Too often, our nation has learned who we don’t want to be from the mistakes of our past. Indeed, asylum laws were born of a shameful history — our government’s failure to shelter thousands of Jewish people fleeing state-sponsored persecution by the Nazi regime. In his four years in office, Trump decimated those asylum protections more than any other president before him. President Biden promised to restore a humane approach to asylum and uphold our nation’s promise to allow people fleeing violence and persecution the opportunity to seek safe sanctuary in our country. But one of Trump’s most extreme and restrictive policies remains and it's illegally shutting the United States off from vulnerable migrants fleeing desperate conditions.
Last March, Trump exploited the COVID-19 pandemic to further his anti-immigrant agenda, using Title 42, a public health order, to justify the immediate expulsion of any migrant who approaches the U.S. border. Weaponizing the order in this way runs afoul of both U.S. and international laws that protect refugees and has no basis in science. It has sparked condemnation from immigrant rights organizations, public health and medical experts, and United Nations High Commissioner for Refugees Filippo Grandi. Yet, nearly seven months into the Biden presidency, the order remains.
"There is no legitimate public health rationale for denying asylum seekers the opportunity to plead their cases, as countless public health officials have pointed out."
Though the Biden administration has made exceptions for unaccompanied minors and a limited number of vulnerable families, in part due to ACLU litigation, single adults and many families continue to be turned away at the border. Many are expelled to Mexico, where they are at risk of further violence and don't have access to proper food, shelter or medical treatment.
The Title 42 order is anything but the humane approach Biden promised. Though the administration claims the order is aimed at protecting people from the threat of COVID-19, there is no legitimate public health rationale for denying asylum seekers the opportunity to plead their cases, as countless public health officials have pointed out.
The order cites “congregate settings” that migrants are typically held in once inside the United States as a justification for suspending their entry, stating that the facilities are not set up for social distancing or to deliver adequate medical care. We agree. These facilities are not designed to care for people in normal times, let alone in times of emergency. That’s why the Biden administration should focus on community-based alternatives to detention, and allow people seeking protection to stay with friends, family, and community members as their immigration cases proceed. Recent research shows that 99% of asylum seekers who were not detained or who were previously released from immigration custody showed up for their hearings in 2019.
"We can uphold our asylum laws and protect the public’s health. And we must."
The federal government is capable of safely welcoming asylum seekers with dignity and adhering to CDC-endorsed best practices during initial processing, including social distancing, masking and testing. The government has already proved capable of this in processing families and other vulnerable migrants who qualify as exceptions for humanitarian reasons under Title 42.
We can uphold our asylum laws and protect the public’s health. And we must. Because denying migrants the legal right to seek asylum and sending them into harm’s way only creates a different kind of a public health crisis. After all, no one can live a life of dignity and health if faced with the continual threat of violence and persecution.
People seeking asylum bring courage, hope and resilience to our country and deserve to be treated with compassion. As a border state, New Mexico has an added responsibility to call out the callous indifference happening in our backyard and to advocate for those who our state could help shelter from violence. There are numerous community-based organizations ready to help. Now, we need our local elected officials to show courage. We ask them to contact us and join us in sending a joint letter to the administration calling for an immediate end to the illegal and inhumane use of Title 42.
In the days after his nomination, Homeland Security Secretary Alejandro Mayorkas signaled his willingness to make a decisive break from Donald Trump’s racist and anti-immigrant policies. Mayorkas is the first Latino and the first immigrant to lead the Department of Homeland Security, the government agency that is most responsible for delivering the “fair and humane” immigration system President Joe Biden promised as a candidate.
As he approaches the sixth month anniversary of his confirmation, Mayorkas’ progress report is mixed: Despite some notable high marks, the incremental approach Mayorkas has embraced is not doing enough to reverse the drastic restrictions of the Trump administration and to end the ongoing trauma inflicted by America’s inhumane immigration enforcement system.
While there’s been a sharp decrease in ICE arrests, a trend that began before he assumed his position, some ICE agents are flouting the administration’s directives and ICE continues to intimidate immigrants across the country in collaboration with local police.
Mayorkas moved to close two detention sites in Georgia and Massachusetts, but ICE has doubled the number of immigrants and asylum seekers locked up in detention centers under his watch, and kept open dozens of facilities with appalling records of abuse and neglect. And while Mayorkas ended the “return to Mexico” policy implemented under Trump, he has largely continued Trump’s illegal misuse of the Title 42 public health authority to expel people seeking asylum without due process.
Here’s how Secretary Mayorkas’ record in three key areas — reining in ICE abuses, closing ICE detention centers, and taking a fair and humane approach to border policy — matches up with his rhetoric and voters’ mandate to dismantle Trump’s anti-immigrant policies and bring humanity and fairness to our immigration system.
