The Department of Homeland Security announced recently that it would release hundreds of mothers and children who are seeking political asylum, so that they can await their hearings in freedom rather than in detention facilities. That was a welcome move, but the government should go further and undertake a top-to-bottom review of the entire immigration detention system with an eye toward jailing as few people as possible.
The government, of course, has the right and duty to determine who is allowed into the country and under what circumstances, as well as who may work here and eventually seek naturalized citizenship. Under current laws, if would-be immigrants arrive at the border and ask for asylum because they fear persecution in their home countries, or if they seek entry on other grounds, the government must give them a chance to make their case.
But must they be incarcerated? The public interest is not in detaining as many people as possible; it is in ensuring that those facing the possibility of deportation show up for their hearings, that those ordered out of the country are removed and that public safety is protected. Federal law mandates that certain categories of people be detained pending removal — mostly those convicted of a range of crimes. In other cases, detention should be the last resort.
Most people facing deportation hearings are released on bond or under other conditions — on their own recognizance, for example, or required to wear ankle bracelets — to ensure that they appear. How successful is that? The overall no-show rate in 2014 was 19%, according to the Justice Department's Executive Office for Immigration Review, which oversees the immigration court system. But from mid-July 2014 through late May 2015, about 21% of unaccompanied minors and 40% of mothers with children — most caught at the Mexican border during the 2014 summer surge from Central America — failed to appear for their initial court dates and were ordered deported in absentia.
While those rates are high, advocates argue that many of the no-shows simply didn't understand the system, or didn't receive notice of the court date. In contrast, those who were able to obtain lawyers showed up at much higher rates, and case-management programs run by private contractors and nonprofit organizations have achieved more than 90% appearance rates. So there are viable — and cheaper — alternatives to detention, which costs the government about $2 billion a year all told.
Yet on any given day, the government detains around 34,000 immigrants scattered across a network of 184 federal facilities, privately run detention centers, and local and state prisons — in part because it is required by Congress to do so. This page has argued before that Congress should drop the bizarre requirement that 34,000 people be held in detention each night.
Since 2009, Immigration and Customs Enforcement has reduced the numbers of facilities it contracts with, developed more stringent guidelines covering detention centers and begun to limit detention to those people on the president's priority list for deportation: immigrants who pose threats to national security, border security or public safety. Advocates give the government mixed reviews on how effective those reforms have been.
Regardless, the system still relies heavily on incarceration, which is not appropriate for most detainees — many of whom are too poor to afford even relatively low bonds. The government needs to fundamentally change the way it treats people who have committed no crime, pose no threat to public safety and whose core transgression is their desire to live here.