ICE is spending billions of taxpayer dollars to radically expand immigrant detention, including the latest controversial turn toward repurposing warehouses as Project Salt Box has been documenting so consistently and impressively. You can also see my recent video outside the warehouse near Hagerstown, Maryland.
But is all this detention necessary, even according to current immigration law and ICE’s own stated objectives? What could be done to make the immigration process more fair and humane? How can we use research to rethink detention and invest in policies and technologies that actually work rather than exacerbate suffering? What is the “non-detained docket” and why do we know so little about it?
Claire Trickler-McNulty, an attorney with years of experience in detention reform inside the Department of Homeland Security, joined me to discuss precisely these questions today. Claire’s career took her from immigration law practice to the American Bar Association, then into DHS itself, first at the Office for Civil Rights and Civil Liberties, then directly into ICE, where she worked on detention reform and alternatives to detention across the Obama, Trump, and Biden administrations. Claire is one of the few people who can speak from direct experience about how custody decisions actually get made inside the agency, what programs have been tried, and why they keep getting cut short before anyone can properly evaluate them.
Programming note: Claire and I hosted a public conversation over Zoom last week but there was an issue with the video recording. This Substack Live is basically a re-recording of that conversation so that those of you who couldn’t make the previous one can still get the thrust of the conversation.
We spent a lot of time in our conversation discussing the non-detained docket, which is a term that most people outside of immigration policy have probably never encountered but which represents one of the most consequential and least understood parts of the entire immigration system.
When ICE encounters someone and places them into removal proceedings, the agency makes a custody decision: either detain them or release them into the community under some form of supervision or monitoring while their case proceeds. The people who are released make up what ICE calls the non-detained docket, and that population currently stands at roughly 7.6 million people. Even if the government achieves its goal of expanding detention to 100,000 beds, an unprecedented number, that would still represent only a tiny fraction of the people who are actually moving through the immigration system at any given time.
This matters because the current political conversation around immigration enforcement is almost entirely focused on detention and removal, as though those are the only tools available and the only outcomes worth measuring. The reality is that the vast majority of people in the immigration system will never be detained, and the government’s ability to manage that population effectively depends on policies and programs that receive almost no attention or investment compared to detention.
Alternatives that have been tried, including case management programs under the Obama and Biden administrations and ICE’s own Alternatives to Detention program, have shown strong compliance rates at a fraction of the cost of a detention bed. ICE’s own published data shows over 90% appearance rates at initial court hearings for people on ATD, at roughly $7 a day compared to $200 to $300 a day for detention. And yet every one of these alternative programs has been shut down or defunded before the people enrolled in them even completed their immigration cases, leaving us with a pattern of promising starts and premature endings that prevent any real evaluation of what works.
Claire goes into much greater detail on the history and potential of these programs in a recent piece she co-authored with Andrea R. Flores and Deborah Fleischaker at Securing America’s Promise titled “How to Build a Future Without Family Detention.” It is one of the most substantive things I have read on this topic in a long time, and I would strongly encourage anyone following this issue to read it closely. For context, you might want to go back and read some of my recent data and discussion around the re-emergence of family detention, too.