The Rise of Criminal Aliens

(The second in the BorderLines series "Aliens, Crimel, and Drugs: Making the Connection") Immigrants have become the main target of the government’s long-running wars on crime and drugs. When President Nixon announced the wars on crime and drugs, he tapped into an incipient backlash movement of largely working and middle-class white Americans who wanted law-and-order solutions to urban crime and increasing illegal drug use. This was the beginning of what has been called the “severity revolution” and what criminal justice scholar Jonathan Simon calls “governing through crime” in a new book. Rather than seek social solutions that address root causes or that prioritize treatment and rehabilitation, America embarked on an era of mass incarceration. The idea, promoted by conservatives, was that criminals and drug users should be removed from society, thereby effectively removing the risk society faced from this deviant minority. As a result, the prison population today is seven times higher than it was four decades ago. With 2.3 million people in prison, America has the highest per capita incarceration rate in the world. For the most part, this conservative backlash movement that successfully promoted “tough on crime” judges, harsh sentencing rules, and the drug user imprisonment didn’t affect the immigration issue until the mid-1990s. The first sign that the “severity revolution” was also overtaking the prevailing liberal cast of immigration policy occurred in 1988 when, as part of the Omnibus Ant-Drug Act, Congress required mandatory detention and deportation for immigrants convicted of “aggravated felonies,” which were then defined as drug trafficking, murder, and trafficking in firearms. Pursuant to the 1988 act, the Immigration and Naturalization Service (INS) established the Institutional Removal Program, which began to review the immigration status of federal prisoners and represented the beginning of what is now called the Criminal Alien Program. DHS defines criminal aliens as “noncitizens who are residing in the United States legally or illegally and convicted of a crime.” Immigration restrictionist groups, notably the Federation for American Immigration Reform (FAIR), were steadily increasing their influence in immigration policymaking, but their central message that immigration was fueling unsustainable population growth never gained traction in Washington. The first major strikes against the liberal immigration ethos that prevailed in both political parties occurred in 1996, when the new Republican majority in Congress, with substantial Democratic Party support, passed three bills that established the policy groundwork for the current immigrant crackdown. Conservative congressional leaders merged anti-immigrant measures with new anti-terrorist, anti-crime, and anti-welfare legislation. These were the Anti-Terrorism and Effective Death Penalty Act (AEDPA), Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). In its newly restrictive grounds for political asylum and wider grounds for the indefinite detention of immigrants, AEDPA broke ground for the USA Patriot Act of 2001. Sparked by an anti-immigrant sentiment following the World Trade Center bombing of 1993 and the Oklahoma City federal building bombing in 1995 (for which foreign terrorists were initially but incorrectly blamed), AEDPA aimed to improve public safety and national security by vastly expanding the criminal grounds for the removal of immigrants. Together with IIRRA, AEDPA unhinged the term “aggravated felony” from its original meaning. Many misdemeanor convictions like shoplifting, even in the cases of suspended sentences, are now considered aggravated felonies that require mandatory detention and removal. In the wake of these acts, immigration courts and immigration enforcement agencies also expansively interpret crimes of “moral turpitude” and “controlled substances” in their categorization of criminal aliens. As part of the immigrant crackdown launched by Homeland Security Secretary Michael Chertoff, immigration law has also been criminalized. Whereas the 1996 acts and other legislation have stipulated immigration consequences (detention and removal) for crimes, DHS, acting in concert with the Department of Justice, has moved to create criminal consequences for immigration violations. Previously, an illegal entry or reentry or the use of fake credentials were regarded as administrative violations that generally resulted in deportation or voluntary departure. Borrowing a phrase from the law-and-order playbook, DHS launched a “zero tolerance” program called Operation Streamline. Under this pilot program, which has since been expanded, illegal border crossers picked up by the Border Patrol are not as traditionally been the case turned over to ICE for detention but rather to the U.S. Marshals Service (USMS) for pre-trial custody. Instead of being simply “illegal aliens” these immigrants become “criminal aliens” under the new “zero tolerance” regimen. Immigrants crossing illegally are now routinely being sentenced to jail terms of fifteen days, while those who reenter after having been deported now face ten to twenty years in prison. DHS hasn’t limited its criminalization of immigrants to the border. As part of the expansion of its “interior enforcement,” ICE in 2007 also began treating falsely documented or undocumented workers as criminal aliens. The mass arrest of mainly Guatemalan workers at the Agriprocessors slaughterhouse and meatpacking plant in Postville, Iowa on May 12, 2008 marked in tragic fashion the extent to which DHS was willing to go to demonstrate its commitment to enforce the rule of law – as DHS interpreted it. Of the 389 immigrants detained, 307 were criminally charged with using false Social Security numbers and aggravated identity theft (which carries a minimum two-year sentence). Offered a plea deal, most pled guilty to the false social security charge and received a five-month sentence. Next: Criminal Aliens Everywhere

