On October 3rd, U.S. Representatives Adam Smith and Pramila Jayapal, both from the state of Washington, introduced the “Dignity for Detained Immigrants Act of 2017.” The act would increase transparency and accountability for immigration enforcement in this country, while improving the conditions of immigrants detained by the Department of Homeland Security.[1] Rep. Smith has a recorded history of raising concerns with detention practices dating back to at least 2014, when he addressed them directly with then-DHS Secretary Jeh Johnson.[2] Rep. Jayapal, newly elected to Congress, is a renowned immigrant rights activist.[3] The two representatives put forth this legislation to address the lack of protection for detained immigrants, the system’s reliance on private subcontractors, and the inhumane conditions in detention facilities.
Our society is a carceral state focused on punishment, disproportionately so when it comes to people of color.[4] The groups or acts that are targeted by criminalization may differ from administration to administration, but our dependence on punitive measures has long since reached an unsustainable point. The intersection of mass incarceration and immigrant detainment illustrates this. Changes in the immigration system are tied to the evolution of the criminal justice system, as evidenced through the War on Drugs and the post-9/11 era.
Both structures demonstrate a trend toward privatization, which critics cite as a conflict of interest.[5] And conditions in detention facilities, often extensions of prisons or county jails, have raised concerns, as shown recently when detained individuals at Northwest Detention Center in Tacoma, Washington led a hunger strike in protest of their living conditions and insufficient wages for their labor.[6] Immigration enforcement criminalizes undocumented or asylum-seeking immigrants, thus diverting responsibility for their well-being and access to justice.
This country’s system of incarceration is one steeped in a societal proclivity for punishment, revenge, and profit, rather than for true rehabilitation and justice. While one president might be perceived as responsible for increasing levels of immigrant detainment and another as accountable for rising numbers of deportations, such a broken system can never be a truly positive force under any leadership. While the Dignity for Detained Immigrants Act might offer an intermediate set of remedies, examining the ingrained issues within our immigration and incarceration structures as well as the ways in which they overlap unveils a troubling trend of state-sanctioned violence and violation of human rights.
Immigration Enforcement & Mass Incarceration
The United States currently imprisons more people than any country in the world. In a little over 35 years, from 1973 to 2009, the number of people in prisons increased ten-fold, from about 200,000 people to around 2.2 million. With five percent of the global population, the U.S. is responsible for a quarter of the world’s prisoners.[7] Part of this uptick can be attributed to tough-on-crime policies during the War on Drugs, from the 1970s to the 1990s.[8] With prison expansion, beginning in the 1980s, the detention of immigrants began to increase along with overall imprisonment. Refugees from Cuba and Haiti in the early 1980s were installed in detention facilities as they arrived, and with policy shifts in the 1980s, the use of these new facilities increased.[9] The Immigration and Naturalization Act was changed by Congress during this time to mandate the automatic detention of immigrants with specific criminal convictions.[10]
Immigration enforcement mechanisms soon began to absorb the toughest aspects of the criminal justice system. Emulating mandatory minimum drug sentencing implemented in the 1980s, mandatory detention curtailed due process, limited detainees’ access to hearings, and ignored the specifics of circumstance when deciding on punishments.[11] The reach of mandatory detention expanded as detention became a primary method for immigration enforcement. Legislation in 1996 broadened the scope of populations vulnerable to detention or deportation to include all non-U.S. citizens living in the U.S., documented or otherwise. With an increasing emphasis on national security in the 2000s, immigration enforcement became a high budget priority, replicating practices employed in both the criminal justice system and the national security agenda.[12] Largely responsible for this was the creation of the Department of Homeland Security, which evolved to house Immigration and Customs Enforcement (ICE), U.S. Citizenship and Immigration Services (USCIS), and Customs and Border Protection (CBP), the three major agencies that enforce and prosecute immigration enforcement.[13] And with their creation, the civil enforcement structures of immigration began to explicitly emulate criminal enforcement.
