A new lawsuit claims Immigration and Customs Enforcement (ICE) rigged software to create a “secret no-release policy” for people suspected of breaking immigration laws. ICE’s New York office uses a risk assessment algorithm to recommend that an arrestee be released or detained until a hearing. But the New York Civil Liberties Union and Bronx Defenders say the algorithm was changed in 2015 and again in 2017, removing the ability to recommend release, even for arrestees who posed no threat.

The Risk Classification Assessment (RCA) analyzes a subject’s criminal history, family ties, and other data. Theoretically, it should reach a verdict of “detain” or “release” (with or without bail). Reuters reported in 2018, however, that ICE had removed the “release” option. Instead, the system could only recommend detention or refer the case to an ICE supervisor — who, the lawsuit says, would almost never order a release.

NYCLU and Bronx Defenders filed a public records request for more details, and yesterday, they used the resulting information to sue ICE’s New York field office. When the system was implemented in 2013, the suit notes, roughly 40 percent of people that immigration officers arrested were released with or without bond. Between 2017 and 2019, the number dropped below 3 percent. This coincided with a massive spike in arresting immigrants without criminal convictions who should have been more likely to qualify for release.

The algorithm recommended detention or release, but ICE took out the “release” option

Detaining nonviolent immigrants with no flight risk can have devastating consequences. Prisoners can spend weeks or months in jail without being convicted of a crime, awaiting a hearing before a judge. Many lose connections with their families and communities, are fired from jobs, or receive shoddy care for serious medical conditions. (New York’s cash bail system has put poor non-immigrants in similar positions, although a bail reform law took effect this year.) Meanwhile, Reuters wrote that courts have been overloaded with hearings for detained immigrants — 40 percent of whom were released after their hearings.

The class action lawsuit claims that ICE violated prisoners’ due process rights under the Fifth Amendment, alongside other regulations. “ICE is legally required to make individual assessments and cannot outsource its statutory and constitutional duties to a rigged algorithm,” said NYCLU staff attorney Amy Belsher in a statement.

ICE’s alleged algorithm rigging is part of a larger immigration crackdown by the Trump administration — including increased surveillance of visa applicants, DNA collection from detained immigrants, and overcrowded detention centers with brutal living conditions.

It’s also an extreme extension of a widely acknowledged problem with the criminal justice system. Many US courts use computerized risk assessment systems to grant or deny bail. But these systems are opaque and resist meaningful oversight, and a ProPublica report suggested that they contain inadvertent racial bias.

In this case, Belsher told The Intercept, “the main function of the RCA is to provide a veneer of objectivity and fairness to a process that lacks it entirely.” An ICE spokesperson told The Intercept that she was “not inclined to comment on pending litigation.”