II. Dismantling Excessive Detention?
The Schriro Report acknowledges that most immigration detainees are held under circumstances inappropriate to their noncriminal status. Based on the report's findings, the government has pledged to overhaul the detention regime significantly. Section II.A analyzes the Schriro Report and the government's proposals, which could have important implications for how detention is understood. Section II.B considers the limits of these initiatives, which, according to one expert, are "positive" but "inadequate in comparison to the scope of the problem."58
A. Reforming Detention Conditions
Notably, the Schriro Report characterizes the misalignment between detention's noncriminal purposes and its quasi-punitive practices not as the result of inadequate implementation, but rather as a more fundamental, systemic failure. As Homeland Security Secretary Janet Napolitano recently stated, "[t]he paradigm was wrong."59 Most detention facilities, the report notes, were designed to hold criminal suspects and offenders, not immigration detainees, and most detention officials have experience in law enforcement, not civil detention and alternatives to detention.60 Even the government's detention standards—which advocates initially welcomed61—inappropriately draw from "criminal incarceration policies and practices" designed for criminal pretrial detainees, and are overly restrictive for most immigration detainees.62
In response to the Schriro Report, DHS intends to improve day-to-day facilities oversight and implementation of its existing detention standards.63 Longer term, DHS plans to rely less on excess capacity in correctional facilities, moving towards a more centralized system of facilities specifically designed for civil immigration purposes.64 DHS also intends to calibrate the severity of detention more closely to the risks posed by particular detainees and to use alternatives to detention when feasible.65
Although the extent to which these changes will be implemented is uncertain, this emphasis on distinct, noncriminal approaches to immigration custody remains significant. While some courts have assumed that the severity of immigration detention should be evaluated using the same constitutional standards governing pretrial criminal custody,66 others have insisted that because noncriminal detention rests on different premises, higher constitutional standards must prevail—and the Schriro Report appears to concur.67 By drawing attention to ways in which detention systematically falls short of those higher standards, the Schriro Report and the government's proposals could help to reframe how courts and others understand the nature of immigration custody, aligning that understanding more closely with the noncriminal purposes that custody may permissibly advance.
B. The Limits of Proposed Reforms
Though ambitious and important, the Obama Administration's proposals leave intact a range of practices that contribute to detention's excessiveness for many noncitizens. The government appears particularly disinclined to implement more robust oversight mechanisms and substantive constraints on its detention authority, such as enforceable detention standards, stronger rules limiting transfers, narrower interpretations of detention statutes, or more widely available hearings before immigration judges to review ICE's custody and bond decisions. Moreover, while DHS appears prepared to detain low-risk individuals in less restrictive settings and expand alternatives to detention, it remains unclear whether those programs will meaningfully reduce the overall severity of custody.
1. Detention Standards. — Like its predecessors, the Obama Administration has declined to promulgate binding, enforceable detention standards, maintaining that doing so would be "laborious, time consuming, and less flexible" than focusing on improved facilities management.68 Since DHS has apparently concluded that its current standards are inadequate and hopes to overhaul the detention regime altogether, this desire for flexibility might seem understandable. However, the inadequacies in DHS's existing oversight efforts raise questions about its ability to implement even higher standards if they are not independently enforceable.69 Immigration detention has long been characterized by a "climate of governmental indifference" to detainees' well-being and a culture of secrecy and impunity.70 Officials and their contractors face great incentives to skimp on the resources necessary to hold detainees under even minimally fair and humane conditions, much less costlier standards exceeding that minimum.71
Especially since DHS will continue to rely upon contract facilities, binding standards—with stronger complaint mechanisms and judicial enforceability—could play a valuable role in improving detention conditions, especially if they help clarify what "truly civil" detention requires.72 Indeed, apparently lacking confidence in DHS's capacity to implement higher standards on its own, members of Congress have introduced legislation that would require DHS to implement enforceable regulations and stronger compliance mechanisms.73
2. Transfers. — Nor has the government adopted meaningful standards regulating detainee transfers. Unlike transfers in correctional systems, which are subject to a number of constraints, the sole "determining factor" for immigration detention transfers is "whether the transfer is required for operational needs."74 ICE has "staunchly opposed" any substantive rules guiding and limiting transfers, or making it easier for detainees to change venue, as members of Congress have proposed.75 Instead, ICE has pledged only to implement a detainee locator system and to follow new managerial protocols before transferring individuals.76 While these changes may ensure that fewer detainees "disappear" altogether within ICE's facilities network, they will do relatively little to rein in the haphazard transfer practices that currently prevail.