Infrastructural Expansion
During the Bush administration, the Intelligence Reform and Terrorism Prevention Act of 2004 was passed, pushing to increase the capacity of the immigration detention system. The goal was to increase capacity by 8,000 beds (used as units to calculate the number of inmates that could be detained at any one time) each year for four years, starting in 2006.[14] Around this time, as capacity increased, the DHS eliminated the “catch-and-release” process, in which undocumented immigrants without any criminal record would be served a court summons for an immigration hearing but permitted to stay in their communities until the date of the hearing.[15] Instead, reliance on detention increased. After incremental increases to capacity while meeting this new need, Democratic Senator Robert Byrd of West Virginia introduced the bed quota in 2009, as a part of the DHS Appropriations Act of 2010.[16] The bed quota set a minimum number of beds for ICE to maintain daily. While the agency maintains that the quota does not dictate the number of detainees, multiple facilities have admitted to changing practices based on meeting it, or altering bond prices to profit from it.[17] This quota is unique; no other law enforcement agency is required to meet similar requirements.[18] The bed quota seems to encourage a dependence on detention as the primary method for immigration enforcement. It facilitates the criminalization of individuals who are awaiting court hearings but pose no danger to the public, and increases the costs of our immigration enforcement system while deflecting conversation about making necessary changes to it.
As of this publication, the bed quota stands at 34,000.[19] This number has remained constant since March of 2013. The same month, there was a discussion for the first time about the reliance on immigrant detention. Following this, there have been frequent debates about and proposals to remove the bed quota, as well as suggestions for alternatives to detainment, supported by legislators, advocacy organizations, and various media outlets.[20] With continued insistence on the part of DHS leadership that the quota is simply for maintenance and not a mandate on the number of detainees, requests to eliminate the quota have been stifled. In July 2016, the average daily detained population exceeded 37,000 people, and in the following month, it was revealed that bond amounts were varied based on bed quotas, creating inconsistency in detainment processes.[21] If the bed quota was in danger of not being filled, for example, bonds would be set higher to increase the number of detainees. With continued expansion to ICE’s detention capacity, the bed quota stands. Therefore, for several decades, in addition to building up its own infrastructure, the agency has developed relationships with private prisons to meet the required capacity.
Privatization of Detainment
The privatization of immigration enforcement and detainment parallels the increasing reliance of the criminal justice system upon private contractors. It began in the early 1980s, when the Immigration and Naturalization Service (INS), then the main agency for immigration enforcement, signed a contract with the Corrections Corporation of America (CCA), now known as CoreCivic.[22] During this time, the War on Drugs was leading to rapidly increasing incarceration, and a number of county jails and private prisons were pursuing contracts with the federal government to offer their facilities and profit from the surge.[23] The INS-CCA contract formalized a new industry that paralleled the public-private partnership emerging in the criminal justice system. GEO Group was a significant player that emerged in the private prison-immigration partnership in the 1980s.[24] Over the years, their profit surges have paralleled increased detainment numbers, often when mass incarceration within the criminal justice system has plateaued.[25]
Dependence upon private prisons has come under scrutiny in recent years with, for example, the Obama administration announcing plans (reversed this year by the Trump administration) to transition out of a reliance upon privately-run federal prisons.[26] Less attention has been paid to the ICE’s reliance on such facilities. ICE primarily works with local governments in smaller towns, who in turn sign contracts with prison management companies in their area.[27] Private prison contracts ensure that these companies make money based on the number of inmates or detainees they house, to the point that they demand occupancy guarantees or supplementary taxpayer money to maintain their level of income when beds are not filled.[28] Because there is a profit motive to every person detained in the facility, there is a motive to arrest and detain people, sometimes for years until they are deported or even given a hearing.[29] The Homeland Security Advisory Council (HSAC) undertook a review in 2016 to determine whether ICE should follow the Department of Justice’s commitment to phase out the use of private prisons, and many members of Congress expressed support for such a measure.[30] Later in the year, the subcommittee tasked with the review concluded that there was a necessity for dependence on private prisons due to the perceived cut in costs, even though 17 of the 23 members of HSAC disagreed with the conclusion and urged a “deliberate shift away from the private prison model.”[31] As contracts with GEO Group and CCA continue to be signed and carried out, the proposed Dignity for Detained Immigrants Act would prohibit any new DHS contracts with private prison companies, as well as require the agency to terminate existing contracts within three years.[32] Right now, it is estimated that 62% of detention facilities are operated by private companies.[33] Meanwhile, about 65% of individuals in the immigration detention system are held in privately run prisons. Such a reliance on private companies, with little to no oversight or accountability in the overall system, is deeply problematic.