New Alarm Over Border Security

(This is the first in the 12-part Borderlines series titled "Aliens, Drugs, and Crime: Making the Connection.")

President Bush’s “war on terror” established the ideological rationale for the immigrant crackdown. But the campaign to detain and deport immigrants got its policy legs from two previous (and continuing) wars: the “war on crime” and the “war on drugs,” both launched by President Richard Nixon in the early 1970s. The new emphasis by the Obama administration on tracking down and removing “criminal aliens” indicates that the ongoing immigrant crackdown will be driven more by the imperatives of the crime and drug wars then by the ideological fears and fervor of the war on terror. Removing “criminal aliens” from America’s streets will be a new priority for the Department of Homeland Security, says DHS Secretary Janet Napolitano. President Obama’s requested 2010 budget includes $1.4 billion for collaborative programs to deport “criminal aliens” – a 40% increase from the current DHS budget. The recent alarm about the possibility that horrific violence associated with the U.S.-supported drug war in Mexico will spill over the border has been met by administration assurances that DHS and the Justice Department will deploy more law enforcement personnel to the region. Secretary Napolitano has promised to put more “boots on the ground” to secure the border against the compound threat of illegal immigrants and drug trafficking. Immigration restrictionists have jumped on the issue of drug-related violence in Mexico to renew their demands for more border security in the form of an extended border fence, more Border Patrol agents, and the deployment of the National Guard. On March 9 thirty anti-immigration Republican congressional representatives signed a letter to President Obama requesting more border fencing. “Contiguous fencing is an effective and proven enforcement mechanism that will serve to directly reduce cross-border traffic and drug violence by closing the smuggling corridors exploited by drug cartels,” stated the letter. Cong. Brian Bilbray (R-CA), chairman of the Immigration Reform Caucus, and Cong. Duncan Hunter (R-CA), were the lead signatories of the letter.

Next: The Rise of Criminal Aliens Photo: Mexican Army Displays Marijuana Seizures in Chihuahua

