Practical Abolition: Universal Representation as an Alternative to Immigration Detention

Abstract

Currently, there is a broad movement, embraced by both liberal and conservative factions, successfully advocating for criminal decarceration. The compelling point for conservatives is that maintaining custody of these individuals is too costly to taxpayers and a burden on both state and federal budgets. For liberal factions, lengthy incarceration has been harmful to individuals whose livelihood and families are affected by their detention. By relying on Derrick Bell’s convergence theory, this Article demonstrates the current opportunity to replicate the success of the criminal decarceration movement in the context of immigration detention. This Article provides a first step in a practical pathway toward radically downsizing and eventually eliminating immigration detention. If the United States can comfortably release individuals from criminal detention while mitigating concerns about flight risk and danger to the community, then the same logic applies even more persuasively for civil immigration detention. After all, individuals in immigration detention are primarily held for an alleged civil violation – that they lack, or have yet to prove, some cognizable status to remain lawfully in the United States. If the ultimate purpose of immigration detention is to ensure attendance at future hearings, there are more humane and cost-efficient ways of doing so.

This Article primarily relies on a fiscal argument that has broader appeal than the typical theoretical underpinnings of an abolitionist framework. This Article proposes that funds that would normally fuel the immigration detention apparatus instead be reallocated to local non-profits and public defender offices. These local organizations could provide universal representation in immigration proceedings to those individuals who would have otherwise been detained during the pendency of those proceedings.

Universal representation is a more cost-effective approach than immigration detention in ensuring attendance at future immigration hearings, especially when coupled with low-cost wrap-around community services. Satisfying the ultimate purpose of detention through other means demonstrates that immigration detention is unnecessary. Eliminating immigration detention would result in higher tax revenue while reducing the overall costs of system administration. It would also lower external costs to states and localities that frequently occur when immigration detention separates families. Providing universal representation would be a less expensive alternative that would also ensure a greater likelihood for individuals to successfully obtain relief in their immigration proceedings. This vision of a more just system tracks with a less carceral approach as an initial step toward abolition of immigration detention.

Keywords: immigration, immigration detention, abolition, universal representation, convergence theory