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Free Up the Prisoners

Why immigrant advocates should move from reform of prisons to abolition

Migrating to Prison: America’s Obsession with Locking Up Immigrants by Cesar Cuauhtémoc García Hernández. New Press, 208 pages.                                         

The Trump administration’s treatment of immigrants has generated anger and confusion, with deep resentment of the “kids in cages” phenomenon. Such outrage among Americans betrays a lack of knowledge of conditions for immigrants in the last twenty-five years. Previous administrations might not have made an open spectacle of separating children from parents at the border or unnecessarily locking up immigrants, but the U.S. Border Patrol could fairly be described as “monstrous” well before the Trump administration. Moreover, in 2017 and 2018, when the “children in cages” outrage was at its peak, most activists sought alleviation of prison conditions or reunification of children with parents, rather than broaching the idea of outright abolition of imprisonment.

One would have hoped that in the wake of the coronavirus pandemic, prison abolition would have gained strength, but so far—both for prisoners in general and immigrant prisoners in particular—even the horrors of intensely close-range contagion barely make a ripple in mainstream news coverage. In the last couple of years, the impression has taken hold that the dire crisis of minors in concentration camps has abated, yet there are still nearly seven thousand minors held in detention facilities across the United States. Meanwhile, the vast gulag of immigration prisons, which reaches back to the Clinton administration and has only expanded with each successive administration, doesn’t receive the scrutiny it deserves because we have become accustomed to the idea that many immigrants should be in prison.

If we no longer demand outright abolition of prisons, it’s partly because our minds have become saturated with images of immigrants in steel-wire holding pens, making us believe that this is normal. Would it surprise readers to learn that in the 1950s we had all but done away with immigration prisons? Indeed, this is what President Eisenhower’s attorney general Herbert Brownell attained with the closure of Ellis Island, typically romanticized as a welcoming disembarkation point but in reality also serving as a detention center at the same time. Ellis Island, like Angel Island in San Francisco Bay, was a zone apart, where constitutional norms did not apply. The fiction that the immigrant hadn’t really landed on American soil—which would trigger due process rights—was taken to extremes in cases such as that of Ellen Knauff, who was unjustly imprisoned from 1948 through 1951 on Ellis Island; she was confronted with secret evidence and hearsay that her admittance would be “prejudicial” to the United States. There has been a lasting double-standard, applying to today’s proliferating prisons along the southern border, where migrants continue to be deprived of human rights beyond the reach of constitutional law. The principle that the courts applied to Knauff—that due process can be denied for aliens refused entry—is the same faulty standard applied to immigrants today.

The vast gulag of immigration prisons, which reaches back to the Clinton administration, has only expanded with each successive administration.

The backstory of this presumably better past, when Knauff was one of the last of the cases of extended imprisonment, is that the decline of immigrant imprisonment followed the end of mass migration to the United States in the 1920s. By the 1950s, immigration was at historic lows and most immigrants and their descendants from the early part of the century had been fully assimilated; there wasn’t a perceived need for a punitive regime. It wasn’t liberal tolerance pervading the Eisenhower administration, which, incidentally, was also pursuing Operation Wetback at the same time. Within fifteen years of mass migration resuming after the 1965 immigration liberalization, imprisonment started becoming a reality as well.

Still, even during the Reagan administration, the number of immigrant prisoners was only in the low thousands, where they stayed into the early 1990s. But after President Clinton’s creation of the conditions for mass imprisonment—expanding the meaning of “criminal alien,” escalating the enforcement of minor technical violations, depriving asylum seekers and refugees of the benefit of the doubt, and ending the possibility of circular migration—the numbers rose steadily. Almost forty thousand people were in federal detention on any given day during the Obama administration. The problem of immigrants in prison, in short, is not a new reality; it has been a full-blown crisis since the Clinton administration, which set up the entire legal apparatus to justify mass imprisonment. The construction of prisons, and increasing reliance on private prisons, also reached new heights in the same period, affecting immigrants even more harshly than the rest of the population.

While the concept of “criminal alien” has recently become established in immigration enforcement, it is noteworthy that from 1892 to 1984 only 14,287 people were formally barred because of criminal activity. In 1970 a mere 575 people were charged with immigration crimes, while as late as 1993 this was true of just over 2,487 people. Even in 1994, only 8,604 people were locked up annually while facing charges of immigration crime. Today, half a million people each year spend some time in the immigration prison system.

