02/11/2013 06:20 pm ET Updated Apr 13, 2013

Fix the Immigration Detention System

The immigration detention system does not seem to be on any legislator's short-list of immigration reforms, but it should be. To its credit, the Obama administration made detention reform one of its early, administrative priorities, and with cause. For years, human rights and government oversight agencies had documented detention conditions as diverse and disturbing as sexual abuse, persons lost in the system, intimidation by attack dogs, women forced to deliver babies in restraints, the treatment of serious illnesses with Tylenol, transfers away from loved ones and support systems, suicides and preventable deaths. The litany of scandals did not move the hard men of Congress. Instead, appropriations for detention increased to the point that 429,000 persons passed through this system in FY 2011.

Meanwhile, detainees, their families, spiritual advisors and legal counsel experienced a distorted universe of casual cruelty and abuse. One notorious facility held the mentally ill in a cell with improperly installed, one-way mirrors: the detainees could see the guards, but nobody could see the detainees, even the suicidal. Another facility enforced a strict no-smoking policy which applied to the prison grounds, but not to its living areas. Still another mixed and baked the previous day's leftovers, and served the resulting "loaf" to detainees. Dental personnel in several facilities extracted teeth because they could not fill cavities.

Since 2009, the administration's reform initiative has achieved notable successes. It created a secure, "civil" detention facility in Karnes County, Texas; expanded alternative-to-detention (ATD) programs; created a risk assessment tool to guide placement decisions; strengthened standards governing conditions of custody; and significantly reduced the number of detention facility contracts. Yet immigrant detainees -- none of whom are serving prison sentences -- continue to be held in jails and jail-like facilities, and remain subject to standards for pre-trial, criminal detainees. Moreover, the spirit of reform has apparently not spread to certain jailers. More than two years into the reform initiative, one detention administrator shared his uncertainty with a visiting delegation over whether reform would take place at all. During another delegation visit, a private administrator claimed there was no "space" between him and ICE oversight officials. Yet detention reform depends on meaningful oversight of private contractors.

Enduring change in this area will require at least three reforms. First, Congress should codify civil detention standards into law. In August 2012, the American Bar Association's (ABA's) House of Delegates approved model standards to guide the government's reform efforts. The standards provide that any restrictions or conditions placed on non-citizens should be the least restrictive, non-punitive means necessary to further the goals of detention, which are to ensure court appearances, removal, and (in limited cases) public safety. These goals can be realized through a combination of release on parole or bond, alternative programs with various levels of supervision, home detention with strict conditions, and (as a last resort) detention. Moreover, civil detainees should not be held in jails, but in facilities that more closely approximate normal living conditions. To policymakers, jailers and the public alike, the appearance of shackled immigrants in prison garb feeds the misconception that most detainees threaten public safety and national security. The overwhelming majority do not.

Second, broad mandatory detention rules limit the discretion of immigration officials and judges to make the best decisions on release, custody, and access to alternative programs. Congress should restore discretion in most cases. Moreover, Immigration and Customs Enforcement (ICE) should treat its restrictive ATD programs as an alternative form of detention and, thus, open them to mandatory detainees.

Third, ICE invests only modestly in alternative programs ($72 million a year) relative to its total detention budget (nearly $2 billion) and to the number of persons in these programs (roughly 18,000 a night and 42,000 per year). It costs anywhere from 10 and 20 times more per night to detain an immigrant than to supervise them in a more humane ATD program. Congress should appropriate more funding for these programs.

Some time ago, my agency received a letter alleging the sexual abuse of detained women by guards in a contract facility. Although we regularly visited the jail in question, we did not realize that it held women. However, we knew that in interceding on the women's behalf we could lose access to the facility entirely: we had been barred from another jail for informing the press of conditions there. Detention reform would be cost-effective, but more importantly it would reduce the vulnerability of men and women who are cut off, alone, and exposed to perhaps the most historically troubled feature of our nation's immigration regime. To be truly comprehensive, reform legislation must address the immigration detention system.