Conditions & Accountability
Part of the push for the Dignity for Detained Immigrants Act has been to report on the conditions of various immigration detention centers. Tacoma’s Northwest Detention Center in Washington, for example, has experienced a number of hunger strikes over the years, protesting inadequate food, substandard medical care, and lack of accountability.[34] While immigration detention is a civil process, detainees experience significant emotional distress and physical strain, which is particularly inhumane considering many of them are asylum-seekers and refugees.[35] Detainees have complained of excessive force from guards, and there are frequent violations of due process rights.[36] Particularly in private prisons, there is an incentive to cut costs (often at the expense of adequate medical care, for example) and dehumanize detainees, which has led to injuries, illness, and preventable death.[37] 167 people have died in immigration custody since 2003.[38]
While detainees have attempted to draw attention to their plight, they also have little recourse. ICE, especially due to its outsourced model, operates with relatively little oversight of its facilities, and while many reports and investigations have concluded that conditions are substandard, not much has been done to rectify the problem.[39] ICE has revised its standards occasionally, but there is no transparency around whether they have worked to achieve those new goals.[40] Private prison companies cite their various certifications and awards for medical care and mental health services, purporting themselves to be exemplary correctional facilities.[41] These awards are subjective and meaningless, especially when considering the standard of comparison for living conditions within this system. Meanwhile, detainees may become free or low-cost labor to the facilities in which they are held, with no access to due process and no recourse.[42] The system of immigration enforcement criminalizes detainees and, through the country’s use and perception of the criminal justice system, diverts accountability and criticism for its substandard living conditions by citing both the supposed need to depend on private contractors and the perceived inefficiency of maintaining rigorous standards for them.
The Dignity for Detained Immigrants Act
The Dignity for Detained Immigrants Act, as introduced, addresses four major concerns: reliance on subcontractors for a profit-based model of immigration detention, inhumane living conditions of detainment facilities, lack of accountability or transparency within the system, and lack of Fourth Amendment compliance in the bond system.[43]
If the Act is passed, over the next three years the Department of Homeland Security will be prevented from signing new contracts with private prisons or local jails, and it will be required to terminate all existing contracts with those entities. This, coupled with a suggested focus on alternatives to detainment, especially for detainees with no criminal history, would cut costs and hopefully decrease the number of people held at any given time.[44]
The Act also requires that the DHS revise detention standards for a civil detention setting and set up a structure through which detainees and their loved ones can seek recourse when those standards are violated. To make sure those standards are enforced, the Act mandates unannounced inspections and penalties for facilities that are found to be in violation of standards, including contract termination or transfer of all detainees. The Act also sets up a reporting mechanism that allows findings to be released to the public after a certain amount of time.[45]
To further increase accountability, the Act requires that probable cause be established within 48 hours, in compliance with the Fourth Amendment, and that due process be followed for immigrant detainment. Especially coupled with mandatory detention, the fact that immigrants can be arrested without a valid warrant allows for egregious violations of several rights, with no option for recourse on the part of those detained. The Act also requires a more standardized procedure for setting bond amounts, to make them achievable to those who are detained as well as independent from bed quotas and other external factors.[46]
Lastly, the Act would require the DHS to develop alternatives to detainment in conjunction with advocacy groups and community organizations. To encourage use of methods other than just detainment, the Act sets forth procedure under which a judge decides the “least restrictive conditions” that will assure the enforcement agency that the individual will reappear for the trial and not pose any sort of danger.[47]
Moving Beyond Reform
The immigration system in this country requires an overhaul, with over $2 billion spent each year on detaining over 400,000 individuals.[48] Budget-related excuses for resisting reform are no longer valid, with various studies showing the fiscal incentive for alternatives to detainment. The criminalization of those caught within the immigration enforcement system has created an unjust scheme that demands change. A concentrated effort jumpstarted by the Dignity for Detained Immigrants Act could help legislators scrutinize and revisit the standards set up by this country, revealing potential solutions for the deep-set problem of civic immigration criminalization.
