Why Detention Is A Bad Idea And Why Detention Is Not Smart Enforcement
Immigration detention is no different from criminal incarceration.
Individuals in immigration detention are in administrative detention; they are not serving a criminal sentence or awaiting trial on criminal charges. Yet, the majority of detention settings (currently more than 200 facilities including ICE run and private contract facilities, local prisons and jails) are medium security facilities run according to stringent regulations for criminal incarceration. As a result, an immigrant detainee's experience is no different from that of a criminal inmate.
Detention imposes great hardships on detainees and their family and friends.
Detention tears countless families apart.  Detainees are placed arbitrarily and often hundreds of miles away from their families, friends and communities, further aggravating their isolation and depression.  Long term permanent and undocumented residents with strong ties to their communities are deterred from pursuing legitimate claims of relief because of their isolation from legal resources and community support and the huge burdens their families suffer while they are in prolonged detention. Detention also deters many people from pursuing legitimate challenges to the law in the first instance, e.g., whether they are correctly charged as being deportable from the U.S.
The current detention system applies a one-size-fits-all approach, frequently resulting in the inhumane and prolonged detention of vulnerable populations.
Survivors of torture, asylum seekers, families with small children and individuals with serious mental health and medical conditions such as HIV/AIDS, are routinely locked up in jails or under jail-like conditions. Studies conducted by the bipartisan Commission on International Religious Freedom, New York University's Bellevue Program and Physicians for Human Rights have demonstrated that, even in well-run jails, detention itself poses a serious threat to the psychological health of the detainees. Women are more likely than men to be placed in local jails mixed with the general criminal population because DHS has less space reserved for women in their own service processing centers. There are few facilities to hold families together during immigration proceedings. A mother may be placed in a county jail while her child is shipped to a facility in another state. In some cases, parents have no idea where their children end up.
There are no binding uniform detention standards that ensure the humane treatment of detainees.
Detainees are often subjected to arbitrary punishment, including strip searching, shackling, solitary confinement, neglect of basic medical and hygienic needs, denial of outdoor recreation, lack of access to phones, mail and legal resources and verbal, physical and even sexual abuse.
Immigration detention facilities are largely unregulated. While ICE has issued 36 standards for the treatment of immigration detainees, they are not enforceable regulations. The Bureau of Prison detention facilities are not subject to the DHS detention standards, and ICE has been slow in ensuring full compliance by local and county jails. The lack of oversight is made more problematic when detention facilities do not allow or resist giving federal investigators full access, as had been the case during a recent investigation by the U.S. Department of Justice's Office of the Inspector General.
Detention greatly impedes detainees' ability to access legal assistance.
Detained in remote locations, far from nonprofit legal groups and pro bono law firms, detainees are unable to fully exercise their rights. It is estimated that 90 percent of immigration detainees go without representation in removal proceedings. Whereas the right to counsel is fundamental in our criminal justice system, immigrant detainees have no guarantee of counsel despite the hurdles of language and education that detainees face and the complexity of the immigration laws. As EOIR itself recognizes, access to legal assistance helps reduce anxiety among detainees and promotes more efficient use of government's resources.
Detention is hugely expensive and unnecessary
The US detention system has grown exponentially in the last decade. In 1994, the INS had approximately 5,500 persons in detention on any given day. By 2004, the daily average had increased to 21,919 with an estimated total of 235,247 people detained throughout the year.  From 1994 to 2002, the INS detention and removal budget soared from $239 million to $1.1 billion.
Different sources estimate that it costs ICE an average of $65-$80 a day to detain one person although in some facilities the costs have been as high as $225 a day. Despite the fact that effective alternative programs have an estimated cost of only $8 per day per person, they have long been under-funded by Congress. For example, $90 million was recently approved to increase ICE's detention capacity, while only $10 million was approved for detention alternatives.  Many non-citizens would also be able to support family members and pay taxes while on release.
As members of Congress have recognized, the detention and deportation of the millions of undocumented people in the United States would be too costly - it would cost an estimated $206 to $230 billion, assuming that several million come forward voluntarily.  Immigrants are deeply integrated into our economic system, as workers, consumers and taxpayers; detaining them unnecessarily greatly harms our economy.
Pilot alternative programs have proven successful and cost-efficient
Between 1997 and 2000, the Vera Institute of Justice coordinated a highly successful alternative program through a contract with legacy INS. Participants were required to report to the Vera Institute and provided with legal information, referrals and court date reminders. Although the program cost less than half of what it would have cost to detain these individuals, the Vera Institute reported a 93% appearance rate for the asylum seekers in its program. A similar alternative program implemented by the Lutheran Immigration and Refugee Service reported a 96% appearance rate. These programs also help ensure that non-citizens in proceedings have meaningful access to counsel, in contrast to individuals in detention, among whom only some 10% have counsel.
Expansion of the immigration detention system is a cynical opportunity for private prison corporations and county and state entities to replenish their earnings which have been reduced as a result of declining prison populations
Congress is funding detention based upon national security rhetoric and without open and responsible debate about the effectiveness of our current immigration detention system and the interests it serves. Congress must ensure the legitimacy of the legislative process - particularly when strong incentives for interest groups to lobby for more detention exist. Detention is a profit-making industry. In some cases, prisons charge ICE twice what it costs to hold the detainee.  Recently, Pinal County borrowed $65 million for the renovation and expansion of its local jail. It plans to offset this debt with expected funding from the federal government for housing immigration detainees.  In some states, local taxes have been eliminated due to the profit made through housing ICE detainees. Changes in the detention system must be made with the transparency and public input that Americans deserve.
Expanding detention indiscriminately hurts U.S. citizens
Current law provides for the detention of huge categories of non-citizens without hearings before an administrative agency. Because determining whether someone is a U.S. citizen is an extremely complicated legal question, the reality is that many U.S. citizens are held in detention for long periods before their citizenship is confirmed which exposes criminal and immigration systems to liability. Many non-citizens spouses and children of U.S. citizens are detained away from their family and friends, without consideration of their ties to U.S. citizen family and friends.
1 U.S. Commission on International Religious Freedom, Report on Asylum Seekers in Expedited Removal, February 8, 2005, available at http://www.uscirf.gov/countries/global/asylum_refugees/2005/february/index.html.
4 DHS Office of Immigration Statistics, Immigration Enforcement Actions: 2004 at http://uscis.gov/graphics/shared/statistics/publications/AnnualReportEnforcement2004.pdf.
5 "Recently Passed and Pending Legislation," prepared by the National Immigration Forum (July 2005).
6Statement of Senator John McCain before the Senate Committee on the Judiciary about Comprehensive Immigration Reform, July 26, 2005.
7 Mark Dow, American Gulag, Inside U.S. Immigration Prisons, 9. University of California Press (2004).
8 Josh Kelley, "Pinal Plans Newest Jail to Hold ICE Migrants". The Arizona Republic, September 20, 2005.
About The Author
Andrea Black is the Network Coordinator of Detention Watch Network(DWN), the only national coalition in the United States that addresses the detention crisis head-on and helps detainees and their loved ones make their voices heard. It is a network of individuals and organizations working in support of, and in service to, immigrants in detention.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.