Is immigration detention a feature of incarceration?

A pair of reports produced by well-respected policy organizations in the United States implicitly raised a question about the proper role of immigration detention in discussions of imprisonment generally. Should we consider immigration detention as a wholly distinct topic from incarceration or is immigration detention a part of incarceration policies?

A report produced by the estimable Brennan Center for Justice on reforming financial incentives propelling mass incarceration took the former approach. The report, Reforming Funding to Reduce Mass Incarceration, is an impressive assessment that combines serious policy making firepower with critical insight of the United States’ incarcerative capacity. Inimai Chettiar, Lauren-Brooke Eisen, and Nicole Fortier with Timothy Ross, Reforming Funding to Reduce Mass Incarceration (2013). Peter Orszag, President Obama’s former director of the Office of Management and Budget, wrote a foreword to the report in which he opined that “success-oriented funding,” as the report labels its prescriptive approach, is perhaps of special importance when it comes to incarceration policies because of “what is at stake: the safety of the public and a deprivation of liberty for defendants.”

This is certainly true of incarceration as a result of suspicion of having committed a crime or due to conviction for having done so. It’s also true, however, of immigration detention. There is no question that confining a person while removal proceedings are pending or while awaiting removal is a deprivation of liberty. Indeed, roughly half of the facilities that ICE relies on to detain folks are in fact jails and prisons from which it rents space. Meanwhile, the government justifies detaining people suspected of having violated civil immigration laws in part on a public safety rationale. As far back as 1952, in Carlson v. Landon, 342 U.S. 524, 538 (1952), the Supreme Court justified detention on public safety grounds. “Detention is necessarily a part of this deportation procedure,” the Court stated. “Otherwise aliens arrested for deportation would have opportunities to hurt the United States during the pendency of deportation proceedings.” Likewise, the BIA has long required proof of dangerousness or flight risk to justify discretionary detention. Matter of Ellis, 20 I&N Dec. 641, 642 (B.I.A. 1993).

Moreover, the immigration detention regime has reached enormous proportions. Each night ICE detains about 33,000 people in roughly 250 facilities. This doesn’t come cheaply. We’re now spending over $2 billion per year on immigration detention. Admittedly, this is a small fraction of the $80 billion that the Brennan Center report states that the United States spends incarcerating people every year. Chettiar et al. at 3. That said, $2 billion is nothing to ignore. Nor are the 429,000 people who were detained over the course of 2011 while the government decided whether they were going to be allowed to remain in the United States.

And yet the report does just that. Nowhere in its 48 pages of description, analysis, and prescription, or in its 15 additional pages of notes, do the authors mention what’s been happening with regard to detention in the immigration law enforcement system.

In contrast, International Growth Trends in Prison Privatization (August 2013) by Cody Mason, a consultant for The Sentencing Project took the opposite approach. To Mason, immigration detention is clearly one “trend” in prison policies. Unlike the Brennan Center’s report, The Sentencing Project’s report references immigration detention throughout. Indeed, it notes that “[a]s in the United States, immigrant detention has been a particular target of privatization in the United Kingdom, which has 73 percent of its immigrant detainees held privately, and Australia, which has a wholly private immigration detention system.” Id. at 2.

This is an important difference of perspective, and one that I hope others follow. It’s simply not enough to cast immigration detention as civil confinement and therefore irrelevant to a discussion about mass incarceration as a result of criminal prosecution and conviction. As the Supreme Court acknowledged in Padilla v. Kentucky, 559 U.S. 356 (2010), “deportation is…intimately related to the criminal process.” So too is immigration detention. Most crime-based grounds of removal, after all, are also bases for mandatory detention. INA § 236(c).

Moreover, as I argue in a forthcoming article in the UCLA Law Review, Immigration Detention as Punishment, the Court’s repeated—and unexplained—insistence that immigration detention is not punitive is fundamentally flawed. It fails to take into account the very legislative intent that the Court says ought to guide our determination of whether a particular type of confinement is civil or penal in nature.

Many academics, policymakers, and courts have accepted the Court’s characterization of immigration detention as civil as impenetrable. As The Sentencing Project does, I think it’s time that we stop doing that.