7

ABOLISHING IMMIGRATION PRISONS

Standing where we are now, with more people locked up than ever before for daring to move across the face of the Earth, it is hard to imagine policing immigration law without prisons. Since the days of President Jimmy Carter’s administration, immigration prisons have enjoyed bipartisan support.

With President Trump’s election, the rhetoric and reality of immigration imprisonment has become more corrosive than ever. From the start, his election promised more imprisonment. His first attorney general, Jeff Sessions, worked hard to bring that promise to life. His second, William Barr, picked up where Sessions left off, and there is certainly nothing on the political horizon suggesting that immigration prisons are losing favor in Washington or anywhere else. In the summer of 2018, President Trump’s immigration enforcement practices careened into what, for many people, was the previously unthinkable image of government officials stripping children from their parents. I saw children no older than six jumping rope under a beating Arizona sun, their bodies so light that the rope picked up more dirt than their feet did from the parched floor. Tall fences, electronic locks, and a twenty-four-hour surveillance team make sure that few children think hard about leaving.

Sharon Phillips, a New York City lawyer who has repeatedly visited the country’s largest family-only facility in Texas, adds much-needed context. “This isn’t about Trump. It didn’t start with him,” she told me. Indeed, under President Obama, the federal government first closed Bush-era family immigration prisons. A few years later, the Obama administration opened new family immigration prisons. Trump didn’t start family imprisonment, but, as Phillips points out, “Trump escalated it.”

If Donald Trump’s rapid rise from tabloid fame to foul-mouthed president teaches anything, it’s that politics change, time moves forward, and what was previously unimaginable can one day become the new normal. In the Biblical story of Joshua’s attack on the walled city of Jericho, it took patience and strategy, but finally “the wall fell down flat, so that the people went up into the city.”1 With the right mix of inspiration and organization, prison walls can come tumbling down.

For years, lawyers and organizers have tried to fix immigration prisons. Often, they have had some success. When lawyers and family members complained that people were getting lost inside ICE’s facilities, the agency created a website to track the people in its custody. When advocates complained that sexual assaults were rampant in ICE’s network, Congress extended the Prison Rape Elimination Act. Even President Trump has scaled back some of his administration’s worst excesses. Public outcry over family separations convinced him to bar Border Patrol officers from sending parents for criminal prosecution and children to child-only facilities under the pretense of needing to talk in another jail cell.

And yet it remains extremely difficult for lawyers and relatives to keep in touch with detainees, because ICE moves them around the country without regard for whether an hours-long flight is a realistic option for advocates and family members. Rapes are banned, but survivors of sexual violence still find legal roadblocks on the path to justice. In one case, a federal court dismissed a lawsuit filed by eight women who were raped by an immigration prison guard. The guard had admitted his guilt in a separate criminal prosecution, and ICE had violated an internal policy by letting the guard escort the women alone, but that wasn’t enough for the court. In the view of the conservative Fifth Circuit Court of Appeals, violating a policy intended to avoid sexual assault isn’t the same as showing that a “substantial risk of serious harm exists.”2

Seeing only the harsh edge of an immigration policy that has grown even harsher under President Trump can turn even the most reasonable observer into a cynic. I prefer to search for hope, to think of the Trump moment as an opportunity to revisit assumptions. And no assumption is harder to uproot than the hold that immigration prisons have on people who make immigration policy and those who contest it. Without escaping the immigration prison’s walls, it might be impossible to escape the prison system’s racism and mass commodification of human life.

Freedom for thousands of people considered too dangerous or untrustworthy to live outside walls won’t happen overnight. In a series of essays, Angela Davis put forward a helpful way of thinking about a world with more freedom and fewer prisons. Abolition, she says, isn’t just about toppling what already exists. It has to be about building up something else too. Abolition “involves re-imagining institutions, ideas, and strategies, and creating new institutions, ideas, and strategies that will render prisons obsolete,” she argues.³ Without a constructive component, the destructive part of abolition will leave a gaping hole in the policy landscape. And that hole, we can expect, will prove fertile ground for other forms of exploitation to grow.

No better example exists about the risks of destructive abolition than slavery’s aftermath. Even now, the centuries-old practice of turning humans into commodities stands apart from other instances of cruelty. In his infamous opinion in Dred Scott v. Sandford, the pre–Civil War case in which the Supreme Court concluded that a black man could not claim U.S. citizenship, Justice Roger Taney captured slavery’s ethos: “[the black man] had no rights which the white man was bound to respect.”⁴ In the eyes of the law, black people were things to be bought, sold, and gifted, raped and beaten, worked to exhaustion or death, criminalized and killed. Black men were valued for their ability to create wealth. Black women were prized for their ability to make new things and, through childbirth, new slaves. The law enabled social and racial control.

