol, and didn't even pay attention to us. He just crossed by.
Seth Wessler: I mean, they could clearly see you?
Eloy Flores: We are in the road, but wait till I tell you another times I crossed the border, this is nothing. From 1990 to 2005, I think it was the easy ones. From 2006 to today is really hard to cross the border.
Al Letson: The story of how it got hard is also the story of how those private prisons got filled, and it's also Eloy's story. It starts in that beat up Mustang, were Reveal Stan Alcorn picks it up.
Stan Alcorn: After they got the car started, Eloy and his best friend drove all the way from Brownsville, Texas to Silver Spring, Maryland. That's were Eloy got his first job, standing outside a 7-Eleven at dawn, waiting for contractors to pull up in their trucks looking for workers.
Eloy Flores: We are like 150 guys waiting for one truck or two trucks. You are lucky if you get a jump in the truck. If they ask for a painter, everybody was a painter, if they asking for a carpenter, we are carpenters, 150 guys right there. As soon as the truck show up, man, you got to be ready and you got to jump in the truck.
Stan Alcorn: This is how he spent his first few years in Maryland, jumping into truck beds, digging holes, painting houses.
Eloy Flores: I had no holidays, no Christmas, nothing, non stop. No stop working, every day, every day, I was a workaholic. Workaholic because I want to get better, better, better, better.
Stan Alcorn: His life did get better and better. He started his own painting company, he got married and had kids, he even bought a house in Baltimore county with woods in the back yard, and whenever he wanted to take a break, he'd just go to Mexico, and then sneak back to the US.
Eloy Flores: Yeah, it was really easy. You can cross the border easy.
Stan Alcorn: It was so easy, he did it once a year through the 90's. Then, in 2008, he and his whole family went back for a few years. He wanted his four kids, who grew up in Maryland and were US citizens to experience their parents' country, and learn their parents' language. Their stay in Mexico was supposed to end in 2011.
Eloy Flores: It was time to go back, because all my children, they speak Spanish 100%. My older son, he sneak to be go to the University, so it was time to go back.
Stan Alcorn: Eloy and his wife planned to hire a human smuggler to help them cross the border, and then the kids would follow legally on a plane.
Eloy Flores: It was part of my plan, but I didn't make it, because I find to cross the border is really hard.
Stan Alcorn: In the two decades, since he waded across the river to Brownsville, things had changed. The number of border patrol agents had increased five-fold, pushing the places to cross way out into the desert. Seth and I walked a tiny part of one of those routes in West Texas. It's a flat plain of sand and [inaudible 00:32:43] bushes.
Seth Wessler: Was he by himself?
Stan Alcorn: No.
Stan Alcorn: This is roughly where Eloy and his wife were caught, tracked down by footprints in the sand, I think. And then -
Stan Alcorn: This is the Border Patrol station in Del Rio, Texas, where we walked through the process with spokesperson Enrique Vazquez.
Enrique Vazquez: You're in our processing area.
Stan Alcorn: Half the room is made up of holding cells, and the other half looks like a grim metallic version of airport passport control.
Enrique Vazquez: It's similar. They come up here, you interview them, you get their name, you get their basic information.
Stan Alcorn: And then, the agent sends almost crosser to be criminally prosecuted for illegal entry. It's a program called Operation Streamline. It started here in Del Rio in 2005, but was soon adopted elsewhere on the Border. To explain why it exists -
Enrique Vazquez: I'll let you step in on this.
Stan Alcorn: - He turns to agent Joshua Spriggs from the Border Patrol's prosecution office, who says the idea is to create more of a deterrent than a simple deportation.
Joshua Spriggs: The desired outcome is that will affect them wanting to come back again illegally, meaning they know now, "If I go, they're just going to send me right back." Did it have the desired effect? He's back again, so it didn't. We need to try and find something else that maybe influences his decision to try and come back legally next time, instead of crossing between the ports of entry.
Seth Wessler: Do you track that?
