In a thoughtful and concise report issued recently by the Detention Watch Network and Stanford Law School’s Immigrants’ Rights Clinic the two immigrants’ rights organizations advocate for use of community-based Alternatives to Detention (ATDs) in immigration policing. Policy Brief: Community-Based Alternatives to Immigration Detention (Aug. 2010). “Community-based alternatives to detention programs are designed to ensure that immigrants appear for immigration proceedings, without relying on detention or overly restrictive surveillance and reporting mechanisms such as electronic monitoring devices.” Policy Brief at 5.
The ATD programs recommended by these organizations provide immigrants who today are typically detained, including people in removal proceedings based on a criminal history, with free or low-cost legal assistance, case management and other social services, and appropriate monitoring and supervision. According to the report, ATDs can dramatically reduce the government’s cost while maintaining or improving the rate of failed appearances from Immigration Court.
ICE is on track to detain 400,000 individuals this year, a record-setting accomplishment that the Obama Administration has touted to boost its tough-on-immigrants (i.e., tough on border “security”) credentials. At a cost of approximately $122 per day per detainee, jailing 400,000 people will cost ICE approximately $1.77 billion in FY 2010 when accounting for the cost of rounding up people and administrative costs, the report states. The agency has asked for $2.6 billion for FY 2011 for its detention and removal operations, “including a $20 million increase of FY 2010 specifically for increasing the number of available detention beds.” Policy Brief at 9. Meanwhile, proven ATDs discussed in the report could lower the government’s cost to as little as $12 per day per detainee.
To preempt the concern that imprisonment is the only or best way of keeping dangerous people off the streets, the report recommends use of a risk assessment tool for each individual prior to release. “A risk assessment tool includes a series of questions aimed at determining whether an individual can be released to the community while his or her immigration case is pending, or instead, whether the individual presents a flight risk or a threat to public safety. The tool allows ICE officials to make informed custody determinations by comparing an inventory of factors, such as age, gender, ties to the community and family circumstances, immigration case status and eligibility for relief, criminal history, medical conditions, and other vulnerabilities that would place an individual at heightened risk in a detention facility, such as medical and mental health issues, pregnancy, or past trauma.” Policy Brief at 6.
One pilot project featured in the report used such a risk assessment tool and ensured “that over 90% of participants had attended all required court hearings” at a cost “15% less expensive for lawful permanent residents with criminal records” than detention. Policy Brief at 6.
The report does not explicitly address the obstacle to ATD posed by the INA’s mandatory detention provision, INA § 236(c). That section requires DHS to take into custody all individuals who fall into enumerated categories, including most of the crime-related grounds of inadmissibility and deportation.
The report does, however, implicitly provide an argument that favors use of existing ATDS while complying with § 236(c). The report describes ICE’s existing ATDS (which currently include only approximately 16,000 people) as “alternative form[s] of detention, rather than a true alternative to detention” because of “the custodial nature of these programs.” Policy Brief at 5. That is, people in ICE’s existing non-detention programs are effectively in custody. Importantly—and the report does not make this connection—§ 236(c) actually requires that DHS take people into “custody” not “detention.” If the report is correct that ICE’s existing programs are a form of custody, then perhaps Immigration Judges can place people into those programs even though they fall within § 236(c).