THE RESURGENCE OF IMMIGRATION PRISONS
The waning of immigration imprisonment in the middle of the twentieth century didn’t happen in a vacuum. In the 1960s and 1970s, the country’s experiment with incarceration was rapidly losing favor. In 1975, a little-known social services worker in Kentucky, Calvin Dodge, spearheaded an impressive collection of essays announcing a path toward prison abolition. “Imprisonment as a primary sanction should be eliminated,” Dodge wrote simply and emphatically. It sounds delusional today, decades into a national love affair with forced confinement. Prisons in the United States teetered toward extinction, and impossible as it may be to believe, the United States was on the verge of becoming “a nation without prisons.”1
The contributors whom Dodge assembled were no collection of radical leftists. They were staid professionals well within the mainstream: academics, a judge, and even a presidential commission appointed by none other than Richard Nixon. A research group with links to the Justice Department claimed “there [is] reason … for hope that America might lead the world away from the use of cages for criminals.”2 Its abolitionist tone was unmistakable. Humans could not rightfully be caged. Lodging a brutal critique of prisons, the Nixon-created National Advisory Commission on Criminal Justice Standards wrote, “[The prison] is obsolete, cannot be reformed, should not be perpetuated through the false hope of forced ‘treatment’; it should be repudiated as useless for any purpose other than locking away persons who are too dangerous to be allowed at large in free society.”3 In this moment in the nation’s history, prisons were the past, not the future. “By the mid-1970s,” writes the sociologist Loïc Wacquant, “a broad consensus had formed … according to which the future of the prison in the United States was anything but bright.”4
The United States of the early 1970s held roughly a quarter-million people in all prisons and jails. Today, there are almost that many serving life sentences, with more than 2.2 million people locked up. Far outpacing the willingness of other countries to imprison its residents, clearly the Commission’s declaration of the prison’s uselessness lost favor. It wouldn’t be until 2003 when someone else prominently took up the abolitionist cause. When that happened, it came from Angela Davis, the radical leftist intellectual and former political prisoner who once found herself on the FBI’s list of Ten Most Wanted Fugitives.5
The nation’s transformation from a country on the verge of dismantling prisons to one that puts them at the center of social planning was not limited to the common focus of advocates and policymakers: people caught up in the war on drugs. On the contrary, the nation’s well-known fetishization of imprisonment is the result of a wholesale restructuring of social relations. It has swept up the African American men targeted by anti-drug policies, to be sure, but it does not end there.
Like the more familiar drug-war policies, the modern era of immigration imprisonment began in the decades following the civil rights struggles of the 1960s and 1970s. Successful efforts to ban blatant displays of discrimination required changes in the law and, equally significant, in culture. The Civil Rights Act of 1964 and the Voting Rights Act of 1965 marked major legal victories and ushered in a new era, one in which the old racial hierarchy was both illegal and morally indefensible. To a limited degree, that hopeful vision came to pass. People of color could tap legal remedies defensively—for example, to fight discrimination in public accommodations—and offensively—for example, to enroll in college.
But old ways die hard, and the post–civil rights decades illustrated that the ideology of white supremacy that was entrenched in law and culture did not suddenly disappear and did not exempt immigration.
The civil rights reforms of the mid-twentieth century were accompanied by a tumult in social relations. The Black Panther Party, Southern Christian Leadership Conference, Brown Berets, and American Indian Movement catapulted confrontational civil rights activism onto televisions and newspaper front pages. Schools became sites of protest, and churches became cradles of dissent. Few could miss the upheaval in social relations happening day by day. Coming at the same time as sustained anti-war protests were pushing the United States out of its bloody conflict in Vietnam and political giants like Martin Luther King Jr. and the Kennedy brothers were being assassinated, it seemed as if the United States was being unglued. The old ways of being were challenged, decried as morally debased, and upended.
