End Immigrant Detention: Break Open the Broken Door

By Jackson WeberPublished April 15, 2016

    While the spectre of immigration reform and self-proclaimed "amnesty proposals" continue to haunt the 2016 Presidential race, not enough attention has been placed on immigrant detention. Outside the purview of substantive government oversight, 400,000 people were detained in immigration detention centers last year in an ever expanding system of private and public immigrant detention. In recent years, immigration detention centers have expanded rapidly across the United States. The average daily population of detained immigrants has grown from approximately 5,000 in 1994 to 19,000 in 2001, climbing all the way to 34,000 in 2010. Recent legislation has accentuated the incentives for law enforcement to detain undocumented migrants. The Department of Homeland Security Appropriations Act of 2010 states that "funding made available under this heading shall maintain a level of not less than 33,400 detention beds" which the Immigrations and Customs Enforcement Agency has been interpreted as a quota. No other agency in the U.S. government operates under such a quota.
    
    At the 180 immigrant detention centers across the United States, living conditions reflect our nation's system of mass incarceration. All detainees are treated similarly across the United States regardless of the strength of their claims; an applicant seeking political asylum is detained in the same location as an individual accused of a minor crime. Detainees are transported to detention centers in handcuffs or even shackles where they are forced to wear a jump-suit uniform and guarded by uniformed officers. Often, detainees sleep in large rooms where guards regularly conduct several counts. Individuals in these facilities experience an excessive use of physical restraints and a lack of privacy in showers and toilets. Immigrants are treated like criminals and effective oversight is non-existent. In 2010, the ACLU filed a Freedom of Information Act request which revealed over 200 allegations of sexual abuse and assault at immigrant detention centers across the United States.

    This is inconsistent with the 14th Amendment's guarantee that "No state shall . . . deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Regardless of the Trumpism of the day, immigrants have basic constitutional rights to quick due process of law unrestrained by a restrictive immigrant detention system. This right does not exist today for the average detainee. According to the Transactional Records Access Clearinghouse, the average detention time for non-citizens was 31 days while only 70 percent of ICE detainees were released within the first 30 days. However, this gets worse for US non-citizens accused of minor crimes that are even as trivial as a speeding ticket who can be detained for more than 404 days in these facilities that are not created for such long-term stays. In addition, other basic rights are denied to immigrant detainees in their immigration law cases. While Gideon v. Wainwright required courts to provide an attorney for defendants in criminal cases who could not afford counsel, detainees typically would not receive this because immigration law, unlike criminal law, does not provide a right to counsel.

    There are a couple of ways to improve the $2 billion system of immigration detention. First, the United States could pass comprehensive immigration reform that also reduces or eliminates ICE's bed quota to relieve the system of massive amounts of detainees and provide a legal mechanism for individuals to seek asylum outside of a process designed for quick detention and deportation. However, such a proposal remains stalled in Congress. However, there remains the potential for reform.

    The only true purpose of immigrant detention is to keep defendants detained until their trial;while many of these individuals cannot afford to post bail, there are other ways to ensure their trial appearance that does not run afoul of the US constitution. The ACLU proposes that the US Immigrations and Customs agency could instead screen every apprehended individual, determine their flight risk and use alternatives such as recognizance, community support or a monitoring program to ensure their appearance at trial. A pilot program run from 1997 to 2000 found that just using community organizations to provide guidance to would-be detainees increased attendance at trial from 71% to 91% at a cost of just $12 per person compared to $122 per person under the current system of detention.

    Alternatives to detention help build trust and connections between undocumented immigrants and their communities to ensure they live productive lives outside of the detention facility if immigrants are successful in their case. Using alternatives to detention, the U.S. government could save money, build ties between immigrants and their communities, and begin to treat immigrants as a nation of immigrants should.