Immigration Detention Is Part of Mass Incarceration: The Case for Abolishing ICE and Everything Else

By Cora Currier, The Intercept

31 December 19

ot many people besides immigration law wonks had probably heard of “Section 1325,” before Julián Castro called for repealing it during the first Democratic presidential primary debate this summer. The law in question makes it a federal crime to enter the U.S. without permission — turning an immigration offense into a criminal one. President Donald Trump used a policy of “zero tolerance” for breaking that law to justify separating families at the border, but under George W. Bush and Barack Obama before him, 1325, along with illegal reentry — coming back after being deported — was already being used to jail and deport more and more immigrants. In fact, immigration-related crimes now make up the majority of all federal criminal prosecutions.

Castro’s proposal to repeal 1325 might have seemed to come out of left field, but it’s the exercise of the law that is historically the outlier: While laws criminalizing entry have existed since 1929, they “were largely ignored for a century,” the lawyer and scholar César Cuauhtémoc García Hernández reminds us in a new book, “Migrating to Prison: America’s Obsession with Locking Up Immigrants.” In 1975, he noted “a mere 575 people” were charged with an immigration crime; in 1993, only 2,487. Contrast that with fiscal year 2018, when prosecutors brought 105,692 federal immigration charges.

The criminalization of immigration, especially the scale at which it happens now, is a relatively recent trend, Hernández argues. And it ought to be reversed. His book joins a number of recent works that put contemporary immigration politics in the same light that scholars and activists have shone on mass incarceration — showing it to be a phenomenon inextricably linked to the history of land, race, and capitalism in the United States. “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,” Hernández writes. “If we’re willing to lock people up, we’ll find a reason. Most of the time the targets will be people of color. We can call this coincidence, but we would be lying to ourselves.”

Hernández lays out in a lucid, linear fashion the evolution of immigration law and its enforcement in the United States, from laws restricting the movement of certain people across state lines — formerly enslaved people, for instance — to the Chinese Exclusion Act of 1882, the first in a series of acts that barred Asian immigrants for decades.

Any history of how the notion of “illegality” in migration took root has to consider the experience of Mexicans. While the first U.S. immigration laws focused with explicit racism on excluding Asians, Mexicans were the ones often physically targeted by Border Patrol — harassed, removed, or allowed to pass to satisfy the desires of powerful Southwest planters. In Hernández’s words, Border Patrol “detained and deported their way to a scared workforce.” Many of those workers, whether unauthorized or sanctioned under the bracero program, which ran from 1942 to 1964, were rendered “illegal” by the 1965 Immigration and Nationality Act, which got rid of national quotas and more or less established the United States’ current immigration regime, wherein countries are allotted a certain number of visas. Though ostensibly a progressive measure doing away with the racist quotas and nationality bans of previous eras, when it came to Mexico, the act, also known as Hart-Celler, ignored the closeness of the nations and subjected Mexicans to a national cap nowhere near high enough to accommodate traditional migration levels. “Perversely, the Hart-Celler Act’s formal equality turned immigration law against Mexican migrants,” Hernández writes. Mexicans became “illegal,” and “illegal aliens” became racially coded as Mexican.

Its focus on detention sets Hernández’s book apart from other recent histories of immigration and the border, including Kelly Lytle Hernández’s history of the Border Patrol; “Undocumented Lives: The Untold Story of Mexican Migration,” by Ana Raquel Minian; and Greg Grandin’s “The End of Myth: From the Frontier to the Border Wall in the Mind of America.” Early immigration prisons were “atrocious” “dockside facilities,” like a two-story wooden shed on the San Francisco wharf run by the Pacific Mail Steamship Company, where Chinese migrants waited to be approved entry by U.S. officials. Ironically, it was to address these terrible conditions in company-run centers that the federal government got involved, creating facilities like Ellis Island in the New York Harbor, which opened in 1892, and Angel Island in the San Francisco Bay. For the first time, Congress required inspection officers “to detain anyone not ‘clearly and beyond doubt entitled to admission,’” César Cuauhtémoc García Hernández writes in “Migrating to Prison.” In 1896, the Supreme Court “emphatically declared that immigration imprisonment was constitutionally permissible.”

Yet it was a relatively brief experiment. By 1954, under Dwight D. Eisenhower, Immigration and Naturalization Service (the precursor to today’s immigration agencies) “had all but abandoned its detention policy.” Ellis Island shut down with little fanfare. Hernández concludes that, “in fact if not in law, the United States came remarkably close to abolishing immigration imprisonment.” While that was, in the words of the attorney general at the time, a step in the direction of “humane administration of the immigration laws,” it was also self-interested, Hernández notes. Immigration prisons were costly, and, as has been the case throughout U.S. history, businesses wanted migrants out of prison so they could be used as cheap labor.

