A report by Human Rights First discloses a wealth of hard-to-find information about the nation’s burgeoning immigration detention system. Jails and Jumpsuits: Transforming the U.S. Immigration Detention System—A Two-Year Review (2011) goes a long way to shattering the legal claim that immigration detention is a form of civil confinement. Though this report was published two years ago, I only recently came across it and found it very informative.
Over and over, the report exposes immigration detention centers as using the same procedures as criminal jails. Detainees usually wear uniforms that are color-coded in accordance with their security classification. Visitations from family and friends are limited. Privacy, even when showering or using the bathroom, is essentially non-existent. They are subjected to multiple head counts throughout the day. Jails and Jumpsuits at 1. And the facilities themselves are “typically surrounded by multiple perimeter fences topped with razor wire, barbed wire, or concertina wire.” Jails and Jumpsuits at 8.
This is to be expected, though, given that “approximately 50 percent of ICE’s population was held in actual correctional facilities that also housed criminal detainees.” Jails and Jumpsuits at iii.
Sometimes the conditions are even worse. Many immigration jails don’t allow contact visits with family and friends. One facility even requires no-contact visits with attorneys. Jails and Jumpsuits at 9. Detainees are frequently “required to spend all or most of the day in their housing units.” Jails and Jumpsuits at 8.
What’s telling is that many of the individuals detained seem to pose no particular risk to anyone. A full 41% of the 32,596 people detained on May 2, 2011 (a date for which HRF received detailed data) were classified by ICE as “low risk” (Level 1). Another 40% were classified as “medium risk” (Level 2). Only the remaining 19% were classified as “high risk” (Level 3) detainees. Jails and Jumpsuits at 2.
Though imperfect, these data suggest that the detention population might shrink by 80% without any measurable impact on public safety. The low risk detainees are unlikely candidates for civil detention because they have no criminal history or minor criminal activity that did not involve physical violence. Similarly, many of the medium risk detainees are unlikely to pose a danger or flight risk either because, according to ICE policy, they lack a history of violent assaults, a history of assaults while in any type of custody, and have not been convicted of an offense that ICE considers among the most severe (aiding escape, aggravated battery with a deadly weapon, armed robbery, burglary with assault, escape, inciting riot, kidnapping, 1st or 2nd degree murder, and sexual battery). The high-risk detainees present a more likely option for civil detention because they are more likely to have evidenced a history of violence. Even that isn’t necessarily so, though—only 11% of detainees had in fact committed violent crimes, according to data HRF analyzed.
Most of these individuals could likely be released and ordered to appear for hearings without any difficulty. Some, however, might be better suited to alternatives to detention. According to HRF, “[i]n 2010, 93 percent of individuals actively enrolled in these [ATD] programs attended their final court hearings, and 84 percent complied with removal orders.” Jails and Jumpsuits at 14. These are very respectable compliance rates that would save the government a lot of money given that “current Alternatives to Detention cost on average $8.88 per day—more than $110 less per day than detention.” Jails and Jumpsuits at 14.
Though ATD programs ought to be expanded as a way of decreasing the detention population, ICE’s use of ATD programs needs to be watched closely. The agency, it seems, could easily be tempted to use ATD programs for individuals who pose such little risk of flight or danger to the community that they do not merit detention. This could quickly become “a large-scale regime of ‘alternatives to release,’ rather than true ‘alternatives to detention,’” as Anil Kalhan warned. Anil Kalhan, Rethinking Immigration Detention, 110 Columbia Law Review Sidebar 42, 56 (2010). Indeed, a recent Miami Herald article reported that ICE sometimes moves people into ATD programs who would show up to their hearings without monitoring. Brenda Medina, Instead of Detention, Many Undocumented Immigrants Being Electronically Monitored, Miami Herald (June 7, 2013).
As Congress contemplates reducing ICE’s reliance on imprisonment, ATDs may take a more prominent role in the agency’s future practices. Even that happens, I’ll look forward to another HRF report.
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