3. Prolonged Detention. — The government's initiatives also do not address prolonged detention. Although the Supreme Court has upheld the constitutionality of mandatory detention under the criminal deportability grounds for the "brief period necessary" to hold and conclude removal proceedings,77 the Court also has held that, absent special circumstances, detention beyond a period reasonably necessary to effectuate removal—which the Court presumptively set at six months—raises serious due process concerns.78 Lower courts have identified similar concerns arising from prolonged detention while proceedings are pending, and have accordingly construed detention provisions not to authorize prolonged detention without individualized bond hearings.79 To the extent that the executive branch is similarly obliged to avoid constitutional concerns80 when interpreting ambiguous statutes, the government might be expected to construe these provisions similarly. Instead, the government has chosen to interpret them rather expansively.81
4. Overdetention. — The government has eschewed other reasonable statutory interpretations that would help limit unnecessary overdetention. For example, the government could interpret the criminal mandatory custody statute not to apply to individuals with bona fide challenges to removal,82 individuals who are not taken into ICE custody immediately after being released from criminal custody,83 or individuals whose release from criminal custody does not involve circumstances connected to any removable offense84—permitting instead the individualized custody and bond hearings to which noncitizens ordinarily are entitled. DHS also could—as it now has with arriving asylum—seekers85—more actively exercise its parole authority or prosecutorial discretion to release returning permanent residents who have been detained upon arrival in the United States if they present neither a flight risk nor a danger to public safety.86 As with prolonged detention, however, the government has instead largely opted for aggressive interpretations of mandatory custody provisions.87
5. Severity of Custody. — DHS appears prepared to temper overdetention by calibrating the severity and restrictiveness of custody more closely to the risks posed by particular detainees, both by using less restrictive facilities than currently in use88 and by expanding "alternatives to detention" programs involving less restrictive forms of custody and supervision, such as electronic monitoring, telephonic and in-person reporting, curfews, and home visits.89 It remains unclear how the government will classify and match individuals with the appropriate level of custody, although early indications suggest that these decisions may rest on broad categorizations similar to those guiding ICE's existing custody decisions.90 Given concerns over ICE's existing capacity to make these kinds of determinations, the government may face great pressure to hold individuals under circumstances that are as severe and restrictive as possible.91
Appropriately crafted alternatives programs could temper the extent of overdetention. While their effectiveness remains unclear, officials generally report high levels of compliance by program participants,92 and the Schriro Report recommends their expansion, which could realize significant fiscal savings.93 To be meaningful as "alternatives," such programs should only include individuals who otherwise would have been detained, rather than released on recognizance or bond, and should not involve restraints more restrictive than necessary to accomplish the permissible purposes of custody. Indeed, such programs should appropriately be understood as alternative forms of custody, since they still impose substantial restrictions on liberty.94 To this end, DHS could implement these programs not just for individuals who are clearly entitled to bond hearings, but also for individuals whose detention it currently deems "mandatory," since those individuals would remain under custody and the statute arguably requires no more.95
However, if not implemented appropriately, expansion of these programs could create a large-scale regime of "alternatives to release," rather than true "alternatives to detention."96 Observers have expressed concerns that existing alternatives programs have been overly restrictive—for example, including individuals who otherwise would be entitled to release on recognizance or bond and relying heavily on electronic monitoring and home confinement when less intrusive supervision would suffice.97 Nor has the government interpreted the mandatory custody statute to permit alternatives to detention as a sufficient form of "custody."98 If implemented in an overly restrictive manner, alternatives programs could simply extend the quasi-punitive nature of immigration custody beyond detention itself into other forms of physical restraint.