The National Imperative to Imprison Immigrants for Profit

There is a codependent relationship between the private prison industry and the federal government’s immigration enforcement apparatus. Immigrant detention jumpstarted the two largest prison companies – Corrections Corporation of America (CCA) and GEO Group – in the prison industry. The Immigration & Naturalization Service (INS) contracted CCA in 1983 and GEO (then Wackenhut Services Inc.) in 1987 to provide prison beds for detained immigrants. These INS immigrant detentions centers were among the first private prisons in the United States. Although the federal government initiated the privatization of prisons, state governments quickly followed the INS lead. Throughout the late 1980s and the1990s state outsourcing of prisoners drove the expansion of the prison industry. Harsh sentencing laws, ever-increasing drug-related convictions, and the deepening taxpayer reluctance to approve tax increases to pay for prison construction created a favorable climate for the private prison boom. While INS had led the way, other Justice Department agencies soon followed. The U.S. Marshals Service (USMS) and the Federal Bureau of Prisons (BOP) began privatizing their imprisonment responsibilities in the early 1990s. BOP’s first private prison contract was in 1991 with Wackenhut Corrections. By the year 2000, however, a spate of private prison deaths and escapes leading to some states to cancel contracts and the inability of CCA and others to find enough inmates to fill the "speculative" prisons it was building caused the industry’s profits and the stock to tumble. But after a brief scare, the industry saw its fortunes soar again as INS and USMS began letting new contracts for immigrant detention. In 2000 the INS contract with CCA to house 1,000 detainees at the company’s San Diego Correctional Facility. The contract, in which INS agreed to pay a $89.50 per diem for each occupied prison bed, was hailed by CCA as "one of the largest contracts ever awarded to the private corrections industry." BOP also came to CCA’s rescue when in 2000 it entered into an agreement with CCA to send "criminal aliens" to the speculative prison that CCA had built in California to house state prisoners that never arrived.

“The private prison industry was on the verge of bankruptcy in the late 1990s, until the feds bailed them out with the immigration-detention contracts,” said Michele Deitch, an expert on prison privatization with the Lyndon B. Johnson School of Public Affairs at the University of Texas in Austin.

A San Diego Union-Tribune special report (May 4, 2008) on the prison industry summed up the conjuncture: “Fortunately for the industry, the federal government began seeing a surge in demand around this time, fueled by federal drug-sentencing laws that had created more Today, federal government contracts to detain a thousand or more detained immigrants are common, and have sparked a new wave of private prisons, particularly in the Southwest. Immigration and Customs Enforcement (ICE), the INS legacy agency that forms part of the Department of Homeland Security, now contracts all new detainee growth, as does USMS. Through its Privatization Management Branch, BOP has over the past several years entered into five contracts with private prison operations to hold more than 10,000 “criminal alien residents.” When it published its request for contract bids, BOP noted that the "offerors" would be required to "house felony offenders, predominantly criminal aliens." BOP cites “flexibility” as the main attraction of prison privatization. The BOP contract notice for the criminal alien prisons noted that privatization “provides the BOP with flexibility to meet population capacity needs in a timely fashion." Commenting on BOP’s decision to privatize criminal alien detention, BOP spokeswoman Felicia Ponce said that contracts with GEO Group and CCA give BOP the "flexibility to manage a rapidly growing inmate population and to help control overcrowding."

The BOP currently has five contracts to house 10,243 "criminal alien residents." The contracts are with GEO and CCA, and four of the five prisons are in remote areas of western Texas – the largest of which was a $187 million contract in 2007 for "contract beds" at the GEO-run 3,700-bed Reeves County Detention Center, where immigrant inmates have recently rioted to protest deficient medical care. Commenting on the 2007 contract, GEO president George Zoley, said, "This new long term contract is indicative of a continuing trend of lengthy contracts being awarded by the Federal Bureau of Prisons, U.S. Immigration and Customs Enforcement, and the U.S. Marshals Service providing for increased revenue certainty for our Company and a continuity of services for our Federal clients. Approximately 40 percent of our present revenues are generated through similar lengthy contracts involving the three Federal detention agencies and GEO Care clients."

Zoley boasted that “the Reeves County Detention Complex (the 'Complex') is the largest detention/correctional facility under private management in the world."

