Prison reform’s blind spot

By visiting a federal prison last week—the first time a sitting president has ever crossed the barbed wire threshold—President Obama amplified calls for prison reform like few others could do. His televised walk through the El Reno penitentiary illustrated the stark reality millions of people live in jails and prisons throughout the United States. Standing in front of a long row of cell doors, the President’s honest assessment of his own youthful drug use—and his vocalized assumption that many of the reporters in the press pool probably share similar criminal pasts—was a refreshing reminder that the line between upstanding citizen and locked-up criminal, president and prisoner, is quite often the result of privilege, luck, and racially-stratified policing.

President Obama deserves to be commended for dragging the nation’s eyes into prison and pushing into the open a conversation about prison reform that has been waging in academic and policy advocacy circles for decades. In taking the hugely symbolic step of walking into the obscurity of prison, President Obama has focused attention on the perversity of overcriminalization and, to borrow sociologist Loïc Wacquant’s term, “hyperincarceration.” Paired with his speech to the NAACP earlier in the week outlining a plan—or at least a hope—for substantial revisions to criminal justice practices in the United States, the President’s recent actions make me hopeful that the United States could begin retreating from our catastrophically failed imprisonment fetish.

Immigration imprisonment

And yet I’m concerned. President Obama seems to have adopted the same blind spot that has plagued criminal justice policy reformers for years: immigration. The President failed to acknowledge in his NAACP speech and prison visit that roughly half a million migrants are locked up every year under his watch for nothing more heinous than being in the United States without the federal government’s permission. As I explain in an article appearing later this year in the California Law Review, immigration crimes leave a huge footprint in today’s federal criminal court dockets. Together with a handful of much less prosecuted immigration offenses, cases in which an immigration charge was the most serious offense involved made up 48% of all cases concluded by federal prosecutors in fiscal year 2012 (p. 12 tbl.6). Before and after conviction, those migrants are typically locked up in federal prisons. Immigration crime defendants are more likely than any other type of federal defendant to be held in pretrial detention (p. 16). And while they tend to see less prison time (p. 21 tbl.13) than other convicted federal offenders, almost 97% of suspects are convicted (p. 19 tbl.11) thus immigration offenders make up a sizeable percentage of the federal prison population—10 or 11% in recent years (p. 17 tbl.16).

In recent years, the number of people who experience detention at the hands of the nation’s civil immigration law enforcement agency, ICE, has skyrocketed. From less than 20,000 people confined on a given day in fiscal year 2000, the federal government surpassed 30,000 daily civil immigration prisoners in FY 2007 and hasn’t dropped below that figure for a year-long stretch. With so many people locked up daily, annual civil immigration detention population numbers are eye-catching: 477,523 detainees in FY 2012 and 440,557 in FY 2013, for example.

Shortsighted policy discussions

While I wholeheartedly embrace President Obama’s concern about overcriminalization of low-level drug activity and excessive punishments handed out to people involved in low-level drug crimes (I live in Denver, after all, where low-level drug crime comes with payroll taxes and in a variety of flavors), I’m dismayed by his silence over immigration imprisonment for a number of reasons.

First, immigration prisoners share a number of key similarities with low-level drug offenders. Like low-level drug offenders, the underlying activity that leads to immigration imprisonment is almost always non-violent and lacks a discernible victim. Most people locked up for an immigration crime are there because they are thought to have violated one of two federal statutes: unauthorized entry (a misdemeanor) or unauthorized reentry (a felony). Both consist of nothing more than lacking permission to be in the United States. Neither requires any semblance of dangerousness.

Meanwhile, the nation’s civil immigration detention centers are teeming with people confined for much the same reason: the federal government suspects they lack permission to be in the United States. They are not held in ICE’s control because they are thought to have committed a crime. Instead, they are confined solely because ICE alleges that they violated a provision of civil immigration law or because an immigration judge has confirmed that they do. To be sure, some migrants facing detention and removal have criminal histories. Much of that, however, is the drug activity that President Obama rightly honed in on or something even less benign: a conviction for an immigration crime. Of the 198,394 people removed in FY 2013 who had previously been convicted of a crime, for example, 47% (92,797 people) had been convicted either of an immigration offense (62,194) or a drug offense (30,603). Another 29,844 were convicted of motor vehicle traffic crime.

Second, President Obama’s blind spot regarding immigration prisoners concerns me for the simple reason that he can do something about it without congressional support because immigration imprisonment turns on federal criminal justice priorities.