III. Convergence and the Enforcement-Detention Nexus
Ultimately, as the Schriro Report acknowledges, the scale and severity of immigration custody are functions of immigration enforcement policies more generally, not simply detention policies as such.99 And despite the Obama Administration's pledge to overhaul detention, it has also made clear that it plans to dramatically expand its predecessors' aggressive enforcement efforts, particularly by widening programs to enlist state and local cooperation in federal immigration enforcement.100 Even leading reform advocates in Congress appear inclined to preserve expansive criminal removal provisions and to expand resources for enforcement and detention—especially with facilities contractors themselves actively advocating expanded use of detention.101
Accordingly, the number of individuals subject to immigration custody will invariably increase in the years to come, and DHS officials emphasize that detention will continue "on a grand scale."102 DHS recently announced, for example, that its "Secure Communities" partnership with state and local law enforcement agencies had, during its first year alone, identified 111,000 noncitizens with criminal convictions—many of whom may be subject to detention.103 By 2013, DHS hopes to implement Secure Communities in every local jurisdiction nationwide. As the government expands these enforcement initiatives, the number of potential detainees will continue to increase dramatically.
In this context, the government will face considerable pressures not only to hold more noncitizens in custody, but to do so at minimal cost.104 As Sharon Dolovich has explained in the criminal context, "incarceration is expensive. When . . . the public's taste for incarceration is considerable, the state may . . . try to do the minimum possible to meet its burden, and perhaps to do even less if it can get away with it."105 So, too, with immigration detention. When faced with the choice of devoting resources to improve conditions or to acquire additional detention space, the government may face considerable pressure to choose the latter.106 While these budgetary pressures could also prompt DHS to expand less costly alternatives to detention,107 the close association of immigration control with criminal enforcement will continue to place pressures upon the government to hold noncitizens under restrictive, quasi-punitive forms of custody.108
Conclusion
The Obama Administration's initiatives certainly have potential to demonstrate, as one observer puts it, "that it's possible to be tough without being unfair and inhumane."109 But the excessive, quasi-punitive nature of detention today arises from more than the inadequate conditions of confinement that these initiatives principally target. Rather, that excessiveness arises from a broader constellation of detention-related practices, immigration laws "clothed with . . . many attributes of the criminal law,"110 and a surrounding discourse that strongly associates immigration with criminality. To fully dismantle this quasi-punitive regime, it may not be sufficient to focus exclusively on improving conditions of confinement. Absent a more fundamental reconsideration of immigration control policies premised upon convergence with criminal enforcement, fully realizing "fairness and humanity" will remain an aspiration in tension with the "toughness" that has dominated immigration policy in recent years.
*Associate Professor of Law, Drexel University Earle Mack School of Law. Thanks to Chris Nugent, Alison Parker, Judy Rabinovitz, Jayashri Srikantiah, and Juliet Stumpf for helpful exchanges and comments on earlier drafts.
58 Susan Carroll, Immigrant Facilities Subpar, Houston Chron., Feb. 5, 2010, at A1 (quoting Linton Joaquin, general counsel of National Immigration Law Center).
59 Nina Bernstein, Ideas For Immigrant Detention Include Converting Hotels and Building Models, N.Y. Times, Oct. 6, 2009, at A14 [hereinafter Bernstein, Ideas].
60 Schriro, supra note 14, at 4, 16; see Dow, supra note 12, at 9 (quoting former official's view that INS lacked "expertise in corrections" when it began to expand detention).
61 INS Hopes to Bring Uniformity to Detention Facilities' Processes with Release of Comprehensive Standards, 77 Interpreter Releases 1637, 1637 (2000) (quoting American Bar Association President Martha Barnett).
62 Schriro, supra note 14, at 16; see Taylor, Challenging Conditions, supra note 7, at 1126 n.194 (questioning whether standards imported from criminal pretrial context are "appropriate guidelines for the civil detention of aliens").
64 U.S. Immigration and Customs Enforcement, 2009 Immigration Detention Reforms (2009), at http://www.ice.gov/pi/news/factsheets/2009_immigration_detention_reforms.htm (on file with the Columbia Law Review).
