Review of Literature
2.1 Definition and Classification
Diabetes mellitus (DM) is a group of metabolic disorders of heterogeneous etiology characterized by absolute or relative insulin deficiency leading to hyperglycemia and an altered metabolism of glucose, fat and protein (Pietropaolo et al., 2007; American Diabetes Association, 2014). The disease is classified as type 1 diabetes (T1D), type 2 diabetes (T2D), gestational diabetes and other types of diabetes (American Diabetes Association, 2014). T1D and T2D are considered as the two major forms of DM. T1D normally develops before adulthood and is typically caused by an auto-immune destruction of the insulin-producing beta-cells leading to an absolute insulin deficiency, whereas T2D is normally associated with inadequate beta-cell response to the progressive insulin resistance (Kishida et al., 2012; Canivell and Gomis, 2014; Maganti et al., 2014). Gestational diabetes is defined as a state of glucose intolerance during pregnancy that usually subsides after delivery but has a major implication for subsequent risk of T2D (Philips et al., 2013). The other less common form of diabetes include genetic defects in insulin action, genetic defects in cell function, diseases of exocrine pancreas and drug or chemical induced diabetes (American Diabetes Association, 2014).
Figure 2.1: Criteria for the diagnosis of diabetes (Source: American Diabetes Association, 2014).
2.2 Genetics of T2D
T2D results from the complex interplay of many different pathways under the combined control of genetic, epigenetic and environmental factors (Doria et al., 2008; Prasad and Groop, 2015). The genetic component can be analyzed by comparing the risk of developing disease between relatives of patients with T2D and the background population, often referred to as sibling relative risk, which is around 3 in most populations (Lyssenko et al., 2005). High concordance rate obtained in monozygotic twins (96%) supports a substantial contribution of genetic factors to T2D (Kaprio et al., 1992; Medici et al., 1999). Furthermore the lifetime risk of developing T2D is 40% for individuals who have one parent with T2D and almost 70% if both parents are affected (Kobberling et al., 1982; Groop et al., 1996). The general estimates of heritability (h2) of T2D are 0.49 and the relative recurrence risk for a sib of an affected person (??s) to develop T2D is 3.5 (Risch, 1990; Lander and Schork, 1994). To date, approximately 70 susceptibility loci have been identified as being associated with T2D, among them 45 loci were identified in European populations and 29 loci were identified in Asian populations, especially in East and South Asians. However, all the genetic loci identified so far account for only about 10% of the overall heritability of T2D (Sun et al., 2014).
The involvement in the pathogenesis of T2D of multiple genes that interact with each other in an epistatic manner may explain why, despite the enormous efforts made to date, the identification of genetic determinants responsible for an increased susceptibility to T2D still remains unsolved (Doria et al., 2008; Ahlqvist et al., 2011). Genetic predisposition in T2D is also supported by the observation of differences in disease prevalence rates among populations, even after migration of entire ethnic groups to another country which indicates that this difference is independent from the environmental influences (Flegal et al., 1991). In Sweden, immigrants from the Middle East have a 2-3-fold increased risk of T2D compared to native Swedes. It is also more common for patients from the Middle East to have first-degree relatives with T2D (Glans et al., 2008). The role of environmental factors in influencing susceptibility to T2D is well known and among these factors are increased caloric intake and a sedentary lifestyle (Neel, 1962). The spread of the westernization in developing countries also explains the epidemic explosion of the disease (Wild et al., 2004; Danaei et al., 2011).
2.3 Epidemiology of T2D
As compared to the other two major types of diabetes, T2D is the most prevalent form and is responsible for 90% of the overall diabetes prevalence (Malecki, 2005; Lyssenko and Laakso, 2013). A global epidemic is predicted by World Health Organisation (WHO), with an estimated average increase in the prevalence of diabetes for all age groups from 2.8% in 2000 to 5.8% in 2030 (Wild et al., 2004). About 387 million people were estimated to have diabetes in the year 2014 and if these trends continue, by 2035, some 592 million people will have diabetes (International Diabetes Federation, 2014). Between 2010 and 2030, there is an expected 70% increase in numbers of adults with diabetes in developing countries and 20% increase in developed countries (Shaw et al., 2010). Almost half of all adults with diabetes are between the ages of 40 and 59 years and more than 80% people with diabetes in this age group live in low and middle income countries (International Diabetes Federation, 2013). Among the 10 countries with the largest numbers of people predicted to have diabetes mellitus in 2030, five are in Asia (China, India, Pakistan, Indonesia and Bangladesh) (Shaw et al., 2010).
