Protective Standards Aren’t Enough, Congress Needs to Cut Detention Funding

As policy counsel for the American Immigration Lawyers Association (AILA), I spend a lot of my time behind a desk reading detention inspection reports, hearing statements, and responses to advocacy letters. However, I recently arranged a detention facility visit after not stepping inside one during the last two years due to the COVID-19 pandemic. I hoped against hope that the lessons learned from COVID may have led to at least some minor changes. That feeling was quickly replaced by frustration and sadness as I was reminded of what a policy and moral failure it is that the U.S. continues to support a system of mass detention of noncitizens.

During my visit, I spoke with people detained at the facility under our U.S. immigration laws. It bears repeating, the vast majority are there because Congress gave ICE the authority and discretion to hold noncitizens. Nothing about our detention systems is pre-ordained or the only way to conduct immigration policy. There is a spectrum of alternatives to detention that do not involve stripping someone of their freedom of movement to promote the government’s interest in having noncitizens appear for hearings or appointments. And for individuals who may truly present a distinct and present public safety risk (as opposed to having had encounters with the criminal justice system), there are mitigation measures that do not involve spending over $2 billion dollars a year on custody operations alone. Or put another way, it costs approximately $157 a day to pay for one adult detention bed (and that is with many noncitizens working to clean and maintain detention centers for a wage of $1 a day).

The second thing I urge us all to challenge is the idea that with enough regulations, standards, and rules, detention can be sanitized. None of the current measures on the books prevented the mental trauma experienced by a man who stopped me in the hallway of the jail. He spoke to me in Spanish and pleaded for help. He told me, he did not speak English and he was moved to the jail from a state several thousand miles away. He did not have any money in his commissary account so he could not call his family to tell them where he was or to speak with them. To be sure, the detainee handbook explained that he had a right to call his family but that does not mean he was able to exercise that right, could read and understand the handbook, or that anyone on staff was going to take the time to help him via the language line.

While it is important to have standards as a baseline, they cannot fix the fact that detention is inherently coercive and punitive. Jails also get multiple chances to address shortcomings under the standards, even if it means that people in detention continue to suffer while they are addressed. For example, one person I spoke to mentioned that a sewage pipe had leaked in the segregated housing unit (solitary confinement). The smell was so bad that according to them, someone had passed out. I am sure someone at the jail had put in a work order, but there is almost no way to compel ICE to pause sending people to that unit except common decency and humanity. Two things that are all too often lacking in ICE detention when you read report after report of the severe dehumanization experienced by migrants.

At the end of last year, AILA sent a letter to the White House calling for detention facility closures. Something that we believed was possible when President Biden took office two years ago. Regrettably, we also had to send a letter to the White House voicing our strong opposition to the use of family detention. DHS responded by thanking us for our detention closure letter but affirming their commitment to having sufficient detention space to hold noncitizens in custody.

I thought of that response as I paused to catch my breath outside of the immigration jail I had just left. I thought of the person who told me they had not breathed in fresh air or felt the sun on their face for over three months (another violation of those detention standards).

We cannot accept that mass detention of noncitizens is an unavoidable part of our enforcement system. Whether you are an AILA member, clergy person, or member of the public, join me in urging Congress to make signification reductions to detention funding for ICE and to explicitly prohibit funding for family detention.