65 Fact Sheet, U.S. Dep't of Homeland Sec., ICE Detention Reform: Principles and Next Steps 2 (2009), available at http://www.dhs.gov/xlibrary/assets/press_ice_detention_reform_fact_sheet.pdf (on file with the Columbia Law Review).
66 See, e.g., Edwards v. Johnson, 209 F.3d 772, 778 (5th Cir. 2000) (applying criminal pretrial standards to immigration detention). Courts also often assume that the Eighth Amendment standard of treatment for convicted offenders also applies to pretrial criminal suspects. Sharon Dolovich, Cruelty, Prison Conditions, and the Eighth Amendment, 84 N.Y.U. L. Rev. 881, 886 n.15 (2009) (hereinafter Dolovich, Cruelty). However, given the distinct purposes for their custody, pretrial detainees arguably are entitled to higher levels of protection under the Due Process Clause. See David C. Gorlin, Evaluating Punishment in Purgatory: The Need to Separate Pretrial Detainees' Conditions-of-Confinement Claims from Inadequate Eighth Amendment Analysis, 108 Mich. L. Rev. 417, 417 (2009) ("[T]he substantive component of the Due Process Clause provides pretrial detainees with greater protection than the Eighth Amendment provides to convicted prisoners.").
67 See, e.g., al-Kidd v. Ashcroft, 580 F.3d 949, 977–78 (9th Cir. 2009) (observing that when government detains material witnesses "who are not charged with crimes, it is under an obligation not to treat them like criminals"); Jones v. Blanas, 393 F.3d 918, 934 (9th Cir. 2004) ("With respect to an individual confined awaiting adjudication under civil process, a presumption of punitive conditions arises where the individual is detained under conditions identical to, similar to, or more restrictive than those under which pretrial criminal detainees are held . . . ."); Peter H. Schuck, INS Detention and Removal: A "White Paper," 11 Geo. Immigr. L.J. 667, 671 (1997) ("[T]he civil nature of removal-related detention . . . implies greater obligations on the INS with respect to the conditions of confinement.").
68 Letter from Jane Holl Lute, Deputy Sec'y of U.S. Dep't of Homeland Sec., to Michael J. Wishnie, Yale Law Sch., & Paromita Shah, Nat'l Immigration Project of the Nat'l Lawyers Guild, at 5–6 (July 24, 2009), available at http://clearinghouse.net/chDocs/public/IM-NY-0045-0004.pdf (on file with the Columbia Law Review) (denying petition for rulemaking).
69 See Karen Tumlin et al., Nat'l Immigration Law Ctr., A Broken System: Confidential Reports Reveal Failures in U.S. Immigrant Detention Centers, at vii (2009), available at http://www.nilc.org/immlawpolicy/arrestdet/A-Broken-System-2009-07.pdf (on file with the Columbia Law Review) (finding DHS efforts to monitor compliance with detention standards "woefully deficient").
70 Serena Hoy, The Other Detainees, Legal Affairs, Sept./Oct. 2004, at 58; see Bernstein, Officials Obscured Details, supra note 41 at A1 (describing a "culture of secrecy" permeating immigration detention).
71 See, e.g., Dow, supra note 12, at 96–97, 103–04 (discussing ways contract facilities "cut corners at the expense of prisoners' physical well-being" to save money).
72 See Nat'l Immigration Project of the Nat'l Lawyers Guild et al., supra note 39, at 12 (arguing binding regulations should clarify "differing requirements of non-punitive and punitive detention"); Schlanger, supra note 38, at 1683 ("[T]he evolution of good professional practice in corrections has been greatly influenced by court cases, and vice versa."); Taylor, Challenging Conditions, supra note 7, at 1127 (arguing "judicial intervention is indispensable" to improvement of detention conditions (quoting Rhodes v. Chapman, 452 U.S. 337, 354 (1981) (Brennan, J., concurring))).
73 Strong STANDARDS Act, S. 1550, 111th Cong. (2009); Immigration Oversight and Fairness Act, H.R. 1215, 111th Cong. (2009).
74 Immigration and Customs Enforcement, ICE/DRO Detention Standard: Transfer of Detainees 2 (2008), available at http://www.ice.gov/doclib/PBNDS/pdf/transfer_of_detainees.pdf (on file with the Columbia Law Review).