Figure 2.2: Epidemiology of diabetes (Source: International Diabetes Federation, 2014).
As per report given by International Diabetes Federation (2013), India had 65.1 million people with diabetes and this number is predicted to increase by 109.0 million by 2035. In a study conducted by Indian Council of Medical Research’India Diabetes (ICMR-INDIAB), the prevalence of pre-diabetes and diabetes in Chandigarh was reported be 14.6% and 13.6%, respectively (Anjana et al., 2011). A study from India showed a significant increase in DM prevalence in both urban (from 13.9% in 2000 to 18.2% in 2006) and rural areas (from 6.4% in 2000 to 9.2% in 2006) (Ramachandran et al., 2008). The increasing worldwide prevalence of T2D combined with the shift in its age of onset will heavily burden health-care systems in the future. Similarly, for India the global burden of T2D by the year 2030 has been estimated to be 87 million (Snehalatha and Ramachandaran, 2009). In India age standardized prevalence of T2D was reported to be 12.1% (Ramachandran et al., 2001). The National Urban Diabetes Survey (NUDS) by Ramachandran et al. (2001), reported that T2D prevalence was higher in the Southern part of India (13.5% in chennai, 12.4%, in Bangalore and 16.6% Hyderabad) as compared to Eastern (11.7% in Kolkatta), Northern (11.6% in New Delhi) and Western India (9.3% in Mumbai). T2D prevalence was three times higher among the urban population (8.2%) as compared to the rural population (2.4%) (Ramachandran et al., 1992). The prevalence of T2D across different cities has been depicted in Table 2.2.
Table 2.1. Prevalence of diabetes in India
Place Prevalence (%) Area Author
Kashmir 6.05 Northern Ahmad et al., 2011
New Delhi 15.0 Northern Prabhakaran et al., 2005
Jammu 8.15 Northern Shora et al., 2014
Punjab 4.6 Northern Wander et al., 1994
Chandigarh 13.6 Northern Anjana et al., 2011
Mumbai 9.3 Western Ramachandran et al., 2001
Jaipur 12.1 Western Gupta et al., 2004
Nagpur 3.2 Western Mohan et al., 2008
Manipur 4.0 Eastern Singh et al., 2001
Assam 8.2 Eastern Shah et al., 1999
Kolkata 11.5 Eastern Kumar et al., 2008
Chennai 18.6 Southern Ramachandran et al., 2008
Kochi 19.5 Southern Menon et al., 2006
Kerala 27.11 Southern Jose et al., 2013
Bangalore 10.7 Southern Ajay et al., 2008
Hyderabad 14.1 Southern Ajay et al., 2008
2.4 Pathophysiology of T2D
T2D is characterized by the combination of disturbances in insulin secretion by pancreatic ??-cells and peripheral insulin resistance, which is often related to obesity (Guja et al., 2012). Insulin resistance is caused by defects in the signaling pathways that process the insulin signal in its target tissues (Wolfs et al., 2009). Normally, plasma glucose levels are maintained within a narrow and well-balanced range, known as glucose homeostasis (Baynes and Dominiczak, 2004). However, as a consequence of impaired insulin secretion and resistance, glucose uptake and release by pivotal tissues is disturbed which eventually leads to hyperglycemia (DeFronzo, 2004; DeFronzo and Tripathy, 2009). It has often been suggested that the disease starts with insulin resistance and is followed by increased insulin production by the pancreatic ??-cells to maintain glucose homeostasis (Weir and Bonner-Weir, 2004). At a later stage, due to the long-term compensation mechanism by the ??-cells to keep up with the higher insulin demand, these cells ultimately undergo further damage and apoptosis (Prentki and Nolan, 2006). When the ultimate demand of insulin release cannot be satisfied, higher plasma glucose levels are the result. The vulnerability of the ??-cell pool in insulin-resistant conditions is determined by problems related to ??-cell survival, ??-cell regeneration, or ??-cell development which are involved in the insulin secretion pathways (Kahn, 2003; Wolfs et al., 2009).