In the rhetorical struggle between civil rights and law and order, racism was pushed just beneath the surface of law and culture. In a stunningly short period of time, crime took race’s position as the recognized socially acceptable marker of dangerousness, and concern about crime rates became the public face of racism. Before becoming famous for his opposition to integration, Alabama’s Governor George Wallace made a name for himself by linking civil rights activism to a perceived breakdown in law and order. Other politicians and political strategists soon picked up on the tactic as a way of currying favor with disaffected white Americans.
But no one was nearly as successful as Richard Nixon. Trying to win the White House, Nixon hoped to capitalize on white disaffection with the quakes rattling U.S. law and culture. “The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people,” the disgraced Nixon official John Ehrlichman told a reporter years later. “We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”6 Ehrlichman’s admission sounds too honest to be true. Few people would be so open about their moral depravity. But Ehrlichman had already shown himself to be a man of few scruples. He was, in the words of his New York Times obituary, “Nixon’s pugnacious defender” who went to prison for his involvement in Watergate.
Tapping fears of crime, as Ehrlichman suggests, was a powerful political ploy. Before the Nixon administration paired social decay with drug use and civil rights activism, few people in the United States had concerned themselves about crime, even as crime rates rose in the 1960s as the baby-boom generation reached the main years during which adults commit crimes. With Nixon at the helm, politicians began to harp about the crime ravaging U.S. cities. Eventually, discussions of crime among the political elite spread to the broader public, resulting in more widespread concern about crime, especially illicit drug activity. By the time President Reagan grabbed the anti-crime banner to launch his well-known “war on drugs,” the U.S. public was primed to embrace the drug-fighting hysteria that dominated the last decades of the twentieth century.7
The anti-crime sentiment of the 1960s, 1970s, and 1980s had a lasting effect precisely because it arose as a substitute for the racism that could no longer be expressed as openly. Instead of misguided youth, the criminals of the late twentieth century were depicted as “incorrigible” perpetrators with little hope for redemption. These “young minority males, caught up in the underclass world of crime, drugs, broken families, and welfare dependency,” as sociologist David Garland summarized the dominant rhetoric of the time, were “desperate, driven, and capable of mindless violence.”8 Twisting fact into fear, politicians depicted them as vicious savages. George H.W. Bush propelled himself into the White House by showcasing Willie Horton, a black man who had fled a weekendrelease program in Massachusetts and raped a white woman, in an ad against the state’s governor and Democratic presidential candidate, Michael Dukakis. Eight years later, then first lady Hillary Clinton portrayed gang members as psychopaths. “They are not just gangs of kids anymore,” she told a New Hampshire audience in 1996, harkening to a bygone era when troubled youth could be expected to reform. “They are often the kinds of kids that are called superpredators—no conscience, no empathy.”9 In the new penology, these superpredators had a target. Despite the fact that blacks are more likely to be crime victims, middle-class white suburbanites became idealized as the victims of the new crime wave.10
The war on crime—and its drug-focused leading edge—became a seemingly intractable feature of law and policy. In the 1980s and 1990s, a new generation of policing philosophies emerged to address the political rhetoric’s attention to the ostensibly extreme danger of the new criminality. Nothing emblematizes this policing trend better than the “broken windows theory” popularized in a 1982 magazine article by James Q. Wilson and George L. Kelling. Minor incidents, Wilson and Kelling posited, are the start of much greater lawlessness. If left unattended, a single broken window will soon be joined by a building full of broken windows. Worse is likely to follow. Police should engage in “order-maintenance” tactics that view the most trivial of offenses against public order as nothing short of the start down the long road toward chaos and violence.11 Everything is a priority, at least if the offender is poor and not white. They should do what they must to stop it.
At the same time, prominent legislators attacked the neutrality of the judicial process. Instead of a criminal justice triangle in which the prosecutor, representing the whole of the community, faces off against the defendant under the watchful eye of the neutral judge, the gap between defendants and judges was thought to have closed. “The judge remains a figure of suspicion, a person with a propensity to violate public safety, little different in public confidence from the figure of the criminal before them,” wrote legal scholar Jonathan Simon.12 The new criminal threat, then, was not coming only from moral deviants. The politicians and pundits claiming to represent the endangered law-abiding citizenry also came to view judges suspiciously.
