a persistent problem

Unlike the Federal Bureau of Prisons, which owns and operates its own detention facilities, both the U.S. Marshals Service (USMS) and the U.S. Bureau of Immigration and Customs Enforcement (ICE) rely heavily on State and local governments to house prisoners and detainees. Collectively, the two agencies have agreements with over 2,000 of these detention facilities located throughout the United States and outlying territories. Learn More About Federal Detention Projections.

In order to house federal prisoners, State or local detention facilities must first apply for an Intergovernmental Agreement (IGA) with either USMS or ICE. Often times, USMS will allow ICE to piggy-back off its IGAs, meaning that local jails can house ICE detainees under a USMS IGA. However, the IGA application process can be a laborious and time-intensive process.

The United States Office of Management and Budget (OMB), through Circular A-87, established rules governing IGAs and negotiating their per diem rates, as well as transportation / hospital guard service rates. More specifically, the circular is used to determine whether jail costs are allowable and allocable. However, the circular’s rules are complex and confusing, and historically resulted in audits of local jails, with USMS seeking reimbursements from the local government for any overpayment. Learn More About Federal Detention Appropriations.

This caused great friction between local governments and USMS, and in response, the Attorney General was authorized to enter into fixed-price per diem rates that were fair, reasonable, and no longer subject to retroactive adjustments. See, Pub. L. No. 106-553, Title I, § 119, 114 Stat. 2762A (2000), better known as “Section 119 Authority.” Learn More About Section 119 Authority.

This prompted USMS to develop econometric techniques which can be used when establishing per diem rates for IGA applicants. However, USMS also recognizes that these techniques might not adequately account for all facility characteristics and/or specialized services provided by a local jail.  So, USMS still requires applicants to submit cost data for review in accordance with the Circular A-87. To make things even more confusing, Circular A-87 was streamlined in 2014 by OMB Super Circular 200.

Today, the USMS still fixes per diem rates and transportation / hospital guard service rates for the term of an IGA, which is typically 36 months. This means that local jails wanting updated rates must undertake the complex and confusing application process every three years. Often times, a change in jail staff means that the local government faces repeated learning curves over and over again. The prospect of having to navigate this endeavor often results in local governments not updating their rates despite the increased cost they face in housing and transporting federal prisoners. Learn About Our Solution To This Problem.