08/06/2009 10:20 am ET | Updated May 25, 2011

When Detention is More Than Just a Deterrent

Detention is usually recommended or mandated in instances where the defendant poses a danger to society or deemed a flight risk. But Immigration and Customs Enforcement (ICE) has pursued an aggressive policy of "mandatory detention" across the board, resulting in a marked increase in the number of immigrants detained nationwide, for prolonged periods of time. What's behind the mandatory detention? What ever happened to due process?

On Tuesday, the American Civil Liberties Union argued its case challenging the prolonged detention of immigrants. One of the named plaintiffs in the lawsuit is Elliot Grenade, a national of Trinidad and Tobago, who has spent almost two years in immigration detention challenging the government's efforts to deport him on account of a drug sale offense that occurred more than ten years ago. Mr. Grenade, a lawful permanent resident in the U.S. for almost 28 years, has two American-born children; both his domestic partner and mother are U.S. citizens.

In a previous lawsuit, the ACLU represented Warren Joseph, also a national of Trinidad and Tobago and a decorated veteran of the first Gulf War who spent more than three years in detention while challenging the government's efforts at deportation. Mr. Joseph, a lawful permanent resident in the U.S. for almost 22 years, has five children who are U.S. citizens. Mr. Joseph enlisted in the U.S. army, served combat positions in the Persian Gulf, but was injured in the course of duty and after returning home was diagnosed with Post Traumatic Stress Disorder (PTSD). In 2001, Mr. Joseph unlawfully purchased a handgun to sell to individuals to settle a debt he owed. Since his actions were deemed insufficient to warrant incarceration, Mr. Joseph was given probation. Two years later, when Mr. Joseph violated probation, he served six months and, upon his release, was placed in removal proceedings and subject to mandatory immigration detention.

Elliot Grenade and Warren Joseph were held in custody pursuant to ICE's policy of "mandatory detention". Following the passing of the laws back in 1996, an immigrant convicted of a crime categorized as an "aggravated felony" (as defined in the immigration code), is subject to mandatory detention without bond and permanent removal from the U.S., regardless of whether the person poses a danger or flight risk. This trend toward mandatory detention was a significant deviation or movement away from ICE's practice of "Catch and Release," under which individuals apprehended by authorities would be given notice of their removability and released on bond with a future date for a court hearing or processing.

Created in 2003, ICE's main goal under Operation Endgame is the removal of all deportable persons by the year 2012. To that end, there's been a heavy reliance on detention and a corresponding surge in deportation. Congress has appropriated almost $208 billion towards ICE's efforts towards ICE's efforts to deport immigrants over the past several years. According to government reports, ICE's budget in 2005 was less than $3.6 billion dollars; ICE's most recent request for Fiscal Year 2009 is $5.67 billion.

The ACLU of Massachusetts published a report Detention and Deportation in the Age of ICE, outlining trends in immigration detention. The report reveals that every day ICE detains approximately 30,000 persons in an extensive network of detention centers and jails nationwide. Several of the facilities are run by ICE itself; other facilities are privately run, outsourced to the GEO Group, Corrections Corporation of America, among others. The rest are prisons and jails run by local government. ICE pays between $80 and $90 a day per detainee to these facilities.

So, when is detention more than just a deterrent? When the individual is held for an inordinate period of time, conditions during detention are deplorable, and the animus behind the detention appears to be punitive or retaliatory in nature.