In response, legislatures across the country began stripping judges of discretion to identify a suitable sentence for convicted offenders. Led by Congress, legislatures adopted fixed sentencing ranges and mandatory minimum prison terms. In 1984, Congress ordered the creation of the United States Sentencing Commission and charged it with developing sentencing guidelines for judges’ use. That year, the state of Washington adopted a sentencing scheme in which convicted offenders were required to serve a predetermined percentage of their prison sentence before becoming eligible for release. Called “truth-in-sentencing” laws, these mandates exploded in popularity after 1994, when Congress dangled the promise of grants for new prisons to states that required offenders serve at least 85 percent of their sentence.
More people were prosecuted, they faced longer sentences, more people went to jail, and there were fewer ways out before the sentence ran its course. By the end of the 1990s, the nation’s prison population had skyrocketed. Over the next fifteen years, it kept growing.
The same anti-drug hysteria that swept criminal policing took hold in immigration law. Much like inner-city black men, migrants were depicted as depraved purveyors of death and moral decay, especially those from south of the border. In 1980, for example, 125,000 Cubans who set off from the port of Mariel reached Florida on rickety rafts after the Cuban government announced that anyone who wanted to leave could do so. Unlike earlier generations of Cuban migrants, these so-called marielitos were largely poor and dark-skinned, and in the dominant discourse of the day, they were depicted as cast-offs from Castro’s prisons. U.S. News & World Report ran a story in 1984 emblazoned with the headline “Castro’s ‘Crime Bomb’ Inside U.S.” Soon Hollywood added to the factually inaccurate hysteria. In the 1980s blockbuster and cult classic Scarface, an adaptation of the 1932 film of the same name, Al Pacino plays Tony Montana, a bloodthirsty psychopath willing to kill just about anyone to rise to the top of Miami’s drug world. The film’s opening scene expressly connects Pacino’s character to the Mariel exodus. Castro, the film claims in text that flashes on the screen, used the Mariel incident to send “the dregs of his jails” to the United States.
Cubans may have dominated sensational media depictions of migrant involvement in criminal activity, but they did not monopolize the political rhetoric. Haitians and Jamaicans were said to be bringing drugs into the United States, with Colombians being no better. “Jamaicans,” claimed Representative Lamar Smith in 1987, “mostly illegal aliens, have developed a massive criminal organization that imports and distributes narcotics.”13
Federal officials tapped their law enforcement powers to control the perceived threat that migrants posed. The Mariel Cubans were sent to federal penitentiaries. That infamous U.S. News & World Report article from 1984 captured their treatment in a caption accompanying a photograph of two Cubans that explained that they were incarcerated in a Georgia federal prison. To accommodate Cubans and Haitians, who were also fleeing a totalitarian government, the INS opened the Krome Avenue Detention Center in Miami, a facility that remains operational today. “Detention of aliens seeking asylum was necessary to discourage people like the Haitians from setting sail in the first place,” said Attorney General William French Smith in 1982. That year, President Reagan ordered the INS to detain all Haitians who arrived in the United States clandestinely.14 Soon, Haitian migrants were filling military bases, federal prisons, and prison-like INS detention centers.
Expansion wasn’t without controversy. A Republican U.S. senator from Texas opposed a proposed immigration prison on blatantly racist grounds: “You have tripled the black population of Big Springs, Texas, and not even advised me in advance,” John Tower complained to Reagan administration officials, citing an earlier transfer of Haitians into a federal prison situated in a rural town. For different reasons, the White House’s Office of Management and Budget was skeptical. In internal deliberations, it expressed reservations about the INS’s ability to manage a large detention facility. It also cautioned that detention might beget detention. Expanding the INS’s capacity to detain, OMB warned, “may encourage INS to detain aliens longer in order to justify the facility’s need.”15
Meanwhile, migration from Central America grew. Midway through the century, Central America had become a site for proxy battles between the United States and the Soviet Union. To escape the bloodshed in countries like El Salvador, Nicaragua, and Guatemala in the 1980s, millions of people sought refuge in the United States. They viewed the powerhouse to the north as a beacon of safety and opportunity.
