Liberal imprisonment

The United States is no stranger to incarceration. We lock up millions of people every year, with a disproportionate impact on communities of color. Imprisonment is such a core feature of life in the contemporary United States that it’s hard to imagine a time before confinement became fetishized: regarded with awe, thought to have magical powers capable of curing countless ills, real and perceived.

But of course such a time did exist. Hyperincarceration, to borrow Loïc Wacquant’s insightful term, is a relatively new phenomenon—one traceable to the final thirty years or so of the twentieth century.

Why? A number of scholars have tackled this question. Ian Haney López, for example, posits that conservatives adopted stringent criminal law enforcement proposals as a wedge issue to woo white voters. His excellent Dog Whistle Politics (which I reviewed here) identifies decades of “coded talk centered on race”—what he calls “dog whistle racism”—pushed by Republicans, but eventually adopted by center-right Democrats such as Bill Clinton. In a similar vein, Michelle Alexander’s extremely popular The New Jim Crow focuses on the right’s ability to deploy white fear of crime by people of color, especially black involvement in illicit drug activity, as the foundation upon which to build the carceral regime that we know so well (watch a discussion about the links between criminal incarceration and immigration imprisonment featuring Alexander, Silky Shah, and me here).

These are compelling claims. It’s hard not to dwell on Ronald Reagan launching his presidential campaign in the same Mississippi town where three civil rights workers had been murdered 16 years earlier. The same goes for George H.W. Bush linking Democratic presidential nominee and Massachusetts Governor Michael Dukakis to violent criminal Willie Horton. Dukakis wasn’t just soft on crime, as Bush’s attack ad explicitly stated, he was soft on black crime, the ad implied none-too-subtly.

In an interesting and provocative twist, Naomi Murakawa exposes a gap in the steady (and merited) criticism of rightwing racism that Haney López and Alexander emblematize. Liberals, she argues, were equally involved in creating the United States’ prison system. In The First Civil Right: How Liberals Built Prison America (Oxford University Press 2014), Murakawa claims that liberals’ embrace of a law-and-order rhetoric privileged the process of punishment over the substance of criminal law’s reach. Postwar liberals framed the problem of race relations as being principally about the arbitrariness of racial violence. Racism was bad because it was an irrational belief, manifested through uncontrolled lynch mobs, and unencumbered by courts that were all too willing to turn a blind eye. The liberal solution, Murakawa writes, was “criminalizing ‘private’ acts, and more significantly, modernizing carceral machinery to increase procedural protections, decrease discretionary decisions, and insulate the system from arbitrary bias” (11).

Murakawa’s argument, at bottom, is that process masked substance. Instead of grappling with the United States’ sordid history of racism, liberals picked at the margins of racism’s role in law making and law enforcement. Liberals tried to make the criminal justice system work well—and by well they meant predictably. As the liberal push for determinate sentences illustrates, they didn’t want people convicted of the same offense receiving substantially different punishments (109). They never got around to asking whether anyone ought to be punished in the first place.

That lesson applies to crimmigration law. I’ve written at length about immigration imprisonment’s origins in 1980s paranoia about illicit drug activity. In Immigration Detention as Punishment, I show that, like criminal incarceration, the early war on drugs resulted in the creation of the modern legislative architecture authorizing immigration imprisonment. Indeed, much of the key federal laws crafting the early war on drugs dramatically augmented immigration imprisonment, while much of the most important pieces of federal immigration legislation enacted in the 1980s and 1990s also contributed to the expanding criminal prison population. Much of this legislation was pushed by rightwing Republicans in the Reagan and Bush administrations.

That focus can obscure the role that Democrats played in creating the immigration prison practice we now know. The late Ted Kennedy, for example, was a driving force behind federal sentencing guidelines intended to limit judicial discretion (114). This practice made its way into immigration law in the late 1980s and 1990s through curtailment and repeal of discretion traditionally afforded immigration judges, and hasn’t reverted since. For his part, President Clinton signed two public laws containing some of the harshest immigration law amendments to date: the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) and Anti-Terrorism and Effective Death Penalty Act.

A single-minded focus on the legislative record can also obscure the motivations that led to adoption of today’s immigration imprisonment regime. By limiting their analyses to congressional debates in the weeks and months prior to a proposal’s passage or to text of the actual pieces of legislation, advocates and academics (including me) can easily miss the racism that animates harsh penal practices just beneath the surface.

A robust discussion of immigration imprisonment, however, has to grapple with the reality that the United States began to rely heavily on incarceration as a means of enforcing immigration law only after large numbers of people of color, especially Mexicans and others from Latin America, came to the United States without the federal government’s permission. And any serious examination of immigration imprisonment must deal with the fact that the overwhelming number of people locked up because of a suspected or confirmed immigration law violation is Latino. Only a small handful of academics have begun to do this, most notably Yolanda Vázquez in an article that appeared in the Ohio State Law Journal this year.

Trying to understand the historically unprecedented growth in immigration imprisonment that the United States has experienced in recent years is, at best, incomplete without an analysis of race. At worst, it masks reality and facilitates repressive imprisonment policies. As Murakawa explains, “Administrative tinkering does not confront the damning features of the American carceral state, its scale and its racial concentration…. By focusing on the intra-system problems of ‘discretion,’ lawmakers displaced questions of justice onto the more manageable, measurable issues of system function. … These questions matter, but they cannot replace clear commitments to racial justice. When they are posed independently of normative goals, process becomes the proxy, not the path, to justice. Without a normatively grounded understanding of racial violence, liberal reforms will do the administrative shuffle” (154).

This is a fate that crimmigration advocates and scholars must try to avoid.

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