The Whole Star

Fire at the Citgo Refinery in Corpus Christi on July 19, 2009.
Fire at the Citgo Refinery in Corpus Christi on July 19, 2009.

After seven years of waiting, Corpus Christi pollution victims finally learned what restitution they’ll be receiving from Citgo Petroleum Corp.: nothing. Last week, a federal district judge determined that residents of a neighborhood exposed to toxic chemicals from Citgo’s Corpus refinery weren’t due any compensation, including medical expenses or relocation costs.

In 2007, a jury convicted Citgo of violating the Clean Air Act, a first for a major oil company. The company had illegally stored oil in two uncovered tanks, exposing nearby residents to toxic chemicals including the carcinogen benzene. It took seven years for U.S. District Judge John D. Rainey to sentence the company, finally ruling in February that Citgo owed $2 million—a paltry sum next to the $1 billion prosecutors argued the company had earned from its illegal operation. Still, victims held out hope for some restitution.

On Wednesday, Rainey denied victims any restitution, including funding to pay for annual cancer screenings and other diseases that could be linked to chemical exposures. The Justice Department had requested that Citgo set up a fund to cover relocation costs, and another for victims’ future medical expenses, plus attorney’s fees and administrative costs for a total of $55 million in restitution.

Ironically, Rainey wrote that determining how much victims are really owed would “unduly delay the sentencing process” and “outweighs the need to provide restitution to any victims.”

The Citgo case is also the first in which victims of air pollution are recognized as victims of crime under the Crime Victims Rights Act and allowed to present oral testimony in court. Rainey had originally rejected 20 victims’ request for that status, but the Fifth Circuit Court of Appeals ordered Rainey to reconsider. He eventually did grant more than 800 residents the status, but in his latest ruling Rainey says the operation of the tanks only caused short-term health effects on “at least two specific days.” He writes that there’s no evidence emissions could have caused long-term effects.

Paul Cassell, a University of Utah law professor and former federal judge who is representing 20 of the victims in the case pro bono, says he is appealing the ruling.

“We intend to argue to the Fifth Circuit [Court of Appeals] that Judge Rainey required indigent victims to come forward with expensive expert testimony that simply isn’t realistic in these kinds of cases,” Cassell says.

“In this situation when you have a wealthy company and many indigent victims, we think in some ways the order was backwards, focusing too much on the defendant’s interests and not giving enough attention to the victims’ interests,” Cassell says.

The restitution ruling was the prosecution’s last hope that Citgo would be made to pay more than the minimum fine of $2 million the judge set months ago. The Department of Justice calculates that Citgo made $1 billion in profit as a result of illegally operating two uncovered oil tanks. In February, Rainey ruled that empaneling a jury to determine exactly how much money Citgo made—and therefore what the appropriate fine would be—would “unduly” prolong the sentencing process that had already lasted seven years. He applied the same logic to determining restitution: Though in this case he wouldn’t have to empanel a jury, it would take the court too long to determine what each victim is owed.

“Had he come to that conclusion [seven] years ago, he might have something there. But after you’ve unduly prolonged it for [seven] years, spending a little bit more time making a determination is not going to unduly prolong it,” says Bill Miller, a former EPA attorney who worked on the Citgo conviction but has since retired. “I think he’s completely ignored the word ‘unduly.’”

The Observer contacted the Department of Justice for comment and received this statement: “We are disappointed in the court’s decision, especially for the residents of the community surrounding the refinery who suffered as a result of Citgo’s crimes.”

The Justice Department wouldn’t comment on whether or not it intends to appeal. It has until the end of the month to do so, and Miller isn’t optimistic.

“It doesn’t look like Department of Justice has any intention of appealing the sentencing of Citgo, which is a crime in itself in my opinion,” Miller says. “It basically emasculates environmental crime prosecution in the United States completely.”

Miller says if Citgo’s sentence goes unchallenged, it will send the message that some corporations are too big to punish simply because it’s too hard to determine how much they profited from committing environmental crimes. Environmental crimes cases rarely go to trial, as corporations prefer to settle out of court. When the government succeeds in taking corporations to court—and, even more seldom, secures a conviction—it should take that opportunity to show that it will aggressively prosecute environmental crimes, Miller says.

“If you’re not going to do anything about it then it behooves every large corporation who gets caught violating a complex statute like Clean Air Act to go to trial and hide behind the complexity of it.”