75 Human Rights Watch, supra note 10, at 6; Protect Citizens and Residents From Unlawful Detention Act § 4(g), S. 1549, 111th Cong. (2009).
76 U.S. Dep't of Homeland Sec., Office of Inspector General, Immigration and Customs Enforcement's Tracking and Transfers of Detainees 3–4 (2009), available at http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_09-41_Mar09.pdf (on file with the Columbia Law Review); Morton, supra note 20.
77 Demore v. Kim, 538 U.S. 510, 513 (2003). On the record before the Court, the average time to conclude removal proceedings was forty-seven days. Id. at 529–30.
78 Zadvydas v. Davis, 533 U.S. 678, 690–96, 699–701 (2001); see also Demore, 538 U.S. at 532 (Kennedy, J., concurring) (noting permanent resident detained under 8 U.S.C. § 1226(c) "could be entitled to an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified").
79 See, e.g., Casas-Castrillon v. Dep't of Homeland Sec., 535 F.3d 942, 945 (9th Cir. 2008); Nadarajah v. Gonzales, 443 F.3d 1069, 1078 (9th Cir. 2006); Tijani v. Willis, 430 F.3d 1241, 1242 (9th Cir. 2005); Ly v. Hansen, 351 F.3d 263, 273 (6th Cir. 2003).
80 See Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 Colum. L. Rev. 1189, 1212–17, 1223–28 (2006) (discussing applicability of canon of constitutional avoidance to executive actors).
81 Markowitz, supra note 10, at 564–65 (criticizing DHS for adopting "broadest possible reading" of mandatory custody provisions).
82 See, e.g., Tijani, 430 F.3d at 1246–47 (Tashima, J., concurring) ("Only those immigrants who could not raise a ‘substantial' argument against their removability should be subject to mandatory detention."); Gonzalez v. O'Connell, 355 F.3d 1010, 1019–21 (7th Cir. 2004) ("[S]everal district courts [have] held that § 1226(c) is unconstitutional as applied to detainees who have a good-faith claim that they will ultimately be permitted to remain in the country.").
83 See, e.g., Waffi v. Loiselle, 527 F. Supp. 2d 480, 488 (E.D. Va. 2007) (finding mandatory detention statute inapplicable to alien taken into immigration custody "well over a month" after release from criminal custody); Quezada-Bucio v. Ridge, 317 F. Supp. 2d 1221, 1224 (W.D. Wash. 2004) (finding mandatory detention statute inapplicable to alien released from criminal custody "years" before being taken into immigration custody).
84 See, e.g., Saysana v. Gillen, 590 F.3d 7, 18 (1st Cir. 2009) ("[T]he statute contemplates mandatory detention following release from non-DHS custody for an offense specified in the statute, not merely any release from any non-DHS custody."); Ortiz v. Napolitano, 667 F. Supp. 2d 1108, 1112 (D. Ariz. 2009) ("Here, this Court . . . concludes that the statute clearly requires a nexus between the deportable offense and the release from custody."); Garcia v. Shanahan, 615 F. Supp. 2d 175, 182 (S.D.N.Y. 2009) ("The mandatory detention provision cannot be retroactively applied to aliens who were released from custody for removable offenses prior to October 9, 1998—even if they are later released from custody."); Garcia v. Shanahan, 615 F. Supp. 2d 175, 182 (S.D.N.Y. 2009) ("The mandatory detention provision cannot be retroactively applied to aliens who were released from custody for removable offenses prior to October 9, 1998-even if they are later released from custody for a nonremovable offense.").
85 Suzanne Gamboa, Feds Revising Asylum Detention Policies, Associated Press, Dec. 16, 2009 (discussing new ICE policy providing that arriving asylum-seekers with "credible fear" of persecution will generally be released from detention and paroled into United States).
86 See Letter from Linda Kenepaske, Chair, Immigration and Nationality Law Comm., Ass'n of the Bar of the City of N.Y., to Janet Napolitano, Sec'y of Homeland Sec. (July 20, 2009), available at http://www.nycbar.org/pdf/report/uploads/20071784-LettertoDept.HomelandSecreDHS.pdf (on file with the Columbia Law Review) (advocating greater use of parole and prosecutorial discretion).