Figure 2.3: Pathophysiology of T2D (Source: Inzucchi and Sherwin, 2011).
It has been shown that although obesity is a major risk factor for diabetes (around 50% of the patients with diabetes are obese), a significant proportion of T2D are not obese (Pimenta et al., 1995). Therefore, it has been concluded that obesity may be a major risk factor for T2D development but it is the vulnerability of the ??-cell pool which determines whether obesity triggers the development of T2D or not (McCarthy, 2010).
2.5 T2D and its Complications
The increasing prevalence of T2D represents a significant burden to human health because of its numerous and often serious complications (Mohan et al., 2013). These complications of T2D are divided into macrovascular and microvascular complications (Cade, 2008). Macrovascular diseases include coronary artery disease (CAD), peripheral vascular disease, and atherosclerosisis (Papa et al., 2013). Microvascular complications occur mainly in the eyes, kidneys, peripheral lower limbs and nerves, resulting in diabetic retinopathy, diabetic nephropathy, diabetic foot and diabetic neuropathy, respectively (Fowler, 2008). These complications lead to reduced quality of life and increased morbidity and mortality from end-stage renal disease (ESRD) and cardiovascular disease (CVD) (Van Dieren et al., 2010) The chronic hyperglycemia plays a central role in the development and progression of the vascular complications, which often persist and progress despite improved glucose control, possibly as a result of prior occurrences of hyperglycemia (American Diabetes Association, 2014). Prospective randomized clinical trials and epidemiological studies have shown that glycemic control is interrelated with reduced rates of retinopathy, nephropathy, neuropathy and cardiovascular diseases and considered as the main therapeutic goal for the prevention of complications of diabetes (Middleton, 2003; American Diabetes Association, 2013).
Figure 2.4: Complication of Diabetes (Source: International Diabetes Federation, 2014).
2.6 Diabetic Nephropathy (DN)
DN is a multifactorial disorder caused by hyperglycemia-induced renal damage in genetically predisposed patients (Savage and Maxwell, 2009). It is the leading cause of ESRD (Yacoub and Campbell, 2015). DN refers to a characteristic set of structural and functional kidney abnormalities in patients with diabetes (Kanwar et al., 2011). The structural abnormalities include hypertrophy of the kidney, increase in glomerular basement membrane (GBM) thickness, nodular and diffuse glomerulosclerosis, tubular atrophy, and interstitial fibrosis (Kimmestiel and Wilson, 1936; Alebiosu et al., 2002; Tervaert et al., 2010). The functional alterations include an early increase in glomerular filtration rate (GFR) with intraglomerular hypertension, subsequent proteinuria, systemic hypertension, and eventual loss of renal function (Hostetter et al., 1982; Fioretto and Mauer, 2007)
2.6.1 Stages of DN
Based on the GFR decline, renal physiology and albumin excretion progression of DN has been classified into five different stages as suggested by Mogensen et al. (1983).
Table 2.2. Different stages of diabetic nephropathy
Designation Characteristics GFR
(ml/min/1.73m2) Albumin Excretion Chronology
Stage 1 Hyperfunction and hypertrophy Glomerular Hyperfiltration >90 May be increased Present at the time of diagnosis
Stage 2 Silent stage Thickened GBM Expanded mesangium 60-90 < 200 mg/dl First five years Stage 3 Incipient stage Microalbuminuria 30-59 30-300 mg/dl 6-15 years Stage 4 Overt diabetic nephropathy Macroalbuminuria 15-29 > 380 mg/dl 15-25 years
Stage 5 Uremic ESRD
Marcel, a 29 year-old Paraguayan male, received a 33-day sentence for larceny and was mandatorily detained by Immigration and Customs Enforcement (ICE). Min Soo, a 30 year-old woman from South Korea, who, like Marcel, was mandatorily detained without bond for the offense of larceny. Because law on immigration consequences .1 that flow from a conviction for larceny2 is in flux, in certain states Marcel and Min Soo may have a strong challenge to their classification as mandatory detainees. However, since being categorized as “mandatorily detainable”, Marcel and Min Soo were ineligible for bond adjudication before an immigration judge .3 Since all mandatory detainees receive a risk classification assessment (RCA), Marcel and Minn Soo were scored and categorized as low to medium risk, which suggests that were they not mandatorily detained by statute, and they should not have been detained at all.
