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Ending The Laws That Fuel Mass Detention and Deportation

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By Judy Rabinovitz, Deputy Director, ACLU Immigrants' Rights Project

The Department of Homeland Security assumes that mass detention is the key to immigration enforcement. But in fact, our detention system locks up thousands of immigrants unnecessarily every year, exposing detainees to brutal and inhumane conditions of confinement at massive costs to American taxpayers. Throughout the next two weeks, check back daily for posts about the costs of immigration detention, both human and fiscal, and what needs to be done to ensure fair and humane policy.

One of the ugliest myths in the immigration debate is that immigrants are more likely to commit crime. Although studies repeatedly show that immigrants are less likely to commit crimes than native-born Americans, politicians have long exploited the myth of immigrant criminality to justify punitive immigration policies.

Today's explosion in detention is fueled in large part by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Enacted during the "tough on crime" years of the Clinton administration, IIRIRA is based on the false premise that we need mass detention and deportation to keep dangerous "criminal aliens" off our streets. But in truth, these laws punish immigrants far out of proportion to their crimes, subjecting thousands of legal immigrants to detention and deportation every year for old or insignificant offenses. The predictable result has been a boom in detention in the 15 years since IIRIRA's passage — from 6,280 beds in 1996 to the current daily capacity of 33,400 beds, or 363,000 people detained in FY2010 — with taxpayers footing the bill.

These laws have had an untold human cost as well. Consider the ordeal of Joe Desiré, one of the many stories documented in Forced Apart, Human Rights Watch's report on IIRIRA. Originally from Haiti, Joe has lived in the U.S. as a lawful permanent resident for 40 years, since he was 11 years old. He has four United States citizen sons, two of whom were in the military. Joe himself served in the military, doing a tour of duty in Vietnam. He also worked his entire life, having finished college at night and gone into business for himself as a cable technician.

Like many servicemen who endure the horrors of war, Joe developed a drug habit and got in trouble with the law. Because of two drug possession convictions and one drug sale conviction — all from the mid-1990s — the government charged him with deportation to Haiti, a country in which he had no family or friends. As of the report's writing, Joe had spent eight years in detention.

Sadly, Joe's story is typical of the many lives ruined by these laws. Indeed, every day the ACLU receives letters from such individuals, almost all of whom are unrepresented. Indeed, because the immigration court system, unlike the criminal system, does not provide for lawyers at government expense, an estimated 84% of detainees do not have counsel.

Because of IIRIRA, detention is now mandated for virtually any immigrant the government tries to deport based on criminal history — no matter how minor the offense. Detention is mandatory even if the immigrant poses no danger or flight risk, and regardless of the fact that he has already served his criminal sentence and paid his debt to society. At the same time, IIRIRA radically expanded the kinds of offenses that subject an immigrant to mandatory detention. As a result, many immigrants who have strong cases to challenge their removal are forced to choose between enduring additional months or years in detention to fight their cases, or agreeing to banishment from the country they call home.

For the last fifteen years, IIRIRA has filled detention beds, fueled a booming business industry, and torn men and women from their families and communities, with no clear gains to public safety. After years of wasted taxpayer dollars and ruined lives, we need to end mandatory detention and deportation.