ICE Detention: "More Like Recess"

On Wednesday, I testified before the House Judiciary Committee's Immigration and Policy subcommittee hearing on new policies implemented by the Obama administration for softer immigration detention standards. In addition to pointing out the absurdity of some of the reforms, which make ICE detention centers sound more like college campuses, the hearing focused attention on the alarming number of criminal aliens that ICE has failed to detain and who may still remain here in defiance of our laws, potentially threatening our communities.

No one is against the humane treatment of detainees, or the implementation of standards to prevent their abuse. But detention is frequently necessary to enforce the law; we know from experience that a large share of illegal aliens will flee from proceedings if they are not detained. As of 2010, there were 715,000 aliens at large who have failed to appear for their hearings in court or who have ignored orders to depart. This is a 28 percent increase over 2008. (See my colleague Mark Metcalf's report.)

Despite this abysmal record, the Obama administration is trying to move away from detaining apprehended aliens — even in kinder, gentler centers — in favor of alternatives such as electronic monitoring, community supervision, and bonds. These aren't working out so well, according to my research.

Data I obtained from the Secure Communities program show that about 9 percent of the aliens identified through this screening, which occurs at the time of an arrest, are found to be already in removal proceedings — meaning that they were caught once, released to await a hearing, and got arrested again. As of one year ago, this was more than 40,000 aliens across the country who had re-offended while waiting to be ordered removed. That's a lot of unnecessary victims.

Two different investigations by the Houston Chronicle (here and here) have shown high failure rates in electronic monitoring and immigration bonds.

In one especially alarming case, ICE released a man who had been accused of 42 counts of child molestation, including incestuous rape. The agency issued a statement saying that the decision was based on the fact that the man has a U.S. citizen child and had no prior convictions or immigration violations. This is "prosecutorial discretion" run amok.

Democratic committee members tried to emphasize the need to protect detainees. The hearing was called "Holiday on ICE", alluding to the fact that a big part of this initiative is to make immigration detainees more comfortable as they await removal, and that the bill is paid by the federal government, meaning taxpayers. Anti-enforcement advocates took great offense at this, and ranking member Zoe Lofgren (D-Calif.) suggested that this hearing was just another part of the Republican "war on women". She pointed out that the standards include greater protections for female detainees, a few of whom have been molested while in detention. Some detainees with serious medical conditions have died in custody.

Of course no one, including those who are in favor of tougher immigration law enforcement and greater use of detention, wants to see detainees mistreated and no one is against the parts of the 400-page standards that deal with preventing abuse of detainees. Besides, as witness Chris Crane, who is an ICE detention and removal officer, pointed out, the new standards will not help with that problem because the abuse happens because of bad actors — a few bad guards — not bad rules. Shifting from armed guards to unarmed, polo shirt-clad "resident advisors", as the standards call for, won't keep anyone safer either. Rep. Steve King (R-Iowa), who is the subcommittee vice chairman, agreed that detainee abuse and deaths are horrible, but also pointed out that there is no indication that this happens more frequently in ICE detention than in any other form of detention.

Rep. Elton Gallegly (R-Calif.), the committee chairman, noted that the best way to assist immigration detainees would be to reduce their time in detention by processing them more expeditiously — using expedited removal and stipulated removal, among other options. He's right: This would help the detainees return home sooner, help restore meaning to our laws, and save taxpayer money as well.