87 See, e.g., Matter of Saysana, 24 I. & N. Dec. 602, 603 (B.I.A. 2008) (noting government's argument that mandatory detention applies even to release unrelated to any offense in 8 U.S.C. § 236(c)); Matter of Rojas, 23 I. & N. Dec. 117, 118 (B.I.A. 2001) (noting government argument that alien was subject to removal under § 237(a)(2)(A)(iii) despite being "free in the community before being detained" by INS).
88 Schriro, supra note 14, at 23.
89 Human Rights First, U.S. Detention of Asylum Seekers: Seeking Protection, Finding Prison 47-50, 63-67 (2009); Schriro, supra note 14, at 20-21; see Vera Institute of Justice, Appearance Assistance Program Final Planning Report 32-37 (1996), available at http://www.vera.org/download?file=1156/AAP%2BFinal%2BPlanning.pdf (on file with the Columbia Law Review) (suggesting home detention might qualify as "custody" required by immigration statute).
90 When announcing DHS's initiatives, for example, Napolitano distinguished categorically between "serious felons," who "deserve to be in the prison model," and "others," such as "women" and "children." Bernstein, Ideas, supra note 59, at A14.
91 Moving Toward More Effective Immigration Detention Management: Hearing Before the Subcomm. on Border, Maritime, and Global Counterterrorism of the H. Comm. on Homeland Security, 111th Cong. (2009) (statement of Chris Crane, Vice President of Detention and Removal Operations, Nat'l Immigration and Customs Enforcement Council 118 of the AFL-CIO), available at http://homeland.house.gov/hearings/index.asp?ID=228 (on file with the Columbia Law Review) (criticizing proposals to use less restrictive facilities); see Kerwin & Lin, supra note 21, at 24-32 (critically assessing ICE's information tracking and risk assessment capacities).
92 E.g., Kerwin & Lin, supra note 21, at 31-32 (reporting appearance rates in existing ICE programs ranging from eighty-seven percent to ninety-six percent). But see Susan Carroll, Flaws Found in Options for Immigrant Detention, Houston Chron., Oct. 20, 2009, at A1 (reporting lower levels of compliance based on records of contractors administering alternatives programs).
93 While the daily costs of detention can exceed $100 per detainee, alternatives programs currently cost between thirty cents and fourteen dollars per detainee each day. Schriro, supra note 14, at 11, 20-21.
94 Kerwin & Lin, supra note 21, at 31 (characterizing alternatives programs as "less restrictive forms of civil custody"); cf. Gall v. United States, 552 U.S. 38, 48 (2007) (recognizing that although imprisonment may be "qualitatively more severe" than probation, probation nevertheless "substantially restricts [probationers'] liberty"); Erin Murphy, Paradigms of Restraint, 57 Duke L.J. 1321, 1347-64 (2008) (analyzing constitutional interests implicated by restraints other than punitive incarceration).
95 Unlike other detention-related provisions, 8 U.S.C. § 1226(c) requires "custody," rather than "detention." Compare 8 U.S.C. § 1226(c) (2006) ("custody"), with § 1225(b)(2)(A) ("shall be detained"), § 1225(b)(1)(iii)(IV) ("shall be detained"), and § 1231(a)(2) ("shall detain"). Certain alternatives to detention may qualify as custody. See United States ex rel. Marcello v. Dist. Dir., 634 F.2d 964, 967 (5th Cir. 1981) (noting for habeas corpus purposes, noncitizen is sufficiently in "custody" when "any significant restraint on liberty" exists, including reporting requirements and travel restrictions).
96 Human Rights First, supra note 89, at 66-67.
97 Kramer, supra note 11, at 175 ("If an individual has no criminal record . . . and family support in the community, there really is no good reason to [require a curfew or electronic monitoring]. . . . If an IJ orders release on bond and the bond is posted, arguably, ICE cannot or should not impose an additional burden."); Schriro, supra note 14, at 20.