Reagan administration officials, however, depicted them as Marxist-aligned peasants disrespectful of our laws and ideologically dangerous to our way of life. Standing alongside insurgent contras waging a U.S.-backed rebellion against the leftist Sandinista government in Nicaragua, in 1986 President Reagan left no doubt about his view of the region’s precarious strategic importance. Soviet allies in Nicaragua, he warned, were “just two days’ driving time from Harlingen, Texas,” about fifteen minutes south of where today’s Willacy County immigration prison sits.16 Arriving at the nation’s southern border, migrants were met with the beginnings of today’s vast immigration prison system. The INS ramped up its policing resources as it tried to keep migrants confined to the border region that the agency itself referred to as federal “reservations,” evoking the treatment of native people during the period of westward expansion. South Texas became so heavily policed for a time that the U.S. senator Lloyd Bentsen went so far as to call it a “massive detention camp.” At the same time, federal officials deliberately rejected as many claims as possible. The INS denied an astonishing 97 percent of asylum petitions by Salvadorans and 99 percent filed by Guatemalans until prolonged legal challenges forced them to consider every application on its own merit.17
Jenny Flores was one of those. Her birthplace, El Salvador, was in the midst of war when fifteen-year-old Jenny headed north in 1985. There, she hoped to reunite with her aunt, a U.S. citizen. Instead, the INS locked her up in a converted hotel surrounded by concertina wire. As was routine, she was forced to remove her clothing and was searched. Decades later, her legacy lives on. She is the named plaintiff in the case that still sets the bar for the government’s treatment of detained children.
Even now, with the Cold War long over, the violence and political instability that the United States was involved in continues to impact life in the region. Many of the children displaced by Central America’s violence in the 1980s and 1990s wound up in the United States. In cities decimated by deindustrialization and racism, they assimilated into urban America’s budding gang culture. MS-13, the transnational gang that Presidents Obama and Trump frequently rail against, got its start in this environment. For some young people, gang membership led to crime, followed by deportation. Born in San Salvador, but bred in Los Angeles, Borromeo Henríquez Solórzano was deported to the country of his birth, but not before joining MS-13 in its early days. Now dubbed El Diablito, Little Devil, he’s said to be at the top of the MS-13 hierarchy. The U.S. government thinks he’s so influential that in 2013 the Treasury froze his assets.18 On the backs of these refugees-turned-deportees, MS-13 expanded to Central America, only to return to the United States to complete the circle. Everywhere, MS-13 upends lives, forcing young people across Central America these days to choose between recruitment, violence, or migration.
Mexicans were also part of this great migration north. The political and economic elite of both the United States and Mexico partnered to push large swaths of the Mexican population onto the migratory path northward. In the 1980s, the two countries collaborated on the development of a border-region manufacturing industry. Known as maquiladoras, these plants recruited Mexican youth from farther south to staff high-demand assembly processes piecing together common items like car parts and TV screens. Once in view of the United States, many internal migrants eventually continued north. Similarly, the North American Free Trade Agreement, launched in 1994 by Canada, Mexico, and the United States, made traditional subsistence farming more difficult for a generation of young Mexicans, leaving them little choice but to head to Mexican cities or, frequently, the United States to hire themselves out as inexpensive wage laborers.19
During the last quarter century of the twentieth century, millions made the United States their home. Soon, familiar patterns emerged. Young people, mostly men, would head north, following networks of relatives and friends. They worked the citrus groves of Florida, the onion fields of South Texas, the vegetable farms of California, even the apple orchards of Washington and the neat rows of Idaho’s famous potatoes, helping explain how a batch of my cousins was born near Boise. After decades of migration to the United States, ordinary life developed around this pattern. Economic development in the countries that migrants came from relied on earnings from the United States, and migration became a sort of rite of passage in some communities.