Again, Hernández connects this history to that of incarceration writ large in the U.S. There was a time when, even within Richard Nixon’s Justice Department, the utility of prison was questioned. But the ’70s ushered in a politically orchestrated crime panic, and the war on drugs, which led to mandatory minimum prison terms and sentencing disparities for powder cocaine and crack. A parallel process played out with immigration. Migrants, like black Americans, were linked to drugs, crime, and unrest, and portrayed as leeches on government services.

In the 1980s and ’90s, legislation introduced new levels of criminality for immigrants, which in turn expanded the population of imprisoned people. As Hernández writes, “Congress denied immigration judges the discretion to release anyone convicted of an aggravated felony,” which includes serious offenses like murder but also shoplifting and tax fraud. Detention and deportation, once decided with considerable discretion, became mandatory for all sorts of offenses. The link between mass incarceration and immigrant incarceration is clear in the legislative history: The same 1986 law that created mandatory minimum sentences for crack cocaine created “detainers,” requests to local police to hold someone in jail until they can be picked up by immigration. Liberals were complicit too. As Grandin notes, Bill Clinton played a key role, signing “a number of extremely punitive crime, terrorism, and immigration bills into law, which created the deportation regime that exists today.”

Muslims and other immigrants from majority-Muslim countries suffered the racist expansion of immigration detention after September 11, 2001, as counterterrorism enveloped immigration into the ballooning national security apparatus. And, as with the incarceration of U.S. citizens, black migrants have been disproportionately impacted by the shift to “crimmigration,” as scholars call it — more likely to be detained for a crime, and more likely to be removed.

Considering the recent explosion in immigration detention, Hernández explores federal contracts with local law enforcement and private prison companies. He looks not just at U.S. Immigration and Customs Enforcement but also the U.S. Marshals Service, which holds some 60,000 people a day in pre-trial detention, making deals with state and local jails around the country (the deaths of immigrants in Marshals custody were recently investigated by Seth Freed Wessler for Mother Jones). Again, the degree to which immigration offenses dominate the criminal justice system is stark — in 2013, marshals detained 97,982 people on immigration crimes, compared with 28,323 drug defendants. The Office of Refugee Resettlement, under the Department of Health and Human Services, had 49,000 children in custody in 2018, in “shelters” that range in comforts offered but which are all tightly controlled. Whatever agency officially holds them, Hernández argues, “to the migrants who are under constant surveillance and whose liberty has been denied there is little difference.”

Detention is also used with the idea that it will dissuade people from coming. Although Hernández points out this is legally suspect — detention of asylum-seekers and people accused of other non-criminal immigration offenses is not supposed to be a punishment — multiple administrations have invoked deterrence as a reason to keep people locked up.

Trying to separate immigrants who deserve imprisonment and those who don’t, distinguishing between shelters and detention centers and jails, obscures the workings of the whole system, Hernández says, which is designed to punish people for nothing more than being born in the wrong place. “Migrants are expected to live out the exceptionalism that U.S. citizens imagine in themselves,” he writes. The legal immigration system rewards wealth, education, and family connections, while the immigration enforcement system has no tolerance for human error.

Daniel Denvir’s forthcoming book, “All-American Nativism: How the Bipartisan War on Immigrants Explains Politics as We Know It,” complements Hernández’s by focusing on political history. He, too, traces the development of anti-immigrant sentiments and policies alongside anti-black ones, arguing that “resistance to desegregation, a white identity politics of racial grievance, mass incarceration, the war on terror: all were dedicated to a quixotic mission to keep dangerous others from crossing U.S. borders and to restrict the free movement of those inside them.”

Democrats likewise fell into the trap of demonizing “illegal immigrants” and “criminal aliens,” believing that by doing so they could protect legal immigration from hard-right restrictionists and defend themselves from soft-on-crime accusations (just as they’d attempted to do by jumping on the war-on-drugs bandwagon).

The bipartisan embrace of immigration enforcement, Denvir argues, was the product of the elusive quest for so-called comprehensive immigration reform, which would combine a path to legalization for people already in the country with the liberalization of legal immigration — goals sought by immigrant rights groups and big business alike. In order to get it, Democrats and some Republicans, from Clinton through Bush and Obama, tried to appease nativists with promises of “border security,” miles of fencing, massive increases in the Border Patrol, and surveillance systems befitting a war zone. Each time, however, the nativists were not, in fact, appeased, crying “amnesty” and sabotaging the prospect of reform. “The long-term advantage,” of focusing on enforcement, Denvir writes, “would accrue to the Right, which was better positioned to link the immigrant threat to crime, welfare, black people and terrorism.” Trump’s attempt to demand funding for his pet wall in order to save the Deferred Action for Childhood Arrivals, or DACA, program last year, was a repeat of the same pattern. In the end, Trump plowed ahead with construction (literally, through delicate desert ecosystems), and DACA’s fate remains unsettled.