In Migrating to Prison, Cesar Cuauhtémoc García Hernández puts both the financial and political motives for the explosive rise of immigration imprisonment into broader context. Many small towns rely on prison as a major source of jobs and revenue, their mayors and administrators being outspoken about the financial need. Florence, Arizona—one of Garcia Hernández’s examples—relies almost entirely on prison revenue, as two-thirds of the town’s population consists of various types of prisoners. As García Hernández notes, “The immigration prison is a reminder that human bondage based on racial and economic markers of undesirability can’t be relegated to some distant past.”

The prisons García Hernández has personally explored—the Willacy County Processing Center in Raymondville, Texas, the Port Isabel Detention Center in South Texas, the Eloy Detention Center in Arizona—often go back and forth between serving Immigration and Customs Enforcement (or the INS in the old days) to the Federal Bureau of Prisons (BOP), or in the other direction. The Cibola County Correctional Center in New Mexico “went from housing immigration offenders for the BOP to housing people ICE was trying to deport . . . while Willacy County . . . in Texas went in the opposite direction.” This is yet another nail in the coffin of deniability about immigration prisoners being a category apart.

While it may be consoling to preserve the fiction that immigration prisoners constitute a separate category, that they are not really prisoners in the ordinary sense, their actual mixing with prisoners of all sorts, in prisons and jails around the country, belies this comforting mythology. Immigrant prisoners, whether recent arrivals or long-term residents, are kept with regular prisoners serving long or even life sentences, and their treatment cannot uphold the myth that immigrants are mere “administrative detainees,” serving time for what are essentially civil violations. Prisoners wear different colored uniforms to signify whether they are there for immigration or other crimes, but they inhabit the same prisons under the same restrictions, and if that is the case, then they must be provided with the same defenses available to ordinary criminals. To call the facilities holding immigrant prisoners detention centers, service processing centers, or residential centers, rather than the prisons they actually are, is wrong and unhelpful to successful advocacy.

Immigrant prisoners are kept with regular prisoners serving long sentences, and their treatment cannot uphold the myth that immigrants are mere “administrative detainees.”

To be profitable, prisons only need prisoners, and getting paid lucratively by the federal government is what matters most, not the type of prisoner being acquired. The two leading private prison corporations, CoreCivic (which used to be CCA, or Corrections Corporation of America) and the GEO Group (formerly the Wackenhut Corporation), along with smaller corporations such as Management & Training Corporation (MTC), have the same interest as lawmakers in both parties, and politicians at the local and regional level, in promoting the imprisonment of as many immigrants as possible. The federal government, after all, pays very handsomely, on the order of at least $140 a day per immigrant prisoner, or about $60,000 to $80,000 a year. Imagine how small a sum in comparison would be needed to help an immigrant facing legal trouble, by getting him or her an attorney and providing community support to fight their case in a transparent and supportive manner. It would not only be humane, but the cost savings would be enormous.

If we accept the idea of immigrant prisons—and the justifying logic of the “criminal alien”—so easily, it’s because, as García Hernández explains, in the post-civil rights era crime and drugs have substituted for overt racism. Mass incarceration since the Reagan era has been built on the conflation of crime, drugs, and race in order to mark out the undesirables. Mandatory minimums and truth-in-sentencing guidelines have reduced judicial latitude, while the popularity of the “broken windows” policing theory has fueled the zero-tolerance approach toward crime to a point where rational distinctions fail to be made.

Precisely the same logic has been applied to immigrant policing. Compassion is missing toward immigrants who may have been in the country for as long as twenty, thirty, or forty years, yet find themselves entrapped in the prison system for minor crimes committed and paid for long ago. The same is true of the resurgent application of such concepts as “crimes of moral turpitude,” which, as García Hernández explains, first arose as racism directed toward Chinese immigrants at the end of the nineteenth century. Mass incarceration in general was boosted by the war on drugs, such as in the much harsher punishment for possession of crack cocaine compared to powder cocaine. The same unreasonable distinctions apply to citizens versus noncitizens. It’s legal to buy 28 grams of marijuana from a dispensary in states that allow it, but a noncitizen, even a permanent resident, possessing 30 grams of marijuana is subject to ICE custody. García Hernández tells us that the Obama administration pursued a case about an immigrant possessing one pill of Xanax and another about a man with a sock containing four pills of Adderall all the way to the Supreme Court.