Traditional movement back and forth, year after year, had become increasingly difficult starting in the 1980s, when the INS sent more law enforcement agents and money to South Texas, but circular migration plummeted after 1996, when Democratic president Bill Clinton worked with a Republican Congress to radically boost the federal government’s border-policing forces. From 1995 to 2000, the number of Border Patrol agents doubled from roughly 4,000 to over 8,000.20 This left unauthorized migrants with an impossible choice. Continuing their circular migration pattern might mean never coming back. Either the newly bolstered Border Patrol might catch you or, worse, the desert would. In one fifteen-year period, a single government agency, the Pima County Medical Examiner in Tucson, dealt with the bodies of 2,615 migrants who had lost their lives crossing the Arizona desert.21
The alternative was to stay put in the United States, as many did. From 1986 to 2006, the number of migrants living in the United States without the federal government’s permission quadrupled from a population of roughly 3 million to a population of 12 million. Migrants came clandestinely but didn’t leave. All the while, border policing skyrocketed. The federal government allocated more money and employed more Border Patrol agents, who, in turn, spent more time trying to catch people sneaking into the United States. In a detailed study of Mexican migrants, the researchers Doug Massey, Jorge Durand, and Karen Pren found that increasing border enforcement didn’t impact the likelihood that migrants could cross the border. The trip became more difficult and more expensive, but the outcome didn’t change. People got across just as often as they had before the United States began pouring money into border policing. Only now, they stayed in the north.22
Effectively stuck in the United States, without any way of legalizing their immigration status, they became easily exploited, with repercussions that can be seen to this day. Like with braceros, employers have the upper hand. Migrants are left to work under the table or under false pretenses, either of which can lead to ICE’s showing up to make an arrest. The low unionization rate in the United States means that traditional sources of labor power are largely ineffectual. And thanks to a 2002 Supreme Court decision, employers aren’t even liable for backpay if they fire unauthorized workers who dare unionize.23 Rather than reducing unauthorized migration, more border enforcement means more unauthorized migrants will be cheaper for employers.
In their border-enforcement study, Massey and his colleagues described a “tax” that unauthorized migrants were forced to pay as policing increased. Once the path northward became more dangerous, it became necessary to hire professional smugglers. That raised the cost of the actual trip. Unable to move around as easily, migrants couldn’t compete for higher wages by leaving for a new job. Instead, to land jobs, they had to rely on middlemen, who expected to get a cut that previously would’ve gone to the migrants themselves. As a result, they earned 25 percent less after border policing increased than they had in the years before.24 More border policing didn’t mean fewer migrants. More border policing just meant more profit from border policing.
Police officials, politicians, and academics think of broken-windows policing as a feature of crime fighting. But a variant of its focus on low-level infractions appeared in immigration law in the 1980s and 1990s, creating the foundation for the modern legal architecture of immigration imprisonment. Beginning in the mid-1980s, Congress regularly made it easier to confine migrants. Through the Anti-Drug Abuse Act of 1986, for example, Congress set the legal groundwork for immigration detainers, requests from immigration authorities to local police asking them to keep a particular person locked up so that federal officials could move forward with an immigration case. Since then, detainers have come to be a central tool for sweeping people from local custody to ICE detention. In 2011 alone, ICE officers sent 310,000 detainer requests to state prisons and local jails. Illustrating detainers’ continued relevance, eight years later, three justices of the Supreme Court complained that “state and local officials sometimes rebuff the Government’s request that they give notice when a criminal alien will be released.”25
Detainers are important, but other developments also contributed to the growing incarceration of migrants. Two years after enacting the detainer legislation, the Anti-Drug Abuse Act of 1988 added the concept of the “aggravated felony” into the immigration-law lexicon. Originally defined to include only a small handful of serious offenses (murder, illicit trafficking in firearms, and drug trafficking), the aggravated felony concept now includes twenty-one subparts—some with their own subparts. The label is as sinister as it is misleading. Justice Samuel Alito and four of his conservative colleagues on the Supreme Court claimed that this includes “certain dangerous crimes.”26 Instead of being limited to the worst offenses, the list of aggravated felonies includes misdemeanors and crimes that few would describe as severe; tax fraud and shoplifting make the list. Reflecting the era’s skepticism of judges, Congress denied immigration judges the discretion to release anyone convicted of an aggravated felony. Everyone convicted of an aggravated felony in the last three decades has been detained. This was the beginning of modern mandatory detention for immigrants.
