Criminal Justice Blog Essay

Immigration Detention and Abolition

Prison abolitionism has gained traction.  Louisiana, for example, has taken steps recently to reduce the population of the state’s prisons. In June 2017, the “world’s prison capital” passed a series of laws designed to cut the state’s prison and community supervision populations by ten and twelve percent. The movement has been largely successful, by some metrics.  The state eliminated thousands of prison and jail beds on its rosters.  But as those laws took effect and thousands were freed, another carceral agent took the state’s place: one of the federal government’s primary immigration-enforcement agencies, U.S. Immigration and Customs Enforcement (“ICE”).  ICE has begun contracting with three Louisiana jails to house detained immigrants by the thousands, doubling the agency’s detention capacity in the state.  Carceral shifts similar to the one that took place in Louisiana are inevitable if abolitionists do not take into account migration-related confinement: where one entity empties its prisons, another takes its place to fill them. 

The federal government is incarcerating unprecedented numbers of people each day for migration-related activity.  Unable to fill the self-imposed demand for immigration confinement space with its existing system of over 600 prisons and jails, the Trump Administration and the companies with which its enforcement agencies contract have been on the hunt for available space to incarcerate more and more people.  The for-profit immigration prison in Aurora, Colorado, for example, expanded recently by 432 beds, virtually overnight, a more than thirty percent capacity increase.  Other immigration prisons have opened or increased bedspace in recent months.  As for Louisiana, Noah Lanard of Mother Jones reports that “[i]n the coming weeks or months, Louisiana may surpass California to become the state with the second-most ICE detainees, behind Texas.”  The shifting landscape of incarceration exposes the dire need to integrate the elimination of migration-related confinement in abolitionist discourse.

Direct examination of the abolition of migration-related confinement occupies a small corner of abolitionist literature, anchored by Professor César Cuauhtémoc García Hernández’s seminal 2017 work, Abolishing Immigration Prisons.  In the Article, the first to call for the abolition of immigration detention in the United States, Professor García Hernández traces the history of immigration confinement and lays bare its utility as a means of racial subordination.  Each historical expansion of immigration imprisonment in the United States arose from a different political, economic, and cultural context, he explains, but “they all share one salient feature: racism.”  For instance, legislation passed in the 1960s imposed ceilings on migration from Mexico, Cuba, Haiti, and Central American countries that quickly recast people fleeing violence, unrest, and instability as “illegal.”  Reforms of the 1970s and 1980s also cast certain migration-related activity as criminal. As immigration law blended with criminal law, detention became a salient feature of immigration enforcement.  The piece situates immigration confinement in the broader landscape of American mass incarceration and exposes the practice as a tool of oppression and control.  Building from the scholarship of Professor Allegra McLeod, Professor García Hernández “offers an abolitionist vision of immigration imprisonment . . . intended to gradually replace secure facilities and surveillance technologies with an alternative moral framing of migrants and migration that renders practices of control indefensible.”

Since the publication of Professor García Hernández’s work, immigration detention has expanded by scores.  In 2017, the average number of people in so-called civil immigration detention each day was 40,500.  In June 2019, this number has exceeded 52,000.  According to a 2018 report, ICE relies on more than 630 sites throughout the country to confine people.  Many of these locales are county jails contracting with the federal government; others are prisons managed directly by the federal government, and others are for-profit prisons run by private corporations.

These numbers account only for those in putative civil detention.  Many thousands more are incarcerated in the custody of the U.S. Marshal’s Service, the Federal Bureau of Prisons, and state and local entities, for criminal charges stemming from migration-related activity.  Often, these folks serve sentences for illegal entry or re-entry in a prison that is part of the criminal legal system, and are then transferred to another facility for civil confinement while they await adjudication of their immigration status or deportation.  Many thousands more noncitizens are confined in separate federal prisons for non-migration-related crimes, as Professor Emma Kaufman exposes in her groundbreaking piece Segregation by Citizenship.  She writes that the government runs “ten all-foreign prisons across seven states, and the Trump Administration has announced plans to build more.”  Professor García Hernández noted in 2017, “Whether operating under cover of civil authority or through criminal processes, federal, state, and local governments collectively imprison well over 500,000 each year.”  That number has since grown, driven primarily by ICE’s expanded enforcement activities.

ICE’s detention authority is civil, or administrative, in nature, meaning the agency does not incarcerate people for punishment.  Yet, recent reports show the conditions in civil immigration confinement are poor and rival the conditions of prisons and jails across the country.  Access to loved ones and legal counsel is restricted.  Facility movement and outdoor recreation are highly regulated and limited.  The use of solitary confinement is rampant.  Medical care is woefully inadequate.  Death is all too common.  At the same time, transparency and accountability are strides behind that of many, if not most, state prison systems.  The intricate web of jurisdictions, and the contracting parties, involved in immigration confinement make it difficult to trace decision-making authority and hold wrongful actors responsible.  

Grassroots movements and organizing to end immigration policing and detention have drawn recent attention.  The Abolish ICE movement, which began as a hashtag, is now more structured: major media outlets have published pieces outlining the movement’s positions, and political candidates and elected officials across jurisdictions have called for an end to, or reform of, the agency.  Private-sector resistance efforts across the country have targeted for-profit detention corporations, which oversee the majority of immigration-detention beds, through successful divestment campaigns and local organizing to prevent municipalities and states from entering into contracts with private prison companies.

Still, abolitionist conversations concerning criminal incarceration and immigration detention feel noticeably separate.  This is troubling in light of the federal government’s immigration-enforcement priorities.  The carceral restructuring in Louisiana will repeat itself elsewhere if abolitionists do not address migration-related confinement, especially with respect to the government’s civil legal power.  Indeed, California recently announced the state will stop using 2,500 beds in an Arizona prison; shortly thereafter, it was reported ICE plans to fill the space.  Elsewhere, prisons shift seemingly seamlessly from incarcerating those in criminal custody to those in civil custody, transforming from a BOP facility to an ICE facility almost overnight.  These shifts highlight that efforts to end only one source of incarceration are shortsighted.

In perhaps a foreshadowing of another Louisiana-like development, Colorado’s governor Jared Polis and his new executive director of the Department of Corrections have expressed a desire to close the state’s private prisons or, at minimum, significantly reduce their populations.  If these efforts are successful, the prisons will empty but their walls will remain.  And the newly available space may be where ICE looks to fill its ever-increasing capacity.  Indeed, ICE may already be taking steps to fill a vacant prison managed formerly by the state’s corrections department.  

While states like Colorado and Louisiana may be moving to decarcerate, the federal government is doing just the opposite.  The sheer scope and rate of growth of immigration confinement make any efforts designed to further the abolitionist vision futile if those efforts do not contemplate and anticipate all forms of incarceration, including migration-related confinement.