Two years later, when GEO Group announced its fourth-quarter earnings on Feb. 12, 2009, Zoley told representatives of investment companies vested in the private prison industry that he "was very pleased" with 2008 results. When most economic sectors are suffering and shuttering stores, GEO, CCA, and other private prison firms reported record revenues and earnings. Net income rose at GEO from $41.8 million in 2007 to $58.9 million in 2008 -- an increase of more than 20%. Zoley noted that federal contracts with ICE, USMS, and BOP accounted for 37% of 2008 revenues but 50% of earnings. GEO has more than 10,000 immigrants in its prisons, two-thirds of whom are classified as "criminal aliens." He assured investors that there was “solid bipartisan support to identify and deport criminal aliens." Zoley pointed out that in 2008 Congress added $200 million to President Bush’s $800 million request for ICE’s criminal alien program. In President Obama’s 2010 DHS budget, $1.4 billion is scheduled for programs to hunt down criminal aliens. In its 2007 Security and Exchange Commission filing, CCA stated: "We are dependent on government appropriations." Then CCA Chairman William Andrews warned investors that the company’s high returns could be threatened by a change in the policy environment: "The demand for our facilities and services could be adversely affected by the relaxation of enforcement efforts…or through the decriminalization of certain activities that are currently proscribed by our criminal laws." Although booming largely because of the surge in immigrant inmates, the private prison industry is also facing a barrage of criticism from immigrant advocates and civil libertarians. Emblematic of the legal backlash against the private prison industry’s role in immigration imprisonment, a lawsuit filed in 2007 (and settled in June 2008) by the American Civil Liberties Union against ICE and CCA charged that the San Diego Correctional Facility – the same detention center that had help revive CCA in 2000 – was grossly overcrowded and its unsafe conditions violated inmate civil rights. At the time immigrant inmates were obligated, among other things, to sleep on the floor near toilets and had little access to mental health care. Jody Kent, public-policy coordinator for the ACLU's National Prison Project, told the Wall Street Journal: “We have serious concerns about for-profit prison companies because they are notorious for cutting essential costs that need to be provided to maintain a safe and constitutional environment for prisoners." The lawsuit was settled in June 2008. But neither lawsuits nor inmate protests seem to worry the private prison industry. Backed by hefty liability insurance policies – which are usually paid for by the county governments that actually own the immigrant prisons – private prison companies routinely offer investors rosy forecasts of future profits. Both GEO Group and CCA say that the deepening economic downturn has several silver linings for their business, including new incentives for government to privatize given increasing difficulty of securing tax income for prison construction and an increased supply of cheap labor. As GEO’s Zoley sees it, the prison industry will benefit from a new “national imperative” in these difficult economic times “to protect American workers by detaining and deporting immigrants.” AP Photo of Reeves County Detention Century during inmate uprising.

Questionable Business of Correctional Healthcare

(The following is an excerpt from the third article in the three-part series of the TransBorder Project: Medical Claims and Malpractice in a West Texas Immigrant Prison. Read the entire article.)

In Pecos, inmate complaints about healthcare at the Reeves County Detention Center in West Texas are commonly dismissed as whining and grandstanding. “They don’t have to work, they have all their utility bills paid, they get to play five hours a day, and plus they get medical attention,” said one county official. “If only the whole county should have it so good!” When asked about the liability that the county may face if the inmates take their cases to court, County Attorney Alma Alvarez said she was not worried, noting that GEO and PNA had recently secured accreditation for the prison from both the American Correctional Association and the Joint Commission on Accreditation of Healthcare Organizations (JCAHO). After visiting the prison herself, she said that she is confident the medical care is up to or above standards. But she acknowledged that she never spoke to any of the inmates about the quality of medical care, but only to the administration. Concerning the prisoner complaints made during the riots, Alvarez said, “They want to be media stars. They call the media from their cellphones and tell these stories because they want to be famous. It’s like they want to be on American Idol.” Noting that she was of immigrant origin herself, Alvarez said she had little sympathy for the protesting prisoners. “They are living well in there. Just imagine if they were in prison across the border in a Mexican prison,” she exclaimed. But it’s the comparison to conditions just outside the prison that really annoys the county attorney. “Inside the prison they are getting medical care far superior to what most people of this county get,” she observed. “And they even want dental care! Go and ask people here in Reeves County when they last had their teeth cleaned.” What also bothers Alvarez and many Reeves County residents is that the rioting inmates were destroying county property that they the taxpayers would need to pay for. “This is going to cost us,” said county treasurer Linda Clark. “It will take away from the small profit we make on the prison.” The multi-million contract with PNA doesn’t seem to bother the county. Before 2002 the county subcontracted with local care providers and foreign medical graduates (FMGs) to meet its obligations under its contract with the Bureau of Prisons. However, concerned about mounting costs and worried about the renewal of the BOP contract, the county hired PNA to assume responsibility for all medical, psychological, and dental care. That contract is now costing the county nearly $8 million a year in addition to the $800,000 it pays in medical liability insurance. That’s a large sum in a country where one in three lives in poverty, and the total county budget is only $79 million. Reeves County pays PNA $5.85 per day per inmate for its services. While few county residents are aware of what they are paying in correctional healthcare, there appears to be widespread resentment that immigrant prisoners are getting better care then they as U.S. citizens and county taxpayers receive. GEO Corp and PNA have refused to comment on inmate complaints about the poor quality of correctional healthcare at the immigrant prison, and some two-hundred prisoners and their families vow to take legal action against the public/private prison complex.

