Family detention: A shame and a waste

The United States has a problem. We are addicted to incarceration. We lock up millions of our fellow citizens every year, at staggering financial cost.

Now, in an unfortunate twist on a familiar vice, Congress is debating locking up even more people. Only this time, the plan is to incarcerate asylum seekers -- children and their parents, here seeking protection. This is what they call hitting rock bottom.  

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Before Congress heads home for the August recess, both the House and the Senate are expected to bring supplemental funding bills up for a vote. These bills offer two very different approaches to the refugee situation at the southern border, but they share one serious problem: they both propose to dramatically increase the warehousing of vulnerable children and their mothers and fathers by U.S. Immigration and Customs Enforcement (ICE). This plan, first outlined by the administration itself, is both wrong and unnecessary. It is driven by the same impulse towards mass incarceration that has failed us so completely in the United States for decades.

The government has already tried, and failed, at the family detention project. In 2009 ICE stopped detaining families at the T. Don Hutto facility in Texas following ACLU litigation challenging the deplorable conditions there. It was clear to us then, and now, that these detention centers were inappropriate places for families with children. When we brought our lawsuit, children at the Hutto facility were being held in small cells, where they could not keep food or toys, and forced to wear prison uniforms Guards frequently disciplined children by threatening to separate them permanently from their parents. The government rightly abandoned that approach. Until just a few weeks ago, the administration maintained only 96 beds for children and their parents, at a former nursing home in Berks, Pennsylvania.

But the administration is reversing course, drawn in by the habit we just can’t kick. Now, they’ve opened a new 646-bed family detention facility in Artesia, New Mexico. Another, run by private prison company Geo Group, is slated to open any day in Karnes County, Texas, with almost 600 beds. The administration has indicated publicly that it plans to expand family detention up to 6,350 in the near future.

Last week, my ACLU colleagues in New Mexico joined an official tour for non-governmental organizations of the new facility in Artesia. Though we didn’t see the severity of the problems with conditions that we saw years ago at Hutto, it is clear that the children and mothers at Artesia have virtually no access to a fair process to assess their claims for legal relief. These families do not receive an attorney to help them make their cases. But it is almost impossible to find an attorney on your own from inside detention, especially when the only phones available are the cell phones that belong to the guards, and the legal services providers listed for the detained mothers (the fathers have been sent to separate detention centers) are all based in El Paso, a three-hour drive away. Following the visit, medical experts and child welfare specialists reported that many children had lost considerable weight after entering Artesia and others were displaying symptoms of depression. This is consistent with the findings of Physicians for Human Rights and the Bellevue/NYU Program for Survivors of Torture that detention can exacerbate the trauma experienced by people who have fled violence in their home countries.

The United States already spends about $2 billion annually on immigration detention, and the Senate estimates that family detention costs an average of $266 per person per day.  There are humane, effective, and far less costly alternatives to detention. These alternatives are widely used in the pre-trial criminal justice context, start at just pennies per day, and include a spectrum of supervision options ranging from community-based alternatives, to bond, to ankle monitors.  They have proven very effective in ensuring compliance with immigration court proceedings—the sole purpose of immigration detention— with those on alternatives to detention appearing in court 99 percent of the time and complying with removal 84 percent of the time.

Yet our addiction to incarceration is leading us astray. The President asked for almost $900 million to detain, prosecute, and deport immigrant families (including some funds for alternatives). The Senate’s funding bill would provide $586 million for the detention, prosecution, and removal of families, and the House bill would provide $262 million for ICE custody operations. This is the wrong way to respond to frightened children and their parents, especially when the government has proven alternatives in its toolbox. As we know well from past experience, once new facilities are constructed, they will be filled. And it will be almost impossible to reverse the trend. Unless we change course now, America will remember this summer as the moment we hit rock bottom, spending millions to detain families seeking safety in our country. 

Murphy is director of the American Civil Liberties Union’s Washington Legislative Office. You can follow her on twitter as @lwmurphy.

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