In this article, I examine mandatory detention through the lens of the ICE’s risk classification assessment (RCA). The RCA assigns risk scores to those in custody, which are used for detention decisions and security assignments in detention. Even those mandatorily detainable receive an RCA score, revealing detailed information about their criminal backgrounds on the one hand and equities on the other. These factors are calculated to reveal the detainees’ risk to public safety and flight. The findings demonstrate that mandatory detainees, such as Marcel and Minn Soo, are not generally high risk, and are no more dangerous than any other group of immigrants in ICE custody who are eligible for bond or released outright, and, thus, like them, mandatory detainees should be eligible for bond, or released outright . Additional findings demonstrate that ICE mandatorily detains those who clearly should not be mandatorily detained under the statutes as well as those who arguably do not fall under an enumerated offense .
The article also examines mandatory detention through the lens of structural violence4 to account for the physical and psychological harm that mandatory detention inflicts on noncitizens, overwhelmingly of color. Structural violence is a term ascribed to Johan Galtung in 1969, which refers to an indirect “avoidable impairment of fundamental human needs” (, p. 167). It affects those at the bottom rungs of society, and can be attributed to racism, xenophobia, and nationalism. Noncitizens who find themselves in immigration custody are at this bottom rung.
As applied to law, scholars refer to legal violence to take stock of the violent effects of immigration law on noncitizens . Whereas “legal violence” scholarship focuses on the effects of law, this article examines the violence embedded in legal decisions themselves, which creates an unsafe space for noncitizens, and removes options for relief. Violence is compounded by the system of crimmigration law that denies bond and legitimately removes procedural safeguards.
Mandatory detention is a violence that is exerted indirectly through 8 U.S.C.1226, the process for detaining noncitizens in removal proceedings. As discussed below, structural violence is embedded in immigration law, particularly the government’s plenary power to detain. Harm is created for the noncitizen along a lengthy process of denying procedural and substantive justice. The violence can be tracked to immigration law’s harshly asymmetrical power dynamic, which diminishes the human dignity of noncitizens, as well as to court decisions that “bait and switch” a criminal process for a civil process. Much of the structural violence that diminishes the quality of life for the subset of noncitizens with prior crimes is concealed by assertions of legitimacy and due process, as real world decisions actually occur in private halls and behind concrete prison walls.
The concept of benevolent violence similarly describes inequality with reference to unjust social, political, and economic systems . This article recognizes neoliberalism as coinciding chronologically with crimmigration (early 1980s), and informing the development of individualizing and criminalizing strategies of social control, as applied to immigration law, with reference to public law and criminal law more generally. As detention capacity increased during the 1980s, private prisons like the Corrections Corporation of America started detaining immigrants for profit. The profit motive for private firms led to interest groups applying pressure to Congress for more detention facilities. Indeed, from 1985 to 1988, immigration detention bed space nearly tripled, from 6000 beds to 16,000 beds, and exploded during the 1990s with the construction and renovation of new facilities, which provided capacity for immigration authorities to detain thousands of more removable noncitizens.
By the early 2000s, ICE’s capacity to detain helped to turn the rationale for detaining to depend less on individualized determinations of dangerousness and more on categorical determinations of aggravated felonies, crimes involving moral turpitude, and legislatively imposed bed quotas, which encourage mass detention. Contrary to the narrative, neither public safety nor assuring appearances at hearings are at risk, but, rather, the rule of law itself. Rule of law norms, such as as proportionality, publicity and accountability, are trampled by mandatory detention practices.
After discussing mandatory detention within the historical context of immigration law, the article will document mandatory detention as an unnecessarily harsh deprivation of individual liberty. Although the loss of liberty applies individually to noncitizens, decisions are categorical and thus take no account of individual characteristics, such as a noncitizen’s legal status, risk score or likelihood of relief. They profile noncitizens that are overwhelmingly of color and impugn human dignity by detaining without bond.
