Detention Reform and Its Discontents

By Anil Kalhan

One year ago this month, the Obama administration announced ambitious plans to overhaul the immigration detention system, based on a comprehensive review conducted for Immigration and Customs Enforcement (ICE) officials by detention and corrections expert Dora Schriro. How has the administration fared in implementing these reforms?

First, some background, drawing from my recent piece in the Columbia Law Review Sidebar. Since the mid-1990s, the number of individuals in immigration detention has skyrocketed, fueled by enforcement policies that subject ever-larger categories of noncitizens to removal charges and custody – most notably individuals alleged to be removable on many criminal grounds, which now include a sweeping array of offenses, both serious and minor. Many of these individuals have been deemed ineligible for the individualized bond hearings to which individuals ordinarily are entitled, and have therefore been categorically detained without regard to whether they present any flight risk or danger. Immigration officials now spend over $1.7 billion each year to run the “largest detention system in the country,” holding nearly 400,000 individuals per year in a sprawling network of hundreds of federal, state, local, and private facilities nationwide.

With the onset of this vast system of mass immigration detention, longstanding detention-related problems have not simply persisted, but have widely proliferated. Literally dozens of reports within the last three years alone by advocates and government agencies have documented serious and widespread detention-related concerns, including overly restrictive and severe forms of custody, abusive and inadequate detention conditions, lack of access to counsel and family members, lack of adequate medical and mental health care services, sexual harassment and abuse, frequent and large-scale transfers of detainees between facilities, and prolonged and indefinite detention.

In her report, Schriro confirmed important aspects of this picture. She emphasized that although immigration detention is a civil form of custody, not criminal punishment, the facilities, personnel, and standards used to hold immigration detainees all inappropriately draw from criminal justice models, causing most immigration detainees to be held – systematically and unnecessarily – under overly severe and restrictive circumstances that are inappropriate to their status as civil detainees. In response to Schriro's report, the Obama administration pledged reforms intended to overhaul and reconstruct this quasi-punitive detention regime – which might be termed a system of “immcarceration” – into what one official characterized as a “truly civil detention system.”

So one year later, how’s that hopey changey, “truly civil” stuff working out for ya?

Well, as immigrants’ rights advocates acknowledge, the Obama administration can point to a few significant changes in policies and practices, including the creation of an online detainee locator system designed to prevent individuals from “disappearing” in the detention system altogether and the restoration of an earlier policy encouraging parole and release from detention of arriving asylum-seekers who present neither a flight risk nor any security threat. Officials have also taken initial steps to expand “alternatives to detention” and to detain some individuals in less restrictive settings, based on more refined and particularized determinations of the risks presented by individuals subject to immigration custody.

Nevertheless, despite an apparently sincere commitment by senior officials to make detention conditions more humane, implementation of these reform initiatives has proceeded rather sluggishly. Conditions of confinement are not the only factor contributing to detention’s excessiveness, and at least so far the administration’s efforts leave intact a range of other practices that contribute to the excessive and quasi-punitive nature of detention for many noncitizens. Moreover, while one certainly shouldn’t expect transformational change to happen overnight, as advocates have documented large numbers of noncitizens continue to be detained – often for prolonged periods of time – under abusive and improperly punitive conditions:

Immigrant advocates nationwide continue to report widespread due process and human rights violations, including the overreliance on incarceration, mistreatment by guards, denial of access to legal service providers, inadequate medical care, misuse of solitary confinement, and discrimination against sexual minorities. These violations demonstrate that the commitment to reform made by ICE leadership has yet to have any substantive impact on the ground. Further, the actual or perceived fear of retaliation expressed by detained immigrants and advocates alike during the fact-finding stage of this report reiterate the urgent need for ICE leadership to strongly reinforce its detention reform policies among agents, personnel, and private contractors working in the field. . . .

Oversight, transparency and accountability are critical to achieving reform, and yet these are the weakest features of the reform process thus far. Over the past year ICE appointed regional detention managers and created a Detention Monitoring Council at ICE headquarters. However, despite these changes, there is little evidence that ICE leadership’s intention to improve oversight practices and precipitate a cultural shift within the agency has been meaningfully achieved . . . . [link]

There’s an even more fundamental dilemma, however, standing in the way of the Obama administration’s detention reform aspirations. While the administration has pledged to make the circumstances of detention civil and non-punitive, it simultaneously has demonstrated a clear commitment to expanding its predecessors’ aggressive, quasi-punitive interior immigration enforcement policies more generally – policies which reinforce a broader convergence between immigration and criminality in law and public discourse. ICE officials have long made clear that notwithstanding their proposed detention reforms, mass immigration detention will continue “on a grand scale.” And sure enough, just last week Homeland Security Secretary Janet Napolitano proudly announced that the Obama administration had deported more individuals than any other administration in U.S. history – facilitated most notably by aggressively expanding efforts, such as the so-called “Secure Communities” program, to enlist state and local law enforcement in the large-scale identification of potentially deportable non-citizens. Even though the majority (and fastest growing group) of individuals detained and deported through these expanded enforcement initiatives – as Schriro herself noted in her report – have either no prior convictions or relatively minor criminal histories, officials have gone to great lengths to emphasize that many of these individuals have been deported on account of prior criminal convictions.

In this context, the administration’s detention reform initiatives are in deep tension with its overall approach to immigration control and interior enforcement. With a rapidly increasing number of potential detainees identified through programs such as Secure Communities, the government will face mounting pressures not only to hold even more noncitizens in its custody, but to do so at minimal cost. And by reinforcing the convergence between immigration and criminality in public discourse, the administration has made itself increasingly vulnerable to attacks – such as the scathing “vote of no confidence” recently leveled by the ICE detention officers’ union – over any initiatives that would devote time, energy, and not least money to making detention more humane and less punitive and severe.

One overall result has been a pattern of reactions that echo the “confusing and deeply contradictory” criticisms that the Obama administration faces in other policy areas: “[Obama] is a liberal zealot, in the view of the right; a weak accommodationist, in the view of the left.” The administration finds itself even further mired in that purgatory by its unwillingness or inability to move forward on comprehensive immigration reform – an initiative which could, depending on how it were crafted, help begin to roll back the decades-long convergence between immigration and crime control in law, policy, and public discourse. While congressional dysfunction and other legislative priorities obviously have played major roles in the inability to enact major immigration reform legislation, the Obama administration even appears unwilling to use its considerable administrative powers to move immigration policy in its preferred direction.

One could, with Edward Alden, conclude that the combination of detention conditions reform, on the one hand, and aggressive interior enforcement, on the other, show that “it's possible to be tough without being unfair and inhumane.” However, absent a broader reconsideration of immigration control policies that are premised upon convergence with criminal enforcement – and some efforts to move forward on more fundamental immigration reform – the inherent tensions between those two sets of initiatives make it likely that the administration’s ever-increasing “toughness” will undermine any meaningful efforts to show “fairness” and “humanity” when it comes to immigration detention.