Clayton Lockett
Oklahoma Department of Corrections
Clayton Lockett

It was perhaps only a matter of time before untested protocols in lethal injections led to an episode like the botched execution in Oklahoma on Tuesday night, in which convicted murderer Clayton Lockett struggled for 43 minutes before suffering a heart attack.

The incident is testament to a much broader trend in the administration of the death penalty. States, including Texas, that execute inmates with lethal injection no longer have the secure sources of drugs they once relied on, and that means the risk of something going wrong has mounted.

Texas’ most recent execution featured a man—Tommy Lynn Sells—who argued that he had a legal right to know the origin of the drugs that would be used to kill him. In a last-minute appeal, Sells’ attorneys asked the U.S. Supreme Court to rule on the issue. The nation’s highest court denied the petition, but not before a lower court judge temporarily halted the execution, arguing that Sells was entitled to know where the state had obtained the deadly dose of pentobarbital.

On April 3rd, Sells was executed in Huntsville with little fanfare. The whole procedure lasted 13 minutes. Pentobarbital is a widely-used sedative that is lethal in high dosages and has been used to euthanize animals. The drug used in the botched Oklahoma execution was midazolam, which caused an Ohio man to gasp for air during his execution in January. Though it hasn’t been used in Texas, Terri Langford at the Texas Tribune has reported that the Texas Department of Criminal Justice is keeping midazolam on hand and could use it any time.

We don’t know for sure whether it was midozolam or something else that caused Lockett’s agonizing death in Oklahoma. The Oklahoma Department of Corrections said that the problem was a blown vein, leading The New Republic’s Ben Crair to argue that the issue was one of administration, not of chemistry.

But the larger question here is one of reliability and consistency. In 2011, the U.S. pharmaceutical company Hospira stopped providing sodium thiopental for executions because the drug was produced at an Italian plant and the Italian government expressed opposition. Death penalty states have had to scramble for drugs, looking to compounding pharmacies to provide these chemicals, including the pentobarbital used in Sells’ execution. Such pharmacies exist throughout the country, and often make cheaper versions of prescription drugs to order for patients. They are licensed, but accreditation is optional and inspections for compliance only happen every three years.

Though David Miller, CEO of the International Academy of Compounding Pharmacists, recently told NPR that providing lethal injection drugs is “actually contrary to what we do as a profession,” any pharmacist can contract with the prison system to provide those drugs. They can specify a protocol—how to administer the drug and how much to use—but there’s no guarantee that the executioners will follow their directions. “We should not, certainly as pharmacists, be put in the position of having to prepare those medications,” Miller told NPR, “without having direct input into what that protocol looks like.”

One provider recently demanded that the Texas prison system return the drugs when his name came out in the press and he received harassing phone calls, but that controversy dissipated quickly. So far the courts have allowed Texas prison officials to remain secretive about where they have turned for new drugs. Texas Monthly’s Erica Grieder noted recently that “such secrecy may not be prudent for Texans who support capital punishment, who should hope for executions to proceed as smoothly as possible.” Now, defense attorneys will likely challenge this secrecy for every execution, making each one into its own legal battle.

Texas has used the same drug, pentobarbital, since 2012 and officials have said there are no plans to change the protocol. But the state is using up its store of drugs faster than any other, so eventually we will have to turn to new suppliers. At that point, the risks will only grow.

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University of Texas police lead a protester away from a demonstration outside UT-Austin President Bill Powers' office Wednesday afternoon.
Mikaela Rodriguez
University of Texas police lead a protester away from a demonstration outside UT-Austin President Bill Powers' office Wednesday afternoon.

Update at 7:18 p.m.: Leading the students out three-by-three, University of Texas Police arrested the eighteen students this evening, ending their sit-in. UT spokesman Gary Susswein said students would be charged with criminal trespass, a class B misdemeanor.

Update at 5:54 p.m.:

Update at 5:31 p.m.: 

Published 5:23 p.m.: Eighteen students at the University of Texas at Austin staged a sit-in Wednesday in the foyer outside President Bill Powers’ office, demanding the university cut ties with the consulting and outsourcing firm Accenture and halt a proposed “shared services” plan that puts 500 staff jobs on the chopping block over the next several years.

