A Civil Privilege: A Case for Alternatives to Immigrant Detention

The United States’ carceral methods apply to not only citizens who transgress criminal laws, but also persons who violate civil laws. Similar to citizens, these persons belong to a family, are depended upon by their community, and serve a role in the development of our present world. Unlike citizens, these persons, unrecognized by members of the politically community, are subject to immigration law, the only subset of civil law that imprisons a person without having being found guilty of committing a crime. An immigrant unlawfully present — a visa overstayer, an immigrant who entered without inspection, an asylee petitioner — is detainable under the guise of protecting the State from the immigrant and preventing the immigrant from fleeing. The proclaimed concerns expressed primarily by those benefitting from immigrants’ detention (e.g., CCA, Geo Group, and lobbying arms such as ALEC) have resulted in enlarged budgets that expand immigration enforcement, establish more occupancy for immigrant detainees, and swell the number of immigrants detained. In fact, the Department of Homeland Security’s Immigration and Customs Enforcement (ICE) utilized their $1.77 billion custody operations budget to incarcerate approximately 400,000 immigrants (Detention Watch Network, and Stanford Law School). The use of government resources to resolve a problem advocated for by the interests directly benefiting creates an ethical issue, poses an number of economic burdens to members of the political community, and delegitimizes the idea of detention.

The Department of Homeland Security’s (DHS) responsibility for processing immigrant applications and duty to enforce immigration laws creates an arguably inherent conflict of interest. With the addition of DHS’ relationship to private interests who profit from immigrant detention, this conflict of interest evolves into an ethical dilemma wherein DHS cannot satisfy its entrusted roles, for any duty to private interests comes at the expense of “programmatic and humanitarian ideals” (Welch). Stemming from a root of disparate objectives, DHS’ conflated paradigm results in legislative acts legitimizing their practice (e.g., IIRIRA, AEDPA, 287g, Secure Communities), budget increases extending their power, and a synergetic public-private sector relationship adversely affecting immigrant communities.

Taxpayers may elect their representatives, may select the President overseeing DHS’s operations, but they surely do not vote for the current size and power of DHS, the largest government agency since 1941: “the budgets for immigration enforcement agencies in fiscal year 2012 totaled almost $18 billion, exceeding the $14.4 billion appropriated for the FBI, ATF, DEA, and Secret Service combined” (Casique). The enormity of this budget reflects the “veritable ‘cash cow’” (Welch) of immigration detention. Some experts estimate that detention facilities cost taxpayers roughly $120 per detained immigrant per day (Detention Watch Network, and Stanford Law School), but worse than the individual costs of immigrant detainees is the diseconomies of scale achieved. Since 2003, ICE has doubled its expenditures on immigration detention (Detention Watch Network, and Stanford Law School). The direct costs to taxpayers reflect only the facial costs of immigration detention, for the indirect costs to families, communities, and the perception of enforcement are tantamount to, if not greater than, the economic costs.

Detained immigrants with families are rarely treated differently from immigrants of single-person households, though the former has ties (e.g., a wife, child, parent, or close friend) that are dependent upon them financially and emotionally. The loss of a family member or any member within a community creates a void that adversely affects the group’s cohesiveness and elicits disheartening feelings in law enforcement. With a “total of 378,582 aliens…in custody or supervised by ICE in FY 2008” (Schriro), undocumented immigrants, immigrants with legal status, and citizens alike can sympathize for the families and communities adversely affected, and wonder, if not question, why ICE has targeted this number of aliens if only “11 percent had committed violent crimes” (Schriro). The delegitimization of detention is further fueled when individuals become aware of detained immigrants’ confinement conditions, specifically their medical care. According to Schriro’s 2009 report, detention centers have limited medical classification systems, no mental health classification systems, and no centralized storage of medical records. The lack of medical care is indicative of the dismal attention and abominable treatment detained immigrants receive.

The conflicted interests of DHS, expended resources on detention, and social effects of immigrants in detention provide sufficient reasons for alternatives to detention (ATD), if not an overhaul of immigration detention. Currently, ICE employs three ATD programs: Intensive Supervision Appearance Program (ISAP), Enhanced Supervision Reporting (ESR), and Electronic Monitoring (EM). ISAP and ESR, two programs provided by private vendors that have a combined capacity for 13,000 undocumented immigrants daily, are relatively more restrictive and costly measures than EM, a program provided by ICE that has a capacity for 5,000 undocumented immigrants daily (Schriro). These programs are often regarded by critics as not true ATDs, for they “rely heavily on onerous restrictions including telephonic reporting, curfews, and Global Positioning System-enabled electronic monitoring” (Detention Watch Network, and Stanford Law School), in addition to affording immigrants with inadequate legal assistance, and insufficient information about how the immigration system works (Detention Watch Network, and Stanford Law School). Some critics advocate for community-based ATD programs, an alternative type of detention that unshackles immigrants and allows them to function in the community with limited observation as they undergo immigration court proceedings. Revered by the Mills Legal Clinic, these programs not only expand immigrants’ access to legal information regarding their case and increase their freedom throughout their immigration court proceedings, but also reduce delays in the immigration court proceedings and lower ICE’s costs to a mere $12 per immigrant per day (Detention Watch Network, and Stanford Law School). Community-based ATD pilot programs have also shown to be effective tool in achieving immigrant compliance: a pilot program in Australia conducted over three years found that “94% of participants complied with all of their reporting requirements and on average, more than two thirds of participants who lost their immigration cases elected to voluntarily depart” (Detention Watch Network, and Stanford Law School).

Immigration detention may ensure 100% of persons attend and oblige with the immigration court’s decision, but the additional 6% of compliance does not outweigh the economic burden on taxpayers, nor the affect on families, communities, and the individual. The ostensible problem of immigration stems from the role of private profiteers and the propagation of unfounded fears, but the effectiveness, decreased cost, and increased freedom of community-based ATD programs bespeaks immigrants’ willingness to adhere to immigration law. There does not appear to be sufficient reason for not granting them this privilege.

Casique, Francisco. “Turning Point, Lecture 8” University of California, Berkeley. Berkeley. 3 Oct. 2013.

Casique, Francisco. “Militarizing/Policing the U.S.-Mexico Border, Lecture 9” University of California, Berkeley. Berkeley. 10 Oct. 2013.

Casique, Francisco. “Detention Industry, Lecture 13” University of California, Berkeley. Berkeley. 24 Oct. 2013.

Casique, Francisco. “Private Prisons, Lecture 14” University of California, Berkeley. Berkeley. 29 Oct. 2013.

Detention Watch Network, and Stanford Law School. ““Policy Brief: Community Based Alternatives to Immigration Detention.”.” Immigrants’ Rights Clinic. (2010): 1–14.

Schriro, Dora. ““Immigration Detention Overview and Recommendations.”.” (2009): 1–35.

Welch, Michael. “Moral Panic over Immigrants” in Detained: Immigration Laws and the Expanding INS Jail Complex. pp. 9–34. (2002).

Welch, Michael. “Neglecting Unaccompanied Children,” in Detained: Immigration Laws and the Expanding INS Jail Complex. pp. 128–148. (2002).

Welch, Michael. “The INS Detention Industry,” in Detained: Immigration Laws and the Expanding INS Jail Complex. pp. 149–170. (2002).

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