Though unauthorized entry and unauthorized reentry have been on the books since 1929, historically they were little used. The administration of President George W. Bush began to reverse this historical trend, but the Obama Administration put the new normal into high gear. Federal prosecutors, for example, continue using a Bush-era prosecutorial initiative called Operation Streamline that allows them to hold criminal hearings en masse. Though at least one federal appellate court has found that Streamline proceedings violate Rule 11 of the Federal Rules of Criminal Procedure, they continue in courthouses along the Southwest border. Meanwhile, the Justice Department’s Bureau of Prisons keeps pouring money into prison beds for immigration offenders (for an example of one contract solicitation see here).

If it so wanted, the Justice Department could advise prosecutors to scale back immigration prosecutions. It could remove its support for Operation Streamline. It could shift precious financial resources away from targeting migrants for criminal prosecution and confinement. It could do all this, but it hasn’t.

Similarly, the Administration could scale back its civil immigration detention apparatus. Two Executive Branch departments—DHS (via its ICE and CBP units) and the Justice Department (via the immigration court system)—are involved in creating and maintaining the immigration prison population. DHS is charged with investigating, apprehending, detaining, and prosecuting people thought to have violated civil immigration law, and the Justice Department’s immigration judges oversee those legal proceedings. President Obama’s political appointees head both departments and both departments have been instrumental in altering immigration law enforcement protocols in the past.

Both could do more. The Administration could end the practice of detaining mothers and children that it ceased in 2009 and resumed in 2014. It could instruct immigration judges, all of who are Justice Department employees, to reduce bonds given to migrants in removal proceedings to something in the vicinity of the statutory minimum ($1,500) instead of the five-digit sums immigration attorneys nationwide commonly report. It could tailor DHS and DOJ practices to limit confinement pending removal proceedings only to those people who fit within the so-called mandatory detention provision of the Immigration and Nationality Act. And, through a simple order from the Attorney General overturning existing administrative law precedent, it could reinterpret that mandatory “detention” provision to give meaning to the key word actually used in the statute, “custody,” such that people could live at home with their family and friends and continue with their lives while waiting to learn their fate rather than remain confined in a civil immigration detention site.

There is more that could be done. Rather than construct an exhaustive list, though, the point here is simply to illustrate that the Obama Administration has substantial power to affect the size of the criminal and civil immigration prison population, much of which doesn’t require congressional involvement. It could, in other words, shrink the number of people locked up on suspicion of violating criminal or civil immigration law, and it could do so almost immediately. But, again, it hasn’t.

Why not?

Why have immigration prisoners been excluded from the President’s focus? Obviously I’m not privy to the President’s thoughts or internal White House conversations. His public statements last week and in recent months suggest that he’s fallen into an old rhetorical framing of migrants that leaves them outside his line of sight.

The President’s comments about overcriminalization and excessive incarceration are peppered with sympathetic comments about the need to help offenders reintegrate into society. These individuals may have messed up, but “they are also Americans” he told the NAACP audience. Instead of forgetting about them, he added, we need to ask, “What is that [incarceration] doing to our communities? What’s that doing to those children? Our nation is being robbed of men and women who could be workers and taxpayers.”

In contrast, last November he spoke about migrants in binaries that leave little room for human complexity and frailty. His Administration, the President said, has focused its immigration law enforcement resources on “Felons, not families. Criminals, not children. Gang members, not a mom who’s working hard to provide for her kids.”

The contrast between President Obama’s description of low-level drug offenders and migrants is glaring. Where he expresses sympathy toward low-level drug offenders, he paints migrants who have run up against the criminal justice system as people who ought to be sent away for good. Where he describes drug offenders as part of “our” communities, he frames migrants as perpetual outsiders who have one chance to get it right before we turn our backs on them forever.

I’m prone to think that this discrepancy is the result of ill-conceived political rhetoric rather than a misguided political calculation. It’s bad speech writing rather than bad policymaking. Either way, it’s highly unfortunate. Like everyone, migrants possess multiple identities melded into our beings. Just like the folks who are the focus of his recent speeches, migrants too are part of “our communities.” They are heavily involved in civic institutions from churches to unions. They build families and invest in businesses. And just like the women and men sitting in El Reno, migrants too do “stupid things,” especially as youth, that wind up altering the rest of their lives.

Instead of rhetorically relegating migrants to an outsider status that keeps them beyond the reach of the important criminal justice reforms the President has touched on, my hope is that he and other policymakers will realize that citizenship status tends to turn on the accident of birth, and promote policies that take that foundational legal determination to heart. It would serve the country well if they would take a lesson from President Obama’s comments inside the El Reno prison, “There but for the grace of God.”

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