By now, critiques of the United States’ prison regime are commonplace. Whether in scholars’ specialized research or politicians’ sweeping rhetoric, people across the ideological spectrum regularly point out that we lock up huge swaths of our population and show a remarkable disregard for the racial skew of our imprisoned population. Too often, critiques ignore one segment of the population of people surrounded by barbed wire somewhere in the United State: those who have run up against the strictures of migration control. The nation’s immigration prisoners, as I’ve termed this population, counts in excess of half a million people every year. Yet few commentators recognize their existence let alone engage directly with the troubling empirical and normative questions that their confinement represents.
Adam Hochschild’s recent article in the New York Review of Books, “Our Awful Prisons: How They Can Be Changed” (May 26, 2016), regrettably fits this paradigm. The acclaimed writer and Berkeley journalism professor does a wonderful job of surveying a sample of recent literature on the United States’ prison fetish. His review, which comes with a laudatory account of Marie Gottschalk’s Caught: The Prison State and the Lockdown of American Politics, lodges an important swipe at the decades-old use of prisons as little more than heavily-surveilled purgatories. Instead of following the Finnish example that he describes, Hochschild criticizes the failure to use time behind bars as an opportunity to help people convicted of a crime adjust to life in free society.
This is undeniably correct. It borders on unconscionable that the federal government, like the states, does little to help people put their prison time behind them while simultaneously doing a lot to make it impossible for them to do so. There is some hope to be found in the Justice Department’s recent National Reentry Week, but, as Hochschild’s account makes clear, we’re in need of much more than a week.
Important as it is to focus on reentry, that alone is a problematic concept that, without itself being subject to a critical assessment, is a shortsighted foundation upon which to lodge a critique of imprisonment practices. Too often, as I wrote on Tuesday, reentry discussions exclude migrants because they are framed as “not part of ‘our’ communities.” This is troubling empirically because plenty of migrants do in fact return to cities and workplaces inside the United States after imprisonment—even after imprisonment followed by forcible removal from the United States. This characterization is troubling normatively because it discounts the impact that immigration imprisonment has on families and communities left behind. As Hochschild writes, “[w]hen a man goes to jail, his family shatters.” This is no less true of migrants than it is of United States citizens, a point I take up at length in a forthcoming article in the Immigration and Nationality Law Review.
Every level of government is engaged in imprisoning migrants for engaging in migration-related activity (for a more detailed explanation, see my California Law Review article). Migrants are regularly locked up by the Immigration and Customs Enforcement agency on suspicion of being in the United States without the federal government’s permission. Well over 400,000 people suffer this fate every year and, because it’s treated by law as a form of civil confinement, it all transpires without any of the legal protections that usually attend to governmental exercises of the power to deprive people of their liberty. Immigration imprisonment doesn’t end with ICE and its network of roughly 250 facilities. Every year, the United States Marshals Service takes into custody tens of thousands of people suspected of doing nothing more than entering the United States without the federal government’s permission (a federal misdemeanor) or doing that after having been previously deported (a federal felony). These days this is the most common reason people end up in federal custody pending criminal proceedings. And more than people suspected of committing any other type of federal offense, they’re likely to sit behind bars while waiting their criminal proceedings to conclude. After conviction—and almost all immigration crime defendants are eventually convicted—migrants wind up in the custody of the Federal Bureau of Prisons, the agency responsible for housing all federal convicted offenders. For their part, some states have special criminal procedures or substantive offenses that increase the likelihood that a migrant will end up or remain behind bars.
But following a well-worn and deeply problematic tradition, Hochschild’s review ignores this reality. Immigration imprisonment doesn’t make an appearance anywhere. He doesn’t even allude to it—especially odd given that Gottschalk, whose work he clearly admires, devotes an entire chapter to “[t]he criminalization of immigrants.” Immigration imprisonment’s absence is notable because it’s so common in this type of article. What’s more, Hochschild’s silence on this feature of United States-style imprisonment is worrisome because it feeds right into the rhetorical and policy paradigm that treats migrants as formally outside the polity and thus unworthy of concern by those of us who happened to have born just far enough north to be considered insiders to the political community. If the people who are sympathetic to prisoners, who are searching for ways in which the United States can “dramatically reduce the number of people we have in prison” (as Hochschild does), are blind to immigration prisoners’ mere existence, it makes me concerned that prison reform will likewise leave out migrants—or perhaps even make things worse.
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