Daily Dispatch 9/5/2019: Separate and Unequal Justice
September 5, 2019
Most people are unaware that there is a network of prisons – all privately operated under contract with the Department of Justice – that only incarcerate non-citizens convicted of federal crime. The people in these prisons are almost all facing deportation, but under U.S. law, must complete their sentence first. The very fact that they will be deported at the end of their prison sentence alleviates these prisons of most requirements to provide rehabilitative services to the prisoners. They will not be released into the United States, the argument goes, so their rehabilitation is not our concern. Which is to say, the federal government has created a parallel prison system for non-citizens that is inferior by almost any measure. Practices that would appear to be clear violations of the constitutional requirement of equal protection are allowed to continue because the courts in this country give deference to prison administration over practices within prisons, and also give deference to the executive branch over immigration policy.
The existence of these prisons is slowly coming into public consciousness. Over the last five years there have been several investigative pieces about them (see list of resources at end of this article), and this past March (2019) the Harvard Law Review published the first legal analysis of these institutions, written by Emma Kaufman, currently a lecturer at the University of Chicago Law School. Kaufman’s article is the primary focus of this dispatch. You can read the full text here – and I encourage everyone interested in the topic to do so. I can only hit a few points in this review.
Kaufman’s article begins with a historical overview of the intersections of federal incarceration and immigration policy. It is a sobering reminder that what we fashionably call “crimmigration” now has been the de facto framework of the U.S. government since at least 1875. Indeed, the history of the institutionalization of federal incarceration is deeply intertwined with an obsessive focus on the “criminal alien” throughout our country’s history. Sadly, what has accompanied this focus on criminality is the casting of suspicion over all who would migrate here – using criminality as a rhetorical attack on all immigrants. What Trump is doing now, in short, has been done throughout our history – and it is very important for people to come to grips with that.
In relationship to federal incarceration specifically, Kaufman’s article does a good job of examining how federal incarceration grew alongside immigrant detention. Indeed, law enforcement was generally viewed as an authority and responsibility of state and local governments, not the federal government. To this day, the number of people in federal incarceration is a small portion of overall incarceration – less than 10 percent. From Kaufman (p.1389-90):
This national effort to document the prison population coincided with the birth of federal immigration law. For the first century of American history, immigration was regulated by states. With the exception of the Alien Friends Law of 1798, a short-lived statute that authorized the President to deport any noncitizen “dangerous to the peace and safety of the United States,” there were no federal laws restricting immigration or authorizing deportation before the end of the Civil War. That changed when Congress passed the first federal immigration statute — a law intended to bar the entry of Chinese women — in 1875. Sixteen years later, as immigration from southern and eastern Europe increased, Congress enacted the first federal deportation law, which authorized removal of people “likely to become a public charge” and those convicted of felonies or crimes of “moral turpitude” before entering the United States.
The federal government then began to build an immigration control apparatus. In 1891, a year before Ellis Island opened, Congress created the office of the Superintendent of Immigration, the first federal immi- gration enforcement agency. Congress authorized the purchase of land for the first federal prisons the same year. Both projects grew quickly in scope and ambition. By the early 1900s, there were three federal prisons, and the newly created Bureau of Immigration and Naturalization had started to “canvass . . . all penal institutions in the United States for the purpose of discovering the number of alien prisoners detained therein.”
However, it was not until 1999 that the federal government went so far as to create separate, foreign-only, prisons. Yes, another Clinton gift to the infrastructure of mass incarceration. These prisons are called “Criminal Alien Requirement Facilities” (Kaufman, p. 1401).
The Bureau of Prisons created all-foreign prisons in 1999. In April of that year, the Agency announced that it was considering “housing [the] criminal alien population in [private] low-security” prisons called “Criminal Alien Requirement” — or CAR — facilities. The Bureau then began to solicit bids from companies interested in operating prisons for noncitizens. In June 1999, Corrections Corporation of America won the first contract and started to construct CAR prisons in California City, California, and Milan, New Mexico. BOP planned to fill these facilities with noncitizens transferred from federal prisons in Arizona, California, New Mexico, Oklahoma, and Texas.
