The Bed Quota: Mandatory Detention and the Denial of Justice

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Beginning in 2009, the U.S. Immigration and Customs Enforcement agency (ICE) has worked under a statutory quota that requires the agency maintain 34,000 detainees in its custody at all times, at the estimated cost of $120 per detainee per day. This so-called bed mandate was introduced into the Homeland Security Department’s appropriation bill by former Democratic Senator of West Virginia, Robert Byrd. Although the mandate has existed for roughly four years, it has only recently gained mainstream attention. The lack of attention surrounding the bed mandate is surprising given the complexity of the problems it creates. The mandate pits the federal government’s interest in enforcing immigration laws and the interests of for-profit prison operators in steady revenue streams against the taxpayers’ interest in efficient government and the interests of the detainees and their families in fair and humane treatment. Ultimately, because of the immense revenues generated from government contracts resulting from the mandate, it appears that it is the private prison operators that come away victorious.

The most common rationale in support of the mandate is best illustrated by Republican Texas Representative John Carter who asserts that the bed mandate “is an instrument to require ICE to actually enforce the law...the [Obama] administration may want to reduce those levels by releasing dangerous illegal criminals into the streets of America, but I stand firm in my belief we must enforce the laws we have.” Representative Carter’s statement exposes at least two rationales underlying the bed mandate: first, that the it is an effective law enforcement tool; second, that the it protects communities from “dangerous illegal criminals.”

Both of the assumptions underlying the bed mandate are dubious, to say the least. First, the argument that the bed mandate is a useful mechanism to compel ICE to enforce immigration laws is undermined by the fact that the cost of the program actually diverts valuable resources from more useful methods of immigration enforcement, such as border enforcement and visa control and travel screening.. According to Enrique Acevedo, a journalist and anchor at Univision news who has followed the mandate closely, the detention mandate costs the federal government $2.8. billion a year. At a time when the federal government is struggling to find ways to reduce the national deficit by defunding various social programs, the mandate is a wasteful program enforced arbitrarily against a vulnerable group.

Secondly, instead of detaining and deporting illegal immigrants with criminal records for dangerous offenses, the bed mandate tends to affect working individuals with no criminal history. Often, these detainees are the primary or sole income providers for their families. Instead of protecting communities, the bed mandate destabilizes immigrant communities and unnecessarily burdens the lives of their children, many of whom are natural-born U.S. citizens. According to former Homeland Security Secretary Janet Napolitano, the bed mandate is artificial and arbitrary and does not accord with public safety interests. Furthermore, even if detainees are eventually allowed to remain in the United States, the amount of time they might spend in detention is not predictable. The sheer uncertainty is often enough to bring considerable chaos to families already living in precarious financial and social circumstances.

Overall, the primary beneficiaries of the bed mandate are neither the public nor the state, but the private corporations that operate the detention centers around the country. Corrections Corp. of America and Geo Group Inc. operate most of the detention centers around the country and derive substantial financial benefits from the mandate. Since the inception of the bed mandate, each has doubled in size. In fact, Correction Corp. has become so dependent on federal contracts arising from the bed mandate that it can attribute 43 percent of its total revenue to the statutory quota.

Despite the relative silence surrounding the bed mandate in the media, the mandate was challenged by Democratic Representative Ted Deutch of Florida. In June 2013, Representative Deutch proposed an amendment to the appropriations bill that removed the bed mandate. Unfortunately, the bill failed 232 to 190.

With no foreseeable legislative proposals to challenge the bed mandate, members of the legal community have a unique opportunity and obligation to challenge the bed mandate by raising awareness of its implementation not only in the communities affected by the mandate but more broadly and pursuing change through the courts. The bed mandate is one of the clearest illustrations of a general trend in immigration enforcement away from the judicial process, which might offer detainees some opportunity to be heard, to a completely arbitrary administrative removal process that turns a blind eye to the individual hardships of immigrants for the sake of expedience.

Posted by Irving E. Figueroa on Fri. January 31, 2014 4:00 PM
Categories: Captive Audience: Incarceration and the Family

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