The Cost of the Immigration Detention Bed Quota

Unauthorized immigration dropped dramatically in recent years. At the same time, the number of detained immigrants and the costs of their detainment rose steadily. Why?

The answer lies with the “immigration detention bed quota,” according to legal scholar and professor at the American University Washington College of Law Anita Sinha.

Under federal law, the U.S. Department of Homeland Security (DHS) must maintain at least 34,000 immigration detention beds daily. Sinha argues that this quota promotes unnecessary detentions and keeps DHS officials from using less costly methods to monitor individuals involved in immigration enforcement proceedings.

Sinha notes that the immigration enforcement and court systems are overburdened, and that the “U.S. government spends more on its immigration enforcement agencies than on all its other principal federal law enforcement agencies combined.” Alternative methods—such as ankle bracelets, check-ins, and curfews—produce the same or better results at a lower cost. Such methods are also more humane, says Sinha, especially for asylum seekers and other particularly vulnerable migrants.

Yet, even though detention costs more than these alternatives, DHS runs the risk of violating the congressionally mandated quota and consequently losing its funding if it reduces the numbers of beds it maintains.

But why would Congress require DHS to use the most expensive method? Noting that Congress first imposed the quota as a condition on DHS funding in 2009 that coincided with both an economic recession and a multi-year decline in the number of undocumented immigrants, Sinha alleges that some members of Congress enacted the quota to provide money and jobs to build and staff detainment facilities in their states and districts.

Private prison corporations also benefit from the bed quota. Private companies operate 62 percent of immigration detention beds, and industry profits have soared. Contracts with these private companies often contain occupancy guarantee quotas, or “lockup quotas,” which require governments to pay for a certain number of beds regardless of the actual population of detainees.

This requirement, Sinha argues, encourages officials to detain individuals to avoid spending taxpayer money on the beds, even when other enforcement methods would be similarly effective.

Furthermore, although the law itself only requires DHS to “maintain” 34,000 beds, Sinha contends that, in practice, DHS must actually fill these beds. Several members of Congress have made statements supporting this interpretation of the law. Sinha notes, for example, that when DHS released 2,228 detainees in 2013 to save costs, the then-Chair to the Committee on Appropriations Homeland Security Subcommittee, U.S. Representative Michael McCaul (R-Texas), condemned the release as a “clear violation of statute.”

According to Sinha, fulfilling this mandatory bed quota thus leads to unnecessary and arbitrary detentions in violation of constitutional rights and international law.

Specifically, she argues that the bed quota violates the Fifth Amendment of the U.S. Constitution because the long average detention time of over a year and the 34,000 bed requirement run contrary to what she views as recent judicial trends condemning prolonged mandatory detention.

Moreover, according to Sinha, if the mandate does actually require DHS to fill—and not just maintain—a certain number of beds, regardless of whether individual cases actually merit detention, then the mandate violates constitutional due process requirements. She elaborates that the bed quota fails the constitutional due process test because the government’s interest in filling 34,000 beds daily does not outweigh an individual’s interest in liberty and the current detainment process does not sufficiently protect detainees’ rights.

Whether or not courts will agree with Sinha’s constitutional argument remains to be seen. Traditionally, courts have refused to interfere with deportation decisions under a theory known as plenary power, which leaves extensive authority over these decisions to the legislative and executive branches. As Sinha acknowledges, this doctrine has a long history, and it is unclear how much courts will deviate from it in the future. But this authority has never been absolute, as recent cases challenging immigration-related executive orders show.

Sinha’s analysis extends beyond the U.S. Constitution, as she considers the constitutionality of bed quotas under international law. She relies on general norms against arbitrary detention, such as those articulated in the Universal Declaration of Human Rights, as well as U.S. treaty obligations.

For example, a provision of the International Covenant on Civil and Political Rights (ICCPR)—which the United States ratified in 1992—establishes that no one shall be subjected to arbitrary arrest or detention, and that any deprivation of liberty must be the result of procedure established by law. The United Nations Human Rights Committee interpreted this provision to mean that “[d]etention in the course of proceedings for the control of immigration is not per se arbitrary, but the detention must be justified as reasonable, necessary, and proportionate in the light of the circumstances and reassessed as it extends in time.”

Based on the ICCPR’s wording and the interpretive statement, Sinha argues that the bed quota is sufficiently arbitrary to violate international law principles, since it requires officials to detain a certain number of people without regard to each case’s actual merits. Additionally, international law—for instance, as codified in the 1951 Convention Relating to the Status of Refugees—contains further protections for vulnerable migrants, such as asylum seekers. Since the United States detains tens of thousands of asylum seekers each year, the quota may violate these principles, as well, says Sinha.

But how would U.S. or international courts apply these principles to the bed quota? Would they even consider detention under these circumstances arbitrary? Without relevant U.S. or international case law, it is difficult to predict how courts would rule on these issues.

The Duke Journal of Constitutional Law and Public Policy published Sinha’s article in its most recent issue.