A week ago I attended a conference on immigration issues at the University
of South Florida (St Pete) and learned about a law that I found very troubling.
Under a congressional mandate enacted in 2007, 34,000 people
must be maintained in custody at all times by Immigration and Customs
Enforcement (ICE), a component of the Department of Homeland
Security. A legislated and mandated quota of people to be held in custody,
something that seems at first glance to be impossible but it is real.
Are those being detained dangerous? The original intent was that holding
orders (detainers) were critical for ICE to be able to identify and ultimately
remove criminal aliens currently in federal, state or local custody. That
sounds like a good idea. If someone is convicted of a criminal act and is found
to be in the country illegally he or she should indeed be deported as soon as
possible.
That might be the intention but the application is very different.
What has emerged is a situation where the majority of individuals being held
are simply un-documented immigrants who may or may not be subjects for
deportation. The process has evolved whereby individuals arrested for a suspected
violation of law and who for any reason cannot prove at that moment their legal
status find themselves reported to ICE. The agency then issues a detainer
application to keep the individual in custody for 48 hours pending a
determination by ICE as to deportation status. Often the detention period is
extended by local authorities until ICE makes a decision.
The suspected violation that started all this can be as marginal as
using someone else’s name to get a job or a traffic violation like driving
without a license (in Florida only citizens or registered immigrants get
licenses). Once ICE takes custody of the individual they become detainees,
subject entirely to the processes of that agency and in general not given the
benefits that are normally provided by established legal process.
Why would ICE even bother to take such seemingly draconian steps?
They had an interested partner. The Congressional appropriations language
covering ICE’s detention budget includes a statement that “funding made
available under this heading shall maintain a level of not less than 34,000
detention beds.” The problem arose when ICE, encouraged and urged-on by some
members of Congress, chose to interpret the language as “maintain and fill not less than 34,000 beds.” Thus, we have the
situation at hand.
To a universe of law enforcement agencies, the concept of legislatively
mandated detention quotas is a major deviation from long-held practices. Additionally
the actual use of holding orders (detainers) rightfully raises serious
constitutional concerns of depriving individuals of freedom without due process
of law, of their right to a speedy trial, and at times cruel and unusual
punishment. All this and in many cases without probable cause for the original suspected
violation.
Rather than help ICE, the bed quota prevents the agency from
exercising discretion and expanding more efficient alternatives to detention
(ATD’s) that would allow individuals who pose no risk to public safety to be
released back to their families while awaiting immigration court hearings. Criminal
justice systems in many states use such measures as an effective and far less
costly methodology than detention.
The blame for this appears to rest not in DHS
the cabinet parent of ICE but within the halls of Congress. It is they who have
made the rules and who have over the years voted to let these measures
continue.
The bottom line is that despite all efforts to remedy the unusual
harsh interpretation of the law, the fact remains that thirty four thousand
individuals are in fact incarcerated at all times. That number is not a target;
it is an absolute minimum. This was evidenced when the Homeland Security
Committee Chairman in the House of Representatives advised ICE officials that
they were “in clear violation of statute” when the reported detainee population
fell to less than 34,000 after 2,200
were released to save money.
The logical question: why did Congress take such
actions? The easy response is that politically it is beneficial to tell the
folks at home that we are keeping pressure on deporting people who are here
illegally. Even if this were the case and recalling the well-documented
overcrowding of jails, where do we keep these supposed threats to our national
security?
The answer was stunning: they are housed largely in privately run
units managed by companies such as Corrections Corp. of America, Geo Group Inc.
and other for-profit prison operators. These are companies who actively lobby
congress and who generously support congressional re-election campaigns. That
also gives reason for measures to remedy the situation failing to garner sufficient
votes.
What is the cost of all this? The budget report shows a daily amount
of $120 per detainee, or $4 million a day. Annually that amounts to a
staggering $1.5 Billion. Still, that figure does not include the administrative
costs within ICE that is needed to supervise the program.
ICE reports indicate about $2 billion annual spending on
detention, dollars principally allocated to those politically powerful high
donor companies who provide the needed detention facilities. Two billion
dollars to detain 34,000 human beings, most of whom who post little or no
threat at all and none of whom can challenge their status quo.
Eliminating the bed mandate would not eliminate all immigration
detention nor would it eliminate the mandatory detention provisions in current
immigration law. ICE would still detain individuals where it can show that they
have not complied with hearings and/or final orders. In the absence of a
mandate, the agency would be able to shift its resources to community-based ATD’s
reducing the disruption and harm that detention causes to families and
communities and by doing so saving the taxpayers billions.
There is hope: a number of law enforcement departments have taken
the position that unless the ICE can provide probable cause, such as a warrant
or legal deportation order, the individuals will not be held but rather
released back to the community as would normally occur.
But the mandate is still the accepted law of the land and as such
34,000 of our fellow human beings who do not know what the next day or week or
month will bring and who have little chance of being heard remain in detention
camps.
I wonder if when this is finally over whether we will someday apologize
as we did to the thousands of Japanese we housed in detention camps in the 1940’s.
Thomas Ignatius
Hayes
St Petersburg FL
7 March 2015
