When it comes to policing migrants’ lives, everyone seems able to ignore reality in favor of a more comfortable narrative frame. Republicans constantly claim that the Obama Administration has failed to enforce the nation’s immigration laws despite the unprecedented tally of migrants imprisoned and removed. The President repeatedly claims that his Administration goes after gangbangers and others who pose a threat to the United States, while the federal government’s own statistics reveal that many of the people removed each year have never been convicted of a crime and a substantial minority of those who have been convicted of a crime have been convicted of nothing more serious than an immigration offense (hardly the picture of dangerousness).
It’s easy to find flaws in political rhetoric. But scholars are not immune to masking reality under the cloak of the familiar. As a group, we continue to accept the claim that confinement that accompanies the federal government’s attempt to determine whether a particular person will be allowed to remain in the United States is unquestionably a type of civil detention. A new report by the U.S. Commission on Civil Rights paints a picture of immigration detention that is so distressing I hope that if nothing else it illustrates that formal labels like “civil” or “criminal” don’t matter nearly as much as the lived reality of confinement. And that lived reality is inhumane. Things are so bad that the Commission’s chair Martin R. Castro thought it necessary to remind us that “All people, no matter whether they are immigrants or asylum-seekers, deserve to be treated as humans.”
The report, With Liberty and Justice For All: The State of Civil Rights at Immigration Detention Facilities, reads like a litany of the nation’s moral and legal failings. Across almost 500 pages, it catalogs many of the horrors of ICE’s imprisonment practice. Several facilities have failed to meet federal standards regarding adequate medical care. Others don’t provide detainees information about their legal rights. Children are confined in violation of existing standards. (The report doesn’t quite say so, but a related point is whether kids should be confined at all.)
Worse yet, the report notes that these are only some of the problems we know about. Private immigration prisons can cloak their activities in secrecy because they are not subject to laws intended to shine light on governmental operations. As the Commission noted, “There is a lack of transparency regarding private detention facilities because the facilities’ records are not subject to [the Freedom of Information Act].” This is no trivial concern. The Commission, for example, “was unable to determine whether ICE is complying with [Prison Rape Elimination Act] solitary confinement policies concerning children.”
Refreshingly, the Commission wasn’t sidetracked by concerns about whether confinement was civil or criminal. Failure to comply with medical care standards is problematic no matter who runs the facility or who is locked up inside. Buttressing this concern, the Commission took to task several privately run facilities that house migrants on behalf of ICE in the same sentence that it criticized the Willacy County Correctional Center, a facility that held migrants convicted of federal immigration crimes (until a prisoner rebellion last March shut it down).
To illustrate the point that the civil-criminal divide is less than apt, the Commission pointed to the two images below as evidence of the similar conditions of confinement.
As the Commission put it, “[t]he fence lines are identical.” Citing to my article in the UCLA Law Review, the report noted, “immigration detention centers were built, house detainees, and operate like criminal penitentiaries.” Indeed, in my book Crimmigration Law I add, “no matter where they are located and what they are officially called, these facilities almost always have the look and feel of jails and prisons.”
So they were because the goal in launching the era of immigration imprisonment was to control, stigmatize, and humiliate migrants—in effect, to punish migrants for flouting rules governing migration just the same as when anyone violates a criminal law. Given that, it makes much more sense, I urge in my forthcoming article in the California Law Review, to conceptualize immigration imprisonment “as a single policy choice…analyzed as a whole, regardless of the legal process or government action from which the imprisonment may result.” I’m glad to see the Commission’s report takes a step in that direction.