California Immigration Detention Dialogue – Key Takeaways

• Jim Austin, correctional planning and research expert based in Los Angeles and former director of the Institute on Crimes, Justice and Corrections and George Washington University, set the stage by describing the realignment process in California, one of the most important developments in prison reform in a decade – including its impact on jails that hold ICE detainees.
• Following AB 109, which was enacted by the California state legislature in response to a Supreme Court order in Plata v. Brown to the state to reduce its prison population, counties are receiving funds to invest, in part, in pre-trial services so that county jails are not holding individuals who pose no flight risk or risk to public safety. Two of California’s smartest pre-trial services experts – Garry Herceg (Director of the Office of Pretrial Services, Santa Clara County) and David Muhammad (former Chief Probation Officer, Alameda County) – joined us to discuss best practices in pre-trial services. These programs, analogous to alternatives to immigration detention in their limited purpose to ensure that participants show up for their hearings and comply with final outcomes of their cases, can save tremendous amounts of money. Both experts confirmed that validated risk assessment tools, designed for the specific population, are essential to ensure that the right folks are selected to participate in these programs. Another key factor in creating effective alternative programs:  simple phone call – and increasingly text message – reminders of court dates, which can increase appearance rates significantly.
• Mr. Herceg reported that independent auditors found that Pretrial Services have saved $26 million for Santa Clara County. Mr. Muhammad said that Alameda County pays about $78/day for jail, compared to $10 to $20 for electronic monitoring. Under California’s AB109, he reported, electronic monitoring counts as custody.
• Mr. Muhammad pointed out that pre-trial services that offer great programming can inadvertently lead to “net widening” when judges place into supervision individuals who would otherwise be released. The experts stressed that effective use of a risk assessment tool is key to ensuring that individuals who do not need supervision are not referred unnecessarily into alternatives programs.
• Ahilan T. Arulanantham of the ACLU of Southern California (Los Angeles), co-counsel on two key ongoing immigration detention cases, Franco v. Holder and Rodriguez v. Hayes, and Michael Bien, co-counsel in California’s landmark Plata v. Brown, discussed the advantages and limitations of conditions litigation and the resources necessary to ensure that a positive case outcome actually leads to change for detainees or inmates.
• Erwin Chemerinsky, Founding Dean of the UC Irvine School of Law, and Raha Jorjani, supervising attorney for the immigration law clinic at UC Davis School of Law, discussed the human cost of categorical detention – whether mandatory immigration detention or incarceration resulting from mandatory minimums or three strikes laws – and highlighted the need to avoid hyper-punitive enforcement models. Professor Jorjani cautioned against advocacy efforts that revolve around distinctions between “good” and “bad” immigrants, which can undermine efforts to improve rights protections for all incarcerated individuals. Dean Chemerinsky discussed the absence of any meaningful Eighth Amendment proportionality principle in the three strikes law context, and pointed to the civil fines cases as a potentially more useful body of law.
• Sheriff Gary Raney, who has held ICE detainees in his jail in Ada County (Boise, Idaho), stated that jails simply cannot deliver “civil” conditions needed by ICE if simultaneously functioning as actual jails. If ICE is going to use jails, he said, the agency needs to partner with jails that are run well, and ICE must be willing to withdraw from jails that are not.
• We were honored to hear from Judge M. Margaret McKeown of the Court of Appeals for the Ninth Circuit, who has played a leading role in efforts to increase quality legal representation in immigration cases. She noted that the Ninth Circuit has the largest immigration docket in the country, and stressed that lack of quality counsel is not only a problem for individuals; it implicates the quality of our entire system of justice. Judge McKeown emphasized the importance of direct legal representation programs, pro bono attorneys, know your rights presentations, and the Department of Justice’s Legal Orientation Program, as well as the critical role that bar associations can and should play.
• Southern California legal service providers working at local detention facilities that hold, for ICE, thousands of individuals each year, are sorely under-resourced. We were fortunate to have as panelists three attorneys who assist immigration detainees in California– Erika Pinheiro of Catholic Charities of Los Angeles Esperanza Immigrant Rights Project, Veronica Barba of the ABA Immigration Justice Project in San Diego, and Talia Inlander of Public Counsel in Los Angeles. They identified gaps, needs, and steps forward. These organizations provide legal presentations for detained individuals at Otay Mesa, James Musick, Mira Loma, and Adelanto. (Just last week they were told that Mira Loma will be closing.) Two facilities in southern California remain completely unserved by legal service providers – Theo Lacy and El Centro. Many detainees at all of these facilities who need attorneys remain unrepresented due to the limited resources of legal service providers. The panelists flagged the particular challenges facing immigration detainees with mental health issues, whose cases are often not suitable for pro bono representation. Davina Chen from the federal public defenders office in Los Angeles outlined how her office is able to represent immigrant clients in “ancillary” immigration matters. All four attorneys helped humanize the policy issues we’d been discussing all day by relating the stories of their individual clients. Looking forward, the panel discussion highlighted two overarching challenges: resources and the right to counsel.

Anna Campbell, Jennifer Chacon, Kate Jastram, Raha Jorjani, and Anil Kalhan, and rounded out an exceptional day of discussion with valuable insights and expertise. Special thanks to Marcellus McRae, who raised questions about the use of video-conferencing for detained immigrants, and to Dean Erwin Chemerinsky, who shared his insights with attendees during our lunchtime discussion. And importantly, Jakada Imani of the Ella Baker Center for Human Rights (Oakland) flagged the important role that the families of detained individuals can play in highlighting the need for reform. He also reminded us that black and brown people are disproportionately represented in immigration detention, as in the criminal justice system. Mr. Imani cautioned that there are limits to the lessons that can be learned from the criminal justice system, which is plagued with challenges as much as the immigration detention system. Next up: Tempe, Arizona, Arizona State University, October 12. We can’t wait. It is an absolute privilege to hear from experts on the ground who are committed to improving practices in the immigration detention and criminal justice systems, ensuring that our local, state, and federal government adopt best practices, avoid wasting taxpayer dollars, and adhere to due process and human rights standards. Follow us @HR1stRefugees and #HRFDetention, and read about Texas here.