Immigration detention level 'mandate' is an obstacle to reform

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This was the sentiment expressed earlier this week when dozens of experts from across the country gathered in Washington, D.C. to talk about changes to the immigration detention system that would bring policy in line with best practices, due process, and human rights standards (and potentially save taxpayers millions of dollars). Speakers at this Human Rights First event discussed best practices from the criminal justice system – not because civil immigration detention practices should be modeled on the criminal justice system, but because some of these best practices reflect innovations and efficiencies that should inform immigration detention.
 
As the Senate "Gang of Eight" prepares to drop its immigration reform bill, and House members ready their own proposals, why should Congress care? Because this group of diverse and unlikely allies highlighted several important changes to detention practices that should be included in any final legislation tackling the immigration system. These fixes include increased use of effective alternatives to detention rather than detention and improved access to legal counsel for detained immigrants. At a time when federal agencies face leaner budgets, it’s not incidental that these fixes will ultimately save government resources.
 
Criminal justice systems across the country routinely use pre-trial services and release on supervision, bond, or recognizance for individuals with pending cases who do not pose a threat to public safety. Cliff Keenan, director of the Pretrial Services Agency for the District of Columbia and a federal prosecutor for almost two decades, and Tim Murray, who runs the Pretrial Justice Institute in Washington, made it clear that alternatives are effective, safe, and reduce costs. ICE spends more than $5 million daily to detain immigrants, including asylum seekers, who are awaiting hearings – about $2 billion annually. Alternatives to detention (ATD) cost 30 cents to $14 per day per detainee, compared to $164 per day per detainee for detention. Julie Myers Wood, who ran ICE under President George W. Bush, reported that 96 percent of individuals actively enrolled in ATD show up for their final hearing, and 84% comply with removal orders.
 
A key obstacle to this common-sense and humane reform? The bed “mandate” in DHS appropriations language, which ICE and some members of Congress interpret to require ICE to maintain and fill 34,000 beds daily. Yesterday at a hearing in the House DHS Secretary Janet Napolitano acknowledged that the mandated detention level is “arbitrary.” The mandate – whatever its level – precludes ICE officers from making decisions about detention based on individual risk and the agency’s priorities and policies. Instead, in carrying out their professional responsibilities, they are faced with a number that effectively serves as a quota. The mandate also makes it impossible for ICE to actually save money through more effective and appropriate use of alternatives to detention.
 
At Monday’s Human Rights First convening, Mr. Norquist, an advocate of reform of the immigration and the criminal justice systems, and a leading Right on Crime supporter, suggested that successes by criminal justice reformers – like reduced incarceration levels and increased use of alternatives in states like Texas - should inspire positive change in the immigration detention practices. Let’s hope that Members of Congress take his advice to heart and tackle the problems in our nation’s detention system as part of immigration reform.
 
Epstein is a senior associate in Human Rights First’s Refugee Protection Program.
 

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