Not content to stop there, in 1990 Congress made it easier for the INS to take hold of people convicted of state drug offenses.27 In 1994, the very law that Hillary Clinton was defending when she made her “superpredators” comment required the construction of two detention centers for “criminal aliens” and created a reimbursement program that incentivizes local law enforcement inquiries about immigration status. In 2017, the reimbursement program, called the State Criminal Alien Assistance Program, handed $190 million to 680 cities and counties.
To round out the decade, in 1996 Congress adopted two laws that, combined, produced a “seismic change” in immigration detention.28 The Anti-terrorism and Effective Death Penalty Act expanded the mandatory detention requirement to include all controlled substances. Later that year, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) expanded mandatory detention again. That law facilitated federal immigration officials’ collaborations with state and local police through newly created 287(g) agreements. Under these, state and local cops are essentially deputized to act as federal immigration officers. Arizona’s lightning rod of a sheriff Joe Arpaio took advantage of this to illegally target Latinos, leading the Obama Justice Department to end its relationship with him. Eventually, Arpaio lost his job. But Arpaio’s demise didn’t spell the 287(g) program’s end. In the spring of 2018, seventy-eight agencies in twenty states had formal agreements with ICE in effect.
Phat Dinh Truong’s legal battle illustrates how quickly and dramatically immigration law came to embrace criminal law in the 1980s and 1990s. Born in Vietnam in 1954, the same year in which Ho Chi Minh’s communist forces prevailed against the French and the United States threw its support behind Ngo Dinh Diem’s anticommunist government in the south, Truong came to the United States as a twenty-seven-year-old refugee and soon became a lawful permanent resident. A few years later, in 1985, he committed robbery and was eventually convicted. It appears that he stayed out of trouble after that incident, and still immigration officials tried deporting him ten years later when he returned from a business trip to China. When he committed the crime, no one had ever heard of an aggravated felony. It wouldn’t become part of immigration law for another three years. But by the time he returned to the United States from China, immigration law had come to include robbery in its growing list of aggravated felonies requiring confinement and deportation. Unlike criminal law, immigration law lets legislators raise the stakes of illegal activity even years later.29
Supporting the industry that gave immigration prisons their start, IIRIRA also included a requirement that the INS—now ICE—consider leasing or purchasing existing detention facilities over building its own. To private prison entrepreneur Tom Beasley, remember, selling prisons is like selling hamburgers. IIRIRA is a reminder that it’s a lot easier to sell hamburgers if you force hungry people to browse the menu at McDonald’s.
Whether tied to a dangerous ideology, unwanted drug activity, or simply a morally depraved unwillingness to comply with legal requirements, the migrants of the 1980s were framed as voluntary wrongdoers. They had chosen to align with Marxist rebels or drug traffickers. They had elected to become common criminals. At best, they were economic migrants who lacked respect for the rule of law. Regardless, none deserved an open-armed embrace. And none received it.