When that horrible institution collapsed in the flames of the war-torn nation, there was reason for hope. Abolitionists had long pushed for slavery’s demise to be paired with meaningful reparations. They wanted to destroy the social institution and upend the legal regime at the same time that slavery’s winners made amends—real, concrete wealth transfers—to their newly freed neighbors. For a moment, dreams seemed like they might become reality.

And then hope gave way to the brutality of raw power. Share-cropping reconfigured economic relations, but not the racial order. Criminal prosecution gave legal cover to old habits: controlling blacks’ movements through laws against loitering, for example, and exploiting their physical labor. Violence remained a favorite terror tactic.

Early in the twentieth century, W.E.B. DuBois pilloried the course that abolition had taken. In his monumental The Souls of Black Folk, DuBois wrote, “What did such a mockery of freedom mean? Not a cent of money, not an inch of land, not a mouthful of victuals,—not even ownership of the rags on his back. Free!”5 To DuBois, abolishing slavery required more than ending the legally permissible ownership of human beings. To him, it meant rectifying the sin of profiting from centuries of exploitation. It meant redistributing wealth from the people who had taken it through the violent tip of a cracking whip and giving it to the people whose hands had actually tilled the soil. For abolition to become meaningful, legal change couldn’t stand alone. Severing the literal chains wasn’t enough. It needed to be accompanied by changes to a culture built around white people’s exploitation of black people. Simply, DuBois believed that a social transformation was necessary. For that to happen, white supremacy itself had to be uprooted. To his dismay, exploitation in the form of slavery ended, but exploitation did not. It just took a different form.

Reforming immigration prisons carries a similar Achilles’ heel. They are built, they expand, they evolve, they know no failure. Angela Davis lobbed a similar critique at prison reform, claiming “more frequently than not, these reforms have ultimately solidified the institution.”6 In his history of prisons, Discipline and Punish, French philosopher Michel Foucault wrote, “Prison ‘reform’ is virtually contemporary with the prison itself: it constitutes, as it were, its programme.”⁷ From this perspective, efforts to reform prisons entrench them further rather than threaten their existence. Making immigration prisons nicer may drive migrants’ confinement further into the United States’ legal system, but more worryingly, trying to fix the worst parts of immigration prisons risks turning the prisons that remain into symbols of enlightened policymaking. To a United Nations human-rights official, a converted nursing home in Pennsylvania represents “best practices” in immigration detention.⁸ To Diego Rivera Osorio, it’s where he learned to walk.

Left to the slow churn of reform, prisons can morph into a warped humanitarianism. The very word penitentiary derives from the Latin word for repentance, paenitentia. Like the early U.S. prisons, the theory underlying imprisonment imagines a space in which moral deviants repent. By seeking forgiveness, they can overcome the moral stain of their transgressions and experience new life as morally upstanding members of the community. Following this me-and-my-God model, Philadelphia’s Eastern State Penitentiary, for instance, was designed to allow for maximum communion with God. Inmates were kept in one-person cells from which they could see no one except the guard. They could communicate with no one except their jailer, their God, and their conscience. To the moral reformers who backed this experiment in punitive social redemption in the Quaker-influenced city, the new penitentiary was a lost soul’s moral sanctuary. With the body caged, the soul could be cradled.

But thought of another way, Eastern State was an experience in punitive double-sidedness. Corporal punishment ensured that inmates had no control over their bodies. The crushing power of isolation ensured that they didn’t have much more control over their minds. Traveling across the United States in 1842, Charles Dickens stopped in Philadelphia, where he marveled at the city’s hospital and waterworks—“no less ornamental than useful,” he concluded. Its new prison, however, dismayed Dickens. “I hold this slow and daily tampering with the mysteries of the brain, to be immeasurably worse than any torture of the body,” he wrote. With singing prose, he went on to explain the horror of being complicit in such cruelty. “I solemnly declare, that with no rewards or honours could I walk a happy man … with the consciousness that one human creature, for any length of time, no matter what, lay suffering this unknown punishment in his silent cell.”9

Immigration prisons have followed a similar confinement-as-humanitarianism pattern. When Chinese migrants were detained in the dockside warehouses, good-hearted advocates criticized conditions inside, leading the federal government to build its own facilities on San Francisco Bay’s Angel Island, turning misery from temporary cruelty to bricks-and-mortar permanency.

