End immigration detention, but don’t create a back door to confinement

The New York Times is correct. Immigration detention is vast, punitive, cruel, harmful, traumatic, expensive, and immoral. The United States needs to stop confining migrants for having done nothing more than violate immigration law requirements. Detention’s demise, however, shouldn’t lead to the construction of an alternative regime of surveillance and control, as the Times’ implies.

The Times’ editorial last week calling for an end to immigration detention hinged on its simple characterization of a regime that it described succinctly and aptly as “indefensible.” For this the Times’ editorial board ought to be commended. Few in the mainstream advocacy community have dared push for abolition of immigration detention (disclosure: for the last year or so I’ve been working on a piece about abolishing immigration imprisonment). Perhaps the Times’ move will prompt more to reconsider their hesitation. It has, at the very least, surely made more people consider abolition as an acceptable part of the immigration law enforcement conversation. It’s not enough simply to talk about ending sexual abuse, providing adequate medical care, and limiting prolonged confinement. The Times call to “[s]hut the system down” suggests that today’s immigration detention practice is rotten to its core. It is.

Where the Times went wrong, however, is in calling for replacing immigration detention “with something better.” It points to the existing alternatives to detention program that ICE runs as an example of what the editorial board has in mind. “Supervised or conditional release, ankle bracelets and other monitoring technologies, plus community-based support with intensive case management, can work together to make the system more humane,” the Times wrote.

There is no denying that it’s much better to walk around town with an electronic bracelet slapped to your ankle than sitting behind barbed wire locked inside an immigration prison. The bracelet at the very least lets you sleep in your own bed alongside family and friends.

As a matter of public policy, ATDs are also cost effective. At a low of 17 cents per day for telephonic monitoring and a high of $8.37 for telephonic, GPS, and in-person case management, the current ATD regime sometimes literally represents pennies to the dollar of immigration detention (which averages about $158 per day). Despite the low cost, ATDs are very successful when measured by the two justifications traditionally given: ensuring appearance at court dates and not endangering the public. Of the 40,452 people enrolled in an ATD program in fiscal year 2012, for example, only 851 absconded and 705 were arrested by another law enforcement agency.

Despite these successes, alternatives to detention that rely on high-tech surveillance are no panacea for the many problems of over enforcing immigration law. In some ways, the electronic ATDs currently in ICE’s toolbox might even exacerbate the vitriolic rhetoric that demonizes migrants.

Under the guise of detention alternatives, ICE has expanded its reach into migrants’ lives even when it has no sound basis to do so. It would be one thing if ICE imposed supervision requirements only on migrants who it had reason to believe were dangerous or posed a flight risk. That’s not what it does.

Instead, ICE uses ATDs to expand the net of carceral control. Rather than release people outright, alternative sanctions are often handed out to people who would typically have been allowed to go about their lives free of government intrusion. As an investigation by the Center for American Progress recently disclosed, ICE regularly detains individuals who its own risk assessment system recommends for release. If it keeps people locked up who it has no reason to think pose a public safety threat or flight risk, then it’s reasonable to assume that they’re doing the same with ATDs: people are being subjected to supervision requirements when there’s no reason to do so. The likelihood is that they’re going to show up for court dates and live a peaceable life without electronic intrusiveness.

Imposing supervision orders on people who don’t merit them wouldn’t be unheard of for immigration law enforcement agencies. ICE’s predecessor, the Immigration and Naturalization Service, did just that with a pilot ATD initiative that the Vera Institute for Justice operated on its behalf in the mid-1990s.

There are multiple problems with subjecting people to supervision unnecessarily. First, it’s demeaning. Walking around with an ankle bracelet, having to visit a reporting site periodically, or checking in by phone suggests that being suspected of violating immigration law isn’t just impermissible as a matter of law, but that it’s morally deviant. To be caught in ICE’s crosshairs is to be marked as dangerous—even when no indicia of dangerousness are to be found. At bottom, government supervision implies that the person being watched isn’t worthy of being trusted. It strips migrants subjected to this persistent governmental gaze of the dignity of personal autonomy.

Second, ICE’s ATD practice is troubling because it sets up migrants to get locked up for failure to comply with supervision requirements. State and federal criminal law enforcement authorities have long used probation, parole, and other alternatives to criminal incarceration as what Anil Kalhan referred to as “‘alternatives to release’ rather than true ‘alternatives to detention’.” People who would’ve been let free were instead placed under some type of supervision that required that they comply with strict orders. This is fine so long as everything goes well. But such is not life. Instead, people ordered to comply with some kind of non-confinement form of supervision frequently fail to do so for a host of reasons—appointments with parole officers are missed because of transportation obstacles, meeting supervision requirements makes it difficult to find or keep a job, new minor offenses result in substantial confinement for the old offense, and more.

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.”

Indeed, between one-quarter and one-third of people sent to state prison in recent years wound up there because of a parole violation.

Could the same happen in the immigration detention context? I’m not familiar with evidence showing that this has already happened, but the federal government is definitely contemplating this. The problem, according to a February 2015 report from the DHS Inspector General, is that ICE doesn’t have the money to redetain people who fail to comply with their supervision orders. As I wrote in March on this blog,

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.

Like with criminal confinement, immigration detention via an alternative to detention might one day become a common feature of the nation’s immigration detention practice. Advocates who hope to avoid that would do well to be skeptical of the Times’ call for “something better” than today’s detention practice.