A recent report by the Department of Homeland Security’s Inspector General provides much needed insight into the inner workings of ICE’s alternatives to detention (ATDs). U.S. Department of Homeland Security, Office of Inspector General, U.S. Immigration and Customs Enforcement’s Alternatives to Detention (Revised) (Feb. 4, 2015). At the same time, the report hints at a major risk inherent in ATD expansions: that throwing more people into some form of government supervision will eventually mean more people in detention.
Until November 2014, the government ran a single ATD program, called the Intensive Supervision Appearance Program (ISAP) II, that featured two supervision options: a technology-only option that consisted of ankle bracelet or telephonic reporting monitoring, and a full-service option that includes those technologies plus in-person case management. Id. at 3-4. “As of February 2014, there were 10,833 active Technology-Only program participants and 11,368 active Full-Service participants.” Id. at 4.
Though exact costs are difficult to pin down because ICE doesn’t track its personnel costs, the contractor that runs ISAP II, Boulder, Colorado-based BI International, “charges $0.17 a day per participant for telephonic monitor and $4.41 for GPS monitoring. For Full-Service supervision, the contractor…charges an average of $8.37 a day per participant.” Id. at 4. Compare that to the $158 per day that the Government Accountability Office says it costs ICE to provide a detention bed. U.S. Gov’t Accountability Office, Alternatives to Detention: Improved Data Collection and Analyses Needed to Better Assess Program Effectiveness 19 n.47 (2014). ICE planned to launch ISAP III in November 2014, but the report doesn’t provide any details about how, if at all, that might differ from ISAP II.
Though ICE’s data collection is somewhat lacking, the vast majority of people placed into the ATD program complied with the program’s terms. From November 2011 to November 2012 (the ATD program’s contract year runs from November to November), for example, of the 40,452 people enrolled in the ATD program at some point during that stretch, only 851 participants absconded and another 705 were arrested by another law enforcement agency. Id. at 23 appx. E. The graph below provides comparable data for contract years 2010 and 2011 as well.
| Total served | Absconded | Arrested by other law enforcement agency | |
| 2010 | 25,778 | 927 | 576 |
| 2011 | 35,380 | 982 | 729 |
| 2012 | 40,452 | 851 | 705 |
On the whole, the report paints ATDs as a rousing success. They are inexpensive and very effective, especially when compared to detention.
Where the Inspector General’s assessment concerns me, however, is in one of its recommendations concerning noncompliance with the ATD requirements. What should ICE do, in other words, when a migrant placed into ISAP II disables the ankle bracelet or fails to show up for one of the in-person reporting appointments required by the Full-Service option? The report suggests that the solution is to detain such individuals, but ICE, the report notes, “does not have sufficient resources to redetain participants who willfully violate ISAP II’s terms of supervision.” Id. at 8. To remedy, this the report recommends that ICE “[a]ssess and report on the feasibility of using funds from the Alternatives to Detention (ATD) program to provide detention beds.” Id. In other words, the Inspector General recommends using money that Congress has allocated for alternatives to detention specifically to expand the detention population. This is particularly remarkable given that DHS asks for and Congress dedicates a lot more money for detention than ATDs. In the budget request that the Obama Administration submitted for fiscal year 2015, for example, it asked for $1.8 billion for detention and $940 million for ATD costs. U.S. Dep’t of Homeland Security, Total Budget Authority 5.
This may be ironic, but it’s not surprising. I’ve previously noted my concern that ATDs may operate as a stealth means by which to expand the detained population. As I wrote in Immigration Detention as Punishment (UCLA Law Review 2014),
alternatives to detention that impose restrictive conditions may actually increase incarceration by increasing the likelihood of violating the terms of release. Beginning in the 1980s, “[p]arole and probation as sources of prison admissions . . . bec[a]me almost as important as the court system itself.” Reflecting this paradoxical relationship between detention and what is supposed to be an alternative to detention, the number of people on probation and incarceration rose and fell together since the mid-1980s, and since 1980, “the national evidence suggests that in only one period (in the early 1980s) was there any evidence of probation being used as an alternative to prison.” Instead of “operat[ing] as alternatives to, or exits from, the prison system, both [probation and parole became] alternative routes to prison.” (quotations and citations omitted)
The Inspector General’s recommendation isn’t proof that this has happened in the immigration detention context. In fact, as a recommendation, it’s strong proof that it hasn’t happened. But it does illustrate that the risk is very real.
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