A similar story repeated itself a century later with the Krome Avenue Detention Center. In 1980, the Carter administration turned an old missile site near Miami into a makeshift detention center for Cubans and Haitians. Living conditions were bad all around, but for the southern portion of the camp, where Haitians were housed, things were outright deplorable. A lawyer for detained Haitians said conditions were “atrocious.” “We do not consider those sites fit for human habitation,” a spokesperson for the Florida Department of Health added. “It is an intolerable situation.” Soon federal officials invested in upgrades, transforming this bit of South Florida swamp “into a more permanent facility designed to discipline and to hold unwanted refugees,” writes historian Jana K. Lipman.10

Writing about legal challenges to immigration detention practices in the United States in the 1980s, historian Carl Lindskoog describes this trend. After the Carter administration suddenly began its hastily implemented, ad-hoc detention of Haitians, the detainees sued, claiming the government had failed to follow required procedures for shifting its policy. The INS responded by adopting a formal detention policy.¹¹ When advocates complained to the Reagan administration that the federal prison system was over capacity largely because of too many Haitian and Cuban migrants, administration officials asked Congress for more money, and the INS responded by spreading its detainees across nine hundred state and local jails.¹² “Each challenge led to the development of a more resilient legal, political, and economic rationale for its existence,” notes Lindskoog.¹³

A similar pattern has repeated itself more recently. When George W. Bush occupied the White House, ICE started splitting parents who were caught alongside their children. To Congress, it was outrageous that ICE would tread on the sanctity of family life. In response, the immigration agency recommissioned a former medium-security prison as a stand-alone family prison called the Hutto Family Residential Center. In the dry wit of the world’s leading researcher on immigration prisons, Michael Flynn, “detaining families at Hutto was apparently meant to protect an important right—the right to family life.”¹⁴

Recently, we have seen more of the same. During the summer of 2014, the Obama administration threw open a family prison in Artesia, New Mexico. One of the first attorneys to arrive there, Julia Braker, recalls surprise at the number of sick migrants and blames living conditions. “It seemed pretty intentionally created by the government,” she told me. She had the impression that “it was supposed to be miserable.” Later that year, the federal government partnered with a private prison corporation to open a permanent facility in rural Texas. The South Texas Family Residential Center in Dilley, about an hour south of San Antonio, is the largest families-only facility in the government’s immigration prison arsenal.

Fast-forward to 2018, and the pattern repeats itself. In a mean-spirited spat, the Trump administration began taking children from their parents, prosecuting the adults criminally, and sending kids to government-financed, privately run “shelters” from which they can’t leave. Government officials struggled to say how many families they separated. Meanwhile, the Trump administration official in charge of overseeing the child-only prisons fought all the way to the Supreme Court to block girls from accessing abortion services. When news broke of children being taken from their parents—sometimes literally while the kids were asleep in a mother’s arms, at other times through outright lies—criticism came from every corner. Even Melania Trump voiced her opposition. Eventually, the president ended that practice, only to replace it with an effort to detain more families together.

Government officials aren’t beyond blaming advocates for prison expansion. Reagan’s attorney general, William French Smith, claimed Haitians were confined longer than other migrants because they insisted on speaking to lawyers and filing asylum applications.15 Most shocking, at one point in the mid-1990s, advocates for Haitian migrants even lobbied the Clinton administration to reopen a detention center at Guantánamo, Cuba, because that was better than the government’s proposal of reviewing asylum claims in Haiti or on board a navy ship.¹⁶

Clearly, prisons have become part of the psyche of immigration law. Decades into its modern growth spurt, immigration prisons have grown roots that keep the industry thriving. End one contract, and another one will take its place. This is what happened in Milan, New Mexico, when BOP cut off a prison, only for it to be saved by ICE. It’s what happened in Willacy County, Texas, when ICE pulled out and BOP stepped in. Then BOP pulled out and ICE returned.

Without cutting off immigration prisons at their root, they will continue to resurrect themselves. So long as the federal government is committed to a security-first philosophy that imagines migrants as dangerous outsiders—aliens—who pose an existential threat to the nation itself, then it makes all the sense in the world that it will turn to the power of confinement.

Legislators, lawyers, and even many activists have bought into the need for prisons such that it is almost impossible for anyone to think outside the box. Books are constantly written about the problems with imprisonment and lawsuits filed challenging prisons’ worst excesses, but in the context of immigration, few people have asked the all-important question: “Are prisons obsolete?” as Angela Davis put it in 2003. Thinking about it another way, would immigration law crumble if prisons ceased to exist?

We certainly don’t need prisons to enforce immigration laws. During the early 1980s, when immigration imprisonment was ramping up, opposition came from all quarters. The Democratic governor of Florida led a state lawsuit against the INS over conditions inside a Miami facility. Far to the north, Republican congressman David Martin helped derail plans to confine migrants at an army base in his district near the Canadian border. The federal government itself questioned whether the INS was up to the task of confinement, concluding that an INS center “is not an efficient long-term custody solution.”17

In his history of early prison profiteers, Malcolm Feeley writes that it “was not always a foregone conclusion” that prisons would be used to punish people for their transgressions.18 For centuries before the United States split away from the United Kingdom, English courts worked with private shipping companies to remove serious offenders, literally, by forcibly transporting them across the Atlantic. To the Crown, this was a great deal. It punished offenders, showed a strong willingness to fight crime, and cost very little money: people could request transportation in lieu of death, and they could pay for it themselves or indenture themselves to a private shipping company. Most people are aware that a version of this happened in Australia, but it thrived along the eastern seaboard of North America longer and earlier. Transportation to North America came to a rapid halt with the colonial uprising that eventually led to U.S. independence. Almost at once, “entrepreneurs,” as Feeley calls them, pitched prisons as a cheap, effective way of removing offenders from society.