The inordinate, though obviously justified, public attention to Trump’s child separation policy and ICE raids has blurred the continuity of policies García Hernández describes. Take, for example, the case of Kamyar Samimi, an Iranian immigrant in his sixties who had lived in the United States for decades before he was arrested in 2017 for a prior possession of cocaine in a small amount, which literally ended his life due to lack of medical treatment for opioid withdrawal symptoms in the Eloy prison. Another typical example is that of David Rodriguez, a popular chef at Houston’s “it” cafe on the east side, Tout Suite, who, like Samimi, was imprisoned for a crime for which he’d already been sentenced and punished long ago. These instances of “aggravated felonies” fail to treat immigrants as human beings full of complexity, with both good and bad features, rather than the abstractions of pure goodness supported by the zero tolerance policy toward crime in general and immigrants in particular.

The 1996 Clinton-era immigration law known as IIRIRA (Illegal Immigration Reform and Immigrant Responsibility Act) has been the key instigator here, solidifying the concept of “aggravated felony,” which is often neither aggravated nor a felony, and can refer to something as minor as shoplifting or misinformation on tax returns, from which no relief can be obtained by way of judicial discretion (among the primary drivers of the rise of mass incarceration in general has been the attack on the discretion of judges), and which require mandatory sentencing and imprisonment prior to deportation. Along with aggravated felony, the other major contribution of the 1996 legislation was to establish the principle of “expedited removal,” which severely curtails the right of some immigrants to appeal deportation as in the past.

While narratives of immigrants embedded in desperation and crime provide the emotional fodder for incarceration, it turns out that even some of the most drummed-up instances of immigrant crime do not stand up to scrutiny. Though Trump has used the notorious Kate Steinle case to great demagogic effect, the immigrant charged with discharging the gun and killing Steinle on a pier has been found not guilty of the crime, and even the charge of unlawful possession of the gun (because he only picked up a gun wrapped in cloth under a bench) has been dismissed. Demonizing the “criminal alien” who murdered Kate Steinle is no different in essence from Obama’s enforcement slogan, “felons, not families,” without addressing the nature of crimes such felons are supposed to have committed, as well as the reality that felons like everyone else cannot be viewed aside from families and communities—unless we admit that crime substitutes for the racial vocabulary no longer permitted in public discourse.

It hasn’t helped that immigrant rights advocates have themselves provided much of the intellectual fuel for incarceration by separating good from bad immigrants, the good ones being the superheroes who never make a mistake, get angry, become undisciplined, lose employment, get a divorce, or commit abuse or are abused. The good versus bad dichotomy—which manifested most egregiously in the construction of the DACA recipients, or Dreamers, as superheroes without moral failings—falls into the trap of setting up desirable immigrants as the only ones deserving of public sympathy, thus leaving all the rest as ripe targets for the imprisonment trap. As García Hernández remarks, “Migrants are expected to live out the exceptionalism that U.S. citizens imagine in themselves.”

Language is important for the way we describe those who are ensnared in the immigration gulag, whether under Clinton, Bush, Obama, or Trump. It is vital to call them prisoners rather than detainees, because doing so highlights the anomaly of immigrant prisoners being treated like prisoners without having the rights of prisoners. The only solution—which immigrant rights supporters interested in seeing an end to imprisonment should consider—is to eliminate the fictitious distinctions between “criminal aliens” and normal criminals. To grant this false distinction is to open up an abyss in legal treatment, which is the foundation of immigration internment. Immigrant prisons are simply the physical space where the legal double-standard takes place in a corporeal sense, so instead of focusing on the prison, the legal vacuum behind the prison must assume centrality in advocacy work. In essence, the shadowy zone once represented by Ellis Island and Angel Island has become replicated all over the country.

In recent years, the prison abolition movement, building on the philosophical arguments put forth by Angela Davis, Calvin Dodge, Ruth Wilson Gilmore, and other thinkers, has started to sound much like it did in the late 1960s and early 1970s, before it started falling victim to the law-and-order panic initiated by Nixon and followed up by every president since then. To apply Davis’s broad philosophical argument might yield a superior result than some of the knee-jerk reaction to Trump’s kids in cages abomination because our focus would then shift from the profit motive (which undoubtedly is a driver), or the temporariness of the violation, and move instead toward the dark imaginative forces that separate worthy and unworthy immigrants. We might go so far as to say that activists collaborate in the theoretical justification for immigrant imprisonment when they presume that a migrant must not have committed any sort of crime in order to be free.

Lest the reader think that abolition of prisons is a fantasy that has no chance of being applied in the immigration arena, in the strongest part of his book, García Hernández provides precisely such examples of real-life successes. These stand out even more than for the abolition of regular prisons because immigrant crimes are typically those of entry or reentry into the country, which are low-level violations. García Hernández provides examples of experiments during the 1980s, 1990s, and 2000s when resources were devoted to helping immigrants deal with their cases on the outside rather than inside a prison. In a future progressive administration, advocates should work to translate these earlier experiments into national policy as we look forward to total abolition of immigrant prisons rather than to impose selective human rights principles upon a basically immoral system. Just as restoration and rehabilitation are better alternatives to incarceration for the normal population, the same applies to immigrants who should be offered every chance to integrate in their communities while awaiting resolution of their cases.