Members of many different student organizations orchestrated a “takeover” of UT’s iconic tower—the administrative nerve center of campus—late in the afternoon, chanting against the “corporate attack.” The students said they were prepared for the possibility of arrests.

“Despite them [the university] closing every door, we’re committed to our faculty,” said Bianca Hinz-Foley, president of United Students Against Sweatshops said. Students said they were concerned the university has already begun and will continue to lay off staff members as a part of the proposed streamlining of the university’s operations.

In an email to an internal listserv yesterday, Kevin Hegarty, UT’s chief financial officer, wrote that reports of layoffs were incorrect. It “remains our goal to have no layoffs as a result of the transition of services during the pilot phase,” Hegarty wrote.

The staff consolidation plan, devised by a committee that includes several Accenture executives, purports to save the university $490 million within 10 years. President Bill Powers endorsed the plan in late March.

Although the Tower—the term used to describe the university’s top administrators—is enthusiastic about the plan, more than 100 faculty members sent Powers a letter on April 8, expressing dismay that the university would seek a corporate interest to help cut costs, particularly when the $4 million already paid out to Accenture “could have been used to meet our core missions and enhance staff services and staff support.”

Accenture has a checkered past in Texas. The company was put in charge of administering the Texas’ Childrens Health Insurance Plan (CHIP) in 2005—to disastrous results. The company’s bungling of the system caused delays in applications and the state terminated its contract with the company in 2007, losing about $100 million as a result.

“I see the university as having a choice,” Hinz-Foley said. “We hope Powers will do the right thing.”

Stay tuned for updates from the sit-in.

UT-Austin students stage a sit-in to protest a job-elimination plan.
Mikaela Rodriguez
UT-Austin students stage a sit-in to protest a job-elimination plan.
F. Scott McCown
Steph Swope/www.utexas.edu/law
F. Scott McCown

Depending on whom you ask, the state of Texas is either rushing to implement potentially disastrous changes to its foster care system or taking bold action to fix serious problems.

On Tuesday, the House Human Services Committee heard testimony on so-called foster care redesign, a suite of changes meant to keep foster kids closer to home and provide them and their families more services. Under the redesign, the state is split into eleven regions and a private contractor is designated to oversee each, developing local resources and reporting to the Department of Family and Protective Services (DFPS) on metrics like how many kids find placement in their original communities.

Texas rolled out the new system in a West Texas region about eight months ago. Another launch, for a region around Dallas, is scheduled for July. At the hearing, which was crowded, emotional and eight hours long, several child welfare advocates begged lawmakers not to proceed until they saw results from the first two regions. There’s little preliminary data, they said, and warning signs already, such as reports that the first region’s contractor, the Austin-based Providence Services Corporation, is already $2 million in the hole.

“First, we don’t have any outcome data to know whether this effort is improving things for kids so we don’t know if we’re going in the right direction,” said stakeholder Scott McCown, director of the Children’s Rights Clinic at the University of Texas School of Law. “To go forward and further dismantle the [old] system before we find out if this is feasible in any way? We just wind up with a disaster.”

But DFPS Commissioner John Specia said more regional rollouts would allow for more data collection and help determine whether the redesign is going to work. Asked by state Rep. Elliott Naishtat (D-Austin) to grade the progress of the redesign, Specia said he’d give it an “incomplete.”

“There’s not enough data,” Specia said, “but we have to change the system. The current system is not working.”

Nobody disputes that. The changes, passed by the Texas Legislature in 2011, are the latest of several fixes proposed since 2005, when a rash of child deaths demanded action. Tragically, the past here seems prologue. Ten children in state custody died of abuse and neglect in the last fiscal year, up from two in 2012. Caseworker loads remain far higher than federal recommendations and contribute to massive turnover, meaning fewer and less experienced eyes on kids in care. Several young adults who aged out of the system described horrible abuses at the hands of their foster parents and being disbelieved by their caseworkers. Several child welfare advocates say these problems won’t be addressed by foster care redesign, even if it succeeds at the metrics to be studied.

“The [performance indicators] do not meaningfully measure a child’s well-being,” said Ashley Harris of the nonprofit Texans Care for Children. “Nor do they measure progress toward safety and stable and permanent placements.”