And so punishment through mobility, through moving offenders elsewhere, became punishment through immobility, through putting them behind bars. Like in the days before U.S. independence, migrants experienced legal disapproval by being forcibly relocated. And like with the beginnings of criminal imprisonment, migrants eventually began to suffer that same disapproval through forced confinement.

I don’t pretend to have a step-by-step plan for getting from a policy that imprisons half a million migrants annually to one that ensnares zero. The radical activist group Mijente is among the few organizations calling for the abolition “of all forms of immigration detention,” but even they don’t pretend to know how to navigate the politics of migration to reach that goal.¹⁹ No one does, because no one can. If it took seven days for the Old Testament Jews to fell the walls of Jericho, surely it will take much longer for mere mortals to tumble the walls of immigration prisons.

Reforms that merely reorganize and reproduce coercion won’t get us any nearer to a world without immigration prisons. It’s not enough to shift the bounds of who should be locked up. The United States has tried that. When Congress declared that anyone convicted of an aggravated felony must be detained, they identified three serious crimes that fall into this category. Now there are twenty-one types of aggravated felonies.

Nor is it acceptable to support reforms that simply inject some twists into the path toward confinement. ICE’s existing alternatives to detention programs fall into this camp. Though they have taken different forms over the years, these initiatives always involve intrusive surveillance. Typically, they also come with around-the-clock GPS monitoring through clunky ankle bracelets that reek of punishment. Fail to meet the monitoring requirements and a migrant loses any chance at freedom. Worse, ICE uses these programs as alternative ways of keeping tabs on people who don’t need to be watched—people who are grounded in the United States and are therefore unlikely to miss court dates, and people who show no inkling of violence. These aren’t people who would be detained and are now being allowed a semblance of liberty. Instead, these are people who should never have been detained in the first place. Treating ICE’s alternatives to detention as a step up is only possible after accepting the agency’s premise that everyone deserves confinement.

But some reforms can better approach an abolitionist future. Reforms that reduce the immigration-law enforcement system’s reach into migrants’ lives might help end immigration imprisonment. For example, the United States should disentangle ICE’s power to detain from the criminal justice system. A racially biased, deeply flawed criminal justice system that skews against poor people shouldn’t be the foundation on which civil detention rests. It wasn’t defensible at the turn of the twentieth century, when dockside warehouses in San Francisco were dubbed “Chinese jails,” and it’s not acceptable now. At the same time, Congress should throw the federal crimes of illegal entry and illegal reentry into the dustbin of legislative history. What benefit has the United States received since the Bush administration prioritized these sections of the federal penal code?

If those seem far-fetched, then we can start by giving every migrant a lawyer, whether they can pay for it or not, then add other support like social workers, while handing everyone a work permit so they can sustain themselves while they raise their legal claims. The country’s first initiative to provide lawyers for everyone held in a particular immigration prison facing deportation, the New York Immigrant Family Unity Project, led to a surge in the number of people who were released. Once out of prison, almost everyone showed up for court dates. During its first three years, 10 of 611 Family Unity Project clients released from prison failed to show up to court without the judge’s permission. That’s a 98 percent success rate. Legal representation also increased the odds that migrants would win their court cases. Before getting a lawyer through the program, 4 percent of migrants successfully fended off removal. With the help of a lawyer, the number jumped to 42 percent.20

None of this is a surprise. Immigration prisoners aren’t the wandering souls that politicians like to make them out to be. Many have deep ties to the United States. One out of three people held by ICE in the summer of 2018 had been in the United States for at least one year. Almost 20 percent had been here for at least ten years. People with the most serious type of criminal records—who, by law, must be locked up while waiting for the immigration courts to process their cases—tend to have spent a long time in the United States. According to one study, on average fifteen years.²¹

In addition, when a legal process gives people a meaningful opportunity to participate and takes their concerns seriously, they comply. Known in the academic literature as “procedural justice,” the idea boils down to simple fairness. People can sniff out a sham legal process. If the rules are stacked against someone, the outcome seems rigged. But if everyone seems to be getting a fair deal, then people will go with it, even if they don’t like the outcome. Nuremberg prosecutor and Supreme Court Justice Robert Jackson captured this concept at its most basic. “Severe substantive laws can be endured if they are fairly and impartially applied,” he wrote in a 1953 dissenting opinion.22

Emily Ryo, the legal scholar, is one of the few people to seriously study this phenomenon in the immigration prison context. Analyzing surveys of almost six hundred ICE detainees, Ryo found “a significant relationship between immigrant detainees’ fair treatment perceptions and their perceived obligation to obey U.S. immigration authorities.” Interestingly, this group of migrants was more committed to following the law than what studies of people living freely in the United States typically find.²³ What this means for immigration prisons is straightforward, even if it does fly in the face of decades of bipartisan political rhetoric. If we want migrants to show up for court dates, treat them fairly. It’s really that simple. Prisons aren’t just unnecessary; they’re counterproductive.

