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Answering the ACLU’s Questions about ICE

The left's narrative about alien detention doesn't hold up against the facts.

June 19, 2018 - Protesters gathered in Manhattan. (By Christopher Penler/Shutterstock)

The American Civil Liberties Union (ACLU) has recently released a blog post that appears to be an attempt to get the new incoming Administration to make radical changes to the immigration system. The title of the post is, “The Questions You Probably Think You Know the Answer to—But Likely Don’t—About ICE Detention.”

When I read the post, my first thought was that it was nothing more than propaganda by an organization that has actively worked against the enforcement of immigration laws across this country. I decided I would directly address the false claims in that story, because they vilify the very people I have spent my 34-year law enforcement career with: the U.S. Border Patrol and ICE. They also attack the private detention companies that ICE has worked with for decades. These private contract partners know the detention business better than anyone, they do it well, and they save the taxpayers millions of dollars every year.

The posting said that ICE detention conditions are often as bad or worse than those you find in prison, including rampant abuse, neglect and degradation of detained people. They also attack the fact that a majority of ICE detainees are housed in private detention facilities contracted by ICE, and these companies are only in it for the money. Nothing could be further from the truth.  Here are the facts that the writer obviously chose to ignore in writing this fictional story.

ICE contracts most of its detention to outside companies that construct and operate facilities not only for the federal government but also for state and local governments. The left likes to call then “for-profit” prisons as a way to raise controversy. These companies are used widely because they do the job better and cheaper than the local, state or federal government could. Using outside contractors not only saves millions in taxpayer funds, but it increases the quality of care those being detained receive.

The quality of care afforded those in ICE contract detention is better than you would find in any federal or state institution. ICE also contracts some beds from local sheriffs, and when I was the ICE Director I had numerous sheriffs across the country end their contract with ICE or refuse a contract because our detention standards were too high for them to maintain. Numerous sheriffs would tell me that they would not provide such high standards for illegal aliens when they don’t give those same standards to U.S. citizens in their jails.

ICE operates its detention system under a set of National Detention Standards, which were based upon policies and procedures that existed at the issuance of these standards in September 2000. ICE subsequently undertook a revision of these standards to more clearly delineate the intended results of adherence to the requirements. The 2008 Performance-Based National Detention Standards (PBNDS), developed in coordination with agency stakeholders, prescribe both the expected outcomes of each detention standard and the expected practices required to achieve them. PBNDS 2008 was also designed to improve safety, security and conditions of confinement for detainees.

In keeping with its commitment to reform the immigration detention system, ICE further revised its detention standards in 2011. The ACLU story conveniently forgot to mention that. The Performance-Based National Detention Standards 2011 (PBNDS 2011) reflect ICE’s ongoing effort to tailor the conditions of immigration detention to its unique purpose while maintaining a safe and secure detention environment for staff and detainees, and represent an important step in detention reform. They were drafted with the input and perspectives of nongovernmental organizations. PBNDS 2011 is crafted to improve medical and mental health services, increase access to legal services and religious opportunities, improve communication with detainees with limited English proficiency, improve the process for reporting and responding to complaints, reinforce protections against sexual abuse and assault, and increase recreation and visitation. ICE began implementing PBNDS 2011 across its detention facilities several years ago, with priority initially given to facilities housing the largest populations of ICE detainees. For the reader, hit on that link above and look for yourself. I don’t believe there are many, if any, state prisons or jails that come close to these high standards. I also believe they don’t have the same level of medical services, dental services, law libraries, visitation, recreation, etc.

The bottom line is that ICE, along with its private detention contractors, has been fully committed to the highest level of quality, providing safe, secure, and humane environments for those in ICE custody and care. These contract facilities operate in compliance with strict governmental standards, national accreditation and certification standards, medical accreditation agencies, educational agencies and the ICE Detention Standards. These detention standards are the highest in the entire industry.