Over time, the left flank of immigration activism has grown wary of both comprehensive immigration reform (finding those “reforms” incremental) and the attempt to distinguish “good” immigrants from “bad” ones. As Denvir notes, “lots of ‘good’ immigrants were being deported too. And how bad were the bad ones, given the vast number of individuals convicted of crimes in the carceral state?”

Hernández ends his book with the case for abolishing immigration detention, while admitting that few people have a specific vision for how to do it. Denvir ends with an analysis of an electorate that might be willing to try. As he puts it, “record deportations and a radicalizing racist right has triggered a revolt among the Democratic Party’s increasingly young and diverse base,” and Democrats under Trump have become “staunchly pro-immigrant” and “more hostile to enforcement.” Hernández also decides to see Trump’s hostility to immigrants not just as horror but also as opportunity. Has the bipartisan consensus of “immigration is a ‘problem’ that needs fixing” finally broken? Will Trump’s nativist wish list of anti-immigrant, anti-refugee policies permanently shift Democrats away from their position that enforcement is always necessary?

Decriminalization of entry and reentry is a start, as Denvir and Hernández advocate (among the remaining Democratic presidential candidates, Bernie Sanders, Elizabeth Warren, Pete Buttigieg, Cory Booker, and Andrew Yang have said they agree). Denvir also calls for downsizing the Border Patrol, destroying existing physical barriers, breaking up agreements between ICE and local law enforcement, and increasing opportunities for legal immigration, especially from Central America and Mexico. Hernández urges, on a personal and institutional level, divestment from private prison companies. Eliminating cash bail and giving every migrant the right to a lawyer would drastically increase their odds of success, as would case management — offering help with housing and legal assistance.

These types of measures might actually lead to better compliance with immigration law, satisfying the obsession with people migrating “the right way.” But they would not offer concessions to a nativist right that wants any and all nonwhite immigration restricted, and they would have to resist the scare tactics bent on tying immigrants to crime and the rhetoric of scarcity that will inevitably accompany an economic downturn and worsening climate conditions. The court cases challenging the most horrendous aspects of confinement in immigrant detention centers are important. But if radical changes come, Hernández writes, “it won’t be because the law demands it. It will be because people demand it.”

In the 2010s, the People Began Saying No to Endless War

By Branko Marcetic, Jacobin

31 December 19

The decade began with Bush-era jingoism intact. Then, the unthinkable happened: radical critiques of America’s endless wars and reflexive militarism that were once hopelessly marginal went mainstream.

nly two decades in, the twenty-first century has so far been one of profound crisis. But one thing has stayed remarkably, resiliently consistent: the “war on terror.”

The century kicked off with the horrific September 11 attacks that prompted that so-called war, with Afghanistan its first stop. Invading to kill or capture Osama bin Laden and Al Qaeda, who were responsible for the attacks, the Bush administration instead allowed them to escape so they could depose the ruling Taliban, who hadn’t.

Ten years later, with the “war on terror” now bigger and bipartisan, the decade now ending kicked off with US military finally claiming Bin Laden’s scalp in an illegal nighttime incursion into another sovereign country. Greeted on American streets like a second Victory over Japan Day, the assassination was a strategically pointless act aimed more at securing Barack Obama’s reelection than bringing the “war” to an end.

As if to prove the point, nearly another decade later, the 2010s are coming to a close with the United States fighting the “war on terror” on more fronts than ever — and still, as ever, in Afghanistan. What’s more, the decade will end only weeks after the release of a massive tranche of government documents that lay bare how much of a sham the entire, nearly twenty-year-long effort has been: they show that the US military has fought without a clear strategy from the start, that it has spent vast amounts of money and lives for little to no advancement of its goals, that it has sewn corruption into the bedrock of the country’s political system, and, most damningly, that it has done all this fully conscious that it is and has been a failure, lying to the US public about the progress of a war that many of those fighting knew wasn’t going well.

So as this decade ends, this is where things stand: $6 trillion wasted, 800,000 killed, 200,000 US troops overseas, three regime change wars (with a possible fourth on the way), and seven countries bombed by remote control — and counting. Read this way, things look decidedly pessimistic, with the US government and its allies ever upping the ante to fight a “war” in which the enemy seems only to spread with every year, dollar, and human life poured in.

Yet if we look past these statistics, another story weaves its way through these years. When the century began, reflexive military intervention was a popular, bipartisan commitment, a legacy not just of the World Trade Center attacks, but of the Reagan and Bush years. There is no longer a significant national political constituency that favors this approach.

