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The Shutdown Deal Includes More ICE Detention Beds. That Doesn't Mean Mattresses.

What the agency actually wants is the funding to detain more people than ever before.
A bunk bed and desks inside a cell are seen at the Caroline Detention Facility in Bowling Green, Virginia, on August 13th, 2018. A former regional jail, the facility has been contracted by the U.S. Department of Homeland Security Immigration and Customs Enforcement to house undocumented adult immigrant detainees for violations of immigration laws.

A bunk bed and desks inside a cell are seen at the Caroline Detention Facility in Bowling Green, Virginia, on August 13th, 2018. A former regional jail, the facility has been contracted by the U.S. Department of Homeland Security Immigration and Customs Enforcement to house undocumented adult immigrant detainees for violations of immigration laws.

As leaders of both parties worked on a deal to avoid another government shutdown, multiple news outlets reported that an aspect of immigration policy had become a sticking point—and it wasn't the border wall. Instead, Democrats and Republicans disagreed over the number of "immigrant detention beds" the country should have. Democrats wanted to cap the number of detention beds as a way to rein in Immigration and Customs Enforcement's growing deportation force; Republicans not only refused the cap, but wanted more funding for more beds.

If Democrats were to cap the number of beds, could that mean that detained immigrants would be forced to stay in overcrowded conditions? In other words, might ICE continue to detain large numbers of people, even if they could not adequately house them?

The worry about a bed shortage in detention centers, a potential human-rights issue, did not come out of nowhere. In December, the death of two children in Customs and Border Patrol custody threw a media spotlight on the conditions of CBP's short-term holding cells. Migrants have long called the detention centers "hieleras" (ice boxes), a name for some facilities' freezing-cold concrete rooms, or "perreras" (dog pounds), a reference to how some facilities hold groups of migrants in large metal cages. In many instances, migrants have reported a shortage of beds.

It's important to clarify, though, that the current debate about immigration detention beds has nothing to do with CBP short-term detention. It's about ICE detention. Border Patrol's short-term detention is for people recently caught crossing the border, and the law requires that detainees only remain in such holding for fewer than three days (though there are plenty of instances of that law being broken). ICE detention is an entirely different system for jailing immigrants, normally for much longer periods of time.

It's also important to understand that the debate is not about actual beds, but rather the level of funding Congress provides ICE to detain people—and then how ICE ends up using that money.

Here's how this gets muddled: Each year, Congress allocates a specific amount of funding for ICE's detention operations. Because the budget can be broken down by the cost per detainee, ICE and Congress can talk about that budget in terms of people, which they call the "average daily population," or ADP. This number doesn't necessarily correspond to actual people in cells, but rather the slots available for detention—which, in bureaucratic language, becomes the number of "beds" available for detaining people.

Of course, this doesn't mean that ICE adds or takes away beds based on how the budget changes. Think of it this way: A hypothetical ICE detention facility has 100 beds. But filling each of those beds is expensive, because detaining a human being comes with a lot of costs—for food, care, personnel, guards, and more. (According to ICE's 2018 budget report, it cost the agency an average of $133.99 per day to detain an adult.) So even though this hypothetical facility has 100 physical beds, ICE might only be funded for, say, 80 budgetary beds, meaning an ADP of 80. If ICE wants to detain 20 more people, it will ask for funding for "more beds." This isn't a budget for actual places for people to sleep, but rather the money to pay for the detention of those 20 additional people.

From 2012 to 2017, ICE was funded for an ADP of 34,000. But for the last two years, ICE has come back to Congress with a surprise: It had dramatically overspent its budget for detention. ICE was detaining significantly more people—upwards of 50,000.

"Over the last couple years, ICE has overspent [its] budget that was allocated by Congress for detention," says Madhuri Grewal, the federal immigration policy counsel for the American Civil Liberties Union. "So over the last few years, Congress has gotten more specific and more aggressive about directing that funding, basically telling ICE to stop overspending."

In May of 2018, congressional Republicans raised ICE's ADP funding to 40,520, the highest ever. They also told ICE to keep to its budget, and provide weekly reports to Congress on how the agency was "living within its means" when it comes to detention.

But ICE promptly overspent again. By June, the agency came back to Congress explaining that it needed an extra $200 million to make it through the rest of the year.

ICE has consistently asked Congress for "supplemental" funding to fill in the agency's overspending (which the until-recently Republican-controlled Congress obliged). ICE has also diverted funds from other government agencies to pay for its detentions. In September of 2018, Senator Jeff Merkley (D-Oregon) released documents that revealed ICE had diverted $10 million in funding originally meant for the Federal Emergency Management Agency to pay for detention—in June, at the start of hurricane season.

ICE is currently detaining significantly more people than the ADP of 40,520 for which it's funded. In September of 2018, 42,105 people were in detention. In January, the number ballooned to 46,492. Last week, the Washington Post reported that there were 48,747 people in ICE detention.

Coming back around to the "bed cap" debate, Democrats have realized that, even if Congress sets a budget cap on how many people ICE can detain, ICE might still overspend, as they have in the past. So, as part of the shutdown negotiations, Democrats proposed setting a cap not based on the budget, but on the actual number of people in detention. In other words, instead of telling ICE, "You only have the funding to detain X number of people on average per day," Democrats wanted to tell ICE, "You are hereby restricted from detaining more than X number of people per day." The number they proposed was 35,400 people, or 35,400 "beds."

However, on Monday, Democrats abandoned this proposed bed cap, after it met with strong opposition from ICE and Republicans. The Trump administration not only opposed the cap, but requested funding for an ADP of 52,000. A compromise was reached to keep ADP funding at current levels (42,520). But GOP leaders still hailed the compromise as a victory for Republicans, as the current bill allows ICE to divert funding from other agencies to support the detention of over 58,000 people if necessary.

Congress is expected to vote on the spending bill Thursday evening.