Don’t make immigration custody part of the criminal justice system

Following fast on the heels of announcements to deport many more immigrants, regardless of their circumstances, and to increase immigration detention capacity to carry out that plan, last week, the New York Times reported Immigration and Customs Enforcement (ICE) would roll back detention standards and disband its Office of Detention Policy and Planning.

These reversals will make it easier and more lucrative for correctional facilities to qualify and will entice the sheriffs and private prison companies that operate them to contract with ICE as it expands its capacity at all cost. Most notably, the Office’s closing signals a growing inclination towards the criminalization of immigration.  

{mosads}The tendency to conflate individuals in ICE custody with those in the criminal justice system is simply wrong as a matter of law, policy and economics.  ICE can hold someone until his or her removal or release, but ICE cannot punish anyone. Period. Only the criminal justice system can do that. The majority of people held by ICE have no criminal history so there is no basis in law to punish them, and those who have a record must fulfill any penalties the criminal justice system imposes before ICE takes them into custody.

From its inception in 2009, ODPP brought expertise to ICE in areas other than enforcement; expertise that it lacks and that led to much needed improvements in detention conditions and bolstered the agency’s accountability and transparency with the American public.  

Here are a few of the reasons why the administration should rescind its decision to close the Office and reverse its use of practices that blur bright-line differences between criminal and civil law:

1. Punishing ICE detainees is impermissible. A criminal court can sentence a person to prison as punishment. The immigration court cannot. The legal remedy for a person unlawfully present in the U.S. is either removal or relief.  It is not detention.

2. Without the most basic protections provided in the ICE Standards and ongoing monitoring by the Office to ensure compliance, conditions of detention will quickly deteriorate. For example, translation services, slated for elimination, may appear to be a nicety but are in fact, a necessity. Last year, ICE held individuals from 178 countries, each with its own language and dialects. To eliminate translation services is to render most detained persons incapable of interaction with ICE or the immigration court.

3. The people in ICE detention facilities are not the same as pretrial inmates and sentenced prisoners in jail or prison.  Their violations are civil, not criminal, and those with criminal histories typically are not dangerous.  In fact, ICE classifies the majority of individuals in its custody as low risk of escape or assault. They are working parents, school-aged children, productive members of their communities. Assigning them to secure facilities is excessive and excessively expensive.  

Despite the stark differences in case law and clientele, the administration is doubling down, expanding its use of correctional facilities, correctional staff, and applying incarceration’s means of control — counts, searches, shakedowns, and the like — towards the criminalization of what is a civil justice system.

When government takes persons in its custody or places them under its supervision, the government assumes responsibility for their safety and wellbeing.  DHS established the Office of Detention Policy and Planning in 2009 not to undermine ICE’s primary mission of enforcement but to address a growing list of complaints and concerns documented by all three branches of government and including the Government

Accountability Office and DHS’ Inspector General, and others, about ICE detention practices and its misapplication of alternatives to detention. To eliminate the Office now is to undermine the fundamental due process rights of individuals in ICE’s custody. It is to convey that they cannot continue to count on the most basic protections. This is a loss for us all.

Dora Schriro is the founding director of the Office of Detention Policy and Planning (ODPP) and former Special Advisor to Department of Homeland Security (DHS) Secretary Napolitano.

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