Both the Iraq and, especially, Afghanistan wars were astronomically popular when they began. As this decade ends, a majority of Americans view Iraq as a mistake, while a wavering near-majority feels the same about Afghanistan. Look at the partisan breakdown, and the results are more stark. While most Republicans seem never to have wavered in their support for the war in Afghanistan, the number of Democrats and independents (who still claim the largest share of party affiliation) who do hovers around 50 percent. When asked this year if the war had made the United States more or less safe, more than half of both groups said the latter.

So at the end of the 2010s, more Americans in total believe the invasion of Afghanistan has made the country more vulnerable than those who think the opposite. It’s a popular rejection of the Bush-Cheney doctrine that once seemed monolithic and unassailable. Indeed, whether they know it or not, this segment of the public has internalized what was perhaps the predominant left-wing critique of the “war on terror,” once dismissed as the wailings of America-hating hippies.

This goes beyond Afghanistan. In the middle of Trump’s attempt to engineer a war with Iran, after the country downed a drone and Trump ordered a missile strike in retaliation, a solid majority of respondents backed his last-minute decision to call it off, with only a statistically insignificant number voicing support for actual, outright war. The percentage of Americans who think fighting terrorism should be a “very important” foreign policy goal, though still a large majority, has nose-dived since 2001. Other surveys reflect a public attitude in favor of generally restraining US military involvement overseas.

By the middle of the decade, these views had expanded beyond the often ignored realm of public opinion and snuck into the wider political process. Though Trump won the Republican nomination and eventually the presidency by pledging a program of war crimes, he also won by repudiating George W. Bush and his wars, assailing the wars of Barack Obama and Hillary Clinton, and gesturing toward détente with one of the foreign policy establishment’s greatest nemeses — positions that may well have won him the presidency.

Bernie Sanders, meanwhile, gave Clinton a good scare in 2016 by taking a markedly less interventionist stance. Since catapulting to the top tier of 2020 Democratic candidates, he’s only refined and strengthened those positions: steadfastly opposing Trump’s gargantuan military budgets, leading a historic effort to end US support for the genocidal war in Yemen, calling for international cooperation in combating climate change, and periodically suggesting it’s time to rethink the “war on terror.” At worst, given his recent climb in the polls, we can say none of this has dented Sanders’s popularity.

Sanders’s rise has augured another, potentially bigger shift in US foreign policy. Aided by both Trump and an arrogant and increasingly far-right Israeli government, US public opinion is slowly turning against Israeli policy, particularly within the Democratic Party. Forty-two percent of US Jews think Trump has favored Israel too much in the ongoing conflict, and one poll has a similar proportion of Americans backing the Boycott, Divestment, and Sanctions movement, including a majority of Democrats. This in turn has opened up space for figures like Sanders, Ilhan Omar, and the rest of the “Squad” to inject previously unheard-of critiques of Israeli policy into the mainstream, including calls to condition US military aid to the country. Though there’s still a way to go, this state of affairs seemed unimaginable as recently as a few years ago.

We shouldn’t overstate things, of course. Most Americans still broadly favor military action against ISIS and other terrorists, and still do not understand the dire threat of climate change, which only Democrats view as a foreign policy issue on par in importance with terrorism. Guantanamo Bay has all but disappeared as an issue, and no mainstream political figure seems eager to break from the Obama drone warfare paradigm. And irrespective of public opinion, the military-industrial machine has kept on chugging, with the “war on terror” and the global footprint it needs to thrive only quietly expanding.

Still, the fact that these shifts have happened at all, and without the presence — during this decade, at least — of a powerful, visible antiwar movement, is significant. It’s a solid base from which to build the great foreign policy project of the next decade, the goal Sanders now regularly name-checks on the campaign trail: ending endless wars and moving toward global cooperation to combat climate change, what should ideally be the new organizing principle of US foreign policy. Such cooperation and all it entails — from combating corporate power and constructing a revived commons, to creating world institutions focused not on war and profiteering, but on peace and justice — would be a crucial step in the wider battle to take back power from the global ultra-rich, eradicate world poverty, and end Western exploitation of the global South.

As the 2020s begin, the United States and the world are looking at a very different set of challenges that will further scramble the foreign policy assumptions that have ruled for the past decades. Besides an intensifying ecological crisis, there is an emerging far-right axis, from India and Brazil to the United States itself, backed by business interests and seeking a solution to this crisis through ethnic cleansing and, sometimes, expansionism. Meanwhile, an oblivious Washington establishment continues to labor under a framework designed decades ago in a different world. We may well look back on the 2010s as the decade a fundamental transformation got underway. And we may see the 2020s as the decade they took hold.