Improving conditions of confinement for criminal inmates and immigrant detainees.

• Author: Schriro, Dora

1. INTRODUCTION

   The 2010 American Bar Association ("ABA") Criminal Justice Standards on the Treatment of Prisoners build upon the considerable body of knowledge about custody management, incorporating improvements in correctional practices as well as changes in case law and statute. The ABA Standards were revised to achieve more than compliance with the law. Their goal was aspirational, "to shape the institutions of government in such fashion as to comply with the laws and the Constitution." (1) Although standards that exceed statutory minimums may be seen as intrusive by some, standards that incorporate the field's best practices with case law and the Constitution should be seriously considered by each of the three branches of government and for the same reason. Systems' capacity, competency, and commitment to make and sustain change vary, sometimes appreciably. (2) Making certain that "the infrastructure of constitutional compliance" (3) is adequate to achieve largely agreed-upon results--constitutional conditions for the confined populations, a safe and satisfying workplace, and secure systems that operate consistently with community expectations--benefits government and the people it serves.

   For the first time, the ABA Standards also encompass immigrant inmates as well as criminal inmates. Immigrant inmates are detained by the government pending completion of civil proceedings, solely to determine their amenability for deportation and to effectuate their removal or grant relief. The inclusion of the immigrant detainee population is significant, affording new opportunity to improve policy and practice in the areas of civil detention as well as criminal incarceration.

   Immigration and Customs Enforcement ("ICE") is a federal agency that has considerable expertise and infrastructure in the area of immigration enforcement but not in immigrant detention. ICE utilizes sheriffs' departments and private prison providers to perform these duties on its behalf, detaining its population in their facilities operated by their personnel. The shortfalls of ICE have other implications, as they impact its ability to ascertain the services it should procure from others, to oversee the execution of those contracts, to evaluate its vendors' performance, and to remediate their deficiencies. The operation of institutions detaining immigrants for ICE would be measurably improved by adopting standards that sustain the infrastructure for constitutional compliance.

   Immigration detention is unlike criminal incarceration as a matter of law. (4) Immigration proceedings are conducted exclusively in civil courts, and immigration detention is not a form of punishment. (5) Yet in the eyes of the public, immigration detention and criminal-incarceration detainees are often considered comparable, and both confined populations are often managed in similar ways. Typically, both groups are held in secure facilities with hardened perimeters in remote locations, generally at considerable distances from counsel and/or their communities. With but a few exceptions, the facilities that ICE uses to detain aliens were originally built as jails and prisons to confine pre-trial and sentenced felons. (6) They continue to operate true to their original design. Their layout, construction, staffing plans, and population-management strategies are largely based upon traditional correctional principles of command and control. Likewise, the ICE-adopted standards that guide the operation of jails are based upon corrections law and were promulgated by a correctional organization. Establishing new standards to shape the operation of institutions of immigration detention is therefore our challenge and our opportunity. (7)

2. THE HISTORY OF CORRECTIONS AND THE COURT

   The history of corrections case law is fairly short and is sometimes summarized as the "hands-off," "hands-on," and "one-hand-off and one-hand-on" eras. (8) For years, the Court was reluctant to recognize inmate claims and, during the "hands-off era," deferred to correctional administrators. (9) Then, during the mid1960s to the later 1980s, the "hands-on era," the Court quickly and increasingly became involved with the operation of correctional institutions. (10) Since then, the Court has largely moved back towards the middle (i.e., the "one-hand-on and one-hand-off era"), granting relief where warranted but leaving implementation to the legislative and executive branches. (11) Civil detainees have not attracted similar attention until quite recently and then, quite slowly.

   Before and during much of the 1960s, the Court afforded corrections considerable discretion, deferring to the judgment of jail and prison administrators. (12) Starting with school desegregation cases in the 1950s, the Court became increasingly involved with conditions concerning civil rights. (13) During the 1960s, as the confined population increased in number and conditions of their confinement worsened, incidents such as Attica spilled over into the news and the public consciousness. (14) The underlying facts--corporal punishment, race-based treatment, inmates overseeing inmates, wholly unsanitary conditions, the absence of due process, significantly delayed and deficient health care--shocked the conscience of an increasingly concerned community. (15) The Court responded, contemplating the constitutionality of a number of conditions and correctional practices. (16) Throughout the 1970s, the Court considered the adequacy of many operational issues and enumerated remedies, sometimes quite detailed, for situations it deemed to be serious. (17) The correction case law that followed often overtook state and local correction statutes. (18)

   By the 1980s however, the Court slowed and reshaped its course, increasingly balancing the inmates' constitutionally protected interests with the legitimate interests of the correctional institution. (19) Still, many of the improvements that had been put into place in the preceding years stayed in place, now ingrained in the practice of corrections systems. During the 1990s, a number of "truth-in-sentencing" reforms were enacted, including "three strikes" laws, civil commitment of sexual predators, and adult treatment for violent juvenile offenders. (20) The prison population increased again. (21) During this "tough on crime" era, Congress also passed into law the Prisoner Litigation Reform Act, which appreciably curtailed both inmates' access to the Court and the Court's occasions to reply. (22) For the most part, the Court and Congress continue to be deferential to correctional administrators today. (23)

3. THE HISTORY OF IMMIGRATION DETENTION AND THE COURT

   As a matter of law, immigration detention is unlike criminal incarceration. ICE does not have authority to incarcerate aliens for criminal violations. That authority lies exclusively with the Department of Justice, subject to review of the federal courts. (24) ICE has administrative authority pursuant to the Immigration and Nationality Act to detain aliens during the removal process, a civil proceeding. (25) Immigration detention is not permitted for the purpose of punishment. (26)

   Despite these differences, civilly detained and criminally incarcerated inmates tend to be seen by the public as comparable, and both confined populations are managed in similar ways. Each group is ordinarily detained in secure facilities with hardened perimeters in remote locations that are considerable distances from counsel and their communities. With only a few exceptions, the facilities that the government uses to detain immigrant inmates were originally built, and currently operate, as jails and prisons to confine pre-trial and sentenced felons. (27) Their design, construction, staffing plans, custody management strategies, and operating...