Read the entire article

Photo: Vernon "Trey" Farthing, founder and president of Physicians Network Association

Napolitano's Hard Echo of Liberal Immigration Strategy

(Following is an excerpt of news analysis from CIP America's Program. Read entire analysis.)

 Homeland Security Secretary Janet Napolitano shows few signs of reining in the immigrant crackdown launched by her predecessor Michael Chertoff. She recently called for "more boots on the ground" along the border and touted her determination to promote the "rule of law" in immigration enforcement.

 The "rule of law" framing of immigration policy copies the language of the Bush administration and the agenda of the immigration restrictionists. The apparent continuity between the enforcement agenda of Chertoff and Napolitano alarms advocates of comprehensive immigration reform (CIR).

 But Napolitano's tough talk on immigration enforcement reflects key components of the new messaging of the leading CIR advocates in Washington. As the immigration debate has shifted to the right, liberal groups like the National Immigration Forum, America's Voice, Center for American Progress, NDN, and National Council of La Raza have also been calling for an immigration reform that "secures the border" and "restores the rule of law."

 As a strategy to build center-right support for comprehensive immigration reform, including legalization, the Washington, DC-based liberal immigration lobby has advocated that the Democratic Party and all immigrant-rights advocates adopt a "rule of law" framework that includes more border security and employment verification while placing the onus on immigrants themselves to "get right with the law."

 The concept behind this strategic maneuvering is that Americans will support a legalization provision for illegal immigrants if the proposal is couched in tough "rule of law" language. In other words, by moving to the right immigration advocates would be better positioned to advance a liberal immigration reform. Thus far, however, this pro-immigration strategy of talking tough to advance CIR has fallen flat.

The Bush administration used the "rule of law" position on immigration to rationalize the immigrant crackdown. The Obama administration to date has shown few signs of backing away from the Bush administration's enforcement-first regimen. The "rule of law" logic of border control and immigration enforcement continues to dominate the immigration debate in America. In a Feb. 16 interview with NPR, Napolitano signaled her intention to embrace that agenda.

"First of all, the rule of law applies on the border, and we want to make sure that that happens, No. 1. That means manpower. That means technology—things like ground sensors. It means interior enforcement against those who intentionally are going into the illegal labor market and creating a demand for illegal laborers, so that's all going to continue. How we do that may change with me as a new secretary, but we want to make sure the rule of law is applied, and it's applied fairly and forcefully across the border."

Like Chertoff, who frequently explained the Bush administration's "enforcement-first" regime as an effort to "restore integrity" to immigration law and border control and thereby create a foundation for immigration reform, Napolitano sees enforcement and border control as laying the groundwork for immigration reform.

Medical Claims and Malpractice at West Texas Immigrant Prison

Part II PNA's Medical Gulag

Physicians Network Association (PNA), a Lubbock-based company that calls itself a leader in correctional healthcare,” has subcontracted with Reeves County since 2002.

