Immigration detention is the fastest growing form of incarceration in the U.S. The effects of detention can be felt throughout the nation. This month, we will consider these effects and other aspects of detention in three-part series. The first part is an editorial voicing general concerns about detention and providing a basic understanding of the system. Part Two highlights the costs associated with the current system, as well as alternatives. Part Three focuses on the increasing alarm over the lack of medical care provided to detained immigrants.
Unjust, Unsustainable Detention
Imagine not committing a crime and being thrown in the slammer anyway. Imagine you are in a foreign country, perhaps one where you do not speak the language, perhaps one where you have no friends or family. Now imagine trying to find yourself a lawyer while behind bars or trying to gain a meaningful understanding of that country’s immigration laws and legal system. Good luck.
To me, the detention of immigrants has long been one of the most troubling aspects of our immigration laws and practices. There are myriad causes for concern about the detention of immigrants in the U.S., but at the heart of the issue is a lack of standards. “Lack of standards” is not merely a reference to a lack of uniform standards, but rather a lack of standards entirely.
The Department of Homeland Security (DHS) replaced the former INS by creating the border security agency known as Customs and Border Patrol (CBP) and the interior enforcement agency known as Immigration and Customs Enforcement (ICE). (The raids on factories and homes are conducted by ICE.) ICE is responsible for managing the detention and removal of immigrants. ICE does manage a few of its own federal facilities dedicated to the detention of immigrants, for which National Detention Standards have been devised and have begun to be implemented. However, these facilities hold only 13% of those detained. The vast majority of immigrants are detained among the 400 state and privately owned facilities rented out by ICE. No uniform standard exists for the immigrants detained in these facilities so they are subjected to the standards employed by the individual facilities.
“Facilities” generally refers to prisons and jails. Therefore, it is relevant to consider what “detention” in such “facilities” really means in the context of immigration. “Detained” and “detention” is in actuality “imprisoned” and “imprisonment.” True, some immigrants are detained for having committed a crime and who are deportable because of it. But make no mistake about it, immigrants who may have violated a civil law (or who are simply seeking asylum) are also held in jail, donning orange jumpsuits and handcuffs. In many cases they are detained alongside prisoners (i.e. inmates charged with and/or convicted of a crime). I have personally had a client, an asylum-seeker with absolutely no criminal history, in this scenario.
There is seemingly no application of “cruel and unusual punishment” to immigrants. Detained immigrants can languish in jail for weeks, a month, several months, and longer before being heard by an Immigration Judge. Although there is technically a limitation on indefinite detention, it is realistically ineffectual. This restriction is triggered by a final order, and obtaining a final order can take years. (Hearings in Detroit, for example, are often scheduled a year or more out.) To reiterate the injustice of detention, and long term detention in particular, most detained immigrants are imprisoned for an alleged civil violation. No crime. No conviction.
I understand the concern that to release immigrants from custody may be to lose them in the masses. However, alternatives exist and should be actively pursued and granted. Detained immigrants should no longer be automatically shackled and jailed.
Release on bond is a viable option that should be granted more regularly. Currently, bond is often overly high and underutilized.
The use of Electronic Monitoring, i.e. ankle tethers, should be adopted on a large-scale. DHS statistics show that nearly all immigrants released on bond with tethers appear for their final hearings before the Immigration Judge. Not only do tethers seem to effectively address the truancy concern, the use of tethers costs an average of merely $12/day per immigrant, whereas ICE spends an average of $99/day to detain a single immigrant. Despite this, the FY 2009 budget for ICE included $71.7 Million toward detention beds and only $7.2 Million to “alternatives to detention.”
The creation of immigration detention centers is another option that must be explored so that uniform standards can be evenly applied to all immigrants. Rented space from state jails and prisons is expensive, burdensome to states already overflowing with criminal inmates, impossible to closely monitor, and utterly ill-suited for the vast majority of detained immigrants.
The medical concerns of detained immigrants must be addressed as a priority. It is unacceptable that since 2003 at least 104 immigrants have died while in detention.
Regardless of one’s views on our borders, and whether they should be opened further or lined with walls, the detention of immigrants in jails and prisons under the status quo is something I believe no one should tolerate. If our elected and other public officials, including DHS Secretary Napolitano, have any sense of humanity and logic, they will work hard and fast to restore respect for human dignity and responsibility to the immigration detention system.