Detained but not represented

Federal policy on immigration has tilted toward enforcement in recent years, and the number of deportation proceedings has risen sharply. As a result, the nation’s detention centers, where immigrants often are held while their cases are adjudicated, have become increasingly overburdened. One of the many negative consequences of the 60% increase in the number of people held since 2004 is detainees’ dwindling access to legal counsel.

Having a lawyer makes a difference. A 2005 Migration Policy Institute study found that the odds of success double when detainees seeking to become lawful permanent citizens have attorneys. For those seeking asylum, the odds of success increase sixfold. Also, in many cases attorneys succeed not by helping detainees remain in the United States but by assisting efforts to speed deportation proceedings, freeing them to return home.

Yet a recent report by the Chicago-based National Immigrant Justice Center found that 80% of detainees are held in facilities whose location makes it difficult to find and retain an attorney. The detention center in El Centro, for example, has more detainees than any other in the country, but because of its location, they have the least access to attorneys. At more than a quarter of the nation’s 300 facilities, there is no access at all to legal aid from the nongovernmental organizations that provide low-cost and pro bono attorneys for detainees, and the federal government’s legal orientation programs— which are not an adequate substitute for an attorney but are nevertheless of much assistance — are available in only 17% of facilities. Lastly, rules regulating telephone access to attorneys are cumbersome to the point of hindering access.

Some of the recommendations in the report, such as expanding legal orientation programs to all facilities and easing telephone restrictions, seem obvious steps that need to be taken. Others, however, require a rethinking of detention that would minimize the population being held. The U.S. spends $5.9 billion annually holding thousands of people who have not been accused of a crime and pose no threat to society. Surely some of them could be placed on a form of parole or under house arrest, reducing expenses for taxpayers and increasing access to legal representation. To be fair, the Department of Justice has made progress in improving overall conditions in the detention centers, and officials maintain that it is equally committed to improving detainees’ access to legal counsel. To that end, the department should give serious weight to suggestions from those who work most closely with those being held.