Decline in ICE Detainees with Criminal Records Could Shape Agency's Response to COVID-19 Pandemic

The latest available data indicate that most civil immigrant detainees held by Immigration and Customs Enforcement (ICE) do not have a single criminal conviction. In March 2020, in fact, more than six out of ten (61.2%) had no conviction, not even for a minor petty offense. The latest detailed case-by-case records obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University also reveal that even among immigrant detainees who have a conviction, few of these convictions are for what ICE labels as serious crimes where individuals are thought to pose a threat to public safety. Just one in ten (10.7%) detainees, less than 6,000 detainees nationwide, have a serious criminal conviction on record as of July 2019-a five-year low. TRAC also found that the proportion of detainees with criminal records varies widely across ICE's nationwide network of detention facilities. See newly updated details here.

These findings continue trends and confirm results on ICE detention practices previously reported by TRAC in its two-part series published last November and December.

In light of new questions about how to manage detention during the coronavirus pandemic, these findings take on new importance.

COVID-19 and Detained Immigrants

The COVID-19 (coronavirus) pandemic has had a sudden and profound impact on nearly all aspects of life in the United States, and raised significant questions about how federal agencies should respond to the crisis. Given what the CDC referred to as the "unique challenges for control of COVID-19" inside detention centers, public debate has emerged surrounding how Immigration and Customs Enforcement (ICE) should manage the risk the virus poses for civil detainees in the agency's custody. Indeed, some federal judges are already beginning to urge ICE to release at-risk detainees.

ICE published specific guidance on COVID-19 in detention facilities and announced that the agency will temporarily draw down on enforcement efforts by focusing arrests on "public safety risks" and using "alternatives to detention." The agency did not directly address if or how it would use its discretion to release current detainees who do not fall under mandatory detention guidelines. Yet ICE's use of discretion in decisions about arrest and detention has long been influenced by immigrants' criminal histories.

TRAC examined the prevalence of criminal records throughout ICE's detained population to understand the scale of ICE's potential use of discretion and to understand how each detention facility may be uniquely impacted by changes to ICE's detention practices. Our detailed findings are discussed below.

Figure 1. Total Number at Month End of ICE Civil Detainees With and Without Criminal Convictions
(Click for larger image)

Most Detained Immigrants Have No Criminal Conviction

At the end of March 2020, more than six out of ten (61.2%) immigrants held in ICE's civil detention centers have never been convicted of a crime. The current figure is by no means an anomaly. As shown in Figure 1, total ICE detainees at the end of the month during the last five years (spanning the period March 2015 through March 2020) document that the majority of ICE civil detainees have never been convicted of any offense. In fact, these percentages have never fallen below 50 percent since September 2016.

The total number of ICE civil detainees has varied over this period. Starting from a low of 25,780 in March 2015 to a high of 55,654 in July 2019, before falling currently to 38,058. Throughout this period, however, the growth in the number of ICE detainees has been driven virtually entirely by detainees with no record of a criminal conviction, which likely includes many recently arrived asylum-seekers.

The number of ICE detainees with a criminal conviction peaked in October of 2017 at less than 20,000 (19,264), then declined steadily until today. That numbers has fallen below 15,000 during each of the past five months (November 2019 through March 2020). See Table 1 at the end of this report for actual counts. (For more information about TRAC's data sources on detainees, please see sidebar, About the Data.)

Number of Serious Criminals in ICE Custody Reaches 5-Year Low

While most ICE detainees have no convictions, an even smaller proportion of ICE detainees-just one in ten (10.7%)-have committed what the agency defined as serious (Level 1) crimes. Figure 2 displays national trends by the most serious offense (Level 1, 2, or 3) for ICE detainees who have a criminal conviction.

The number of detainees with Level 1 convictions has declined steadily from about 8,000 in October 2017 to less than 6,000 for May, June, and July 2019. Over the same time period, the number of detainees convicted of only a misdemeanor or petty violation (Level 3) overtook Level 1 convictions, a trend which continues despite a moderate decline in the summer of 2019. Level 3 offenses included such offenses as traffic violations, possession of marijuana, public order crimes, as well as illegal entry.

See TRAC's previous report for a more detailed discussion of each of ICE's Level 1, Level 2, and Level 3 classifications. Visit TRAC's free interactive query tool on ICE detention for a complete list of offenses by ICE level of seriousness.

Figure 2. Number at Month End of ICE Civil Detainees with Criminal Convictions by ICE Priority Level
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Composition of ICE Detainees Varies Widely by Detention Facility

While national trends are instructive, ICE's detention facilities vary widely in terms of the volume of detainees with convictions, and the volume of detainees who have been convicted of serious crimes. In some of ICE's facilities, such as family detention centers, 100 percent of detainees had no criminal conviction of any kind. For others, such as Clinton County Correction Facility in Pennsylvania and the Northern Oregon Correctional Facility in Wasco County in Oregon, nearly every detainee had some type of criminal conviction.

For example, out of nearly 2,000 detainees held at the Stewart Detention Center in rural Georgia, operated as one of the largest for-profit detention centers in the country, just 14 percent fit ICE's most serious criminal classification category (Level 1) in July 2019. Sixty-five percent of detainees had no criminal conviction at all and about 18 percent fit the lowest level of conviction classification (Level 3). In contrast, Mesa Verde ICE Processing Center in San Francisco, California, held 354 detainees, 42 percent of whom had a conviction which ICE classifies as the most serious (Level 1).

In five detention facilities, half or more of ICE detainees had a serious (Level 1) conviction. These included Val Verde Detention Center in Texas (59%), Charleston County Corrections in South Carolina (55%), Marshall County Jail in Iowa (52%), Phelps County Jail in Nebraska (50%), and Douglas County Corrections in Nebraska (50%). In contrast, some 18 other ICE detention facilities had 5 percent or less of detainees who had a serious conviction.

Many factors contribute to the composition of detainees at a particular facility, but the differences in composition provide additional perspective on which facilities may be most impacted by ICE's use of discretion in managing civil detention during the COVID- 19 pandemic.

Table 2 shows the breakdown in detainees' criminal record for detention centers with at least 10 detainees at the end of July 2019, the most recent month for which TRAC has detailed data providing this breakdown.

Data Provides Perspective, But Responsibility for Detainees Safety During COVID-19 Response Falls on ICE

These results show that most of the beds in ICE detention on any given day are occupied by civil detainees with no criminal conviction or at most a conviction for a misdemeanor or petty offense. ICE possess more flexibility for detainees with little or no criminal history including where they are detained, the amount of staff required for supervision, and the range of options available for release including ICE's alternatives to detention (ATD) programs. ICE's own criteria for supervision and release is more complicated and individualized than just criminal history, and ICE ultimately has the authority to use its discretion according to agency priorities. However, this data provides insight into the number of detainees affected by ICE's approach to detention management at this challenging time.