The state of Illinois has hit another roadblock in its goal to end a federal immigration detention program this week. Illinois would become the sixth in the nation to limit contracts between county and city jails with U.S. Immigration and Customs Enforcement (ICE) to house immigrant detainees.

Governor J.B. Pritzker signed the law last August to prohibit private and public jails in the state to enter into any federal programs and agreements to house detainees waiting for their immigration hearings. Once the law goes into effect, Illinois will become the first state in the country to outright ban these contracts. The goal for the law is to eliminate detention entirely. However, as it currently stands those that are being released are largely being transferred to other jails outside of state lines.

Originally, all jails in Illinois had until January 1, 2022, to end the deals and release the immigrant detainees currently held in their cells. However, a federal judge granted an extension to two counties, McHenry and Kankakee, giving them an additional 12 days.

The two counties in question argue that they will lose substantial revenue and will move detainees further away from their families by being transferred to other states that continue to make these agreements with the federal government. These contracts bring in millions in dollars of revenue annually accounting for a significant portion of the money and jobs for the counties.

ICE is the federal agency housed under the Department of Homeland Security that is responsible for overseeing immigrant detention. In 2004, under the Intelligence Reform and Terrorism Prevention Act, ICE was forced to increase the number of immigration detention beds available each fiscal year by 8,000. This requirement was included formally into the annual appropriation bills since 2009 which forced it to be written into the DHS Appropriation Act mandating at least 34,000 detention beds at any given time. Under this significant pressure, ICE began to enter into contracts with local county and city jails, both private and public, outside of the federal prison network to keep up with congressional demands.

Under both the Obama and the Trump administrations, the network of privately or publicly owned detention centers expanded across the country. Without the state and local contracts like the ones Illinois is trying to ban, ICE’s expansion would not have been nearly as expansive. Critics of the program say that these contracts are purely for-profit and therefore prioritize the financial gain over the humanity of detaining those awaiting immigration hearings. According to the Detention Watch Network, “The United States government manages the largest immigration detention system in the world” and has grown by 75 percent in the last decade.

This push for states to ban contracts with ICE has been on the rise since at least 2019 as the various media outlets reported the subpar living conditions, sexual abuse, and deaths occurring in the prisons contracted out by ICE in states, counties, and cities across the country. The first private prison for immigration detention was built in 1984 in Houston by the private company Corrections Corporation of America.

The contracts have evolved and have included guaranteed minimums, which obligate ICE to pay for a minimum number of immigration detention beds at each facility, acting as an insurance policy for the private prison sector against any changes to the immigration system. Over time, this requirement to have beds based on appropriation bills along with the inclusion of guaranteed minimums has evolved into pressure on ICE to not only have available beds but to have each of those beds filled as well.

Maryland and New Jersey are the most recent states to join the growing number to enact laws prohibiting local county and city jails from entering into these types of federal agreements. New Jersey, the fifth state to ban or limit the practice, prohibits local and private jails from “entering into, renewing, or extending immigration detention agreements” but still allows for some current contracts to continue.

One of the main critics, the New Jersey State Bar Association, had requested the Governor to veto it, arguing that the bill mandates that individuals would be transferred to out-of-state prisons and therefore denied their due process protections.

In March 2021, Representative Ilhan Omar led a group of Representatives in sending a letter to officials of the Biden Administration urging them to phase out contracts from ICE with state, county, and local jails and prisons. In a statement following the letter, Representative Omar stated: “We must truly sever the financial incentives causing the expansion of an unnecessary and abuse-ridden system of mass incarceration” for immigrant detainees.