98 E.g., Matter of Aguilar-Aquino, 24 I. & N. Dec. 747, 750-53 (B.I.A. 2009) (interpreting "custody" to mean "actual physical detention," not to encompass home confinement and electronic monitoring).
99 Schriro, supra note 14, at 11-13 (discussing "nexus" between enforcement policies and growth of detainee population).
100 See Spencer S. Hsu, DHS Reshapes Its Immigration Enforcement Program, Wash. Post, Oct. 16, 2009, at A3 (discussing expansion of cooperation agreements under 8 U.S.C. § 1357(g)); Julia Preston, Immigrants Are Matched to Crimes, N.Y. Times, Nov. 13, 2009, at A13 (discussing expansion of "Secure Communities" program).
101 See Christopher Nugent, Towards Balancing a New Immigration and Nationality Act: Enhanced Immigration Enforcement and Fair, Humane and Cost-Effective Treatment of Aliens, 5 U. Md. L.J. Race, Religion, Gender & Class 243, 254-55 & n.46 (2005) (discussing fiscal benefits of immigration detention for state, local, and private contractors ); Shoba Sivaprasad Wadhia, The Policy and Politics of Immigrant Rights, 16 Temp. Pol. & Civ. Rts. L. Rev. 387, 408 (2007) (discussing provisions in 2006 Senate immigration reform bill expanding detention); see also How to Make Money and Increase Safety By Working With ICE, CorrectionsOne, http://www.correctionsone.com/facility-design-and-operation/articles/2080068-How-to-make-money-and-increase-safety-by-working-with-ICE (discussing ICE-led workshop on how local jails can "potentially make money by helping ICE detain illegal immigrants") (last visited June 25, 2010).
102 Morton, supra note 20; see Michelle Roberts, ICE: Detention Overhaul Won't Lead to Fewer Beds, Associated Press, Aug. 12, 2009.
103 Preston, supra note 100, at A13; see generally Nat'l Immigration Law Ctr., More Questions Than Answers About the Secure Communities Program (2009), available at http://www.nilc.org/immlawpolicy/LocalLaw/secure-communities-2009-03-23.pdf (on file with the Columbia Law Review) (providing general questions and answers about Secure Communities program); Michelle Waslin, Immigration Pol'y Ctr., The Secure Communities Program: Unanswered Questions and Continuing Concerns (2009), available at http://www.nilc.org/immlawpolicy/LocalLaw/secure-communities-2009-03-23.pdf (on file with the Columbia Law Review).
104 See Jessica M. Vaughan & James R. Edwards, Jr., Ctr. for Immigration Studies, The 287(g) Program: Protecting Home Towns and Homeland 22-23 (2009) (advocating increase in detention space to accommodate expanded enforcement).
105 Dolovich, Cruelty, supra note 66, at 972-73.
106 See Stephen H. Legomsky, The Detention of Aliens: Theories, Rules, and Discretion, 30 U. Miami Inter-Am. L. Rev. 531, 547 (1999) (arguing pressures to secure additional detention space can cause officials to "cut[] corners on humane treatment").
107 Cf. Rachel E. Barkow, Federalism and the Politics of Sentencing, 105 Colum. L. Rev. 1276, 1285-90 (2005) (discussing role of fiscal constraints in reducing criminal incarceration rates and sentence lengths).
108 See Vaughan & Edwards, supra note 104, at 22-23 (recommending increased funding for detention space); see also Susan Carroll, Officials to Ease Rules at Migrant Centers, Hous. Chron., June 8, 2010, at A1 (noting opposition by labor union for ICE detention facility guards to reforms easing severity and restrictiveness of detention for low-risk detainees).
109 Edward Alden, Obama Quietly Changes U.S. Immigration Policy, New America Media, Dec. 28, 2009, at http://news.newamericamedia.org/news/view_article.html?article_id=f35b300ec73d76f7ccc97e547a14056a (on file with the Columbia Law Review).
110 Stumpf, supra note 1, at 376.
Preferred Citation: Anil Kalhan, Rethinking Immigration Detention, 110 Colum. L. Rev. Sidebar 42 (2010), http://www.columbialawreview.org/assets/sidebar/volume/110/42_Anil_Kalhan.pdf.