There is bipartisan consensus that mass incarceration in this country has become unsustainable.[49] But all attempts at reform fail to address the inherent bias of the system toward punishment, however selective, rather than justice. The United States experiences fads in criminalization, susceptible to fluctuations of public opinion and sensationalized crises. The lives caught as collateral damage are swiped to the side, whether they are nonviolent drug users or undocumented immigrants. It is time this country commits itself to a complete overhaul of criminal justice structures and values, instead of expending so much energy on creating an immigration enforcement system based in a deeply flawed dependence on incarceration.
Sources
[1] Smith, Adam & Pramila Jayapal. “H.R. ___ The Dignity for Detained Immigrants Act.” Last modified September 22, 2017. https://jayapal.house.gov/sites/jayapal.house.gov/files/Dignity%20for%20Detained%20Immigrants%20Act%20of%202017.pdf
[2] Chan, Jennifer. “Immigration Detention Bed Quota Timeline.” National Immigrant Justice Center. Last modified January 13, 2017. https://www.immigrantjustice.org/staff/blog/immigration-detention-bed-quota-timeline
[3] Young, Bob. “An immigrant herself, Seattle’s Pramila Jayapal leads the push for reform.” The Seattle Times. Last modified August 7, 2010. https://www.seattletimes.com/pacific-nw-magazine/an-immigrant-herself-seattles-pramila-jayapal-leads-the-push-for-reform/
[4] “Racial Disparities in Criminal Justice.” ACLU. Accessed November 1, 2017. https://www.aclu.org/issues/mass-incarceration/racial-disparities-criminal-justice
[5] “Prison Privatization.” Prison Policy Initiative. Last modified October 12, 2017. https://www.prisonpolicy.org/research/prison_privatization/
[6] Carter, Mike. “Hundreds of immigrant detainees at Tacoma ICE facility on hunger strike.” Last modified April 12, 2017. https://www.seattletimes.com/seattle-news/group-hundreds-of-detainees-at-tacoma-ice-facility-on-hunger-strike/
[7] Breslow, Jason M. “New Report Slams ‘Unprecedented’ Growth in US Prisons.” Frontline. Last modified May 1, 2014. http://www.pbs.org/wgbh/frontline/article/new-report-slams-unprecedented-growth-in-us-prisons/
[8] “The Drug War, Mass Incarceration, and Race.” Drug Policy Alliance. Last modified February 26, 2016. https://www.drugpolicy.org/resource/drug-war-mass-incarceration-and-race-englishspanish
[9] “Immigration Detention 101.” Detention Watch Network. Last modified 2014. https://www.detentionwatchnetwork.org/issues/detention-101
[10] “Immigration Detention 101.” Detention Watch Network.
[11] Jesselyn McCurdy & Sarah Solon. “The 1980s Called. They Want Their Mandatory Minimums Back.” ACLU. Last modified September 18, 2013. https://www.aclu.org/blog/mass-incarceration/1980s-called-they-want-their-mandatory-minimums-back
[12] “Immigration Detention 101.” Detention Watch Network.
[13] Gavett, Gretchen. “Map: The U.S. Immigration Detention Boom.” Frontline. Last modified October 18, 2011. http://www.pbs.org/wgbh/frontline/article/map-the-u-s-immigration-detention-boom/
[14] Chan, Jennifer. “Immigration Detention Bed Quota Timeline.” National Immigrant Justice Center.
[15] Gavett, Gretchen. “Map: The U.S. Immigration Detention Boom.” Frontline.
[16] Chan, Jennifer. “Immigration Detention Bed Quota Timeline.” National Immigrant Justice Center.
[17] Chan, Jennifer. “Immigration Detention Bed Quota Timeline.” National Immigrant Justice Center.
[18] “Immigration Detention 101.” Detention Watch Network.
[19] “Detention Bed Quota.” National Immigrant Justice Center. Last modified 2016. https://www.immigrantjustice.org/eliminate-detention-bed-quota
[20] “Detention Bed Quota.” National Immigrant Justice Center.
[21] Chan, Jennifer. “Immigration Detention Bed Quota Timeline.” National Immigrant Justice Center.