When the Reagan administration first turned to prisons to address migration, it sent a young Justice Department lawyer, future New York City mayor Rudolph Giuliani, to Capitol Hill. Pitching the administration’s plans to Congress, Giuliani said it needed $35 million to build two prisons. “This additional space is urgently needed if we are able to adequately enforce our immigration laws,” he claimed in 1982. Congressman Robert Kastenmeier, a Wisconsin Democrat, wasn’t easily convinced. “From 1954 until last summer,” the congressman said, “the United States followed a general policy of releasing aliens pending immigration matters.… This was, and still is, a wise policy.”30 Eventually, of course, Giuliani’s position won, and a radical transition in immigration policy began.
The new century did not bring any break from the rhetoric of migrant criminality that had come to dominate political conversations in the 1980s and 1990s. The extraordinary demands of the days immediately following September 11, 2001, led to extraordinary confinement as the INS ramped up its power to imprison. Attorney General John Ashcroft promised, “If you overstay your visa—even by one day—we will arrest you.” Tens of thousands of people from predominantly Muslim countries were required to check in with immigration officials. Many were not allowed to walk out the same doors they had walked in. With the threat of terrorism sheathing law enforcement plans, a Muslim man accused of “anti-American statements”—which, in the words of a later Justice Department review, “were very general and did not involve threats of violence or suggest any direct connection to terrorism”—was among approximately 750 migrants detained for nothing more than allegedly violating immigration law.31 They were held for long periods in INS facilities in Oakdale, Louisiana, and Miami; Bureau of Prisons sites in Kansas and New York; and county jails across New Jersey.
The most notorious feature of this episode was the harsh conditions inside the Metropolitan Detention Center, a maximum-security federal prison in Brooklyn. Inside the MDC, detainees were sent to a special high-security wing of the prison. These cells are designed for people deemed too dangerous to be anywhere near other prisoners; they are the most restrictive type of cell in the federal prison system. Though the “administrative maximum” special housing unit wasn’t new, the September 11 detainees were sent there without the usual individualized review to determine dangerousness. No one bothered to ask whether these people should be in this place. Nonetheless, as the Justice Department’s inspector general would disclose two years later, they “were subjected to the most restrictive conditions of confinement authorized by BOP policy, including ‘lockdown’ for 23 hours a day, restrictive escort procedures for all movement outside of the ADMAX SHU cells, and tight limits on the frequency and duration of legal telephone calls.” For a time, the inspector general added, they were even subjected to a “communications blackout.” When someone called to ask if one of the September 11 detainees was being held there, staff “often told people inquiring … that the detainee was not being held at MDC when, in fact, he was.”32 Swallowed by the force of immigration imprisonment, these people effectively disappeared from the face of the Earth.
Already enmeshed in public and private vehicles of wealth creation and lodged in the minds of elected officials as economic engines, immigration prisons are ripe for growth. The number of immigration prisoners held by the U.S. Marshals Service, ICE, and the Bureau of Prisons grows steadily. Even if it doesn’t expand every year, it is unmistakably on an upward trajectory. By the time President Obama exited the White House in January 2017, the nation’s immigration prison population had reached record levels. President Trump promised to build on that, and his early years in office suggested he was heading in that direction. ICE transitioned from the Obama era to the Trump era, surpassing its previous record high of 34,376 people detained on average every day, reached in fiscal year 2016, the last that fell completely within Obama’s tenure. The following year—split about one-third under Obama and two-thirds under Trump—the agency detained 38,106 people each day.33 In the first year fully with Trump at the helm, ICE confined 42,188 people daily.
Meanwhile, the legal authorization for more confinement continues to get more expansive. In 2014, ICE’s lawyers repeatedly told federal judges that they needed to detain women and children to deter others from coming, despite established legal principles that deterrence isn’t a permissible justification for civil detention; it’s only a reason to punish people criminally. Recognizing that courts were unwilling to let the boundary between civil and criminal confinement slip so easily beyond recognition, DHS eventually shifted course by dropping its deterrence rationale. It did nothing to alter its practices, though. Instead, it found more legally sound reasons to detain by claiming that the families would disappear into the nation’s interior or endanger the public.