For purposes of operationalizing the concept, I examine structural violence in terms of a system of law that allows and overlooks unnecessary and unjustified deprivations of liberty according to ICE’s own standards and guidelines. Although all noncitizens in mandatory detention have been deprived of liberty without due process of law, I will highlight the subset of those who might not have been detained had they not been subjected to a categorical determination to mandatory detention under 236c. This category of individuals includes those who receive low and medium risk scores, and whose criminal offense is not necessarily mandatorily detainable under 8 U.S.C. 1226. It highlights the injustice of detaining those who are not a high risk and those who were wrongly detained with a flagrant disregard for fundamental rights to be free. The violence is indirect and embedded in the legal process. It exists in the detention of those with prior crimes, particularly those who, even ICE, says it would not mandatorily detain. The structural violence here is located in the lack of accountability for a wrongful detention. It is ostensibly invisible for lack of bond and review authority (aside from a Joseph hearing5). In particular, the article points to a system of immigration law that allows ICE to detain on the basis of a secretive RCA algorithm, including even those it ambiguously and erroneously categorizes as mandatorily detainable. The article recommends ameliorating this structural violence by abolishing mandatory detention.
2. Background: The Structural Violence of Mandatory Detention
Mandatory detention exists in the legal crosshairs of criminal law and immigration law, referred to as crimmigration [9,10,11,12].6 Crimmigration consists of a structurally violent space where immigration authorities punish noncitizens, mostly those of color, under the guise of non-punitive civil law. The space is derived from a foundational dynamic of crimmigration law: the state wielding nearly unchecked power over noncitizens holding few procedural rights and fewer substantive rights. This dynamic produces a gross disparity of power over right, and explains the exceptional status of immigration law . Noncitizen males of color are the most likely victims of this largely overlooked patch of the criminal justice system. This system punishes individuals for crimes for which they have already been punished—sometimes long ago—with the disproportionate punishment of mandatory detention and removal, only because this intersection of immigration and crime is technically civil not criminal, and thus affords in this instance almost no legal accountability.
The subsection of noncitizens with a prior crime on their record is particularly vulnerable to mandatory detention. For any offense that now counts as an aggravated felony or crime involving moral turpitude, such noncitizens are one interaction with law enforcement away from being torn from families, friends, neighborhoods and jobs, and tossed into mandatory detention, with the high likelihood of being removed from the country. The immigration enforcement regime that developed during the early 2000s and consists of Secure Communities, PEP, 287(g) and a dozen other enforcement programs under ICE ACESS (an enforcement initiative that includes 13 programs) is largely premised upon raising the risk of detention and removal following an unfavorable encounter with law enforcement . For this group it can never be said that individuals have “served their time”. Every day, in this country, they face the possibility of serving additional time.
3. The Derivation of Structural Violence in Immigration Law
Structural violence originates in late 19th century legislation that established an immigration system, criminal in function, but civil in form. The system received legitimacy from a set of highly deferential Court opinions, starting with Chae Chan Ping and Fong Yue Ting that discerned plenary powers in the political branches and then deferred to them. In 1896, the same Court that decided Plessy v Ferguson pinned plenary powers onto decisions to detain immigrants (of color) as part of the civil process . Unlike Plessy, overturned in 1954, these cases were not overturned, and thus toxic racism and bigotry continues to poison the process of detention and removal . The racist ideology that gave rise to Chinese exclusion continues to deprive individuals of their liberty through Demore v Kim , which cited Wong Wing as justification for mandatory detention . Although, in recent years, courts in several circuits have sided with detained immigrants who are subjected to mandatory detention for prolonged periods of time, such decisions remain at the margins of a regime deeply steeped in structural violence .
The Court envisioned plenary powers as a way for the political branches to expeditiously dispatch with imagined (and real) enemies of the state with impunity.7 Turned inward, the courts extended plenary powers to decisions about whom to detain as part of the removal process, hence ensuring immigration detention would also be off the table in terms of substantive review. Congress had the final say over whom to hold and remove and delegated this plenary power to the executive, where it now resides with the Secretary of Homeland Security.
