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Do new ABA standards mean better or less detention? Hear from @ProfNofe

August 28, 2012

Mark Noferi (Photo courtesy of Brooklyn Law School)

Original post can be found on

New ABA Civil Immigration Detention Standards: Does “Civil” Mean Better Detention or Less Detention?

By Guest Blogger Mark Noferi (Brooklyn Law School)

On August 6, 2012, the American Bar Association’s (ABA) full House of Delegates adopted, for the first time, model “Civil Immigration Detention Standards” to guide reform of U.S. immigration detention, America’s fastest growing and least scrutinized incarceration system. ABA, Civil Immigration Detention Standards (Aug. 2012). Donald Kerwin, who led the effort for the ABA Commission on Immigration, called the new ABA standards an “outline” for how “truly civil immigration detention should look and operate.” The ABA standards, if implemented, would palpably improve detainee treatment, as the current system has been repeatedly criticized for violating basic human rights and commonly providing worse conditions than criminal facilities. Yet what is “truly civil” detention? Is it possible, or is the term an oxymoron? Is it even desirable?

Here, I’ll preview some arguments from my forthcoming article Making Civil Immigration Detention “Civil”: Defining the Emerging Civil Detention Paradigm (Journal of Civil Rights and Economic Development, 2013). I’ll provide the first analysis of the new ABA standards, in light of ICE’s own 2011 standards and ICE’s reform efforts generally. Ultimately, it is hard to term immigration detention “civil” if it still imposes round-the-clock confinement like a jail. More broadly, the civil nature of immigration enforcement suggests, rather than merely different conditions of detention, that the overall system should employ detention less. Although the new ABA standards by design address the former, on which they are the most forward-looking document to date, they look furthest forward in suggesting the latter.

I’ll analyze the ABA standards by using the typology of detention reform that Dr. Dora Schriro set out in her 2009 report for DHS. (Indeed, Dr. Schriro advised on the ABA standards, and perhaps not coincidentally, they more closely track her report’s vision than ICE’s own reforms.)

Population management. Dr. Schriro’s first category, addressing the overarching strategy and standards of the system, including consideration of alternatives to detention, overshadows the analysis. To provide background, the immigration system has commonly housed its civil detainees in actual prisons or jails (50% of detainees in 2009 were in such facilities) with convicted criminals, wearing prison uniforms, and otherwise in jail-like conditions.

ICE’s 2011 standards –while still citing model jail standards in nearly every section –were a step forward. They required separate housing for immigrant detainees apart from criminal detainees, and provided a system to meaningfully classify immigrant detainees by security risk. ICE, ICE Performance-Based National Detention Standards (PBDNS) at 66-78. Essentially, ICE’s standards provide for a system analogous to low-, medium-, or high-security jails. Yet the system still assumes 24-7, round-the-clock confinement. The deprivation of liberty for the immigrant detainee is similar to that in jail, with the same concomitant effects of inability to work and separation from normal life and family (sometimes with loss of children in parallel family court proceedings).

The ABA standards go further. They recommend that ICE employ risk assessment not only to determine how to detain, but whether to detain. See ABA Standards § III.A.1, III.B.1 (“if detention is necessary…”). They advocate for ICE to use a “continuum of strategies and programs” to achieve its main goal of preventing flight from deportation. These strategies range from “release on recognizance or parole, to release on bond, to community-based supervised release programs, to ‘alternative to detention’ programs with various levels of supervision, to home detention (with strict conditions) that represent an alternative “form” of detention, to detention in civil detention facilities.” ABA Standards § II.C n. 1.

To be clear, these are not recommendations to reform detention conditions per se. These are recommendations to reform a system that over-detains. Yet they also reconcile the use of immigration detention with its intended civil, preventive purposes. If the primary aim of immigration detention is preventing flight–rather than punishment, or something quasi-punitive and bias-inflected–then logically, ICE should use alternatives to detention that prevent flight nearly as well as total incarceration. Even if the secondary aim of immigration detention is preventing crime by deportees, immigrant detention decisions could follow clear criteria for pre-hearing detention (as criminal pretrial decisions do).

As things stand, ICE’s policies result in a binary detention-or-not framework, most often leading to detention. Even the criminal pretrial system is more narrowly tailored. Currently, for example, New York criminal defendants are 75 times more likely than immigrants in proceedings to be released on recognizance, with even serious felony defendants 37 times more likely. There is no rational explanation based on preventing flight risk or danger for a discrepancy this vast.

Detention management (i.e. conditions of confinement). That said, the ABA standards perhaps subtly open the door to qualitatively different facilities that do not require round-the-clock confinement. Under “Physical Plant and Environment,” the ABA standard provides that a facility should be “secured by controlled access and perimeter walls if necessary” (emphasis mine). ABA Standards § IV.B.8.

The grammatical question of what words “if necessary” modifies raises far more fundamental questions. Is the ABA recommending a facility that should be secured “if necessary”–i.e., an “open” check-in or registration facility, as is more common in Europe, in which immigrants can come and go? (That would be a dramatic change.) Or is the ABA recommending a facility that should be secured by controlled access, but with the most prison-like controls present “if necessary”–i.e., perimeter walls, prison-like towers, fences, or barbed wire? (The latter might be “prison-lite,” like the new Karnes Civil Detention Center in Texas.) The answer is unclear from the ABA standards’ language and context. The ABA cites as analogous some examples more resembling the former (i.e., domestic violence shelters, see ABA Standards § II.C.D), some more resembling the latter (i.e., secure nursing homes or in-patient psychiatric facilities, see id.)