The government’s own experience proves this. Almost since it returned to immigration imprisonment, it has been experimenting with alternatives to confinement. While President Reagan was still in office, the INS worked with the migration arm of the United States Catholic Conference to move into the community some of its most notorious detainees, the Mariel Cubans made famous by Al Pacino’s Scarface. For a dozen years from 1987 to 1999, the Catholic group provided education, job training, substance abuse treatment, and weekly meetings to fifty to sixty Cubans annually. Three-quarters had no problems meeting the program’s requirements.²⁴ Overlapping with the Cuban initiative, in 1997 the INS partnered with the Vera Institute of Justice to run an intensive compliance-support pilot program in the New York and New Jersey area. Instead of confining migrants, the INS sent migrants selected for the initiative to live with community sponsors. Once outside, migrants were educated about the immigration court process and the importance of complying with court orders, kept up-to-date on court dates, and referred to legal counsel.25 Eighty-five percent of participants in the Clinton-era program kept showing up to court.²⁶

These aren’t the only success stories. In the late 1990s, the INS had on its hands people who had already been ordered deported because of criminal records, but for whom the government couldn’t get necessary travel documents. It planned to deal with them by locking them up for however long it took—indefinitely, if necessary. Catholic Charities stepped in. From 1999 to 2000, it moved those people out of prison. By the time he was tapped to participate, one man had been in INS prisons for seven years. Once enrolled, everyone got a place to live, information about program expectations, and help with jobs. Of the first twenty-one people to participate, twenty had no problems.²⁷

Success stories like these aren’t ancient history. They aren’t even the most recent examples. During the Obama years, ICE partnered with Lutheran Immigration and Refugee Services to provide ten migrant families with full-service case management. The faith-based organization’s staff helped the families find housing, educated migrants about the legal process, and provided legal assistance. The program was tiny. It was funded primarily by two private foundations and was intended to show that robust case management could compete with detention. The results were remarkable, but not surprising. One hundred percent of families did what immigration officials told them.²⁸

What makes these programs worth talking about isn’t just that they work, but that they work without intrusive law enforcement–style oversight. Unlike prison life, none required days behind steel doors and concertina wire. None involved handing over cash to pay for release on bond. Contrast that to standard practice in immigration courts, where judges hand out bonds averaging as much as $80,500.29 Most of the time, no one had an electronic bracelet strapped to their ankle, but contrast that with ICE’s willingness to use electronic bracelets on people with no criminal records and with deep ties to the community. And none of these initiatives relied simplistically on criminal records to bar participation, a stark contrast to federal judges who deny bond to immigration-crime defendants more often than they do to people charged with any other federal crime. Instead of superficial assumptions about dangerous migrants who are all too willing to disappear into the anonymous masses of migrant America, each initiative used a straightforward cocktail of support to increase compliance: individualized education and legal representation combined with community collaboration. These programs prove that it is possible to comply with immigration requirements and enjoy the freedom most of us take for granted.

For thirty years, the federal government has had at its disposal meaningful options to ensure that migrants show up to court and don’t endanger the community. Without enlarging the number of people incarcerated or expanding the government’s surveillance of people it wouldn’t otherwise keep tabs on, these projects cost pennies to the dollar compared to detention. But instead of pouring money and ingenuity into them, it has always chosen to kill these projects, instead prioritizing detention and alternatives to detention that involve similarly heavy surveillance. Over and over again, imprisonment has beat out freedom.

That we don’t already take these basic steps toward injecting fairness into immigration proceedings and instead rely on the easy claim that migrants are too unscrupulous to merit liberty reveals immigration imprisonment for what it truly is. It’s not a humane means of enforcing fair laws; it’s an over-the-top reaction to a legal system designed to keep migrants in their place at the bottom of a social hierarchy that metes out favors and punishments according to race and class. The more privileged you already are, the more favored you will continue to be. Immigration prisons reveal the ugly, generations-old politics of exploiting segments of humanity. This isn’t the first time, and it seems unlikely to be the last. But that doesn’t make it any better.