El Paso Abortion Clinic Remains Shut After Judge Withholds Relief

Judge Lee Yeakel said the legal fight over Texas’ new anti-abortion law would be resolved at the Supreme Court.
Access to Planned Parenthood

An El Paso abortion clinic will remain shuttered after a federal judge declined yesterday to issue a temporary restraining order that would suspend a provision of the new anti-abortion law requiring abortion clinics to obtain admitting privileges at nearby hospitals. Since filing suit against the state two weeks ago, Reproductive Services in El Paso learned that it had lost temporary admitting privileges. As a result, abortion services at the clinic have been illegal since Friday. Yesterday, the El Paso abortion provider asked District Judge Lee Yeakel to put a temporary hold on the admitting privileges rule so they could legally continue operations until the full case can be heard. While Yeakel said he believed the clinic was harmed by the admitting privileges requirement, he didn’t see the point in litigating the law piecemeal when it was destined ultimately for the U.S. Supreme Court.

Since Monday, the El Paso clinic has cancelled 34 patient appointments. As a result of Judge Yeakel’s ruling, patients will continue to be turned away.

The El Paso closure is more fallout from Texas’ new anti-abortion bill. The admitting privileges requirement is part of House Bill 2, the omnibus anti-abortion legislation that imposes stricter regulations on abortion providers and bans abortions after 20 weeks. Since HB 2 went into effect last fall, approximately one-third of abortion clinics in Texas have closed down because of an inability to obtain admitting privileges at nearby hospitals.

Like anything to do with House Bill 2, the backstory is somewhat convoluted. Earlier this year Reproductive Services gained temporary admitting privileges at nearby Foundation Surgical Hospital of El Paso in compliance. The privileges were set to expire on May 13. On April 2, Reproductive Services and Whole Woman’s Health abortion clinic in McAllen, filed a motion to permanently protect both clinics from HB 2’s admitting privileges provision, pointing to the scarcity of abortion providers in those parts of the state. But the day after the clinics filed the motion, the state health department informed the El Paso abortion clinic that they were already out of compliance with HB 2. The clinic then learned via a voicemail message from Foundation Surgical Hospital that their privileges were no longer valid, even though they still had four weeks to run on their permit. The hospital gave no explanation for the withdrawal.

Reproductive Services immediately filed a request for a temporary restraining order, asking for permission to legally continue operations until the court ruled on the full case.

Yeakel said that the clinic had met three of the four legal tests: that irreparable harm is imminent if temporary relief isn’t granted; that the benefit to the plaintiff outweighs injury to the defendant; and that the order serves the public interest.

Judge Yeakel ruled that the first three prongs had been met but that the final prong—that it wouldn’t be overturned by appeal—didn’t hold water.

“All challenges must be viewed through the prism of the Fifth Circuit as held in its March 28 opinion [that the admitting privileges provision is constitutional],” he said. “That is the law at this time. We can slice it and dice it … but it’s hard to see how there is a significant likelihood of success on the merits. I believe the Fifth Circuit will apply existing law.”

On the courtroom machinations surrounding HB 2, Judge Yeakel was fatalistic about his own place in the legal firmament.

“Everybody thinks it’s really important what the District Court does, and it is for a brief starburst of activity,” said Yeakel, likening court rulings to a train that starts in Austin, where he’s based, goes on to New Orleans, home of the Fifth Circuit, and then whistles on to its final stop in Washington, D.C.

“Nobody will talk about how the District Court dealt with HB 2 or even how New Orleans dealt with it,” he said. “It’s pretty clear to me that admitting privileges is going to the Supreme Court.”

The constitutionality of the fourth provision of HB 2—that abortions clinics upgrade their facilities in line with ambulatory surgical care requirements—is due to return to Judge Yeakel’s court in the next few weeks. Meanwhile the El Paso abortion clinic continues to turn patients away and the McAllen clinic, closed since March, has put its building up for sale.

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Lawsuit to be Filed Against Most Draconian Part of New Texas Abortion Law

Abortion rights groups seek to block ambulatory surgical care center rule and to shield El Paso and McAllen abortion clinics from admitting privileges mandate.
Access to Planned Parenthood

Update at 5:54 p.m.: We now have the official court filing of this suit. Read it for yourself.

