The hazards of immigrant detention during a pandemic

By Josh T. Smith

Published:

Alternatives are better for public health and taxpayers

For most, COVID-19’s emergence has meant some level of distancing from friends and families. Yet for immigrants detained by Immigration and Customs Enforcement (ICE), social distancing to prevent the spread of COVID-19 has been difficult. Immigrant detention centers across the country have been hotspots for COVID-19. ICE has taken a few actions to mitigate risks, but there is more that it can do.

As of October 20, 661 current ICE detainees had tested positive. In total, 6,743 detainees have contracted COVID-19 since the beginning of the year. The 2020 fiscal year had more deaths in Immigration and Customs Enforcement (ICE) custody than any year since 2005. A third of those who died tested positive for COVID-19.

The agency’s COVID-19 guidance indicates that they released 900 people deemed low security and flight risks, but who faced greater health risks from COVID-19. This number should have been much higher.

As CGO Student Research Fellow Keanu Hansen and I wrote for The Benchmark at the end of March, ICE should have released closer to half of its detained population.

Before the pandemic, the ICE detention centers usually held around 30,000 to 40,000 detainees. For example, on March 21, ICE held 38,058 people. By October, that number had dropped to fewer than 20,000 people. Those changes are good for social distancing within detention centers — more space should mean fewer cases spread inside facilities.

Yet that decline came not from a greater reliance on alternatives to detention but from ICE’s policy of immediately expelling people from the US that it took into custody rather than detaining them.

Deportation poses its own health risks during a pandemic. As Katarina Hall and I detailed in May, deportations from the US helped spread COVID-19 to Guatemala and other Central American countries.

The real opportunities for preventing the continued spread of COVID-19 lie in rethinking our approach to immigrant detention. We should dramatically reduce the extent of the immigration system’s reliance on detention. Many detainees would be better suited to electronic monitoring, family case management, or other less costly alternatives and would help avoid the spread of COVID-19.

Social distancing is difficult in detention centers

ICE should be credited with reducing the populations of its detention centers. After all, the decline is substantial, about a 50 percent decline from March to October.

That reduction in the number of detainees is good news because previous ICE officials expressed concerns that social distancing would be difficult inside detention centers. As John Sandweg, a former Acting Director of ICE under President Obama, wrote in The Atlantic, “The design of these facilities requires inmates to remain in close contact with one another — the opposite of the social distancing now recommended for stopping the spread of the lethal coronavirus.”

There are still some detention centers, like the Adelanto ICE Processing Center in California, that have had large outbreaks. Almost 20 percent of detainees at Adelanto have contracted COVID-19 as of October 7 — around 150 people.

Adelanto is an important example because it is one of the largest detention centers in the US. It was the focus of a lawsuit regarding public health measures. And on October 15, a federal judge ordered the Adelanto facility to reduce its population of detainees by either deporting detainees or releasing them.

From the spread of COVID-19 within facilities like Adelanto, it’s clear that more should be done to give detainees room to socially distance themselves. But the continued reliance on deportations and detention should give way to a reliance on better alternatives.

ICE detains people even when better and cheaper alternatives are possible

Many immigrants who are detained are likely better suited for alternative programs than detention. A clear picture emerges from Syracuse University’s TRAC Immigration datahub. It has data available through March 2020 on the number of detained immigrants and their criminal conviction history. Many of the immigrants detained have no criminal history.

Detention is an incredibly expensive process for taxpayers and ill-suited for immigrants who are, on average, unlikely to have any criminal history. Using TRAC’s most recent data on detainees, Researchers concluded that six out of ten detained immigrants have no criminal convictions. You can see the data below from March 2015 to March 2020.

Source: Author’s calculations based on TRAC Immigration data.

There are two important limitations in this data. First, using convictions biases the number of immigrants who might be a public safety threat downwards because some may have been charged but not convicted. Second, grouping immigrants by convicted or not convicted may bias the data upward since many crimes may not be a concern for public safety, such as immigration-related offenses. Digging into TRAC’s data shows that only 10.7 percent of detainees are convicted of crimes that ICE considers most serious. Suppose we were to release detainees with low-level and non-violent offenses. That would open up the possibility of returning many immigrants to their families or having them wear electronic monitors instead of detaining them where they may not be able to socially distance.

Of course, this chart from March 2015 to March of 2020 also doesn’t reflect the changes from ICE’s COVID-19 policy of immediately repatriating people rather than detaining them. But TRAC has yet to release updated information on criminal histories for those still detained in ICE custody. If the pattern of detaining people with no criminal history remains the same once the data is available, then ICE should step up its reliance on alternatives to detention.

What do alternatives look like?

Alternatives to detention can help ICE better manage COVID-19 risks, but they will also reduce the costs of immigration enforcement programs throughout the US. That would be a win both for detained immigrants and for American taxpayers.

As Keanu and I concluded in our previous essay on detention policy:

Although the costs are only a minor element of the current conversation about how to respond to COVID-19, the divergence is staggering. Current detention practices cost around $137 per adult each day. Many alternatives to detention programs cost as little as $4 a day, and others approximately $36 a day.

Source: Congressional Research Service, July 8, 2019. Costs are from an email from ICE to the CRS on August 21, 2018.

The difference in costs is striking. That’s part of why Cato’s Alex Nowrasteh told The Dallas Morning News, “The government spends way too much money on nonviolent people. This is a great opportunity to scale it down.” And the same news report quotes Texas A&M’s Fatma Marouf, a law professor, making the same point, “Detention in the vast majority of cases is not needed.”

The alternatives are a fraction of the cost and offer opportunities for social distancing. One example is ICE’s Intense Supervision Appearance Program (ISAP). The program costs about $4.20 a day per participant and involves curfews, electronic monitoring, and community-level programming to monitor those released from detention.

Who should ICE release into alternative programs?

Katarina Hall and I proposed that ICE and the Department of Homeland Security’s Inspector General (IG) should jointly develop criteria for who to release and require that detention centers apply it to their detainees. Sole reliance on ICE officials would be dubious considering that the agency is currently party to multiple lawsuits concerning health standards in detention facilities. The DHS and IG have the legal authority and technical expertise to evaluate candidates for release.

The data on detainees’ criminal histories from TRAC show that many detainees will likely be better suited for alternatives. Still, it’s important to remember that a lot has changed since March. That makes it more important for careful consideration by DHS’s IG of who is currently detained and who should be released.

As Katarina and I wrote, the criteria should include:

  • criminal history,
  • options for housing or support outside of ICE’s detention center,
  • and the level of crowding in the detention center.

Whatever the final criteria looks like, relying on alternatives will be important in ICE’s response to COVID-19 and its future detention policy. Detention is an expensive policy that should be reserved for the minority of detainees who actually pose a public safety threat instead of serving as the default policy for detainees.

A greater reliance on alternative programs will also protect detainees from COVID-19. That is reason enough to pursue alternatives instead of detention.

CGO scholars and fellows frequently comment on a variety of topics for the popular press. The views expressed therein are those of the authors and do not necessarily reflect the views of the Center for Growth and Opportunity or the views of Utah State University.