How Immigration Reform Could Expand Incarceration of Immigrants

Seth Freed Wessler Feb 7, 2013

The House made its first formal foray into immigration reform yesterday at a lengthy Judiciary Committee hearing in which Republicans struck a familiar chord. Despite record-setting deportation levels in recent years, Republican members of the committee were in broad agreement that they want even more enforcement before they could sign onto the comprehensive reform ideas laid out by Senate negotiators and President Obama.

“There is not in my opinion very much enforcement going on at all in the interior of the country,” said Judiciary Committee Chair Bob Goodlatte, a Virginia Republican.

The heightened enforcement that Goodlatte and others seek raises a thorny question for the immigration reform process: Will it address the dire concerns many have about the ways in which immigrants are detained while awaiting deportation?

Immigration reform advocates around the country are raising concerns about the sprawling complex of prisons and detention centers, run often by private corporations, that are used to lock up non-citizens. Today, a group of senators led by Judiciary Committee Chairman Patrick Leahy will release a strongly worded letter to colleagues calling for greater protections for immigrants inside those detention centers.

“Our laws mandate detention or deportation for many people, denying them access to a hearing before a judge, without guaranteeing legal counsel for those who cannot afford it,” the senators wrote, according to the Huffington Post. “Immigration enforcement measures frequently target minority and immigrant communities through impermissible racial profiling that instills fear and distrust of law enforcement and makes communities less safe. Our system is not fair. It is unnecessarily punitive and disproportionate.”

The tone at yesterday’s House Judiciary Committee hearing suggests Republicans in that chamber would disagree. The ideas swirling there would instead expand policies that tightly entwine the criminal justice and immigration systems. Though a large-scale legalization of undocumented immigrants would seem on its face to render detention facilities obsolete, efforts are already underway to keep them growing.

Detention Reform or Detention Expansion

In recent years, the Obama administration has detained and deported immigrants at a record-setting pace. Though the administration purports to target serious criminal offenders, critics say immigration laws paint “serious” in exceptionally broad strokes. The bulk of the 1.5 million people deported in the last four years were charged with minor violations, and many of these people would still find themselves subject to deportation even if they’re on track to legal status or have a green card.

And for immigrants pegged with a long list of convictions, detention before deportation is mandatory. Laws passed in the 1990’s took the power away from ICE agents and immigration judges to review the particulars of cases, release detainees or stop their deportation. Approximately two-thirds of the 400,000 detainees last year were held on a mandatory basis in one of the more than 300 facilities that dot the American landscape, without the possibility of release, according to the advocacy group Detention Watch Network.

Advocates hope that an immigration reform bill will begin to replace punitive lock up with alternative, community-based measures to keep track of non-citizens in deportation proceedings. Last week, President Obama nodded in that direction. The White House’s guiding principles for immigration reform note that the president’s proposal “allows DHS to better focus its detention resources on public safety and national security threats by expanding alternatives to detention and reducing overall detention costs.”

In 2012, the federal government spent over $2 billion on detention operations, a nearly 150 percent increase from just seven years ago. And the two leading private detention companies, Corrections Corporation of America and Geo Group, together netted about $425 million in revenues from their ICE contracts. The industry spends millions lobbying Congress.

Republicans yesterday made clear that they’re not interested in cuts.

Rep. Randy Forbes, a Virginia Republican on the House Judiciary Committee, asked San Antonio Mayor Julian Castro, who testified at the hearing, if the U.S. should be allowed to summarily deport people with gang affiliations “before they committed another criminal act.” In 2005, Rep. Forbes introduced the Alien Gang Removal Act, which would have led to the mandatory detention and deportation of anyone the government labeled a member of a gang, even if they’ve never been convicted of a crime. Similar language made it’s way into a comprehensive immigration reform bill considered by the Senate in 2006.

Belinda Escobosa Helzer, an attorney with the ACLU of Southern California, says that laws like these cast an overbroad net that encourages racial profiling. “What we’ve seen in practice in California is that a lot of youth of color are being documented as gang members because of where they live, who they went to school with, who they were walking with,” she said, not because they’ve committed a crime.

A provision like the one Forbes suggests would add to an already long list of exclusions Congress could build into a reform bill.

Civil liberties and immigrant rights groups, meanwhile, are advocating for reduced reliance on detention facilities in the immigration enforcement process and restored discretion to judges.

“It’s absolutely crucial Congress include a rollback of mandatory detention laws in any new immigration legislation,” said Emily Tucker, the advocacy director at Detention Watch Network, in a statement Tuesday.

The collateral effects of detention have only recently come into view. A 2011 investigationrevealed that the detention of parents regularly leaves children stuck in foster care or in other precarious situations.

“Because of the deportations that have taken place over the last few years there are anywhere from 5,000 to 6,000 children who have been placed in foster care because their parents have been deported. The children were citizens,” Rep. Karen Bass, a California Democratic and member of the House Judiciary Committee, said at the hearing yesterday, citing the findings of the investigation.

Filling Federal Prisons

Democratic congressional staffers and Beltway advocates say they’re most concerned that in exchange for backing the legalization of undocumented immigrants, Republicans will demand an expansion of a program called Operation Streamline, which began in 2005 in counties along the U.S.-Mexico border to prosecute and incarcerate people crossing the border.

Advocates of the program say incarceration deters immigrants from crossing and contributes to the reported 40-year low in new migration over the border. There’s little evidence to support this claim, but Sen. John McCain, the leading GOP immigration reformer, and other border Republicans have nonetheless listed additional investments in Streamline as a key component of their border security demands in recent years.

Though congressional staffers and advocates say the demand has yet to appear on the table in the current round of Beltway trading, many expect it will.

Prosecutions for immigration-related offenses rose by 50 percent in just the last five years, and the federal Bureau of Prisons is building new facilities to make room. In the 1990’s the BOP began contracting out the operation of federal prisons to hold so called “criminal aliens,” who include people convicted of violations like reentry and of other crimes. Geo Group and Corrections Corporation of America now operate all 13 of the facilities that hold a cumulative 24,000 inmates. The companies took in over $460 million in revenue from federal contracts in 2011, the Huffington Post reports.

Advocates, journalists and the BOP’s own researchers have documented diminished quality and widespread abuse and neglect of inmates in private facilities and many are concerned that immigration reform could facilitate greater opportunities for these companies. Already, expansion looks likely.

In July the government put out a call for a 14th privately run facility—a 1,000 bed prison with a $25 million price tag. And a report released in September by the Government Accountability Office revealed that the BOP projects the addition of 1,500 more inmates to these facilities every year, increasing the population of the prisons by 50 percent by the end of the decade.

In a move that will help keep the prisons full, less than a month ago, California Rep. Darrell Issa, a Republican on the Judiciary Committee, introduced legislation to add long mandatory minimums to sentencing rules for reentry and other immigration related offenses. In one case, his bill sets a sentencing range between 10 and 20 years for people coming back to the country. If passed, either on its own or as part of a comprehensive immigration reform bill, it would drive up the time these inmates spend behind bars.

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