Mark Noferi and Robert Koulish [Ed. Note: Today, Mark Noferi is joined by Professor Robert Koulish, a political scientist in the Department of Government and Politics at the University of Maryland who also teaches immigration law at Maryland’s Carey School of Law. Professor Koulish’s most recent book is “Immigration and American Democracy: Subverting the Rule of Law,” in which he examined immigration control as a laboratory for post-9/11 expansion of U.S. executive power, and he is co-editing “Immigration Detention, Risk and Human Rights—Studies on Immigration and Crime” (2014 release). His recent article is “Entering the Risk Society: A Contested Terrain for Immigration Enforcement,” published in the volume Social Control and Justice. Along with Professor Noferi, and other law professors and social scientists, he is a member of the CINETS Crimmigration Control international research consortium, founded by Juliet Stumpf and Maria João Guia.
Together, Professors Koulish and Noferi are studying Immigration and Customs Enforcement’s (ICE’s) use of its new automated risk assessment tool. They discussed the issue in Baltimore Sun and Newark Star-Ledger op-eds, and will discuss further in forthcoming pieces under review.]
If S. 744 passes, DHS has an opportunity to significantly reduce unnecessary over-detention of immigrants. DHS will make an “individualized determination” perhaps further, support outright repeal regarding detention for all. For those mandatorily held under INA § 236(c) for certain prior crimes, DHS will have explicit authority to place those individuals into “custody” rather than detention, “custody” now interpreted to include electronic tracking bracelets. For those discretionarily held under INA § 236(a), bond hearings must be provided within a week. At these hearings, DHS will have to demonstrate to an immigration judge that “no conditions, including … alternatives to detention” will “reasonably assure” appearance at hearings and public safety. DHS will have to establish alternatives to detention that provide a “continuum of supervision,” including community support, case management, and appearance assistance services. DHS will be required to review an individual’s level of supervision monthly, and detainees will receive a custody review at least every 90 days.
Left unspoken in S. 744, however, is the process that will underlie DHS’ “individualized determination”—risk assessment. On March 19, ICE Director John Morton announced to Congress that ICE had deployed nationwide its new automated “Risk Classification Assessment” tool. Using this computerized tool—akin to a “point system”—ICE will collect information about an immigrant; ask its databases for a recommendation as to risk of flight or to public safety; and based on that recommendation, decide whether to detain or not. We think the information collected will include criminal history, family history, community ties, and vulnerabilities such as disability or crime victim status.
Risk assessment has drawn bipartisan support for its utility in criminal bail recommendations, especially in reducing cost. As Rep. Spencer Bachus (R-Ala.) recently asked Morton, “Are you overusing detention? Why don’t you do a risk assessment?” Alternatives to detention cost a tenth of detention or less—$14 per day as opposed to $164. Helpfully too, ICE’s systems can produce statistical reports and trend analysis of its risk assessments to “better assess situations where [noncitizens] with similar characteristics seem to have different detention outcomes.”
Thus, ICE risk assessment data has the potential to empirically support S. 744’s proposed reforms to reduce detention, and further reforms (as we wrote in the Baltimore Sun). First, ICE’s risk practices and data may support ending mandatory detention. Risk data might show that individualized release determinations would not appreciably increase risk of flight or danger, especially regarding detainees with U.S. family ties. It may support S. 744’s revision of mandatory detention into mandatory “detention or custody,” and perhaps further, support outright repeal of mandatory custody altogether.
Second, ICE’s risk practices and data may help Congress reform ICE’s over-detention relative to U.S. criminal systems. For example, NYU’s Insecure Communities report found that in New York from 2005 through 2010, 80 percent of ICE arrestees were denied bond, with fewer than 1 percent released with no bond. By comparison, in criminal cases continuing past arraignment, 1 percent of defendants were denied bail, with 68 percent released with no bail. Congress should provide that DHS and immigration judges consider clear criteria regarding flight or danger, as criminal judges do, based on the risk data ICE now collects. Moreover, at the very least, individualized risk assessments should negate any need for Congress to continue its “bed quota” requiring 34,000 detainees at any one time (as the New York City Bar also advocated).
Third, comprehensive, accurate risk assessments should help reduce the severity of ICE detention. Dora Schriro, author of ICE’s 2009 oversight report on detention, called immigrant detainees “appreciably different” from criminal detainees—often with intact families and jobs, well-developed life skills and nonviolent conduct. Yet, as the American Bar Association documented, immigrants largely remain in facilities “designed to hold criminal offenders,” many actual jails. Even ICE’s new civil detention standards are still modeled after jail standards. The ABA’s model immigration detention standards provide a forward-thinking blueprint for both less and less restrictive detention, tailored to civil immigrant detainees. Congress should adopt the ABA standards into law (as the New York City Bar also advocated).
Yet risk assessment, along with its potential to support reform, poses potential concerns. Transparency is one (as we wrote in the Newark Star-Ledger). ICE has not released its risk assessment criteria. So, as things stand, ICE’s computers now determine immigrants’ liberty based on secret algorithms, which ICE officers must presumptively follow. There appears “no opportunity for immigrants to change or review information,” as New York City Bar wrote. All the more concerning, human rights advocates previously criticized the risk assessment tool for being weighted toward over-detention. If the risk tool says all immigrants are risky, detention reforms will be for naught. Since ICE refuses to release information related to RCA algorithms, it is unclear how risk will be measured, which variables will be used and how they will be weighted. Further, without having access to the risk assessment summary the immigration judge will have no evidentiary basis for a bond hearing. Congress should require immediate disclosure of ICE’s risk assessment criteria, and require that the risk assessment summary, currently placed in DHS’ file on an immigrant (the
“A-File”), be reviewed in immigration court (as City Bar recommended as well).
Additionally, Congress should require ICE to publicize its statistical reports analyzing its new risk assessment practices (as S. 744 Section 3716 requires DHS to publicize other detention oversight activities). These reports could help prevent not only overuse of detention, but overuse of the most restrictive alternatives to detention. Immigrants in tracking bracelets are “freed but not free,” as a recent Rutgers-Newark School of Law study found. Restrictive alternatives should be reserved for the higher-risk, not expanded to nonviolent, long-time residents who should simply be released.
More broadly, the introduction of risk assessment technologies, without concomitant changes to laws requiring mandatory custody or practices resulting in over-detention, may facilitate a societal transformation from mass detention of immigrants to mass supervision. Alternatives to detention may garner wide public support, since the risk decision is purportedly neutral and computerized, and tracking bracelets are relatively cheap. But they also create additional risk for immigrants and society alike. A new risk assessment frame for immigration enforcement will increase the capacity for social control. While more immigrants may be freed from incarceration, for example, they will hardly be free under electronic or community supervision. This future “risk society” raises separate civil liberties concerns and societal inquiries, which we plan to address in forthcoming work.