Mass Incarceration of Immigrants

(Fifth in Restoring Integrity to Immigration Series.)

The immigrant crackdown and the accompanying “crimmigration” of immigration law have led to the mass incarceration of immigrants. 


Throughout the country, private prison firms are hurriedly constructing new immigrant prisons for the immigrant detainees and prisoners of ICE, USMS, and the Federal Bureau of Prisons (BOP).


At a time when the U.S. criminal justice system is coming under new public and congressional scrutiny because of its high costs and high rates of incarceration, the federal government -- in close collaboration with local governments and the private prison industry -- is imprisoning unprecedented numbers of illegal and legal immigrants. 


 Indicative of the growing alarm at the failure of the country’s decades-long “get tough” stance on crime, on March 26, 2009 Sen. James Webb (D-VA) introduced the National Criminal Justice Act, which would establish a blue-ribbon commission to “look at every aspect of our criminal justice system with an eye toward reshaping the process from top to bottom.” 


According to Webb, “America's criminal justice system has deteriorated to the point that it is a national disgrace. Its irregularities and inequities cut against the notion that we are a society founded on fundamental fairness. Our failure to address this problem has caused the nation's prisons to burst their seams with massive overcrowding, even as our neighborhoods have become more dangerous. We are wasting billions of dollars and diminishing millions of lives.”[1] 


 The mass incarceration of immigrants mirrors the greater incarceration trends in the United States. The U.S. prison population has skyrocketed, rising from about 500,000 in 1980 to 2.38 million today – nearly a fivefold increase in three decades and five times the world’s average incarceration rate. 


In the 1994-2007 period, the number of immigrants detained on a daily average by ICE rose nearly fivefold, rising from an average daily population of 6,785 in 1994 (under INS) to 30,295 in 2007. In 2007 ICE detained a total of 311,213 immigrants – up from 231,500 in 2004, an increase of more than 80,000 in fours years. Like the country’s larger prison system tag, the immigrant detention system is enormously costly. 


ICE alone spends $1.7 billion annually to detain immigrants. ICE detainees constitute the largest sector of the imprisoned immigrant population. But the number of immigrants held by USMS and BOP is also increasing rapidly. The number of immigrants held by USMS has increased more than six fold since 1994. More than a third of the more than 180,000 USMS detainees in 2008 were immigrants. 


The upsurge in federal prosecutions of immigrants has led BOP to open five new privately operated prisons to hold 10,000 plus “criminal alien residents.” The rise of the immigrant population in USMS and BOP detention centers and prisons reflects a dramatic increase in immigrants being charged in federal courts. According to a study by the Transactional Records Access Clea


ringhouse (TRAC) at the University of Syracuse, prosecutions in 2008 were 70% higher than in 2003. In December 2008 the prosecution of immigrants for immigration violations accounted for 55%, while drug cases accounted for 16% of the caseload that month.[2] Most immigrant prisoners and detainees are held not in government prisons and detention centers but ones that are operated by private prison firms. Rather than build and operate immigrant prisons themselves, ICE, USMS, and BOP outsource its immigrant charges to an expanding network of contractors and subcontractors. 


In most cases, the federal agency enters into inter-governmental service agreements (IGSAs) with city or county governments in economically deprived, rural areas that are eager for a new revenue stream and a source of jobs. Only 13% of ICE detainees are held in ICE-owned detention centers, and ICE has no plans to build new federally owned and operated detention centers. Through the IGSAs the federal government transfers to the contracting local government the operational responsibility to hold the immigrant detainees and prisoners. 


But then the local government usually subtracts private prison firms to meet its contractual obligations with ICE, USMS, or BOP. The world’s two largest private prison corporations, Corrections Corporation of America and GEO Corp, got their start in the prison business with INS detainees in the 1980s and remain the firms with the most immigrant prisoner business. 


The trail of accountability in immigrant detention is further complicated by other subcontracts for medical and transportation services. The contracting and subcontracting of immigrant detention responsibilities would in theory not lead to systemic problems. In practice, however, immigrant detention, which is now largely in the hands of contractors and subcontractors, is the part of the immigration system that is the most badly broken.

One indicator of the severity of the crisis in immigrant detention is the mounting death count of immigrants in detention. At least 90 immigrants have died in ICE custody since 2003, most of them in contracted and subcontracted facilities. The March 2009 death of a detainee at the Stewart Detention Center in rural southwest Georgia spurred the Georgia ACLU to issue a report condemning conditions at the detention center.

“As illustrated by the report, conditions at the CCA-run facility are grossly inadequate, even compared with ICE’s own nonbinding standards,” said Azadeh Shahshahani, National Security/Immigrants’ Rights Project Director with the ACLU of Georgia. “It is high time for Congress and the new administration to create enforceable standards binding ICE and corporations such as CCA to humane standards of care for the detainees and to ensure an effective and independent oversight mechanism,” said Shahshahani.

Judith Greene, director of Justice Strategies, addressed some of the detention problems resulting from the immigrant crackdown in “Immigrant Goldrush: The Profit Motive Behind Immigrant Detention,” a report written for the UN Special Rapporteur on the Rights of Migrants. She wrote:

“This fragmented immigrant detention system has long been a troubled operation, rife with human rights abuses. The recent crackdown campaigns have added strain to this poorly-managed crazy-quilt of detention beds. Immigrant rights advocates have criticized the lack of accountability of this system for many years…. “Detention-for-dollars puts perverse financial incentives in play….This insidious incentive cuts directly across concerns about compliance with detention standards that were created to foster a decent, humane custodial environment for the rapidly-growing number of people who are subjected to detention.”[3]

[1] National Criminal Justice Act of 2009, online at: http://webb.senate.gov/email/criminaljusticereform.html [2] “Federal Prosecution Data for December 2008,” TRAC, January 2009, online at: http://trac.syr.edu/whatsnew/email.090318.html [3] Judy Greene, “The Immigrant Gold Rush: The Profit Motive Behind Immigrant Detention,” Submitted to the U.N. Special Rapporteur on the Rights of Migrants, n.d., online at: http://209.85.173.132/search?q=cache:a6SoiESoRYoJ:www.immigrantjustice.org/component/option,com_docman/Itemid,0/task,doc_download/gid,44/+Immigrant+Goldrush+Greene&cd=1&hl=en&ct=clnk&gl=us

Next in Restoring Integrity Series: Path Forward to Integrity in Immigration System

Photo: West Texas Detention Facility/Tom Barry