The oppression of detained immigrants was born of this dynamic. Judicial precedent legitimized state power over immigrants and policies treating noncitizens differently than citizens, and punishing immigrants under the auspices of civil law . Thus, political branches could imprison without punishing, and detain without attracting the scrutiny reserved for those in criminal prisons. Legally speaking, mandatory detainees are civil detainees, not criminals, and their detention—opposed to incarceration—is not punishment. Additionally, political branches could categorically detain individuals on substantive grounds that would violate constitutional safeguards in non-immigration contexts. As an outcome, provisions also apply retroactively, and with no statute of limitations.
4. Mandatory Detention
The mandatory detention provision applies at the outset of the removal processes on two groups of noncitizens: (1) those convicted of certain prior crimes; and (2) those placed into non-judicial removal proceedings (i.e., removed administratively by DHS, rather than after a full hearing before an immigration judge). Additionally, at the end of removal processes, noncitizens are often placed in mandatory detention for 90 days or longer after an immigration judge issues a formal removal order.8
In 1996, in the Illegal Immigration Reform and Responsibility Act (IIRIRA), Congress mandated that immigration enforcement authorities “shall take into custody” individuals pending removal who have committed a broad category of crimes, “when the alien is released” from criminal custody [22,23].9 This mandatory detention provision, U.S.C. § 1226(c), contributes greatly to over-incarceration. It provides for the automatic no-bond detention of persons convicted of certain enumerated offenses of varying degrees of seriousness—ranging all the way from minor offenses like shoplifting or possession of small quantities of drugs to major crimes of violence. It defines some of those crimes as “aggravated felonies” and “crimes involving moral turpitude”, terms of art that impose severe immigration consequences but that include minor, nonviolent offenses10 including simple possession of small quantities of drugs .
Since most offenses are state crimes, ICE must ensure that the state offense matches federal definitions before subjecting a noncitizen to mandatory detention. The classification of crimes that may qualify as “aggravated felonies” or “crimes involving moral turpitude” is an evolving area of law. Because of variations in interpretation among circuits, and the way a state law is articulated and applied, in each state very similar offenses are potentially subject to very different immigration consequences. There are no public data reporting the number of individuals mandatorily detained for criminal convictions, but this number is potentially significant given the large number that DHS removes following a criminal conviction (, p. 13, Table 2).11
In a series of recent decisions, the Supreme Court reaffirmed that whether a particular conviction constitutes an “aggravated felony” or a “crime involving moral turpitude” is determined by whether there is a categorical “match” between the elements of the state offense as defined by statute and the “generic” definition of that offense or the way it is commonly understood.12 Using this analysis, the Fourth Circuit has found that many common Maryland offenses are not properly classified as “aggravated felonies” . When the state offense is broader than the generic federal definition of the crime, such offenses do not qualify as aggravated felonies or as crimes involving moral turpitude.
As several former INS officials argued in an amicus brief in Demore v Kim, absolutist rulemaking authority under 1226(c) hinders fair and efficient efforts at detention . Since those mandatorily detained hold fewer rights than nearly all those similarly situated elsewhere in public law, mandatory detention amounts to a wholesale rejection of a balanced approach (with applicable legal norms) to detention and release determinations that transports it outside public law norms [34,35]. Unlike in the criminal justice system, for example, mandatory detention decisions are made without a neutral magistrate, individualized determination with regard to risk of flight or to public safety, clear and convincing evidence in support of a decision to deny release, or any record to explain why release has been denied (; , p. 9).
Crimmigration scholars have emphatically demonstrated that immigration detention functions as punishment ; detention conditions are punitive and demeaning [37,38,39]; detention is “indistinguishable from jails” , and in fact, frequently takes place in local jails that contract with ICE; and the system was deliberately designed to be punitive . It has also been documented that state of the art surveillance technologies have the capacity to constrain the liberty of those who are not detained but are instead placed on ankle bracelets or similar monitoring devices [14,42,43]. In addition to extensively documenting the criminal function of immigration detention , scholars have also pointed to the failure of courts to explain how this form of detention could possibly not amount to punishment . This highlights the structural violence embedded in mandatory detention specifically, as well as in punitive immigration enforcement laws more generally, redirecting attention back to the history of violence and exclusion that the immigration system manifests, beginning with the Chinese exclusion cases.
