Detention, Inc.

51 Pages Posted: 2 Mar 2018 Last revised: 2 Apr 2018

See all articles by Denise L. Gilman

Denise L. Gilman

University of Texas at Austin - School of Law

Luis Romero

Southwestern University

Date Written: February 21, 2018

Abstract

This paper addresses the influence of economic inequality on immigration detention. The U.S. Department of Homeland Security (“DHS”) detains roughly 350,000 migrants each year and maintains more than 30,000 beds each day. This massive detention system raises issues of economic power and powerlessness. This paper connects, for the first time, the influence of economic inequality on system-wide immigration detention policy as well as on individual detention decisions.

The paper begins with a description of the systemic impact that for-profit prisons have had on the federal immigration detention system, by promoting wide-scale detention. The resulting expansion of detention has led to ever-increasing profitability for the private prison sector, which allows the companies to exercise even more influence over policymakers to achieve yet higher levels of detention. The influence of wealthy private prison corporations also affects the very nature of immigration detention, leading to use of jail-like facilities that are the product offered by the private prison industry.

The paper then describes the mechanisms by which economic inequality dictates the likelihood and length of detention in individual cases. The detention or release decisions made by DHS in individual cases must account for the need to keep numerous detention beds full to satisfy the contracts made with powerful private prison companies. DHS regularly sets bond amounts at levels that are not correlated to flight risk or danger but rather to the length of time that the individual must be held in detention to keep the available space full. The article presents data, obtained from immigration authorities regarding detention and bond patterns at a specific detention center that bears out this point. The research finds an inverse relationship between the number of newly arriving immigrants in the detention center and the bond amounts set by ICE. During times when new arrivals were few, the amount required to be released from detention on bond was high; during times when there were many new arrivals, bond amounts were reduced or set at zero.

The article also presents another way in which economic inequality affects the likelihood of detention at the individual level. Release and detention are largely controlled through the use of monetary bond requirements, which must be paid in full. The regular use of financial bonds as the exclusive mechanism for release means that those migrants who are most able to pay are most likely to be released without regard to their likelihood of absconding or endangering the community. Wealth thus determines detention rather than an individualized determination of the necessity of depriving an individual of liberty.

The paper urges that the role of economic inequality in immigration detention raises troubling issues of democratic governance and the commodification of traditional governmental functions. The current system also leads to an unjustifiable redistribution of wealth from the poor to the rich.

The paper concludes with recommendations for reform. These reforms would help to sideline the influence of economic inequality in immigration detention decision-making.

Keywords: Immigration Detention, For-Profit Prisons; Private Prison Corporations; Economic Inequality; Bond Patterns

Suggested Citation

Gilman, Denise L. and Romero, Luis, Detention, Inc. (February 21, 2018). U of Texas Law, Public Law Research Paper No. 69, Available at SSRN: https://ssrn.com/abstract=3127836 or http://dx.doi.org/10.2139/ssrn.3127836

Denise L. Gilman (Contact Author)

University of Texas at Austin - School of Law ( email )

727 E. Dean Keeton St.
Austin, TX 78751
United States
512-232-7796 (Phone)
512-232-0800 (Fax)

Luis Romero

Southwestern University ( email )

1001 East University Avenue
Georgetown, TX 78626
United States

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