Perhaps surprisingly, the Supreme Court has pointed in the direction of a more humane approach toward limiting imprisonment. Governmental action that “treat[s] members of the human race as nonhumans, as objects to be toyed with and discarded,” the Court wrote in 1972, violate the Constitution’s Cruel and Unusual Punishments Clause.30 This principle, grounded in the Magna Carta, the famous thirteenth-century English legal document, and crystallized more clearly in the 1688 English Declaration of Rights, made its way into the Constitution as a means of protecting the “dignity of man.”³¹

“You should be treated with dignity,” David Rodriguez, who spent two and a half months inside a Houston immigration prison, insists. But what does it mean to treat people as human beings filled with an innate dignity? Not much, it would seem, given the state of imprisonment in the United States. In a series of lawsuits, people locked up in California’s notoriously overcrowded, dangerous, and generally heinous prisons attempted to revive the moribund Cruel and Unusual Punishments Clause by arguing that they deserved a measure of dignity even as they atoned for their crimes. To their credit, the courts displayed a sympathetic ear and drew a line in the margins of acceptable imprisonment where no line had seemed to exist. Convicted offenders cannot be denied “life’s necessities,” concluded a specially impaneled three-judge trial court.³² On appeal two years later, the Supreme Court added, “Prisoners retain the essence of human dignity inherent in all persons.”³³ The specific problem of prison overcrowding that the Court addressed is fairly narrow, but the underlying dehumanization of prisoners is much broader.

For that reason, the Court’s recognition that people don’t stop being people when they find themselves behind bars is momentous. In breathing a sliver of life into the Constitution’s dignity principle, the justices acknowledged that legal procedures can make life miserable, but they shouldn’t be allowed to override the basic elements of human existence. In those legal decisions, courts, including the U.S. Supreme Court, declared that the acts that led people into prison are insufficient justification to deny them basic components of a dignified life. They can be imprisoned, but they can’t be denied their humanity.

The twentieth-century philosopher Hannah Arendt would have agreed. A German Jew who survived Nazism by fleeing first to Paris, then to New York, Arendt’s 1951 intellectual tour de force, The Origins of Totalitarianism, continues to set the standard for critiques of despotism’s dangers. Rightly so, her focus was on Europeans who had been stripped of their citizenship before being stripped of their lives by Nazi forces and their allies. In writing broadly about totalitarianism, she highlighted the mundane features of systematized dehumanization. People stripped of law’s protections were converted into “the scum of the earth,” she wrote.34 But she also described the law’s potential to resurrect. “The same man who was in jail yesterday because of his mere presence in the world, who had no rights whatsoever and lived under threat of deportation … may become a full-fledged citizen because of a little theft,” she added. “He is no longer the scum of the earth but important enough to be informed of all the details of the law under which he will be tried. He has become a respectable person.”³⁵ So long as the law continues acknowledging a person’s legitimate role in the community, she seemed to be saying, it will recognize the person’s humanity. When the first ends, so too does the second.

Alone, neither federal courts’ tepid embrace of human dignity nor Arendt’s trenchant analysis is enough to end immigration imprisonment. Prisons in the United States remain teeming with people. But legal challenges to horrendous conditions inside California prisons provide a helpful example from which to resist immigration imprisonment by insisting on respect for migrants’ inherent humanity. A politically charged sense of dignity must be at the core of that struggle. It is not enough to ask that immigration prisoners not be killed, starved, physically abused, or sexually assaulted. The Supreme Court’s embrace of dignity is helpful, but too limited. Indeed, it must be because of the limitations inherent in legal proceedings. Courts of law are good venues for demanding that we treat each other according to the norms we have already agreed upon, but they are not particularly good venues for improving the conduct we demand of each other.

Instead, we should dream. Allison Crennen-Dunlap has summarized trends in Supreme Court decisions that enlarge the power of federal officials to detain migrants by reducing the oversight role that immigration judges play. According to her, “it seems then that the range of rights once thought possible for noncitizens has narrowed. Might the time be ripe to ask some bigger questions?”36 In simply asking the question, Crennen-Dunlap answered it. The scale of the nation’s immigration prison system continuously grows. The conditions of confinement seem impossible to improve. The faces of prisoners grow younger and more vulnerable. For all their differences, Democrats and Republicans regularly agree to support immigration prison practices. Instead of continuing to beat around the bush, it is important to inject into immigration conversations a more fundamental line of attack: it is time to abolish immigration prisons.

To deny some people core features of human existence simply because they lack governmental authorizations to cross certain lines marked on maps, lines that from time to time move or disappear, is to deny migrants their ability to realize their humanity. Forcing migrants to live under the constant threat of imprisonment tied to their immigration status means treating them as if they are workers and threats before they are people. “It’s unreal the lengths they’ll go to dehumanize,” David Rodriguez told me, reflecting on his experience at the Houston immigration prison. To derail treatment of migrants as scum, as disposable, advocates need to insist that a dignified life includes the right to live with one’s family, to flee danger, and work to sustain oneself. Legal battles can be a helpful adjunct, but ultimately this is a political fight about the future that is grounded in the past.

