USA: technical violations, immigration detainers, and other bad reasons to keep people in jail

How ICE and probation and parole detainers (or “holds”) contribute to unnecessary jailing

By now, most people paying attention to the U.S. criminal justice system have heard about problems with the overuse and misuse of local jails. Chief among these problems are the serious, even deadly, harms caused by even brief periods of jail detention. But one problem has escaped the attention of the public and policymakers alike: the unnecessary jail detention caused by “detainers,” which account for as much as one-third of some jail populations, if not more. This briefing explains how detainers (also often called “holds”) contribute to unnecessary jailing, and offers a preliminary analysis of available national, state, and local data as evidence of a widespread policy problem that demands greater attention.

Detainers, explained

Typically, people in jails are categorized as unconvicted (65% nationally) or convicted (35%). In our Mass Incarceration: The Whole Pie report, we have been able to go one step further, breaking apart the roughly 16% who are held for other agencies that pay to keep them boarded there. But another group of people are still obscured by this breakdown of the jail population: people who are in jail for more than one reason, who have what we’ll call a “dual status.” A significant number of people are locked up because of some kind of “detainer” or “hold” for their probation or immigration status, for example, which renders them ineligible for release. These people aren’t brought into jail on a detainer, but the detainer can keep them there when they otherwise could have gone home.

For example, if someone who is on probation is charged with a new low-level offense, they can be held in jail without bail if the probation department has issued a detainer for violating their probation. In fact, this is a critical part of Kalief Browder’s story: initially held on unaffordable bail, he was later denied bail because the Probation Department filed paperwork saying the new charge meant he had violated probation. It was the “violation of probation” – or “probation hold” – that kept Browder at Riker’s so long, causing irreparable harm that led to his eventual death. Without his dual status as a probationer, he probably wouldn’t have had money bail set in the first place: his friend, who was arrested along with him but was not on probation, was allowed to go home the next day. Even with his probation status, the judge was willing to set bail. It was only when the Probation Department stepped in to make their claim on his freedom that the judge remanded him without bail.

Detainers or “holds” are an overlooked policy problem that carries significant personal, social, and fiscal costs. They often expose detained people to the harms of incarceration for longer periods of time than they would be otherwise. This includes innocent people like Browder, whose case was dismissed three years into his time at Riker’s, after tremendous damage had already been done. By delaying jail releases, detainers also contribute to avoidable public costs by filling up local jails, often with people who are accused of low-level offenses. Detainers undermine the work of local jurisdictions trying to reduce unnecessary detention through pretrial reform, keeping people locked up for essentially administrative reasons rather than public safety reasons.

Detainers that impact jail populations most: Probation & parole holds and ICE detainers

As we touched upon above, probation and parole violations account for a lot of detainers. These can be for either “technical violations” or new violations of law. Technical violations are behaviors that break probation or parole rules, such as missing curfew, failing a drug test, or missing a check-in meeting; they are not behaviors that would count as “crimes” for someone not under community supervision. However, when people who are under community supervision are charged with a new crime, that also constitutes a violation of their probation or parole, and typically must be reported. Individuals can be kept in jail without bail for either type of violation on a probation or parole detainer.

In a 2019 report, the Council of State Governments (CSG) found that “45% of state prison admissions nationwide are due to violations of probation or parole.” Technical violations alone account for 25% of prison admissions; even less (20%) are for new criminal offenses. There is no comparable analysis for jails, but the fact that community supervision violations contribute so significantly to prison populations is suggestive that these violations could be responsible for large numbers of people locked up in jails as well.

U.S. Immigration and Customs Enforcement (ICE) also uses detainers to keep people in local jails to give ICE time to take them into federal custody for eventual deportation. These detainers, or “immigration holds,” request that local officials to notify ICE before a specific individual is released from jail custody and then to keep them there for up to 48 hours after their release date. These detainers essentially ask local law enforcement to jail people even when there are no criminal charges pending.

These detainers are the subject of heated debate, as many local jurisdictions are reluctant to take on the risk of litigation and liability associated with the constitutional concerns they raise (and/or reluctant to support the Trump administration’s immigration policy), which is reflected in the growing number of detainer refusals. Part of their reluctance may be that these risks are often taken on unnecessarily: ICE doesn’t consistently take these individuals into its own custody, even when it issues a detainer for them. The last time ICE released data on this point, the agency was only assuming custody in 35% of all cases where they issued a detainer – meaning that most of the time, jails that kept people locked up on ICE detainers did so for no reason at all.