The ACLU post drew attention to the fact that in FY2020 ICE had the most deaths in custody of the last 15 years. What they failed to mention is that those numbers are still much lower than any other detention system being run by any local, state, or federal entity. Here are the facts. People die in custody sometimes and it’s always unfortunate, but ICE has one of the lowest deaths rates in custody of any program within the state and federal detention system. The Department of Justice’s Bureau of Justice Statistics (BJS) tracks the mortality rate of incarcerated individuals across the nation. A quick review of those reports will show that the average mortality rate in state prisons was 256 deaths per 100,000 persons. The mortality rate in federal prisons during the same period was 225 deaths per 100,000. Now, since more than 400,000 people go through the ICE system every year and ICE averages nine total deaths per year, exempting the unusual year of COVID, the mortality rate in ICE custody is 2.25 per 100,000. That’s extraordinary, considering most of the ICE population are from countries that don’t have good medical systems and many ICE detainees have never seen a doctor in their lives. Also, as can be seen in news reports, many people sent to ICE detention are in terrible shape because of the long trek they made to get to the U.S. The low death rate in ICE detention can only be attributed to an outstanding medical program and the dedicated personnel of private contract companies.

The story also talked about how immigration detention rips tens of thousands of people away from their families and their communities, claiming that a better option is to use Alternatives to Detention (ATDs) such as the Family Case Management Program (FCMP) used by the Obama Administration. They state that it is more humane and ensures people show up to court without having to be detained—another false narrative. The fact is that out of all the arrests ICE makes in the U.S., almost 90 percent of those arrests are of people here illegally in violation of federal law, and they are also either convicted criminals or pending criminal charges. These private contract facilities are helping to keep our communities safe and free of public safety threats.

The fact is that over 90 percent of all aliens removed from the U.S. are removed from formal detention. If they are not detained when ordered by a judge to be deported, the chances are they will never be deported because they flee. That is why there are over 638,000 immigration fugitives in the U.S. These are people who received due process at great taxpayer expense and were ordered removed by a federal judge and chose to ignore that court order and run. That is a clear example why detention is important.  Without it, there is no consequence and no deterrence to breaking our laws. These alternatives to detention may improve court appearances, but when it comes to actual removal they are dismal at best. Why do you think there are between 12 and 20 million illegal aliens in the U.S.? These are people who chose to violate our laws and disrespect our country. Do you think they have enough respect to comply with court orders if they are not detained? The numbers say no.

Lastly, the FCMP they speak so highly of was a massive failure. I know because I was there during that program. They say it is more humane and ensures people go to their immigration court proceedings at a low cost of $36 a day, much less than formal detention. However, what they didn’t share with the reader it that the FCMP resulted in very few deportations because it took so long to get through the non-detained court process and because of that, the end costs were much higher than formal detention.  Only 11 aliens total were removed through that program at the approximate cost of $1.16 million per removal. About 80% of the cases within FCMP are still pending in the courts after 5-7 years.

The ACLU and other advocates of replacing ICE detention capacity with ATD are either misguided or choose to deliberately advance flawed policy for political or ideological gain. ATD is not a viable replacement for detention in the same way that detention is not a viable replacement for all ATD. ICE needs both options in sufficient quantity to be successful.

Equally disturbing is the false narrative that continues to be perpetuated regarding the FCMP. ICE evaluated FCMP and found the program to be cost-prohibitive and determined that FCMP did not outperform other ATD options. What fails to be mentioned by those calling for the resurrection of FCMP is that ICE still preserved the services offered by FCMP, incorporating them into the Intensive Supervision Appearance Program (ISAP) at one sixth the cost while also expanding the availability of the services from 5 to 54 locations. FCMP services were not cancelled. ICE simply renamed the services Extended Case Management Services (ECMS), reduced the cost to taxpayers, and expanded availability nationwide.

As far as other ATD programs, the data shows that there is a 27 percent absconder rate for family units. A total of 3,125 removals came from the other ATD programs at a cost of $190,000 per removal. Compare either of these ATD programs to a detained cost.  If an alien is detained for the average of 35 days at $70 per day the total cost is $2,450 per removal. Detention is much more cost-effective and it allows a judge’s order to be enforced rather than adding hundreds of thousands more fugitives to the already overburdened docket.

The average length in detention is around 35 days. The immigration courts prioritize the detained docket so they move quickly.  The non-detained docket can take as much as 3-7 years depending on the specifics of the case, so those initial daily-cost savings quickly disappear, and it ends up costly much more in the end. Another downside is that during those many years, the subject can have U.S.-citizen children and build equities in this country; when it comes time for removal, these same open-border groups (to include the ACLU) will scream about removing them from their communities.

Those are the facts. You can be the judge. The hateful rhetoric being pushed by the left is just plain wrong. Facts will beat them every time.

Thomas Homan formerly served as acting director of Immigration and Customs Enforcement (ICE) during the Trump administration. He has devoted nearly 34 years of his life to immigration and law enforcement positions.

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