Twenty years later, this model of incarceration is entrenched in the federal prison system. There are now ten CAR prisons, all of which are low-security institutions run by for-profit corporations. CAR prisons are located in seven states: California, Georgia, Mississippi, North Carolina, Oklahoma, Pennsylvania, and Texas.
Conditions in these prisons are particularly bad.
The three best sources on conditions in all-foreign prisons are a four- year study by the DOJ Inspector General; articles by an investigative journalist who obtained 9000 pages of BOP medical records after a FOIA suit; and a report by the ACLU National Prison Project, which conducted twelve site visits and 270 interviews at CAR prisons in 2013 and 2014. Each describes all-foreign prisons as institutions with unusually poor healthcare; overcrowding; higher rates of solitary confinement, lockdowns, and deaths in custody than comparable BOP institutions; and a dearth of rehabilitative programs such as drug treatment and education courses, which are offered in other federal prisons. An immigration attorney who has represented clients in two all-foreign prisons told me that CAR facilities lack law libraries, training and educational programs, and recreational equipment.
The facilities also tend to be violent spaces – in part because of the lack of services and poor conditions. From Detention Watch Network:
Shadow prisons, largely due to the deplorable conditions and extreme sentences, have also experienced organizing and rebellion on the inside. In February 2014, 2,000 of the 3,000 immigrants held at Willacy County Correctional Center — a former detention center converted into a shadow prison — led an uprising that not only dismantled the structure of the facility itself, but led to its closure. (In 2018, the Trump Administration re-opened this facility—albeit under a new name—as an immigration detention center yet again.)
Another dynamic about CARs is that, though they represent legal segregation based on alienage (not race), they ultimately lead to ethnic segregation as the vast majority of prisoners are Latinx. Again, from Kaufman, p. 1415:
As of January 2018, 89% of CAR prisoners were born in Mexico, the Dominican Republic, Cuba, or Central or South America. In 2016, GEO Group, the company that runs the largest number of all- foreign prisons, described CAR facilities as “very homogenous, with 72.1% being from Mexico and the majority of the rest being from a few Central American countries.” The same year, another prison contrac- tor reported that “90% of the inmates in [all-foreign prisons] are Mexicans,” and in contract solicitations, the Bureau has stated that CAR prisoners are “primarily Mexican.”
The ACLU issued a lengthy report on CAR facilities in 2014, which increased pressure on the Office of Inspector General to actually review BOP monitoring of these facilities. The review happened in 2016, with findings of multiple problems:
We found that in a majority of the categories we examined, contract prisons incurred more safety and security incidents per capita than comparable BOP institutions. We analyzed data from the 14 contract prisons that were operational during the period of our review and from a select group of 14 BOP institutions with comparable inmate populations to evaluate how the contract prisons performed relative to the selected BOP institutions.
In 2016 the Obama administration announced that it would begin phasing out contracts between private prison companies and the Federal Bureau of Prisons. This would have shuttered CARs – which are run by Geo Group, CoreCivic, or the Management and Training Corporation (MTC). However, Trump reversed this executive order upon taking office.
Multiple candidates for President support ending contracts with private prison companies within the federal system. Indeed, almost all of the frontrunners except Biden have raised this (Warren, Sanders, Booker, Harris). Most of these same candidates also support decriminalizing migration – repealing 8 USC 1325, which makes improper entry a federal misdemeanor and 8 USC 1326 which makes improper re-entry a felony. This would dramatically decrease the number of immigrants in federal custody. These immigration convictions make up one third of BOP immigrant incarcerations (over 50 percent of US Marshall Service detainees).
Department of Justice, Office of Inspector General (2016) Review of Federal Bureau of Prisons’ Monitoring of Contract Prisons
Detention Watch Network, Shadow Prisons
Emma Kaufman (2019) “Segregation and Citizenship” in Harvard Law Review
Fusion (2014) Shadow Prisons (Interactive web page/report)