Bail reform has been an ongoing project for years for both scholars and advocates, and now many states have adopted some measure of bail reform policy, often with positive results. Scholarship has long discussed the need for the elimination of monetary bail and an overhaul of detention practices in the federal immigration system. However, the immigration detention regime has learned no lessons from recent developments in the criminal justice system. Federal immigration detention still heavily relies on the use of monetary bond and overly invasive surveillance and alternatives-to-detention systems. Moreover, the current immigration bond systems lack any meaningful risk assessment tools that exist in the criminal justice pre-trial detention systems, leading to an overwhelming tendency in favor of detention because immigration officials lack guidance, training, or expertise to meaningfully make detention determinations. In 2017, New Jersey eliminated monetary bail and overhauled its pre-trial detention system, drastically reducing its detention rates. This article contends that as states implement bail reform in the criminal justice system, the immigration system continues to fall behind this changing landscape. Comparing the immigration detention system with New Jersey’s bail reform system, this article hopes to highlight the severe discrepancies between the two detention systems. This article utilizes the New Jersey detention system as a model to compare the current immigration bond system. Not only does this comparative analysis highlight the deficiencies in the immigration detention system, but it also brings to the forefront the ways in which these two detention systems intersect. Noncitizen defendants find themselves in the ultimate Catch-22—after being released from criminal pre-trial detention, they end up in immigration detention where they cannot secure release due to their pending criminal charges, despite a state criminal court judge having already found them to merit release. This article proposes that the immigration detention system must catch up to the reforms in the criminal justice system in order for both systems to work efficiently and fairly.

Continue reading A Detainee’s Catch-22: What Can New Jersey’s Bail Reform Teach Us About Immigration Detention?