Stewart Detention Center. (Photo: Google)

Lawyers for a private, for-profit immigration detention center were in a federal appeals court Thursday trying to scuttle a lawsuit claiming detainees were forced to work for a few dollars a day as kitchen and maintenance help and punished if they balked, in violation of a federal law barring coerced labor.

The question before the U.S. Court of Appeals for the Eleventh Circuit is whether a prohibition on forced labor in the Trafficking Victims Protection Act applies to private immigration facilities such as those operated by defendant CoreCivic, which operates the Stewart Detention Center in Georgia.

CoreCivic sought to have the federal claims dismissed in 2018, arguing among other things that Congress did not intend the TVPA to apply to "lawfully held detainees." Judge Clay Land of the U.S. District Court for the Middle District of Georgia declined to dismiss the case in 2018 but granted CoreCivic's certificate for immediate appeal of the question.

Sorting through the three-way arguments, Eleventh Circuit Senior Judges Frank Hull and Stanley Marcus and visiting Judge Barbara Rothstein seemed reluctant to go beyond the question Land certified, despite the company's entreaties they look beyond the plain language of the law.

"It seems to me the problem you've got is that the text could not be clearer," said Marcus, pointing to the law's decree that "whoever obtain[s] labor or services" through the use of threats or coercion is in violation of the act.

CoreCivic lawyer Nick Acedo agreed but said the court should take into account the context of the work program, which he said is voluntary and similar to work programs at detention facilities going back to 1950, well before the act was passed.

Acedo also argued that Stewart is bound by other standards relating to its treatment of U.S. Immigration and Customs Enforcement detainees, who can be required to do things such as make their beds and keep their living areas clean.

Marcus said that was a different standard than using force or threats of violence to make detainees work. In any case, Marcus said, the TVPA contains no "limiting" language declaring that it did not apply to private detention sites, the crux of the matter at hand.

"The court is not bound by the question certified by the district court," Acedo responded, arguing that there was no indication intended to "criminalize the conditions of detention."

"Any crafty lawyer can come up with an allegation that somehow ties the condition of detention to the TVPA," said Acedo, a partner at Struck Love Bojanowski & Acedo in Chandler, Arizona.

The putative class action claims that conditions at the 2,000-bed facility are unsanitary, overcrowded and "deplorable." The large, open dormitories house as many as 66 people who share bathrooms and showers that have no hot water—and some with no cold water. CoreCivic does not provide necessities such as toilet paper, toothpaste and soap, which must be purchased at the commissary, according to the lawsuit. Those wishing to make a phone call must purchase expensive phone cards.

CoreCivic pays detainees between $1 and $4 a day for jobs like sweeping and scrubbing floors, doing laundry, preparing food and washing dishes. Those who participate are allowed to stay in two-person cells with a bathroom and temperature-controlled shower, among other perks.

The plaintiffs are represented by a cadre of lawyers from the Southern Poverty Law Center, Project South in Atlanta, Burns Charest in Dallas, and the Law Office of R. Andrew Free in Nashville, Tennessee.

Andrew Free began by saying the appeal is not properly before the court to begin with. While CoreCivic filed the appeal seeking to have the court declare that work programs in private, for-profit detention facilities are not subject to TVPA as a matter of law, the plaintiffs are attempting to show that the program as implemented at Stewart is illegal.

Free noted that the Department of Justice's amicus brief itself said the TVPA did not contain any exceptions for private contractors.

Free noted that Congress specifically included language allowing the government to terminate contracts with providers found to have used forced labor to fulfill those contracts.

Work programs in federal detention programs have been authorized for years, he said.

"But here's the thing … you cannot force people detained in immigration custody to work," Free said.

Free answered affirmatively when Hull asked whether the issue before the court is a "pure question of law" and said the court should send the case back to the Middle District

DOJ civil appellate division attorney Brad Hinshelwood said the department didn't take either party's side as to the whether Stewart violated the act. Noting that private contractors run several ICE facilities, Hinshelwood said the DOJ "wouldn't want the court to inadvertently say something" in a ruling that could jeopardize programs around the country.