On the civil side, ICE now operates an immigration detention archipelago that has no historical precedent in the United States. Meanwhile, the U.S. Marshals and Bureau of Prisons hold thousands of migrants facing criminal charges for migration-related activity or being punished after conviction. Readers of crimmigration.com are well aware of this trend.
In my latest academic article, Naturalizing Immigration Imprisonment, I show that confinement under civil and criminal powers are sufficiently similar to constitute a single phenomenon: immigration imprisonment. Published this week in the California Law Review, the article, as described in the abstract,
is the first to define a new prison population as those imprisoned as a result of suspected or actual immigration law violations, whether civil or criminal—a population that now numbers more than half a million individuals a year. It is also the first to systematically map the many civil and criminal entryways into immigration imprisonment across every level of government.
Examining the population of immigration prisoners as a whole provides crucial insights into how we arrived at this state of large-scale immigration imprisonment. While political motivations similar to those that fueled the rapid expansion of criminal hyper-incarceration may have started the trend, this Article demonstrates that key legal and policy choices explain how imprisonment has become an entrenched feature of immigration law enforcement. In fact, legislators and immigration officials have locked themselves into this choice: there are now billions of dollars, tens of thousands of prison beds, and hundreds of third parties invested in maintaining and expanding the use of immigration imprisonment. Using the literature on path dependence and legal legitimacy, this Article explains the phenomenon of immigration imprisonment as a single category that spans all levels of government. The Article concludes by suggesting that policy makers, rather than continuing further along this path, should seek a future that reflects immigration law enforcement’s past—when imprisonment was the exception rather than the norm.
While I invite you to read the article (free PDF available here), I understand that at 66 pages it may not be on everyone’s holiday reading list. For those, I’ve posted a video of me speaking about the article’s thesis at The John Marshall Law School in Chicago.
Find this information helpful? Learn more from Crimmigration Law, César’s book.