Locked Up Without End: Indefinite Detention of Immigrants Will Not Make America Safer

Michael Tan, Esq.


October 6, 2011

One of the ugliest myths in the immigration debate is that immigrants are more likely to commit crime or pose a danger to society. Although studies repeatedly have shown that immigrants are less likely to commit crimes than native-born Americans, politicians continue to exploit the public’s fear of crime to justify ever more punitive immigration measures, including the mass incarceration of immigrants for reasons that would never be permitted for U.S. citizens. A prime example of this political double standard is the “Keep Our Communities Safe Act of 2011” (H.R. 1932), introduced this past spring by Representative Lamar Smith (R-TX), Chairman of the House Judiciary Committee. H.R. 1932 proposes a massive expansion of our immigration lock-up system that would waste millions of taxpayer dollars and violate our constitutional commitments to individual liberty and due process of law, while doing little to make America safer.

The vast scope of H.R. 1932 became clear during its committee mark-up, where members of the House Subcommittee on Immigration Policy and Enforcement challenged the language and intent of the legislation and sought to amend its reach. During that meeting, Rep. Smith was forced to acknowledge that the bill’s detention mandates extend to immigrants who have no criminal record whatsoever, much less focus narrowly on hard-core offenders. Since that time, however, Rep. Smith has continued to misrepresent that “the bill only specifies that a small segment of criminal immigrants may be detained for extended periods.”

This paper explores some of the major concerns with expanding our immigration detention system generally, as well as the specific problems that would result from passage of H.R. 1932 or bills like it that seek to use detention as a stand-in for immigration reform. While this paper focuses on some of the particulars of Congressman Smith’s bill, the policy choices reflected in H.R. 1932 echo arguments that have been made before. What is troubling from a broader policy perspective is how easily the bill slips away from indefinite detention for convicted individuals who can’t be removed from the country and encompasses virtually everyone whom the government seeks to deport—including those with a legal right to remain in the country—as a candidate for possible long-term detention. I argue that people in both of these categories should not be subject to long-term detention. However, even if the bill never passes, its repercussions are significant because it reinforces the myth that immigrants, especially those who enter the country illegally, are dangerous and should be detained.

Although advertised as keeping dangerous “criminal aliens” off our streets, H.R. 1932 in fact sweeps scores of harmless immigrants into our already burgeoning immigration prisons. The bill does this by creating a detention scheme that authorizes not only the indefinite detention of some immigrants, but the detention of asylum seekers and certain lawful permanent residents, with cases in immigration court for months or years, while denying them the basic due process of a bond hearing. Other provisions in the bill could result in the elimination of bond hearings for the countless individuals who enter the country without inspection, regardless of the length of their detention. The bill also requires the detention of individuals who were convicted of crimes years or even decades ago, and who have served their sentences and have been living responsible lives since that time.

This kind of detention scheme seeks to strip away the constitutional protections accorded to immigrants, goes against best practices of incarceration, and represents an investment in detention that is contrary to the national interest and national priorities. The sheer cost of such a proposal is daunting. The administration’s Fiscal Year (FY) 2012 budget request for immigration detention already totals more than $2 billion, a record-high request representing a 6.3 percent increase over FY 2011. At a time of budget crises and a bipartisan commitment to fiscal austerity, H.R. 1932 would saddle taxpayers with massive new costs—at a rate of at least $122 per detainee per day, or $44,500 per detainee per year—while doing little to improve public safety.

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