Why ICE’s Alternatives to Detention Program Is Not Really an "Alternative" (100th Issue! 🎉)
ICE’s Alternatives to Detention (ATD) program has received a lot of reporting in recent months because it is seeing remarkable overall growth. (See my post from yesterday for an explanation of the most recent data.)
But is ATD really an “alternative” to detention program?
I have been thinking about ways of answering this question for a few months and I want to share some preliminary conclusions. In short, there are several factors that point to ATD being more of an addition to detention rather than an alternative to detention. I also point to some caveats to this argument.
Before we get into the rest of the post, I want to pause and say ‘thank you’ to all of the people that read this newsletter. I was shocked over the weekend to realize that this post is the 100th issue (if you can call these “issues”) of this newsletter. I have received some kind words over the past few months when I meet people who read this and find it useful. Here’s to the next 100!
Now back to our discussion of why I do not think we should think of ICE’s ATD program as an alternative to detention.
The reason that now is a great time to think about this question is that if ATD was truly an alternative to immigrant detention, one would expect to see the growth in ATD numbers to have a corresponding impact (of some kind) on ICE’s use of civil immigrant detention. I can’t find evidence of that, at least not evidence that can be attributed to ICE’s use of ATD.
Take detention contracts, for example. Although the Biden administration has terminated a few detention contracts due to civil rights concerns (in Etowah County, Georgia, and Bristol County, Massachusetts), the administration is also opening one of the largest private detention centers in the country in what used to be the Moshannon Valley Correctional Center in central Pennsylvania.1
More historically, looking back over the past 10 years shows that the growth of the overall ATD population during both Democrat and Republican presidents has coincided with overall growth in detention.
ICE’s budget is another place to look for evidence, since we could conjecture that a growth in funding for ATD which has occurred (the most recent ISAP contract was worth $2.2B) has also not caused a decline in detention funding. I had the chance recently to review a very helpful analysis of detention funding and came away convinced that, to the contrary, ATD funding is over and above detention funding.
ICE’s own detention numbers are not decreasing in a way that can be attributed to the growth of ATD. ICE’s detained population has been hovering around 20,000 for several months now, certainly far below the 60,000 or so at the height of the Trump administration. But we need to understand this in the context of the pandemic, which has caused what I suppose we could call an artificial or external downward pressure on detention numbers that cannot be attributed to the administration’s ATD policies. The real question will be whether those numbers remain low after pandemic restrictions are lifted.
Finally, and perhaps most obviously, ICE itself emphasizes repeatedly that ATD is not actually an alternative to detention, but rather an alternative to unsupervised release and a way to “exercise increased supervision over a portion of those who are not detained.”2
ICE’s actual descriptions of ATD leave a very different impression than the name of the program itself. (Insert references to government “doublespeak” and all that.)
Given these factors, even though I realize that ICE’s program is called Alternatives to Detention, I don’t think it’s appropriate to use the language of “alternative” if at all possible because it doesn’t actually represent an alternative.
There are a few caveats to all this (because nothing is simple in immigration).
First, the COVID-19 pandemic has had an unmistakable impact on the number of people that ICE has decided to keep in detention at any point in time. ICE still views its detention capacity as being much lower due to social distancing requirements inside of facilities.
Second, and possibly related, the Biden administration is currently requesting funding for fewer detention beds, from 34,000 down to 25,000.3 It’s not at all clear that this is a result of the growth of ATD rather than the impact of the pandemic, nor am I confident that these numbers will remain at 25,000 rather than increase again once ICE begins to use its full detention capacity again. I’m just not confident yet about what these numbers on paper will mean in practice.
Third, I want to acknowledge that, of course, ICE officers may be more comfortable releasing people from detention knowing that they are monitoring and tracking people. The public still has very little information about how release decisions are made and how decisions about putting people on ATD monitoring are made.
What these conclusions point to, even with caveats, is that ICE’s Alternatives to Detention program is not an alternative. And this is why I’m taking the time to work through this question: the language of ATD gives the impression that ATD numbers are in some way connected to detention numbers, when, in fact, they are not. In fact, based on a longer analysis that I’m finishing up currently, I will try to show that detention numbers and ATD numbers are independent from each other because they largely draw on two different populations.
All this leads to the next question: if the phrase “alternatives to detention” does not accurately represent ICE’s monitoring program, what should we call it?
In the next post, I will describe why I have decided to use the phrase “ICE’s electronic monitoring program” rather than ATD going forward and explain more about why the term electronic monitoring can be a more helpful way to think about this program.
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