06/16/2010 05:12 am ET | Updated May 25, 2011

Crimmigration: How Misdemeanor Offenses Are Becoming Modern-Day Jim Crow Laws

In his recently released book "Texas Tough: The Rise of a Prison Empire", author Robert Perkinson analyzes the life and times of America's harshest, largest penal system and notes that Jim Crow has moved behind bars. The same analysis can be applied to the immigration detention system, given not only the proliferation of detention centers in the state of Texas, but also the surge in the detainee population which includes legal permanent residents held for indefinite periods of time, many of them as a result of misdemeanor offenses.

As outlined in Texas Tough, the statistics relating to incarceration are astounding. The United States incarcerates a greater portion of its citizenry than any other, about 1 out of every 100 adults, and manages the largest penal system in the world. Perkinson notes that "America's criminal justice juggernaut currently consumes more than $200 billion a year and employes 2.4 million individuals to keep 7.3 million others under formal supervision".

But even as incarceration expanded and the discourse over its utility continued, Perkinson noted that "relatively few commentators were making the entwined histories of criminal punishment and racial subjugation a central category of analysis". So Perkinson decided to focus his analysis on Texas not only because its prison system is the largest in the country, but also because "from its inception, the state has served as a contentious testing ground for rival styles of penal discipline: retribution versus rehabilitation".

So exactly why are the residents of Texas being incarcerated? According to Perkinson, "of the roughly 170,000 persons confined to Texas prisons, some 90,000 of them are classified as non-violent ... Between 1985 and 1995, the incarceration rate for nonviolent offenders increased by 86 percent, but the nonviolent rate soared by 478 percent." This was due in large part to the War on Drugs. The disparity in racial and ethnic composition of incarcerated individuals is also glaringly obvious. Notes Perkinson, "From 1865 forward - through the black codes, Redemption, Jim Crow, and on into the present - African American (and to a lesser extent other nonwhites) have been disproportionately arrested, indicted and imprisoned".

The racial disparity is not unique to the state of Texas. Last year, sociologist Harry G. Levine released his study, Targeting Blacks: The NYPD's Huge Number of Racially-Biased Arrests for Marijuana and other Misdemeanors. According to the report, from 1997 to 2008 New York City and the NYPD made twelve times more arrests for marijuana possession than from 1985 to 1996. Blacks and Latinos are 53% of NY City's population, but constitute 86% of the people arrested for marijuana. On the other hand, whites constitute over 35% of NY City's population, and make up less than 12% of people arrested for marijuana possession, despite government studies showing that young whites use marijuana at a higher rate than blacks and latinos.

An arrest for marijuana possession can have far-reaching consequences for a legal permanent resident, since it is at this point that criminal and immigration laws intersect - hence the term "crimmigration". Following a misdemeanor conviction, the individual is then held in immigration detention pending deportation, pursuant to an immigration detainer put in place by Immigration and Customs Enforcment (ICE). While the detained individual awaits deportation, ICE has the discretion to transfer him/her within its vast network of detention centers nationwide, even if the location is far away from the detainee's home town or family support system. The Texas Observer recently reported that one-third of the nation's immigrant detainees are housed in Texas facilities. Port Isabel and Willacy County Detention Center (otherwise known as "Tent City") are two of the state's largest. Combined, they can hold up to 4,000 ICE detainees.

In Texas Tough, Perkinson concludes that "American lockups have become harsher, more regimented, more racially divisive and markedly less rehabilitative. They no longer aim to repair and redeem, but to warehouse, avenge and permanently differentiate". The same can be said of the immigration detention system. But this does not have to be the case, given the available alternatives to detention.

Arlene M. Roberts is the author of The Faces of Detention and Deportation: A Report on the Forced Repatriation of Immigrants from the English-speaking Caribbean.

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