Enrique Vazquez: I'm sure we track everything, I mean we have numbers for it. I don't have a number for you, but to say that it's effective, I would say yes.
Stan Alcorn: The Border Patrol used to point to statistics showing that border crossers who were prosecuted were less likely to cross again, but they're now scrapping that measure, because an agency watch dog pointed out they weren't checking if the effect lasted more than a year. Still, this policy of using the threat of prison time as a kind of psychological border wall, this is why Eloy and his wife were sent to federal court.
Male: Order in the court, now rise.
Stan Alcorn: This is a recording we got of the hour and a half in court, for Eloy, his wife, and 82 other people charged with illegal entry. The voices you hear are from attorneys, a Spanish/English interpreter, and Magistrate Judge Victor Garcia. The defendants, who fill the Jury box, and even the benches for the public, are silent, except for the jingle of their chains.
Male: All, can you please stand up, so I can [inaudible 00:35:14].
Eloy Flores: All the immigrants, we're looking around-
Male: Your right hand please.
Eloy Flores: Everybody's locked up from the ankles, knees, waist, and each other.
Stan Alcorn: They're all wearing identical jump suits, and what looked like paper surgical masks over their mouths. Eloy says they could only see each other's eyes.
Eloy Flores: That way we are like numbers now. We're not persons, we are numbers.
Male: Were guaranteed a set of rights. We have to weigh them so that I can take your plea. These are your rights, listen closely.
Stan Alcorn: This is how the streamline program works. In order to prosecute nearly every first time crosser, nobody gets a separate proceeding, they're all processed as a group.
Male: Yes or no, do you want to plead guilty today?
Stan Alcorn: Courts have decided it would violate due process to have them answer questions in unison, so instead, the judge points to them, one at a time.
Male: Yes or no?
Stan Alcorn: Which takes a little more than a minute per question.
Female: Yes by all.
Stan Alcorn: The one place where each individual gets attention is for sentencing, because the sentences depend on the defendant's criminal history, which usually means, have they tried to cross the border before.
Male: Mr. Calderon, you're going to be the first one of many that I've had today, that you had a conviction for illegal entry.
Stan Alcorn: The more times someone's been caught and convicted for crossing in the past, the more jail time he gets this time.
Male: You got 8 days the first time, you're getting 12 months the second time, it's up to 2 years the third time.
Stan Alcorn: That's time he'll spend in a US prison, before being deported back to his home country. After a few cases, the sentences start to blend together.
Male: Guilty or not guilty?
Stan Alcorn: For Eloy, Judge Garcia decides to give a little speech.
Male: You're not being prosecuted for being a bad person, or because you do not have good reasons. Most of the people here, if not all of them, have very good reasons to cross. To work, to support their families, to better educate their kids, sometimes to pay off debts. The problem that you have, like all others, is you do not have permission to enter. Because you have prior convictions, to be consistent and fair, the sentence I give you is because you have a prior conviction, not because you have done something wrong to the United States yet.
You do not have permission to enter, so you have to be 4 months in prison. The only reason it's 4 months is because maybe after you do that long in prison, you will not return. I don't know that, I cannot stop you from coming back, but I can tell you what will happen if you do, and that's you're going to be in prison. I know 4 months is a long time, considering you need to get back to your children, your wife is here as well. That is a lesson for everybody else, that you cannot cross. Those days are over, you understand?
Male: Is there anything else you want to tell me?
Male: Thank you. Jesus Garcia Franco -
Stan Alcorn: Criminal prosecutions of border crossing have been on the rise since the 90's, when the Border Patrol started something called Prevention Through Deterrence. John Clawson became the head federal prosecutor in Midland, Texas, in the middle of all this, in 2003.
John Clawson: Illegal immigration was, I don't know if it was sky rocketing, but was certainly on the up swing. There was a lot of discussion of how can we stop it or reduce it significantly, what are some things that we might try?
Stan Alcorn: The Border Patrol got more funding, and more agents. Operation Streamline started, prosecuting more first time border crossers for illegal entry. John says he was told by his superiors to prosecute as many people as he could for illegal reentry, a felony charge for crossing after being deported. He says it was all kind of an experiment in discouraging not only the people sent to prison, but everyone they knew.