Original post published at 1:40 p.m.: This afternoon in federal district court, a coalition of reproductive rights advocates and abortion providers announced their intent to file suit against the fourth and most draconian provision of Texas’ House Bill 2. The ambulatory surgical center requirement, which directs abortion clinics to upgrade their facilities to mini-hospitals, is set to go into effect on September 1. Abortion providers say that the renovations are so costly that fewer than ten clinics in Texas could afford to comply. The remaining abortion clinics in the state would close, forcing women in parts of Texas to travel up to 1,000 miles to access an abortion, say reproductive health advocates.

“There is no question that the politicians who passed this law intended this as the final blow in their assault on women’s constitutional right and ability to safely and legally end a pregnancy in Texas,” said Nancy Northrup, president and CEO of the Center for Reproductive Rights, which is litigating the suit on behalf of providers.

Today’s filing also requests a court order blocking the requirement that abortion providers at Whole Woman’s Health clinic in McAllen and Reproductive Health Services clinic in El Paso gain admitting privileges at nearby hospitals. The McAllen clinic recently closed because of doctors’ inability to gain privileges, leaving the entire Rio Grande Valley without an abortion provider. The El Paso clinic has been granted temporary hospital privileges but these are set to expire in May.

A third of abortion clinics in Texas have already closed as a result of the admitting privileges requirement of House Bill 2, which went into effect in November 2013. Last week the Fifth U.S. Circuit Court of Appeals ruled that the admitting privileges mandate is not unconstitutional, reversing the judgement of a lower district court. The appellate justices in New Orleans were not convinced that the extra travel mandated by clinic closures was unduly burdensome for rural Texas women seeking to access abortions.

 More details about today’s lawsuit to follow.

5th Circuit Abortion Ruling: Road Trips Aren’t that Bad

Legal battle over Texas abortion restrictions likely headed to Supreme Court.
A woman holds up a plastic baby as pro-choice demonstrators chant in the Capitol rotunda.
Patrick Michels
A pro-life demonstrator holds up a plastic baby at the Texas Capitol in July.

In a move that surprised no one, the 5th U.S. Circuit Court of Appeals yesterday upheld the constitutionality of Texas’ new restrictions on abortion clinics. In doing so, the conservative appellate court handed a victory to the anti-choice phalanx in Texas who trumpeted the decision as good news (Rick Perry), a victory (Texas Right To Life) and a vindication of the Legislature’s careful deliberations (Greg Abbott).

It was widely expected that the 5th Circuit would side with the state. In October, the court allowed the most controversial provisions of Texas’ new abortion law—which state Sen. Wendy Davis famously filibustered last summer—to take immediate effect, granting an emergency request from Abbott before the justices had even heard oral arguments. That was a clear signal that abortion-rights groups weren’t likely to win.

Still, yesterday’s ruling is disappointment for abortion providers. They argue that the two provisions of the law they had hoped to overturn in this legal challenge have already caused considerable turmoil. In particular, the requirement that abortion providers have admitting privileges at nearby hospitals has led to the closure of at least 10 abortion clinics since last fall, providers say. Women seeking abortions in rural areas like the Rio Grande Valley, the Panhandle, and in vast swathes between El Paso and Interstate 35 must now travel greater distances.

But the appellate judges weren’t convinced that the need to travel further to access abortion was a big deal. At the oral argument in January, Chief Justice Edith Jones observed that the roads between the Rio Grande Valley and Corpus Christi were flat and uncongested. It seemed beyond Justice Jones’ imagination that a Texas road trip might not be an adventure—or more than a minor inconvenience—for a woman with a full-time job, child care responsibilities or visa restrictions that confine her to the lower reaches of the Rio Grande Valley.

The court’s ruling reprised this assumption by noting that the journey from the Valley to the nearest abortion clinic in Corpus Christi takes only three hours. Moreover, the judges added, these women are exempt from the mandatory 24-hour wait because they live in rural areas, so what’s unduly burdensome about that?

In another curtsy to the joys of the Texas road trip, the judges note in their ruling that women don’t lack access to abortion clinics, because major providers still exist in Austin, Dallas, Houston, El Paso, Corpus Christi and San Antonio. Yet the opinion overlooks the  reality for many women whom this ruling will affect. Before the law was implemented, low-income women were already making difficult economic decisions to pay for their abortions. They were pawning their belongings or skipping their rent to save money. The closure of abortion clinics in all but major urban areas makes accessing abortion even more difficult for poor women in rural areas.