Government officials remain creative in their attempts to lock up more migrants. Federal prosecutors have successfully staved off attempts to curtail special procedures that let them run migrants through criminal proceedings en masse. Judges oversee dozens—as many as one hundred at times—of migrants at once in hearings organized under Operation Streamline. The response, a federal appeals court wrote, is “an indistinct murmur or medley of yeses.”34 Brought to courthouses by U.S. Marshals, they are frequently shackled at the hands and feet in a display of “cattle call” justice, one defense attorney said.35
Outside the federal courtrooms, officials have also confined people inside stables built for cows, literally. On the morning of May 12, 2008, roughly nine hundred law enforcement agents—from local police to ICE officers—raided an enormous meatpacking plant in Postville, Iowa. According to a press release issued that day by federal prosecutors, “agents executed a criminal search warrant … for evidence relating to aggravated identity theft, fraudulent use of Social Security numbers and other crimes, as well as a civil search warrant for people illegally in the United States.”
All told, they arrested almost four hundred migrants. Most were sent to the National Cattle Congress, a century-old fairground in nearby Waterloo where prized dairy cows are trotted. There, the arrested migrants were taken in groups of ten before a federal judge, who sat in a makeshift court more commonly known to Cattle Congress regulars as the “Electric Park Ballroom.” Almost all would soon plead guilty to the federal crime of using false documents to work.36 Ordinary workers had been turned into criminal aliens and shipped to a sixty-acre fairground built to show off stock animals. Erik Camayd-Freixas, a long-time interpreter who was present at the Cattle Congress court, recounted the experience he witnessed: “Driven single-file in groups of 10, shackled at the wrists, waist and ankles, chains dragging as they shuffled through, the slaughterhouse workers were brought in for arraignment … before marching out again to be bused to different county jails.… It is no longer enough to deport them: we first have to put them in chains.”37
Today, almost two decades into the twenty-first century, imprisonment retains its central position in the nation’s immigration law-enforcement apparatus, but it can no longer be said to operate independently of other areas of law. It is instead firmly entrenched in a broader securitization regime, in which the government uses brute force as evidence that it remains in control and that the nation remains sovereign. In turn, the twenty-first-century pursuit of security builds off the decades-long fetishization of imprisonment. The prison is a social service, a public good—even a humanitarian gesture. The United States could, in the traditional criminal-law context, kill people, or, in the immigration context, let migrants die in the desert. Instead, the federal government sends them to facilities that resemble “summer camp,” long-time ICE official Matthew Albence told Congress in 2018, months before he would be promoted to the agency’s second highest post.38 That the United States chooses to imprison instead is a sign of graciousness: bare-knuckled, poisonous graciousness.
To the migrants locked up, most of whom come from Latin America, the prison walls are just a concrete reminder of their marginalized position within a global economic order that prizes the disposability of exploitable labor. Sociologist Tanya Golash-Boza calls this the “immigration industrial complex.” With an obvious reference to President Eisenhower’s famous lament about the federal government’s increasing dependence on private corporations to provide national security, Golash-Boza describes a “convergence of interests” that lead to ever harsher immigration policies. Following the financial and political gains of immigration imprisonment allows us to see “who benefits from immigration law enforcement” and understand why it has become such an ingrained feature of twenty-first-century policing.39
Immigration imprisonment sets the modern marker of what the legal scholar Kevin Johnson calls the nation’s “magic mirror.” It lets us see our inner selves—what our worst demons would have us do to others even if we have a hard time admitting it to ourselves. It lets us glimpse the excesses to which we as a nation are willing to go when unconstrained by our better selves. How we might demonize our neighbors, fanning fear and destroying families. 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. If we’re willing to lock up people, we’ll find a reason. Most of the time the targets will be people of color. We can call this a coincidence, but we would be lying to ourselves.