As the owner of the prison, Reeves County has a contract with the Bureau of Prisons to hold fedeal immigrant prisoners. But rather than run the facility itself, the county subcontracts its responsibilities to GEO Group to operate and manage the prison and to PNA to provide medical and dental care. (See Medical Claims Part I)

In its presentation as part of the negotiations over its current contract with the county, PNA assured the county that “as a subcontractor, PNA has fourteen years’ experience assisting operators exceed expectations.”

PNA included GEO Group and Management and Training Corporation (MTC) among its references, and it told the county: “PNA has never had a contract canceled or been removed from a facility.”

It shouldn’t be surprising that long-running complaints about medical cars abuses sparked the inmate protests at the Reeves County Detention Center. Six years ago the Justice Department found widespread medical abuses at another county-owned, privately run adult detention center, where the same subcontractor, Physicians Network Association, was also the the medical services provider.

Concerned about civil rights violations at the detention center, the Justice Department sent a study team from its Civil Rights division to investigate the jail in May 2002 to determine if there were violations that could be prosecuted under the Civil Rights of Instiutionalized Persons Act (1997).

On March 6, 2003 the Justice Department sent a letter and a long report of its findings to Santa Fe County, which owned the jail and contracted with Management and Training Corporation (MTC), a private prison firm, to operate the jail.

Summarizing its findings, the Justice Department stated:

“We find that persons confined suffer harm or the risk of serious harm from deficiencies in the facility’s provision of medical and mental health care, suicide prevention, protection of inmates from harm, fire safety, and sanitation.”

In its report, the Justice Department team specified 52 actions that were needed “to rectify the identified deficiencies and to protect the constitutional rights of the facility’s inmates to bring the jail into compliance with civil rights standards. Thirty-eight of the 52 identified deficiencies related to medical services. The Justice Department report concluded:

“The Detention Center, through PNA, provides inadequate medical services in the following areas: intake, screening, and referral; acute care; emergent care; chronic and prenatal care; and medication administration and management. As a result, inmates at the Detention Center with serious medical needs are at risk for harm.”

(Read entire report on PNA’s Medical Gulag at: http://sites.google.com/site/transborderproject/medical-claims-and-malpractice-at-west-texas-immigrant-prison )

Political Economy of Immigration

(Here's an excerpt from a feature article in the current issue of Dollars & Sense, which is now available online here: http://dollarsandsense.org/archives/2009/0109barry.html ) What started off as a war against terrorism has devolved into a war against immigrants. The current “enforcement-only” approach to immigration policy has created a morass of new problems, including a host of human rights and financial issues associated with the annual detention and removal of immigrants. The immigrant crackdown has given rise to an unregulated complex of jails, detention centers, and prisons that create profit from the immigrant crackdown. At the outset of a new administration and new era, the political economy of immigration is decidedly anti-immigrant. Political and economic factors have combined to create a harsh environment for undocumented immigrants, present and future. Immigration reform may not be a top priority, but the Obama administration and new Congress would do well to begin to address the challenge of reshaping the political economy of immigration. First steps could include a more careful articulation of the intersection of immigration, rule of law, and national security. Napolitano should explain that the real threat to the rule of law is not having an immigration policy that provides a legal pathway to integration for the 11 million immigrants already within the United States. What’s more, she would do well to disarticulate the links established by the Bush administration between immigrants and terrorists. At the same time, closer links must be made between immigration policy and economic policy, guarding against labor exploitation while considering domestic economic need. Instead of a policy based on a calm assessment of the costs and benefits of immigrant labor to the U.S. economy, current immigration policy has been hijacked by the politics of fear, resentment, scapegoating, and nativism. The “enforcement only” immigration policy has fostered a national immigrant prison complex that feeds on ever-increasing numbers of arrested immigrants. As County Commissioner Ernie Chapa said, “Any time the numbers are high, it’s good for the county because it brings more income.”