ICE has worked to develop and implement some critical improvements to the system, though additional reforms remain needed. One overarching obstacle overshadowing much of this: the bed “mandate.” As Congress returns from the brink of the fiscal cliff, and as a new candidate prepares for confirmation to lead the Department of Homeland Security, now is a key moment to consider responsible ways to shrink the federal budget.
The bed “mandate” requires that each night a minimum number of people have to be detained in the system – at least that’s how some members of Congress interpret DHS appropriations language. Mandating what is effectively a quota of beds flies in the face of American values and best practices in the criminal justice system, and precludes a meaningful individualized assessment of the need to detain. And yet it’s the norm for our immigration detention system, where every day 34,000 beds in jails and jail-like facilities around the country are filled with immigration detainees, whether or not that actually makes sense. The price tag to the U.S. taxpayer? Around $2 billion per year, or more than $5 million per day.
If the purpose of immigration detention is to ensure that an individual in ICE custody appears before immigration court, then alternatives to detention, where needed and appropriately used, make a tremendous impact helping to prevent families from being torn apart, or keeping an asylum seeker from traumatizing conditions – all while saving taxpayer money. Groups from across the political spectrum, including the Council on Foreign Relations’ Independent Task Force on U.S. Immigration Policy, the International Association of Chiefs of Police, the Heritage Foundation, the Texas Public Policy Foundation (home to Right on Crime) and others have all endorsed alternatives for the costs they save, and, as former ICE Assistant Secretary Julie Myers Wood has noted, the current full service alternatives program used by ICE results in a 99 percent compliance rate with final hearings and compliance with final orders of removal in 84 percent of cases. But despite their effectiveness and low cost, Congressional appropriations for alternatives to detention continue to be dwarfed by that for detention beds.
Some members of Congress, including Reps. David Price (D-N.C.) and Lucille Roybal-Allard (D-Calif.) have long opposed the “mandate” language and have worked to clarify it. And in June, Reps. Ted Deutch (D-Fla.) and Bill Foster (D-Ill.) introduced an amendment to strike the bed "mandate” from the DHS appropriations bill, and won 190 votes and vocal support from a number of members of Congress, helping to give the issue the profile it deserves. This fall, more than 60 members of Congress have signed a letter urging opposition of this costly and impractical quota.
Congress has the rare opportunity to reduce unnecessary expenditures and do right by the public interest as well. It should eliminate the bed “mandate” in immigration detention in future funding and appropriations measures, allow ICE flexibility in its budget to shift funds from detention to more cost-effective alternative measures, and direct ICE to limit detention to cases only where alternate monitoring measures won’t achieve the government’s objectives.
Reforming the immigration detention system comes with countless complex challenges. Eliminating the bed “mandate” should not have to be one of them.
Obser is a senior associate in Human Rights First’s Refugee Protection Program.