John Clawson: The idea is the word would spread, that they would go back to their home areas in Mexico, and they would tell everybody else, "Man, it's not worth it, because if you cross, you're going to end up spending a few months in jail, and it stinks, therefore, don't come."
Stan Alcorn: More than 70,000 people were prosecuted in 2015 for immigration offenses. That's nearly twice as many as a decade ago. In fact, more people are now prosecuted for illegally crossing the border than all other categories of federal crime, drugs, weapons, white collar crimes combined, but it's still only a fraction of the more than 300,000 people apprehended by Border Patrol each year.
Seth Wessler: In general, why not prosecute everyone?
John Clawson: Because you can't possibly. I mean, if we were to prosecute every minute immigration offense, it would take up all of federal prosecutor's time, and we would not be able to devote our attention to other very serious criminal behavior, which we're charged with addressing.
Stan Alcorn: Seth and I visited Atlacomulco, a small town north of Mexico City. It was supposed to be Eloy and his family's temporary home, but they've now been here for 8 years. Their main source of income is an Internet Café, sandwiched between a Tortilla Factory and an Office Supply store.
Eloy Flores: Yeah, this is my shop I designed myself, and I built everything you can see.
Stan Alcorn: Eloy built little wooden cubicles with saloon doors for the computers. When we visited, none of them were occupied. Eloy's oldest son, Eduardo, was manning the front desk.
Eduardo: Basically, we just take turns, right now it's my turn.
Stan Alcorn: When he's not working, Eduardo is studying Engineering at a local Mexican college. As a US citizen, he could go to college in the States, but it would be a huge expense, and his parents are just scraping by as it is.
Eduardo: Right now, they're both here, and we're happy, but happiness isn't helping us pay for food, paying for our school, our tuition, because University is hard. Here it's hard, and I'm going to a public university.
Stan Alcorn: In two years, when Eduardo turns 21, he can sponsor his parents to get in line for a Green Card, so they could get into the US legally, but because of their history of illegally crossing and living in the US, they'd likely be barred from the country for 6 more years, and so, even though Eloy spent 4 months in the private prison in Big Spring Texas, he's talking about crossing again.
Eloy Flores: It's not for me any more. Now, it's for my sons. They are US citizens. My oldest son, he always dream about study over there, so that's why I feel guilty, because I fail him, not crossing the border.
Seth Wessler: Does the threat of being locked up in prison, does that make you think twice?
Eloy Flores: Make you think twice, but not stop it. Being locked up is only be slow down. Sooner or later, we be there. I see a lot of friends being locked up, they spend 6 or 4 months, they're already in USA. America is spending a lot of money to give you a lesson, they don't work.
Stan Alcorn: He told us there was a 50/50 chance he'd try to cross this year, and if he does, he figured there was a 90% chance he'd get caught, but a 10% chance he'd make it. It's like a lottery ticket he said. If you win, you win. If you don't, you don't.
Al Letson: We don't have numbers for how many people have decided not to cross the border, because the odds of prison are too high. We do know how many people cross anyway and got caught, and that number is down 70% in the last decade. The biggest factor analyst site for that drop, it's not prison, it's the financial crisis. When there are no jobs, the United States is a lot less appealing. Thanks to Seth Wessler of the Investigative Fund for collaborating with us on that story.
After the break, we turn to how to building up border security has created problems for the Border Patrol itself. That's coming up on Reveal.
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Al Letson: From the Center for Investigative Reporting and PRX, this is Reveal. I'm Al Letson. Before the break, we heard how illegally crossing the border has become the most prosecuted federal crime. A big part of that is the fact that over the past 10 years, the number of agents patrolling the US-Mexico border has nearly doubled to more than 20,000. That increase has come with problems to the Border Patrol. Last June, an internal investigation found corruption, abuse of power, and questionable use of force, specifically some high profile shootings. Several high ranking officers have raised scaving criticism of customs and border protection. Reveal's Andrew Becker covers what's happening on the border, and he joins me now. Hey Andy.