Throughout all this, somehow migrants and their families are expected to weather the storms of strong-armed policing. As if through superhuman powers, they are to put aside the trauma of imprisonment, the practical obstacles of being uprooted from their lives and their jobs. They are supposed to be exceptional human beings. We need to stop demanding that migrants be exceptional and instead embrace their ordinariness. Today’s migrants are doing what people have done for millennia: moving from place to place in search of comfort, safety, adventure—all that makes life worth living. Indeed, in search of life itself. In the Christian tradition, trekking across the Earth begins with Adam and Eve’s fall from grace. In Islam, it started with Muhammed’s search for safety. In Judaism, it is central to the Jewish people’s survival.

People don’t wake up one morning and simply decide they will leave their homes, families, and communities. Leaving the place where people know you and you know others is never easy. This is as true for people living in poverty as it is for people suffering from violence. On their own, push factors like these, as scholars call reasons to leave, are rarely enough to get up and go. If they were, then everyone living near a richer destination would set off. And yet most Guatemalans don’t head to Mexico, and most Mexicans don’t head to the United States. The same goes for the United States, where there are few legal hurdles to state-to-state migration. Colorado, where I live, has the eighth best employment record in the country. Our southern neighbor, New Mexico, has the sixth worst. If money were sufficient reason to convince most people to move, we could expect an exodus north, but we don’t see that. Like most people, most New Mexicans stay put.

Often, we think of migrants as foreign people who are coming to what is, for them, a foreign place. “They came into a strange land,” the New York Times wrote in its 1954 celebration of Ellis Island’s last day as a detention center. Unfamiliarity retains a powerful place in our collective imagination of migrants. But for many people, coming to the United States doesn’t mean arriving unmoored. People come to the United States for specific reasons. Just like people are pushed away from home by unique factors, they are pulled toward their new home by preexisting relationships. The sociologist Saskia Sassen captured this idea brilliantly when she wrote that “migrations do not simply happen. They are produced. And migrations do not involve just any possible combination of countries. They are patterned.”37 In other words, migrants don’t head to the United States randomly. They come here because it is a stable country with good job prospects and deep ties to key parts of the world. Around the United States, there are large, thriving communities of migrants from China, India, the Philippines, Mexico, and Central America. In places like California and Texas, this has been true for generations. In the new migrant destinations of the South and Midwest, migration has been commonplace for less time, but by now it is part of the lifeblood of many communities that have seen hard times. These are the ties that bind the United States to the rest of the world, and they are firm. In bilingual, bicultural, binational people like me, they are made real.

Over and over again, government officials ignore the overwhelming human desire of people to improve their lot. During the summer of 2014, the government of El Salvador distributed a flashy cartoon called “El cuento del coyote” (“The Smuggler’s Tale”), in which a stereotypical bad guy—curved nose, sharpened teeth, and grimy clothes—locks children in a cage while a boy’s voice talks about being sold by a smuggler. “Protecting our children is our responsibility,” a grandmotherly type admonishes.38 Funded by the United States, the International Organization for Migration, and UNICEF, the cartoon apparently didn’t make much of a dent, because families and children keep coming. And the United States keeps trying to scare them away. Four years after the failed cartoon nightmare was released, Kevin McAleenan, then the director of Customs and Border Protection, visited Guatemala to tout Trump administration efforts “to provide accurate information so they won’t make this dangerous journey, where they face physical and sexual assault,” according to news reports.³⁹

The anti-smuggling video and McAleenan’s comments suggest migrants don’t know the risks of the journey north. In reality, migrants are simply responding to a greater desire to see their loved ones and make a safe life for themselves and their families—to live. Legal scholar Jennifer Chacón vividly captured the immense power that the reasons for migration have and the limited sway that imprisonment offers. “Would-be migrants who are undeterred by the very real and well-known threats of robbery, serious violence, rape, sexual assault, and death in the desert in the course of northward migration seem likely to give very little weight to the possibility of criminal sanctions when deciding to undertake the journey.”⁴⁰ The evidence backs her up. In one survey of over six hundred Mexican migrants, a mere fifty-five said law enforcement efforts deterred them from coming. In another, Central American migrants came even though roughly 80 percent were apprehended by immigration officials at some point. People coming to reunite with family or in search of better job prospects are most likely to come no matter what obstacles government officials throw their way.41

Migrants are ordinary in another way. Like all of us, migrants mess up. On average, they commit less crime than do those of us born in the United States. Along the Southwest border, counties with large migrant populations “have significantly lower levels of lethal violence than non-border counties,” the criminologist Jacob Stowell and his colleagues found.⁴² The same goes for property crime.⁴³ It’s true of Haitians in Miami, Asians in San Diego, and Mexicans in Chicago.⁴⁴ President Trump can bluster all he wants about gangs of migrants terrorizing our neighborhoods, but if what we want is safer cities and towns, we should recruit migrants. But less crime doesn’t mean no crime. Some migrants steal, and others hurt people. Denying that reality is to hold migrants to an impossibly high bar. Politically, it’s also a losing strategy. Pointing to exceptionally talented and saintly migrants as a model is a recipe for lumping mere mortals—that’s most of us—into the category of undesirable arrivals. Let’s stop sanctifying migrants and embrace the profound ordinariness that makes migrants, like citizens, human.

