After decades of advocacy and organizing, the harm of mass imprisonment, and its racist underpinnings, has reached the national stage. Earlier this year, Hillary Clinton, noting that the United States is the world’s largest jailer and that crime is at historic lows, called for an “end to mass incarceration.” She explained, “Keeping [people] behind bars does little to reduce crime. But it is does a lot to tear apart families and communities.” Similarly, President Obama has stated, “In too many places, black boys and black men, Latino boys and Latino men experience being treated differently under the law. Mass incarceration makes our country worse off, and we need to do something about it.”
Citing both to decreases in mass incarceration, as well as private prisons’ poor records, the Department of Justice (DOJ) announced in August that it would stop renewing contracts with private prisons. These changes and critiques, however, do not address a key component of the prison industrial complex that has exploded in size over the past two decades: the mass incarceration of immigrants facing possible deportation. At this moment, this disconnect couldn’t be more clear. We are detaining more immigrants than ever before. Immigration and Customs Enforcement (ICE) is now even working to reopen the same private prisons that have lost their DOJ contracts. The gains we are making in decreasing mass incarceration are being undermined by the increasing mass incarceration of immigrants. The invisibility of immigrant detention in calls to decrease the country’s prison population not only dehumanizes noncitizens; it is also self-defeating to create comfort with the incarceration of any group, especially given both systems’ roots in the heavily racialized “wars” on crime, the poor, and terror.
The United States currently maintains the world’s largest immigrant detention system, imprisoning 380,000 to 442,000 people annually. Two laws passed in 1996 – the Anti-Terrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)—have played a huge role in bringing about this outcome. Passed in a racialized and highly punitive political climate, the laws expanded the government's power to arrest, imprison, and deport noncitizens on a massive scale.
In AEDPA’s and IIRIRA’s wake, the U.S. has locked up over 3 million people in immigration detention, spending tens of billions of dollars in the process—at a cost of more than $5 million per day. Immigration and Customs Enforcement (ICE) holds immigrants in a vast network of over 200 county jails, privately-owned detention centers, and some federal prisons. Since 2009, Congress has mandated that ICE maintain 34,000 beds, a tenfold increase in detention relative to 1995.
The mission to deport on a massive scale leads all sorts of noncitizens—for myriad reasons—to end up in immigration prison. It could be a long-time lawful permanent resident with an old conviction for a simple marijuana possession, or a survivor of torture who is seeking asylum. It could also be a U.S. military veteran who had no legal avenues to present positive factors of her life to a judge, a refugee who has been here since he was a child facing deportation to a country he has never set foot in, or a dedicated community leader who has turned his life around after serving a prison sentence arrested by ICE years later in a home raid. This is because the 1996 laws vastly expanded the convictions that trigger mandatory detention and deportation – often including misdemeanor offenses such as shoplifting and forgery – regardless of how old the conviction.
Like prisoners in the criminal legal system, immigration detainees are denied freedom, shackled during visitation and court appearances, imprisoned in cells, surveilled, strip searched, and subject to solitary confinement, abuse, and inadequate medical treatment. But they are not provided legal counsel. The result is that the vast majority of detained immigrants – 86 percent – do not have a lawyer and have to represent themselves in exceedingly complicated proceedings. What’s more, immigrants subject to mandatory detention are generally not allowed a bond hearing – the opportunity to prove to a judge that they are not dangerous and that they are not a flight risk. They thus cannot offer evidence of the central roles they play in their families and communities. Detainees, often far from their loved ones, without legal counsel, are hard forced to compile the necessary documents and construct the complex legal arguments to win their immigration case.
This translates into what is effectively an indefinite prison sentence, as it lasts the duration of a detainee’s immigration proceeding. Especially for those who have a strong case, such proceedings can take years. Many simply give up fighting and give in to speedy deportation without a hearing.
The emotional and psychological anguish associated with such uncertainty are profound, as are other human costs of immigrant detention. They include medical neglect and death, sexual abuse, and abuse of LGBTQ detainees. The destruction to family and community life is also widespread.
There are also other profound impacts that go beyond the physical incarceration. When deprived of freedom, there are precious moments in life that cannot be recovered. Parents miss the birth of their children, graduations, and can lose their children to foster care. Families are destabilized and traumatized. People lose their jobs, businesses, and their homes. They miss the opportunity to say a final goodbye to a loved one. In the case of deportees, they are denied the opportunity to hug their children goodbye before being shipped to a country they may have no memory of and where, in many cases, they may face persecution or death.
It is not surprising that a country that has long used mass imprisonment to punish and control the poor and people of color would readily develop the logic and infrastructure to do the same to immigrants. We seem to have little ability to move away from punitive solutions, despite the evidence that the justification for locking people up in cages is thin and that the harm is deep—a fact that even those who have played a key role in furthering the system have been forced to concede. As Hillary Clinton stated in April, “When we talk about one and a half million missing African American men, we're talking about missing husbands, missing fathers, missing brothers. They're not there to look after their children or bring home a paycheck. And the consequences are profound.”
Such words from Democrats and Republicans, hardly imaginable 20 years ago, have emerged largely as a result of the political space created by the movements to end mass incarceration and state violence. Organizers, academics, and advocates, including those most impacted by immigration detention and mass incarceration, are making important connections between these intertwined struggles. Ending immigration detention must be a key component to ending mass incarceration. Neglecting it will only perpetuate the logic that the severe deprivation of liberty for large numbers of people is necessary and justifiable, and undermines the struggle to reverse the criminalization of the poor and communities of color.
Immigrant Defense Project is a member of the Immigrant Justice Network, a collaboration between the Immigrant Defense Project, the National Immigration Project of the National Lawyer’s Guild and the Immigrant Legal Resource Center working to end criminalization and #FIX96. Thanks to Mizue Aizeki and Anthony Enriquez for their contributions to this post.