Andrew Becker: Hey Al.
Al Letson: So, you've been looking into these cases of killings at the border. We got tape of one high profile controversial incident of a Border Patrol officer in New Galas, Arizona, firing across the border and killing a boy in Nogales, Mexico. The shooting, back in 2012, led to an investigation by the Border Patrol and the FBI. Why don't you tell us about that?
Andrew Becker: What happened was, it's about 11 O'Clock at night, 11:15 at night, and there's a call that comes in to the Nogales Police Department, saying that somebody see some suspicious activity.
Female: At 530 West International Street? 530 West International, reference to suspicious person.
Andrew Becker: There's two guys who have tried to smuggle marijuana into the United States, and there's a Border fence that splits the United States from Mexico here.
Male: I got bundles, I got bundles [inaudible 00:46:05] I got two.
Andrew Becker: The excited voice that you hear is Nogales Police Department saying "We've got bundles, we've got bundles," which is basically they're blocks of marijuana that the smugglers have been trying to get into the United States. What happens is, the police show up and they're watching these smugglers trying to climb over this 18 foot tall fence, and they're pretty casual about it. Hands on hips, just watching them try to cross back over.
When a Border Patrol agent shows up, the next piece of tape you hear is shots fired.
Male: Charge charge!
Andrew Becker: That's a Nogales Police Officer who's reporting that the Border Patrol agent, who had just arrived, walked up to the fence, put his arm between the two metal bars of the fence and started firing into Mexico.
Male: They're throwing rocks!
Andrew Becker: Finally-
Male: Possibly the shots are coming from them, [inaudible 00:46:53]
Andrew Becker: That tape is saying there's one down on the Mexican side, and it turns out, that was a teenager who was killed. It was a 16 year old named Jose Elena Rodriguez, and he had been walking on the street below the fence, on the Mexican side of the border, when he was shot. His family said he was just walking along the street after having played basketball, and got caught in the crossfire. The Border Patrol, however, says that he was in the area, and possibly in the group that was throwing rocks.
Al Letson: This incident is sort of a boiling point of all the shootings and other incidents that involved Customs and Border Protection, and it's raised some serious concerns. You spoke with the former Head of Internal Affairs, James Tomsheck, what did he have to say?
Andrew Becker: Tomsheck was the Head of Internal Affairs from 2006 until 2014. His role and responsibility was really to try to clean up internally the Border Patrol, to screen out suspect applicants, to weed out bad hires, and to address some of the misconduct within the agency. This is one of the shooting incidents that Tomscheck was most concerned about, I mean, this was an incident that he describes as something that basically keeps him up at night.
Part of the issue for Tomscheck, who says that he has seen this actual surveillance footage that has not been made public, is the fact that the version of events that the Border Patrol reported doesn't really follow what he has seen in this video.
James Tomsheck: The video that we saw clearly revealed that the Border Patrol agent exited his vehicle, walked to the fence, fired all rounds in his weapon, which would be one round in the chamber and 12 rounds in the magazine, and then reloaded and fired at least once again. Mexican authorities reported that the victim in this case was struck in the head three times, and five times in the back.
Al Letson: Andy, Tomsheck also told you that he was constantly butting heads with leaders and customs, and border protection, as well as other agencies, as he was trying to investigate these incidents.
James Tomsheck: They frequently attempted to put forth information in the initial briefings that was false, and in some cases completely fabricated, in an effort to give the initial impression that it was a legitimate use of force. There was a focus on 28 incidents of fatal use of force, 7 of them appeared to be highly suspect in terms of whether or not the use of force was appropriate.
Al Letson: Tomsheck was forced out. What are other officials at the Border Patrol saying, do they agree with him, or is he kind of an outlier?
