Every day more than 30,000 immigrants are detained in a vast array of prisons operated in large part by private for-profit corporations. The burgeoning business of immigrant detention is an overlooked and critical civil rights issue that demands our attention.
Although criminal justice advocates and elected officials have finally realized that mass incarceration in the criminal context is costly and ineffective, this recognition has not extended to the immigration detention system. The primary reason for the detention of 478,000 immigrants in 2012 is the little known "bed space" provision in the Department of Homeland Security (DHS) annual appropriation bill. Since 2009, Congress has mandated that no fewer than 34,000 immigration detention beds be maintained and filled on a daily basis. Last year and again this year, Congress rejected President Barack Obama's request that the required daily quota of detainees be reduced to 30,500. But even the Obama number is extraordinarily high. Immigration detention policy should not be driven by an absolute numerical requirement that incentivizes immigrants' incarceration, without regard to their individual circumstances.
Immigrants have an important constitutional right to be free from arbitrary deprivation of liberty. This constitutional protection is especially important because violations of immigration law are civil, not criminal, infractions. Unlike those incarcerated for crimes, immigrants must be held in nonpunitive civil detention environments. Civil detention also means that the deprivation of liberty should be the last, not the first, resort to ensure that immigrants appear for their court hearings to determine whether they may remain in this country. However, as the DHS has admitted, the majority of immigrants are held in penal-like facilities that provide the necessary space to comply with the bed space mandate. In these facilities, immigrants wear prison uniforms and have limits on freedom of movement, access to the outdoors and contact visits with relatives.
The experience of The University of Texas School of Law Immigration Clinic, while working with women detained at the T. Don Hutto detention center near Austin, illustrates the perverse results of the detention quota. Rather than base release decisions on individual circumstances and liberty interests, Immigration Customs and Enforcement (ICE) officials at the detention center set bonds for immigrant women to ensure compliance with the 34,000 detention quota. Bonds fluctuate drastically depending on the flow of immigrants in and out of the facility.
Rather than base release decisions on individual circumstances and liberty interests, Immigration Customs and Enforcement (ICE) officials at the detention center set bonds for immigrant women to ensure compliance with the 34,000 detention quota. Bonds fluctuate drastically depending on the flow of immigrants in and out of the facility.
When the facility is at capacity, ICE sets lower bonds; when the number of women entering the facility dips, ICE consistently sets higher bonds to meet the bed space requirement.
The lack of meaningful immigration reform fuels and fills the quota requirement. Unfortunately, many of the immigrants caught up in the detention and deportation dragnet, who have lived for many years in the U.S. and who have significant family ties in this country, become numerical statistics that allow ICE to comply with the mandate.
Within the criminal justice system, state and federal entities are increasingly aware of the high costs and the failures of the unprecedented increase in the number of people incarcerated. Accordingly, policymakers have shifted their focus to rehabilitative and other innovative programs. ICE should do the same and pursue alternatives to detention for those accused of regulatory violations of the immigration laws who await a decision as to whether they may remain in this country. Detention of an immigrant costs approximately $159 per day, adding up to a total of $5 million per day. On the other hand, alternatives to detention, such as supervised release and reporting programs, community group homes, and even electronic monitoring cost no more than $17 per day. Nevertheless, the arbitrary 34,000 daily quota is a significant obstacle to the development of true alternatives to detention and to the operation of detention centers that incorporate civil, nonpunitive detention standards. The mandate has also contributed to the unprecedented deportation of 368,644 people from the United States in 2013.
Advocates, civil rights organizations and some legislators are calling for an end to this flawed detention policy, and they are right to do so. Congress should repeal the bed space mandate to allow ICE to instead implement a true civil detention model that requires individualized assessments of flight risk and danger to the community, implements alternatives to detention and, if necessary, detains immigrants in the least restrictive civil detention setting possible.
Barbara Hines is a clinical professor of law and the co-director of the Immigration Clinic at The University of Texas School at Austin. She has litigated many issues relating to the constitutional and statutory rights of immigrants in federal and immigration courts including the lawsuit leading to end of detention of immigrant families and children at the Hutto detention center in Texas.
This post is part of a series produced by The Huffington Post and The University of Texas at Austin, in recognition of the Civil Rights Summit -- honoring the 50th anniversary of the Civil Rights Act -- held at the LBJ Presidential Library at The University of Texas.