The U.S. Department of Homeland Security now incarcerates, via immigration detention, more people per year than any other state or federal agency. In 2012, the DHS detained over 429,000 noncitizens awaiting immigration hearings or deportation, at a $2 billion cost to taxpayers. Yet the DHS' new risk assessment technology, which comprehensively and individually assesses immigrant detainees and collects valuable data, makes it possible for Congress to improve detention practices while reforming broader U.S. immigration laws. With this risk assessment technology — piloted in Baltimore and Washington since September — Congress can now effectively decriminalize immigration detention without increasing risk to the American public.
In 2009, after a comprehensive DHS report recommending immigration detention reforms, DHS Secretary Janet Napolitano and Immigration and Customs Enforcement Director John Morton announced they would "pursue detention strategies based on assessed risk" of flight from proceedings or public danger. President Barack Obama's reform proposal continues to support these "smart enforcement" strategies and less-costly alternatives to immigration detention. By enhancing infrastructure and technology, Mr. Obama said, DHS can "better focus its detention resources on public safety and national security threats by expanding alternatives to detention and reducing overall detention costs."
Last year, ICE began to collect and use risk-assessment data to better support its smart enforcement efforts. Since April, at least, ICE has had the ability to place its detailed risk assessment in each immigrant's file, with underlying information such as criminal and family history. Moreover, ICE's computer systems can now produce statistical reports and trend analysis of its risk assessments, to "better assess situations where [noncitizens] with similar characteristics seem to have different detention outcomes."
With ICE incorporating risk assessment into its arrest and detention practices, Congress now may have empirical support to codify into law the decriminalization of immigration detention. First, ICE's risk practices and data may render unnecessary the certainty provided by mandatory detention laws. For example, current U.S. law requires detention without bond of immigrants who have committed certain crimes — even long ago or quite minor ones, such as subway turnstile jumping or sharing marijuana cigarettes. ICE's data may show that individualized release determinations would not appreciably increase risk of flight or danger, especially regarding detainees with U.S. family ties. Congress should end mandatory detention based on categorical presumptions.
Second, ICE's risk practices and data may render unnecessary the overuse of immigration detention — currently, 34,000 detainee beds costing $166 per detainee, per day — and help Congress reform ICE's over-detention relative to U.S. criminal systems. For example, in New York from 2005 through 2010, 80 percent of ICE arrestees were denied bond, with fewer than 1 percent released with no bond. By comparison, in criminal cases continuing past arraignment, 1 percent of defendants were denied bail, with 68 percent released with no bail. Congress should provide that DHS and immigration judges consider clear criteria regarding flight or danger, as criminal judges do, based on the risk data ICE already collects.
Moreover, if immigration detention will be "truly civil," as Mr. Morton promised, a civil system should logically make less use of detention than a criminal system. Congress should reconsider its funding of 34,000 detainee beds, based on the assessed risk those detainees pose. Rather, Congress should safely and cost-efficiently increase funding for alternatives to incarceration costing $14 per day or less, such as electronic tracking, home arrest or community supervision.
Third, a comprehensive, accurate risk assessment of civil immigration detainees would help reduce the severity of ICE detention. Dora Schriro, author of ICE's 2009 report, called immigrant detainees "appreciably different" from criminal detainees — often with intact families and jobs, well-developed life skills and nonviolent conduct. Yet, as the American Bar Association documented, immigrants largely remain in facilities "designed to hold criminal offenders," many actual jails. Even ICE's new civil detention standards are still modeled after jail standards. The ABA's model immigration detention standards provide a forward-thinking blueprint for both less and less restrictive detention, tailored to civil immigrant detainees. Congress should adopt the ABA standards into law.
ICE's new risk-assessment technology allows Congress to take those three steps — ending mandatory detention; imposing criteria and decreasing funding for discretionary detention; and enacting civil detention standards — while empirically demonstrating the lack of additional risk. Reducing detention would also have other positive effects. For example, it would likely increase those immigrants' access to counsel, evidence and witnesses, in turn increasing the efficiency and fairness of backlogged immigration courts that now routinely grant continuances to self-represented litigants. Most fundamentally, though, tailoring our immigration laws and practices to actual risk would help ensure that in America, detention without criminal conviction remains the exception, not the rule.
Robert Koulish (firstname.lastname@example.org), a political scientist at the University of Maryland, is a research fellow at its Center for American Politics and Citizenship and teaches immigration law at its Carey School of Law. Mark Noferi (email@example.com) teaches an immigration seminar at Brooklyn Law School and chairs a subcommittee of the Association of the Bar of the City of New York currently studying immigration detention.