Yesterday, the United States Commission on Civil Rights* released a new report* on conditions at immigration detention facilities. As the controversial rhetoric of this year's presidential campaigns has demonstrated, immigration is a red-hot issue this year and sober, careful research on how immigration laws are being enforced is sorely needed. For reasons that commission members Peter Kirsanow and Gail Heriot** discuss in their statements, however, this Commission report is far from being a model of such research.

"The Commission…went into this project intent on uncovering a scandal.  Instead of conducting an actual investigation, it structured its initial fact-finding simply to amplify stale rumor and innuendo," Commissioner Gail Heriot wrote in dissent.  "No effort was undertaken to establish whether the allegations—all of which were already public—were fact or fancy.  The point was simply to give the witnesses an opportunity to make the allegations again at our briefing…this time before the C-Span cameras…. It is said that where there is smoke, there is fire.  But sometimes where there is smoke, there is only a smoke-making machine, busily stoked by publicists working for activist organizations." 

Thus, the report breathlessly recounts allegations of maggots in the food at the now-closed Willacy County Detention Center in Texas, but strangely ignores two near-in-time government reports that cast serious doubt on the allegation. Likewise, it repeats allegations from MALDEF attorney Marisa Bono of sexual assault, while ignoring an Inspector General report that indicated that those allegations were without factual foundation. It also recounts the story of the death of transgender detainee Victor/Victoria Arellano from HIV/AIDS and strongly implies that ICE acted wrongly. Yet the staff members who wrote the report never asked ICE for their side of the story. When Commissioners Heriot and Kirsanow did, ICE responded that Arellano originally refused treatment because of supposed allergies to the relevant medications, suggesting that the true story of what happened may be more complicated. The Kirsanow dissent catalogues additional problems, among them the use of photographs that purport to portray particular immigration detention facilities but actually appear to been taken elsewhere and the use of misleading statistics about immigration and crime.

Like many other Federalist Society members of a libertarian bent, I am in favor of simplifying immigration law so as to make it easier for more people to live and work in the United States. I am well aware that not all of my right-of-center fellow travelers agree. Coming up with policy solutions that will improve the system at the margin is thus far from an easy task, especially in a world with a seemingly-impregnable welfare state. Repeating lurid allegations about maggot-infested food without carefully examining them to see if they are true does precisely nothing to make a difficult debate easier.

For additional coverage of the Commission report, please see the Tucson Sun, the Los Angeles Times, McClatchy News, CNS News, the International Business Times, the Washington Examiner, Reuters, the Huffington Post, the Southeast Texas Record, and The Washington Times. See also this Wall Street Journal video.

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*Commission staff inadvertently omitted Commissioner Kirsanow's dissent from the version of the final report posted online. I understand that they are working to fix that error, among others. In the meantime, Commissioner Kirsanow's dissent may be found here.

**I work as Gail Heriot's special assistant and counsel at the Commission; I helped Gail research and edit the dissent linked to here. The views expressed in this post, however, are mine alone and are not necessarily those of Gail Heriot, the Commission on Civil Rights, or anyone other than me.