The last legal hope for Texas abortion providers is the U.S. Supreme Court. So far, the plaintiffs in the case—the Center for Reproductive Rights, The Planned Parenthood Federation and The American Civil Liberties Union of Texas—haven’t confirmed that they will appeal. However, both sides expect the case to end up before the nation’s highest court. Indeed, Supreme Court Justice Stephen Breyer wrote in a dissenting opinion about whether the bill should be delayed while the Fifth Circuit deliberated and that at least four members of the high court would be willing to consider law’s constitutionality, regardless of what the appellate court ruled.

Meanwhile, another more dramatic provision of the law looms. By Sept. 1, all remaining abortion clinics in Texas must upgrade their facilities to meet the standards of ambulatory surgical care centers. Abortion providers note that the upgrades are so expensive that only six clinics in Texas may survive.

No doubt, the state of Texas will trumpet this outcome as a victory for women’s health and safety. Poor women without the means to traverse Texas’ winding highways may not agree.

Polk-County-Caravan-Elaine-769x448
Marissa Barnett
Activists and members of families separated by immigration detention leave a Father's Day gift outside the Polk County facility in June.

Immigrants in a for-profit detention center in Conroe are refusing to eat to protest conditions at the facility. The protests in Texas follow a similar hunger strike that began two weeks ago at a Tacoma, Washington, detention center. Both facilities are owned by scandal-plagued GEO Group, the second-largest private prison company in the world. The protests are part of a wave of hunger strikes that immigrants have started in detention centers across the nation to call attention to what they say is the unjust practice of locking up immigrants and separating families through deportation.

The families of the detainees on Wednesday gathered outside the all-male Joe Corley Detention Facility north of Houston to call on jail officials not to retaliate against the hunger strike leaders. Adelina Caceres said that her partner, David Vasquez, has been kept in solitary confinement at Corley as punishment for helping to start the strike. Vasquez has been in the detention center for nearly a year, she said.

As of Tuesday, 120 detainees were participating in the strike, according to Cristina Parker, an organizer with Grassroots Leadership, an Austin-based group that opposes private prisons. The detention center is capable of holding 1,517.

Vasquez and Manuel Martinez began the strike Sunday at midnight, according to advocates. In individual letters released Monday, the two men demand an end to deportations as well as the controversial Secure Communities program, which uses local law enforcement to funnel immigrants into the federal government’s deportation system.

The men say many detainees have already paid fines and done time in county jails, only to be picked up by Immigration and Customs Enforcement (ICE) upon release and put into immigrant detention centers.

This aggressive dragnet is partly driven by a mandate established by Congress in 2006, a quota requiring ICE to fill 34,000 prison beds every night. Advocates say the mandate leads to the detention of U.S. residents as well as undocumented immigrants who commit minor infractions. But it’s been a boon to private prison companies, essentially guaranteeing a steady stream of detainees.

Echoing those in Washington State, Texas detainees are decrying overcrowding and unjust treatment by guards, who they say are disrespectful and verbally abusive. They call for better food, affordable prices at the commissary and reasonable phone rates. Neither ICE nor the GEO Group responded to requests for comment.

A detention center in Elroy, Arizona, saw two different hunger strikes last summer, one by a group of activists called the “Dream 9,” who together attempted to cross the Mexican border and were placed in detention. They were eventually released while they pursue their asylum cases. In October, a group of DREAM Act students who named themselves the “Dream 30” and who together attempted to cross the border at Laredo, similarly began a hunger strike inside an El Paso detention center.

The most recent strike, in Tacoma, peaked at 750 participants. That number eventually dwindled to three, but those strikers continued into their 13th day on Wednesday. Yesterday, two of the three protesters sent messages of encouragement to the Texas strikers. In a recording in Spanish, Ramon Mendez Pascual says, “The only thing I want to say is don’t be afraid, we must keep going, so that we are heard and so that we can be free.”

Update: After publishing this story, GEO Group responded to an email for comment with the following: “Our company has had a long-standing public-private partnership with U.S. Immigration and Customs Enforcement (and its predecessor agency, the Immigration and Naturalization Service) that dates back to mid-1980s. GEO’s immigration facilities provide high quality services in safe, secure, and humane residential environments, and our company strongly refutes allegations to the contrary.” The company would not address the hunger strike.