The common misconception that an immigrant, if released into the community pending disposition of his or her case, will disappear into anonymity and never show up for a court date has been shown to be baseless because that’s just not how people operate. Immigrants, like anyone else, are part of families, neighborhoods, and communities. A few might disappear, but the overwhelming majority won’t. Thus the main justification to imprison immigrants—that if we release them on their own recognizance they will disappear and add to lawlessness—falls apart upon scrutiny. In fact, evidence shows that lawfulness increases when immigrants are treated as human beings and allowed to meet court dates, prepared and assisted by the community.

Lest the reader think that abolition of prisons is a fantasy that has no chance of being applied in the immigration arena, there are examples of real-life successes.

The Family Unity Project in New York released immigrants who showed up for court dates in overwhelming numbers, with a 98 percent success rate. Before getting a lawyer, 4 percent fended off removal; after getting a lawyer, 42 percent did. From 1987 to 1999, in a program initiated by the Reagan administration, the United States Catholic Conference moved the much-maligned Mariel Cubans into the community, with similar overwhelming success. In 1997 under the Clinton administration, the INS partnered with the Vera Institute of Justice in New York, with similar results. And during the Obama administration, ICE partnered with Lutheran Immigration and Refugee Services, and although it was a tiny program, it did have a 100 percent compliance rate in immigrants following court orders and abiding by legal requirements.

There is an obvious philosophical case to be made that if we want to elicit participation in legality, we need to make the process fair. If we imprison and harass immigrants, depriving them of the right to counsel in prison and separating them from their families and communities, they will obviously see the process as unfair and will have less reason to comply. But transparency and fairness will elicit participation in greater numbers rather than encouraging escape and hiding.

García Hernández argues throughout the book against the kind of narrow-minded “reforms” that consolidate the principle of immigrant imprisonment. But he points out other reforms that are more genuine and take us closer to abolition. Ending illegal entry and illegal reentry as federal crimes, separating ICE altogether from the criminal justice system, and providing every immigrant with a lawyer, a work permit, and community assistance are some of the most obvious means to make abolition a reality that works to enhance the spirit of lawfulness throughout the community. Opposed to these authentic reforms are the ones advocates spend so much time supporting, all of which only make the immigration prison system more resilient and permanent.

Under all recent administrations, Democrat or Republican, immigrants have often been put in prison as a matter of default. The definition of “criminal alien” becomes meaningless when we treat the act of migration itself as a crime, such as the seeking of asylum by means of physical presence, which is recognized under international law, or when we expand the definition of crimes by resorting to aggravated felonies, so that decades after the fact the immigrant finds himself paying a second, much higher, price by losing immigration status. Even more absurd is pressuring immigrants in prisons in ways that are designed to elicit resistance, which then makes one a criminal.

Migrating to Prison makes the persuasive case that the astronomical boom in imprisonment of immigrants stems from exactly the same root causes, both financial and political, as the dramatic escalation in mass incarceration. The case for abolition of prisons in general and immigrant prisons in particular rests on the same grounds. The unconscionable number of people in prison attests to the disjuncture between the actual occurrence of crime and the political interest in apprehending so-called criminals. The U.S. prison population went from around three hundred thousand to more than two million from 1980 to the present, with an even sharper escalation in the immigrant prison population; it’s not that crime went up by such an exponential amount, but that the definition of crime was altered. The starting point for defenders is to redefine whom we understand as criminals, which in turn should lead to the groundwork for abolishing prison. After paying the price for committing a crime, a person is supposed to be able to go back into the community; the same principle should apply to immigrants, rather than pretending that we can aspire to immigrants who will never commit any sort of a moral or legal violation, big or small.

Immigration prisons do not have to be part of our immigration system at all. Immigration can be administered without immigration prisons, as normal prisons can take care of the few actual criminals, a guiding principle campaigners would do well to remember. Perhaps García Hernández’s most radical idea is that “countering the dehumanizing spirit of the bipartisan embrace of immigration prisons needs to begin with a wholesale embrace of the imperfect humanity of migrants.” Unfortunately, a lot of advocacy work relies on tugging the heart strings toward blameless or victimized immigrants, as though the rest didn’t deserve equal sympathy and legal rights.