Indefinite Family Detention Is Abusive, Expensive, and Ineffective

Yesterday, Trump did what he and his administration have said he couldn’t do: stopped the family separation policy for migrants on our southern border. But in reality, what he did was step back from the horrific into the realm of the merely inhumane, because the executive order the president signed explicitly states that the administration will continue its zero tolerance policy.

It is the policy of this Administration to rigorously enforce our immigration laws.  Under our laws, the only legal way for an alien to enter this country is at a designated port of entry at an appropriate time.  When an alien enters or attempts to enter the country anywhere else, that alien has committed at least the crime of improper entry and is subject to a fine or imprisonment under section 1325(a) of title 8, United States Code.  This Administration will initiate proceedings to enforce this and other criminal provisions of the INA until and unless Congress directs otherwise.

This means that parents will now be detained with their children indefinitely.

It is important to keep in mind that many of these families are fleeing violence in Central America and are attempting to claim asylum in the United States. The case is being made that detention is necessary to ensure that asylum seekers show up for interviews and court hearings. But according to research, to detain the entire family while those claims are adjudicated is abusive, expensive, and ineffective. There are alternatives.

Empirical research has found, however, that asylum seekers fleeing persecution arrive predisposed to comply with legal processes and trust the system to provide them a fair hearing, even if they might lose. If the U.S. government treats asylum seekers fairly and humanely—i.e., releases them following their apprehension and provides legal assistance before their hearing—evidence suggests that they will be likely to appear for proceedings. Put simply, a humane approach can work.

Specifically, research on asylum-seekers has show that access to legal advice is the single most important factor in ensuring compliance with the adjudicatory process. In other words, we could avoid the inhumane practice of family detention, save money, and ensure compliance if the government provided legal counsel to every asylum seeker.

Back in 2016, Democrats introduced a bill to do just that.

To begin to remedy this injustice, Senator Harry Reid (D-NV), along with Senators Dick Durbin (D-IL), Patty Murray (D-WA), Patrick Leahy (D-VT), and Bob Menendez (D-NJ), introduced the “Fair Day in Court for Kids Act.” The bill would provide unaccompanied children and other vulnerable populations with attorneys to guide them through the complicated immigration court process. The legislation would also require the Department of Homeland Security (DHS) and the Attorney General to make sure that legal orientation programs (trainings that give a basic overview of immigration law and the court process) are available to all detained immigrants.

Of course, the bill went nowhere in the Republican-controlled Senate and it certainly wouldn’t fare any better today. That is because Trump and the GOP aren’t looking for rational solutions to this problem, but are more interested in fear-mongering about the “immigrant threat.”

Just as the “tough on crime” approach has proven to be expensive, racist, and ineffective, a “tough on migrants” approach will be as well. To combat the fear-mongering, we need to ground an alternative in our values as well as the facts as we know them. When it comes to asylum-seekers, that means implementing alternatives to detention and providing sound legal advice.

Nancy LeTourneau

Nancy LeTourneau is a contributing writer for the Washington Monthly.