As The DOJ Takes Aim at Mass Incarceration, DHS Detains Record Numbers of Immigrants

On Monday, Secretary of Homeland Security Jeh Johnson issued a statement announcing that DHS would be reviewing its use of private prisons following a recent decision by the Department of Justice’s Bureau of Prisons to reduce its reliance on private contractors. This is an encouraging development, but the immigration system still lags far behind its criminal justice counterparts when it comes to recent reforms to reduce costly mass incarceration and promote more just outcomes.

Having reduced the federal prison population by 11 percent in just three years, the DOJ is taking further steps to reform the system. On August 18, the agency announced that it was phasing out the use of privately operated correctional institutions. The announcement followed a DOJ inspector general report showing that for-profit facilities are worse than the government’s at keeping prisoners safe and providing humane conditions.

The following week, the DOJ spoke out strongly against pretrial detention in an amicus brief in a Georgia federal court, stating that “a bail scheme that mandates payment of fixed amounts to obtain pretrial release, without meaningful consideration of an individual’s indigence and alternatives that would serve the City’s interests, violates the Fourteenth Amendment.” Along with the DOJ’s arguments in a similar case earlier this year in Alabama, this brief signals that the federal government is intent on pushing states to reform the way they handle defendants in criminal justice matters.

These reforms don’t apply to immigration detention. While Johnson’s statement is promising, recent shifts in immigration detention policies have led to higher incarceration rates and a lower likelihood of release. Calling this a double standard would be putting it lightly.

U.S. immigration detention has reached record highs. In recent months, the detained population has remained near 37,000 to 38,000, at least a 35 percent increase since last spring, when the population was just over 27,000. Many, possibly even the majority, are asylum seekers. But unlike the Bureau of Prisons, which regularly updates its population statistics, U.S. Immigration and Customs Enforcement (ICE) provides scant public data on who it detains, making it difficult to analyze incarceration trends.

Relatedly, release from immigration detention has gotten harder. Human Rights First’s recent report shows that parole grants for asylum seekers have decreased significantly across the country, despite a federal policy favoring release. Bond hearings are available to the majority of immigrants in pre-hearing ICE detention, but judges are not required to consider ability to pay.

When we surveyed attorneys who represent detained asylum seekers and immigrants, 80 percent said that immigration judges set bonds too high for their clients to pay, leaving them stuck in detention. This reality is in stark contrast to the DOJ’s position on pretrial incarceration—yet the DOJ oversees the Executive Office for Immigration Review, which houses the nation’s immigration courts.

The federal prison system shouldn’t be a model. It was fueled by politics, a complex history of institutional racism, and a desire for retribution rather than sound public policy aimed at improving public safety. Immigration policy makers embraced the worst aspects of a bad system, adopting dehumanizing conditions and forgoing human dignity. Now, DHS and ICE must do more than review their use of private prisons. At a time when illegal immigration is decreasing and refugee claims are growing, DHS and ICE should cut back on—and work to eliminate—unnecessary and prolonged detention.

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Published on August 31, 2016

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