The dynamic behind mandatory detention seems irresistible to political leaders across the political spectrum, which helps explain why President Obama’s ostensibly liberal democratic administration has detained individuals at unprecedented levels. Over two million immigrants have been detained since 2009, about 400,000 individuals annually and about 34,000 on any given day. In fiscal year 2013, U.S. Immigration and Customs Enforcement (ICE) detained nearly 441,000 noncitizens pending deportation proceedings (, p. 5)—the largest number of individuals passing through any U.S. incarceration system, federal or state . On any given day, 34,000 individuals were detained, leading Dora Schriro (2009), assistant to former DHS Secretary Janet Napolitano, to observe that ICE has the “largest detention…program in the country” .
Even as bipartisan support grows for reductions in criminal incarceration13 including pretrial detention,14 no similar support exists to reduce immigration detention, so as a result, ICE’s detention rates remain stubbornly high. In fiscal year 2013, ICE detained nearly 80 percent of its arrestees , while criminal law scholars criticize jurisdictions in the U.S. pretrial detention system that unnecessarily detains 38 to 42 percent of defendants . Although detention numbers dropped in fiscal year 2014 to 425,478, with 33,227 individuals on a given day, the immigration system’s starting point continues to be widespread over-detention , even more pronounced than criminal pretrial over-detention [52,53].
At almost every turn, ICE interprets mandatory detention provisions as authorizing it to absolutely detain anybody whose conviction even arguably falls under the enumerated offenses, even where the law is evolving, unclear or contradictory, and regardless of how long their detention lasts or is likely to last . As detention numbers suggest, it, instead, is simply resolving almost every legal or factual ambiguity in favor of the government,15 keeping the challenger in mandatory detention unless he or she had essentially already prevailed in their immigration case.
DHS has publicly interpreted the provision mandating “custody” to require detention, i.e., physical incarceration, as a matter of DHS policy .16 Some advocates and elected officials have argued that “custody” encompasses alternative measures such as electronic monitoring, based on U.S. criminal law precedents [56,57]. DHS has also interpreted the provision “when the alien is released” to require detention at any time after release from criminal custody—even years later—rather than only at the time of actual release [58,59]. That interpretation has been heavily litigated in federal courts, with some division among circuits as to whether ICE should take custody immediately following a criminal conviction or whether it may do so many years—sometimes decades—after the person has been released from incarceration17 .
With mandatory detention, hundreds of thousands of immigrants who ordinarily would have qualified for release on bond or other conditions now end up in immigration detention for the duration of their immigration proceedings. Because of the complexity of immigration cases that involve charges based on prior state crimes, these proceedings routinely take up to or longer than a year to resolve . Additionally, the complexity of reconciling state criminal offenses with the INA adds to the challenge of making individual determinations effectively, and leads to a systematic bias in favor of detention. These structural realities of mandatory detention inflict severe harm on immigrants, their families, and their communities, at nearly every turn.
5. ICE’s Risk Classification Assessment (RCA)
ICE’s “Risk Classification Assessment” (RCA) initiative, from the outset, was designed to advance Administration initiatives to reduce and better tailor its use of detention, and increase use of alternatives to detention (ATD), as part of its broader effort to make immigration detention “truly civil” .18 RCA is nonetheless administered to all those in custody, even those mandatorily detainable, and documents the irony of a risk based system that over-detains due to the absolutist categories of mandatory detention, thus ignoring the purpose of a risk tool to reduce and better tailor its use of detention.
ICE’s RCA is a computerized algorithm that ICE uses in its book-in process to assess two primary factors: Risk to public safety, and risk of flight from proceedings .19 ICE officers collect criminal and immigration history throu gh records checks, and family and personal data, such as local ties, family history, residency history, or substance abuse, through an intake interview (, p. 6). The algorithm then recommends detention or release, the amount of bail (if any), and detention or supervision levels.20 ICE has never released its methodology nor business rules.
ICE conducts the RCA on all noncitizens that enter its custody, including those apprehended by other DHS agencies or components. The only significant exception, as of late 2012, was that ICE officers were not required to complete an RCA for any alien for whom detention is mandatory and whose departure or removal will likely occur within five days.21 After an RCA recommendation is made, an ICE supervisor issues a final determination as to custody status.