REINING IN ICE ABUSES
Progress Report:
However, Mayorkas has repeatedly declined to rein in ICE agents in other ways. He rolled back the Biden administration’s initial move to largely prohibit agents from conducting street arrests, which have involved “snatch and grab” operations, where agents in plain clothes force people off the street into unmarked cars, and agents masquerading as local police — in violation of the Fourth Amendment.
Agents are now justifying arrests by categorizing people as “priorities” even though they do not meet the criteria set out in the May memo, resulting in thousands of people wrongly deported.
Mayorkas’ DHS has also not done enough to reduce ICE’s tentacular reach into communities across the country. Since the early 2000s, ICE has tapped state and local police, sheriffs, and corrections officials to participate in arrests and deportations through the 287(g) program, Secure Communities program, and ICE detainers. These programs have emboldened local police to engage in racial profiling, incentivizing pretextual arrests made on state or local criminal grounds — with the actual goal of identifying immigrants to detain for ICE.
The Trump administration used these programs to intimidate immigrant communities and drive a wedge between them and local law enforcement. The 287(g) program expanded to an additional 116 partner agreements with local law enforcement under Trump. Despite promises President Biden made on the campaign trail, DHS has only ended one 287(g) agreement, and has left in place Trump-era changes making these partnerships last indefinitely instead of three years.
Secretary Mayorkas has the power to end the 287(g) program, fundamentally reform ICE, and decouple its work from local policing.
CLOSING ICE DETENTION CENTERS
Progress Report:
In May, DHS announced the closure of two sites: Bristol County House of Corrections in Massachusetts and Irwin County Detention Center in Georgia, the site of horrific allegations of abuse, including the use of tear gas against detained people seeking safety from COVID-19, forced hysterectomies, and systemic medical neglect. In July, ICE announced a policy against detaining and arresting pregnant, postpartum, and nursing individuals — a shift long sought by the ACLU and other advocates.
These were positive steps, but Mayorkas failed to seize the opportunity to shrink the ICE detention machine. In February, after Mayorkas was sworn in, ICE held approximately 13,500 people in detention each day — compared to a high of 56,000 people per day under the Trump administration. Instead of taking the opportunity to close detention sites — saving millions in taxpayer dollars — and expand the use of community-based alternatives to detention, ICE in recent months has doubled the average daily population of detention facilities. As of July, DHS reports an average daily detained population of 26,200 people.
The Trump administration signed unusually wasteful contracts that expanded the use of private prison companies and opened detention centers in facilities with lengthy histories of abuse. The ACLU called on Mayorkas to shut down these and other facilities, identifying 39 detention sites with inhumane and life-threatening conditions and extremely limited access to legal counsel. Yet the administration has only closed two, and asked Congress to fund 30,000 detention beds in the coming year.
While the Biden administration moved to end the Justice Department’s contracts with private prisons operating criminal detention sites, it has not extended that to immigration. Immigrants and people seeking asylum continue to languish in privately operated prisons that are incentivized to keep conditions poor and even unsafe to maximize their profits.
Perhaps most galling, as detention sites close, ICE is choosing to transfer people to other detention facilities rather than release them to their communities and families — undermining hard-won progress and jeopardizing the health of detained people, as well as their ability to effectively present their cases.
Mayorkas still has an opportunity to bring lasting change to this system. He should recommit to closing ICE detention sites that fail to ensure the health and safety of detained people, and make a new commitment to review and close detention sites where people do not have meaningful access to counsel. Moreover, as detention sites close, he should require that ICE prioritize the release of detained people — rather than their continued detention elsewhere.
A FAIR AND HUMANE APPROACH TO THE BORDER
Progress Report:
Moving Forward
Mayorkas and the Biden administration have a mandate from voters to reform an immigration system that has been weaponized, politicized and made increasingly punitive. We will continue urging Mayorkas to prioritize major reforms to undo the harm the Trump administration caused to families and communities, and to make substantial progress toward rebuilding the asylum process and reining in abuses by ICE and its agents.
Cyrus J. O’Brien, PhD, ACLU Research Fellow and Mellon/ACLS Public Fellow
Fifty years ago, as the U.S. began building the world’s largest infrastructure for human caging, many Americans envisioned a future without prisons. Prisons, in the eyes of many, were irrevocably broken and incompatible with democracy. A committee convened by Lyndon B. Johnson to study law enforcement wrote that “life in many institutions is at best barren and futile, and at worst unspeakably brutal and degrading” and lamented that many prisoners labored “under conditions scarcely distinguishable from slavery.”