[22] Rosenfeld, Steven. “Private prison demands New Mexico and feds find 300 more prisoners in 60 days or it will close.” Salon. Last modified August 4, 2017. https://www.salon.com/2017/08/04/private-prison-demands-new-mexico-and-feds-find-300-more-prisoners-in-60-days-or-it-will-close_partner/
[23] Barry, Tom. “A Death in Texas: Profits, poverty, and immigration coverage.” Boston Review. November, 2009. http://bostonreview.net/archives/BR34.6/barry.php
[24] Barry, Tom. “A Death in Texas: Profits, poverty, and immigration coverage.” Boston Review.
[25] Barry, Tom. “A Death in Texas: Profits, poverty, and immigration coverage.” Boston Review.
[26] Bernard, Sara. “An End to Private Prisons? Washington Reps Introduce Act to Phase Out Immigration Detention.” Seattle Weekly. Last modified October 3, 2017. http://www.seattleweekly.com/news/an-end-to-private-prisons-washington-reps-introduce-act-to-phase-out-immigration-detention/
[27] Barry, Tom. “A Death in Texas: Profits, poverty, and immigration coverage.” Boston Review.
[28] Smith, Clint. “Why the U.S. Is Right to Move Away from Private Prisons.” The New Yorker. Last modified August 24, 2016. https://www.newyorker.com/news/news-desk/why-the-u-s-is-right-to-move-away-from-private-prisons
[29] Bernard, Sara. “An End to Private Prisons? Washington Reps Introduce Act to Phase Out Immigration Detention.” Seattle Weekly.
[30] Chan, Jennifer. “Immigration Detention Bed Quota Timeline.” National Immigrant Justice Center.
[31] Bernard, Sara. “An End to Private Prisons? Washington Reps Introduce Act to Phase Out Immigration Detention.” Seattle Weekly.
[32] Bernard, Sara. “An End to Private Prisons? Washington Reps Introduce Act to Phase Out Immigration Detention.” Seattle Weekly.
[33] “Immigration Detention 101.” Detention Watch Network.
[34] Bernard, Sara. “An End to Private Prisons? Washington Reps Introduce Act to Phase Out Immigration Detention.” Seattle Weekly.
[35] “The Dignity for Detained Immigrants Act.” National Immigrant Justice Center. Last modified October, 2017. https://immigrantjustice.org/sites/default/files/content-type/commentary-item/documents/2017-10/Dignity-Detained-Immigrants-Backgrounder-Oct-2017.pdf
[36] Werner, Dan. “Dignity for Detained Immigrants Act urgently needed for human treatment of detainees.” Southern Poverty Law Center. October 3, 2017. https://www.splcenter.org/news/2017/10/03/dignity-detained-immigrants-act-urgently-needed-humane-treatment-detainees
[37] Barry, Tom. “A Death in Texas: Profits, poverty, and immigration coverage.” Boston Review.
[38] “Immigration Detention 101.” Detention Watch Network.
[39] Chan, Jennifer. “Immigration Detention Bed Quota Timeline.” National Immigrant Justice Center.
[40] Bernard, Sara. “An End to Private Prisons? Washington Reps Introduce Act to Phase Out Immigration Detention.” Seattle Weekly.
[41] Barry, Tom. “A Death in Texas: Profits, poverty, and immigration coverage.” Boston Review.
[42] Bernard, Sara. “An End to Private Prisons? Washington Reps Introduce Act to Phase Out Immigration Detention.” Seattle Weekly.
[43] “The Dignity for Detained Immigrants Act.” National Immigrant Justice Center.
[44] Smith, Adam & Pramila Jayapal. “H.R. ___ The Dignity for Detained Immigrants Act.”
[45] “The Dignity for Detained Immigrants Act.” National Immigrant Justice Center.
[46] “The Dignity for Detained Immigrants Act.” National Immigrant Justice Center.
[47] Smith, Adam & Pramila Jayapal. “H.R. ___ The Dignity for Detained Immigrants Act.”
[48] “Immigration Detention 101.” Detention Watch Network.
[49] Jesselyn McCurdy & Sarah Solon. “The 1980s Called. They Want Their Mandatory Minimums Back.” ACLU.
