As comprehensive immigration reform slowly makes its way through Congress, most Americans are probably familiar with the usual markers of the debate: border security, a pathway to citizenship for the millions of immigrants without legal status, and the unique circumstances of "DREAMers," young people brought to the country illegally as children.
Still, one issue that we hear less about is the case of immigrants tangled up in the nation's administrative detainee system. At least 30,000 immigrants are detained on any given day in jails and prisons awaiting a determination on their legal status. What to do with them — and how to treat them — has several crucial implications for immigration reform, our budgets, and our legal system.
Before delving too deeply into the immigrant detainee system, it's useful to begin with the case of Clarence Earl Gideon, the famous indigent criminal defendant who became the subject of the landmark 1963 U.S. Supreme Court case Gideon v. Wainwright. Charged with petty larceny in 1961 in Panama City, Florida after allegedly robbing a pool room, Gideon was too poor to afford an attorney but was told by a Florida trial judge that only defendants in capital punishment cases could be provided a court-appointed attorney. Gideon disagreed, and from his jail cell wrote a handwritten appeal to the U.S. Supreme Court, which in 1963 unanimously held that under the Sixth Amendment of the U.S. Constitution all criminal defendants have a right to a court-appointed attorney. The Gideon ruling created what is now known as the public defender system, and although woefully underfunded and overburdened, it largely remains the law of the land for the criminal justice system.
Not so for immigrant detainees. Immigrants detained to determine their legal status — or else face deportation — are not criminal defendants under current law. Instead, they're processed through an administrative judicial system principally managed by the U.S. Justice Department's Executive Office for Immigration Review (EOIR) and its 59 immigration courts throughout the country. But before detainees even have their case heard by a judge, they must wait in detention for at least two years, most often in privately-run jails that contract with the Department of Homeland Security. According to one study, 14,000 immigrants waited five years to see a judge since 2003, and a few waited over a decade.
As one might imagine, these delays come with a significant price tag. The federal agency responsible for managing the detainee system, Immigration and Customs Enforcement (ICE), pays $2 billion each year to keep detainees in prison. Indeed, the National Immigration Forum found that it costs as much as $164 per day to keep a detainee in the current system, while alternative methods of detention (such as use of ankle bracelets and supervised visits) could cost as little as 30 cents per day. Given budget cuts by Congress, ICE has actually begun releasing "noncriminals and other low-risk offenders" simply to save money.
Clearly, these are serious problems that demand serious solutions. But even overlooking the severe delays, budget bloating, and the moral wisdom of keeping children, the mentally disabled, asylees, victims of sexual abuse, and other non-violent and vulnerable individuals in prison cells for years at a time, at least one important question remains: should immigrants be able to see an attorney while they're detained?
Because immigrants lack the protections of Gideon and often cannot afford an attorney or don't know the benefits of having one, more than 4 out of 5 immigrant detainees never consult with an attorney. In asylum cases, for example, this lack of representation can be determinative: only 3% of asylees without an attorney prevail compared with 18% of those who have one.
And the results are even more drastic for particularly vulnerable detainees such as the mentally disabled, whose current numbers exceed 1,000 individuals in detention. José Antonio Franco-Gonzalez, a 33-year-old Mexican immigrant who has a severe cognitive disability, was one of these individuals. Sent to immigration detention after serving a criminal sentence in California, an immigration judge closed his case after a psychiatrist found that he could not understand the charges brought against him. He was ordered released, but without an attorney to petition for a final hearing, Jose had to wait another four and a half years until he was finally freed in March 2010.
The American Civil Liberties Union (ACLU) sued on Jose's behalf, and this week a federal court ruled in his favor, finding that hearings must be offered for mentally-disabled detainees in custody for more than six months. The Justice Department then went even further by guaranteeing a court-appointed attorney for all mentally impaired detainees.
And so, in a Gideon-like move, mentally disabled detainees now have the right to counsel. But what about the tens of thousands of children, victims of sexual abuse, asylees, and others still lingering in the detainee system? Should they have the same guarantees of fair and affordable representation? Indeed, these are questions this country has repeatedly had to ask and answer: whether our laws should be applied fairly and equally to all persons — immigrant or not, citizen or non-citizen. If and when comprehensive immigration reform moves through Congress, these questions deserve a second look.