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ICE's Detention Reform Promises - A Second Look

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By Ruthie Epstein
Refugee Protection Program

My drive back from Karnes County, Texas, to San Antonio, two weeks ago, was long and empty. Not long by Texas standards, true, but it took more than an hour - so, long for a non-profit or pro bono attorney to drive twice in one day to visit a client at ICE's newest immigration detention facility. And long enough for me to think about what the new Karnes County facility really means for ICE's promised reform of the U.S. immigration detention system.

Today, the House Judiciary committee will consider the same question in an oversight hearing on detention reform, albeit from the perspective of Rep. Lamar Smith (R-TX/21st), who has accused the administration of going "beyond common sense to accommodate illegal immigrants and treat... them better than citizens in federal custody." This assertion is ludicrous. And ICE still has a long way to go.

By and large, national media coverage of the Karnes opening didn't quite give readers the full picture. It parroted, without criticism, the messaging of anti-reformists who disingenuously claim that ICE coddles detained immigrants. It also took ICE's assertions about its reforms at face value, and failed, for example, to highlight the fact that the vast majority of ICE detainees - numbering almost 400,000 per year - will continue to be held in jails and jail-like facilities, even with the opening of Karnes. (For a more complete perspective on the status of detention reform, check out these pieces from New York Times, Los Angeles Times, Texas Observer, and National Public Radio, as well as Just Detention International's piece on PREA and ICE detention standards.)

On March 13, before visiting Karnes - which ICE touts as a model facility for "civil" immigration detention - I described my expectations of how it might look, based on Human Rights First's years of advocacy work relating to the detention of asylum seekers and other immigrants, and recent research for our latest report, "Jails and Jumpsuits: Transforming the U.S. Immigration Detention System - A Two-Year Review." In terms of detention conditions, I wasn't disappointed by much. With the caveat that we toured an empty facility that will ultimately hold 600 detained individuals, I grant that ICE has developed a facility that can serve as a model for "civil" immigration detention. The Karnes layout should allow detainees to access the outdoors all day, and they will be able to move freely - within the confines of the secure facility - from their housing area to the law library to the cafeteria. They will have private bathrooms which they'll share with the 7 others living in 8-person rooms. They will have email and Internet access and they'll be permitted contact visits with family members who are able to make the trip to visit them in detention. These are not radical offerings, but ICE should absolutely be commended for adopting them at Karnes. According to corrections professionals, normalized conditions - ones that approximate as much as possible life on the outside - can actually help ensure the safety of both detainees and officers.

But despite the development of a facility that will offer more appropriate conditions for civil immigration detainees, the government's reforms still fall short. At Karnes, detained individuals will still be forced to wear uniforms. At least the uniforms are not color-coded prison jumpsuits, as they are in most ICE facilities, but they are still uniforms - orange or gray sweatshirts, gray or white t-shirts, and elastic-waist denim pants. They'll have their deportation proceedings heard via video-conference rather than in person, introducing significant due process concerns. The immigration courtroom built in the facility will lie empty. Non-profit legal service providers in San Antonio and Austin will need more funding to be able to serve the individuals held at Karnes, who do not receive government-funded counsel to help them navigate complex immigration laws.

And the individuals slated for detention at Karnes should probably not be detained in the first place. They will be individuals whom ICE has deemed low-risk, with no criminal records or only non-violent misdemeanor records. They will include arriving asylum seekers who fled persecution in their home countries and seek safety in the United States. These individuals are good candidates for effective and less expensive alternatives to detention (ATDs). The annual ICE detention budget is over $2 billion - 28 times ICE's budget for ATDs. ATDs cost, on average, $8.88 per detainee per day. That's more than $100 less than detention, which costs taxpayers $122 per detainee per day.

ICE should increase its investment in effective ATDs, end the use of jails and jail-like facilities, and reserve facilities like Karnes for a much smaller detained population that cannot be released on alternatives to detention or community-based release programs. Congress should reform laws to provide for an independent assessment of the need to detain an asylum seeker or other immigrant. These changes would be a more sensible and humane use of limited resources. And allowing a court to rule on whether a person should be detained is consistent with U.S. commitments under international human rights treaties. Current detention policies and practices - despite the non-fact-based claims of Chairman Smith, and despite some real steps forward from ICE - remain inappropriate, ineffective to their limited purpose, and inconsistent with the better version of American values.