In 1970, a group of judges spent a single night at Nevada State Prison, and emerged to share their experience of “men raving, screaming and pounding on the walls.” A Kansas judge said, “I felt like an animal in a cage” and urged the state to “send two bulldozers out there and tear the damn thing to the ground.” A federal judge in Arkansas said imprisonment in that state amounted to “banishment from civilized society to a dark and evil world.” A judge in Wisconsin predicted that “the institution of prison probably must end. In many respects it is as intolerable within the United States as was the institution of slavery, equally brutalizing to all involved, equally toxic to the social system, equally subversive of the brotherhood of man, even more costly by some standards, and probably less rational.”
Mainstream outlets such as Time magazine and The New York Times Magazine asked whether prisons should be abolished. As a mass movement for deinstitutionalization forced mental asylums — the nation’s other and, at the time, even larger institution for involuntary confinement — to go to ruin, it seemed that prisons might crumble, too.
Of course, instead of disappearing, prisons expanded over the next 40 years to become defining features of American life. Not only did U.S. criminal legal systems grow large enough to confine 2.4 million people and surveil one in 31 American adults, their logics of punishment and control came to define and permeateother realms of politics.
Why did prison systems metastasize so devastatingly when they seemed so vulnerable? And what can we take from this history as a massive social movement again challenges the legitimacy of U.S. criminal legal systems?
Part of the blame, as I lay out in a recent article in The Journal of American History, lies with so-called “alternatives to incarceration,” which the public and policymakers — especially liberals — embraced with zeal. And no alternative to prison was more ubiquitous and insidious than the correctional halfway house.
Though they had humble religious origins — Episcopal, Catholic, and Quaker groups opened the first halfway houses in the 1950s in order to help people reenter society — halfway houses caught the imagination of many policymakers in the 1960s and 1970s. They offered a model of “community treatment” that promised to address crime, drug addiction, and other social ills more effectively, cheaply, and humanely than traditional prisons.
Enthusiasm for community treatment brought millions of dollars in government funding for halfway houses. Funding poured in through President Johnson’s Great Society programs, and millions more would come through the Law Enforcement Assistance Act and the Nixon administration’s wars on drugs and crime. Halfway houses numbered only around a dozen in 1960, but by the late 1970s, they were more common in the U.S. than roller skating rinks. The capacity of the nation’s 2,000-plus halfway houses totaled more than 65,000 beds — roughly the contemporaneous prison capacities of California, Texas, and New York combined.
The major appeal of community treatment — then as now — was that it seemed not just an alternative to the prison, but even its opposite. The Johnson administration’s Commission on Law Enforcement and the Administration of Justice touted halfway houses as an “entirely new kind of correctional institution” that would be “architecturally and methodologically the antithesis of the traditional fortress-like prison.” In some ways, halfway houses did look like opposites to prison. They were small (generally around 20 beds), located in urban areas rather than far from them, and for a time elided the power dynamics characteristic of prisons. Residents, for instance, usually wore their own clothes rather than uniforms, and the earliest halfway houses were organized around discourses of “family.”
These superficial qualities, however, belied the structural similarities between halfway houses and traditional prisons. Like prisoners, the 65,000 people in halfway houses were involuntarily confined. They were subject to systematic surveillance. Their movements were tightly controlled. And they were forced to labor for others’ benefit. Indeed, one reason for the proliferation of halfway houses was their ability to appeal to reformers and prison administrators at the same time. They departed from what were seen as prisons’ most objectionable characteristics while maintaining systems for surveillance and control.
Just how closely halfway houses resembled traditional prisons changed over time with modifications in how they were funded and administered, but even the least coercive halfway houses suffered from their proximity to the rest of the criminal legal system. Despite the promise that they would be an alternative to prison, community treatment initiatives tended to expand the reach of the carceral state.
Not only did they dramatically expand the capacity of states to confine people against their will, their promise of “treatment” encouraged judges, prosecutors, and other policymakers to apply these interventions to groups of people who had not been in the system before. To give just one example, after the Texas Youth Commission embraced the halfway house model in the 1970s, it began to incarcerate hundreds more children each year in community-based facilities, including “pre-delinquent” children who had not committed a crime.
Today’s discontent with prisons and policing closely resembles that of half a century ago. Many of the solutions being proposed are also near carbon copies. Community-based alternatives, rehabilitation, education, drug treatment, and mental health interventions were all part of the appeal of halfway houses. New technologies for face recognition, location monitoring, online surveillance, and electronic forms of identification threaten to make the next iteration of “alternatives” even more harmful.
As we work to combat mass incarceration and create what comes next, it will be important not to be fooled by superficial differences or by changes in rhetoric. Ending mass incarceration will require dismantling — not replicating, reproducing, or relocating — systems for involuntary confinement, surveillance, and control.