Andrew Becker: Tomsheck is not really alone on this one, we talked to his former deputy, we talked to former high ranking officials in Immigrations and Customs Enforcement, and the FBI, and they are seeing many of the same things, really in response to the massive growth in the Border Patrol. With that growth, it has certainly led to some growing pains, and for the first time under the Obama administration, there is a commissioner who was actually confirmed by the US Senate, his name is Gil Kerlikowske, he's something of a reformer, and he has acknowledged that there are some issues with the Border Patrol.
Gil Kerlikowske: There were questionable shootings, 15 cases went back to our Internal Affairs unit for additional review. We need the trust, and frankly, the credibility of a law enforcement agency, if we're going to get people to cooperate and help us.
Al Letson: You've spoken to agents themselves, I mean, what are they saying about all of this?
Andrew Becker: The [inaudible 00:50:19] Border Patrol agent is represented by a very powerful Border Patrol union. What they basically say is that the territory is ruled by ruthless drug traffickers and cartels, and they've really had to react in a much more forceful way in order to protect the border, and so, one of the people that we spoke with is [inaudible 00:50:35] he's a Border Patrol agent, he says that in the time frame that we're talking about here, the Border Patrol has made something like 6 million arrests, and they've had less than 50 fatalities, so in his mind, he thinks that they're doing a pretty good job showing restraint.
Male: I know it's hard right now, especially in the United States, with this whole anti-law enforcement feeling, and we don't want to work with criminals, we don't want to work with dirt bags. We go out there and we actually believe in a cause, we believe in the oath that we took, and we're not the bad guys of the story.
Al Letson: Sort of looking at the big picture here, while all this is going on at the border, we are having high profile police shootings all across the country. Why aren't these incidents along the border getting the same attention?
Andrew Becker: The border is often treated as kind of a third country, or a forgotten space. It's rural, it's remote, there isn't a lot of very large political voice, and it's something in particular that James Tomsheck, the former head of Internal Affairs, brought up when he was talking to us. Here's what he said.
James Tomsheck: In the months since my removal, a series of tragic events have unfolded in Ferguson, Staten Island, which appeared too appropriately. Caused a very timely and appropriate response from the Department of Justice. A question that I've asked myself is that certainly all lives matter, but in these many instances we've discussed and the many that we haven't, don't brown lives matter?
Al Letson: It's not every day you hear someone who was at Tomshecks level who says something like "Brown lives matter." Do you think anything is going to change inside the Border Patrol?
Andrew Becker: In some ways, it's actually already changing. A number of the reforms that Tomsheck had been pushing for when he was still the Internal Affairs chief, are actually being implemented under the new commissioner, Gill Kerlikowske. That's augmented use of force training for Border Patrol agents, it's actually giving the Internal Affairs office the authority to investigate crimes in serious misconduct, which they didn't have before, and a recommendation from the government advisory counsel to actually double the number of Internal Affairs agents to look into such crime and potential misconduct.
Al Letson: That's Reveal's Andrew Becker, thanks to Ike Sriskandarajah for producing that piece, and thanks to our partners, MSNBC and Telemundo.
That's it for this week's show, huge thank you to the Investigative Fund and reporter Seth Freed Wessler for partnering with us this week. If you want to read Seth's story for the nation, go to revealnews.org. Stan Alcorn was our lead Producer. Thanks to editor Esther Kaplan of the Investigative Fund, our lead sound designer and engineer is my man, Jay Breezy, Mr. Jim Briggs. We had additional engineering help from [Claire C Money-Mullen 00:53:16] and [Joe Plord 00:53:18].
Our theme music is by Camerado-Lightning. Amy Pyle is our Managing Editor, our Head of Studio is Christa Scharfenberg, Susanne Reber is our Executive Editor and our Executive Producer is Kevin Sullivan.
Support for Reveal is provided by The Reva and David Logan Foundation, the Ford Foundation, the John D. and Catherine T. MacArthur Foundation, the John S. and James L. Night Foundation and the Ethics and Excellence in Journalism Foundation.
Reveal is a co-production of the Center for Investigative Reporting and PRX. I'm Al Letson, and remember, there is always more to the story.