We also need to stop pretending that crime is a good indicator of moral worth. Having spent most of my adult life on college campuses, I am constantly reminded that we have all done things that are nothing worse than embarrassing and other things that are far worse. Sometimes regret begins to set in at the very moment, but we can’t stop ourselves. On occasion, our transgressions cross the line from a moral failing to a crime. The stain of a criminal conviction doesn’t make some people worse than people who have moved through life without a blemish. Often, criminal investigation, prosecution, and conviction reflect dumb luck or the indefensible bias of the U.S. criminal justice system.

Besides, the criminal justice system doesn’t pretend to overlap perfectly with criminal activity. Most people who commit a crime in the United States aren’t convicted. In fact, most violent crime and property crime isn’t even reported to the police.45 When police do get a call, they are not required to investigate every allegation, even if it’s credible. They simply don’t have the money to chase down every possible criminal. And when they do investigate, prosecutors don’t have to turn to the courts for justice. They can define justice however they like. If that means trying to convict someone, so be it. If it means not trying, that’s fine too. “A prosecutor,” the Supreme Court wrote in 1982, has “broad discretion … to determine the societal interest in prosecution.”⁴⁶ It might have clarified: “in prosecution or not.”

When a prosecutor does go after someone, a conviction might have little to do with what the person actually did. First, plenty of innocent people are convicted. Thousands of people have had their convictions overturned, often thanks to belated use of DNA evidence. There is reason to believe that many more people have been wrongly convicted, but the courts are unfriendly toward claims of innocence. As Justice Antonin Scalia put it with the bitterness that was his trademark, “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”⁴⁷ Second, almost no one is convicted by trial. Nine out of ten people convicted admit their guilt through the “horse trading” process of negotiating pleas.⁴⁸ Often, people plead guilty because the risk of challenging the prosecutor is so high. Prosecutors routinely charge people with multiple crimes. The possibility of long prison stints gives defendants an incentive to admit their guilt to something less than what the prosecutor has charged—even if that means accepting punishment for something they didn’t do.

Testifying before the Senate Judiciary Committee as his nomination to the Supreme Court teetered, Brett Kavanaugh defended himself against sexual assault allegations by saying, “all of us have probably done things we look back on in high school and regret or cringe a bit.”49 Cecilia Equihua would likely agree. She remembers her father, Francisco, who was held in multiple immigration prisons, as dedicated to his two daughters, but she doesn’t deny that he let his garage be turned into a meth lab. Houston chef David Rodriguez doesn’t deny that he hit two men with a baseball bat. Jerry Armijo doesn’t deny falling into drugs when he returned from Iraq. And if he could understand the question, Diego Rivera Osorio, the little boy who turned three inside the Berks Family Residential Center in Pennsylvania, would probably admit that he and his mom didn’t have the right stamps in their passports. As Kavanaugh suggested, most of us have some skeleton tucked into our past.

For people of color, especially those who aren’t able to escape into the increased safety that wealth brings, the low points of our lives frequently become sticking points. Take a single week in September 2018, when President Trump’s Justice Department issued a decision ratcheting up the immigration consequences of obstructing justice. This is an “aggravated felony,” and, like all aggravated felonies, an obstruction of justice conviction brings mandatory imprisonment followed by almost-certain deportation.⁵⁰ That same week Trump’s former campaign chairman Paul Manafort walked into a federal courthouse and pled guilty to obstruction of justice. For migrants, obstruction of justice comes with prison time, then mandatory detention by ICE, and finally deportation—all while an executive order signed by President Trump declares their presence in the United States “contrary to the national interest.” For Manafort, obstruction of justice came with prison time and a supportive tweet from the president. If you are a well-placed, wealthy white man who lies to the FBI, you are a good guy who got nabbed by an overzealous Washington establishment. If you are an ordinary migrant, you are a danger to the richest, most powerful country on earth.

With luck and privilege playing such important roles in determining who gets convicted of a crime, it makes no sense to use criminal records to decide who is morally upstanding and who is not. The bottom line is that we are a mixed bag. Ending this double standard isn’t as simple as ejecting President Trump from the White House. Congress and presidents from both major political parties have been tarring migrants for decades and supporting imprisonment as a catch-all response. When Ellen Knauff was forced to stay on Ellis Island, the Supreme Court said she was enjoying “temporary harborage” there. Three-quarters of a century later, the courts haven’t budged. Immigration prisons have never been more widespread. If that is going to change, it won’t be because the law demands it. It will be because people demand it.