So long as a facility employs round-the-clock confinement in a closed space–in Michael Flynn’s words, being locked up against one’s will–it resembles what Western societies have most commonly called a “jail.” As César argues, a prison is a prison. I argue the defining characteristic is constant confinement, since so long as secured walls exist, the deprivation of liberty and concomitant effects remain the same. The Supreme Court has repeatedly affirmed this, at least in its procedural due process jurisprudence.

Presuming the facility is secure, under the ABA standards, conditions of confinement inside the facility would be less restrictive. The ABA standards state that residents should have the “maximum amount of freedom of movement within the facility,” and generally should be “able to move freely and without escort during daylight hours,” absent security risks. See ABA Standards § V.D.1. This goes a step further than ICE’s standards, which provide for “continuous supervision by staff.” ICE PBNDS at 291.

Programs management.  The ABA standards, if implemented, would provide dramatic improvements for detainees in programs, recreational opportunities, and medical care, even beyond the recent ICE standards (themselves a marked improvement over current conditions). The ABA standards provide that recreational areas be available for “most of each day,” which goes beyond ICE standards that provide for outdoor recreation four hours a day, seven days a week. ABA Standards § V.D; ICE PBNDS at 290. (Jail standards provide only one hour per day).

The ABA standards provide for medical, dental, and mental health screening within 12 hours, a crucial component since 121 ICE detainees have died since October 2003. ABA Standards § III.C; compare ICE PBNDS at 55. The ABA standards provide for special training and accommodations for vulnerable populations, such as women, children, the mentally ill, and asylum seekers (and indeed, counsels that minors and pregnant women should not be detained at all). ABA Standards § II.G, XII. For families, ABA guidelines provide that ICE should house detainees “within a reasonable distance of their family, social and cultural support systems,” and allow visitation every day, with physical contact, for “at least two hours ordinarily.” ABA Standards § X.A.

In addition, the ABA standards provide specific requirements for a law library, including access to electronic legal databases Lexis and Westlaw and “current relevant codes, regulations, court rules, self-help materials, and legal forms,” ABA Standards § VII.B, and require that all facilities permit “know-your-rights” presentations, ABA Standards § VII.D. Given that 97 percent of unrepresented detainees lose their cases, absent appointed counsel, this is a start. Moreover, the ABA standards provide for drastically improved visitation policies, for both lawyers and family. For counsel, ABA guidelines provide for access to detainees 12 hours a day, without advance notice, in private, confidential rooms without Plexiglas where detainees and counsel can trade documents. ABA Standards § VII.B-C.

Although these improvements inside the walls would bring immigration facilities up to human rights standards, and in some respects beyond them, none of them would change the reality of constant confinement. Interestingly, though, ABA guidelines also provide for supervised furloughs for those detained longer than 90 days, especially those with citizen families. ABA Standards § X.B. This is another small step beyond the presumption of round-the-clock incarceration.

Accountability. Lastly, the ABA guidelines provide, among other things, that DHS should conduct robust oversight of facilities and release biannual reports; that independent accreditation agencies should develop standards for immigration detention, and that DHS should follow them; and that any contracted facility should comply with standards. ABA Standards § XV. These recommendations build upon prior DHS efforts, such as its recent hiring of 42 on-site detention monitors. These recommendations also begin to address the vexing problems caused by ICE’s overreliance on private companies. Private companies’ profit motive to underspend on detainee care may countermand any improvements in conditions from more robust standards. But, increased contract oversight may address these problems, as some have argued.

All in all, the new ABA standards, if implemented, would provide for “better” detention. We should applaud this, since conditions are current detainees’ most immediate concern. That said, the logical extension of tailoring a detention system to its civil aims is less detention. Subtly, but perhaps most importantly, the ABA standards provide a blueprint for that world as well. If the ABA standards do not answer the question of what is “truly civil” detention, they point up its inherent contradictions in a way that should hopefully foster vigorous debate.

As to the impacts of these reforms, I’ll provide a few preliminary observations here as a coda.

For one, the emergence of a “continuum” of ICE supervision practices might warrant reevaluation of our legal tests governing deprivations of liberty. For example, the Supreme Court has so far held in civil cases that procedurally, “detention is different”–that incarceration triggers a presumption in favor of appointed counsel (albeit rebuttable). What if the U.S. employed “open” check-in centers, with some freedom to come and go, for certain hours? What about alternatives such as electronic tracking bracelets? Home detention? At the least, the emergence of the continuum will require greater clarification of terms such as incarceration, detention, custody, and supervision. (For example, electronic tracking should meet INA § 236(c)’s requirement to take immigrants “into custody,” even though ICE interprets 236(c) as requiring “mandatory detention.”)

For another, from a political standpoint, the impacts of detention reform are unclear. In my forthcoming article, I note that improved immigration detention conditions and greater process (as many advocate, including myself) may help normalize detention in the public’s eye–that since civil detention “isn’t really jail” and is nevertheless “fair,” detention might become the rule, not the exception.

Then again, the public has so far rejected the premise of “civil” detention reform from both sides. On the one hand, immigrant advocates, calling ICE’s new revamped civil facilities like Karnes “prisons,” have blocked ICE from building new facilities in Illinois and Florida. On the other hand, anti-immigrant advocates have complained about purportedly preferential treatment for immigrants, arguing that “ICE detention centers were already softer than those at other federal and local [criminal] facilities.” (Indeed, the only thing these sides agree on may be that immigration detention is jail.) The lack of a political constituency for detention reform may threaten its long-term viability.

Mark Noferi is a legal writing professor at Brooklyn Law School and an avid follower of immigration imprisonment. He has recently written articles about the right to counsel for mandatorily detained individuals and the civil characterization of immigration prisons.

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