Detained in America


Detained: Immigration Laws and the Expanding I.N.S. Jail Complex by Michael Welch (Temple University Press, 2003)

For a nation of immigrants, it is ironic that the United States has evolved a decidedly anti-immigrant and anti-immigration policy.

Written by Michael Welch, a professor of criminal justice at Rutgers University, Detained examines current U.S. immigration policies and practices that emphasize criminalization, incarceration, and life-long stigmitization of offenders of INS regulations.

Collective memory being what it is, many may think that our war on immigrants began on September 12, 2001, with our war on “terror.” Detained, mostly written prior to the events of September 11 and the enactment of the USA Patriot Act, sets the record straight. Though the events of September 11 gave additional excuses (or reasons, depending on your point of view) to clamp down on immigrants (and civil liberties), legislation and regulations were in place long before then.

Origins of Current Immigration Policies

Welch suggests three sources for our current harsh policies toward immigrants:

(1) a country that has long been ambivalent toward immigrants;

(2) “moral panic” that used immigrants as scapegoats for whatever national ills are the outrage of the time (today, it is “terrorism); and

(3) the “industrial-incarceration” complex that makes big bucks out of building big prisons that demand big numbers of detentions to justify its existence.

Detained sets out a brief history of immigration laws and policy in the U.S, from the first immigration laws in the 1860’s to the present. Though the book was written prior to September 11, 2001, Welch added an epilogue to discuss the ugly-but, in part, understandable-turn immigration polices took after that terrorist attacks of that day.

The roots of stringent new regulations against immigrants began before September 11, with the passage in 1996 of The Illegal Immigration Reform and Immigrant Responsibility Act, a part of Effective Death Penalty Act. This law:

(1) laid the foundation for the inroads into civil liberties that federal agencies and the courts seized upon post-September 11;

(2) eroded the writ of habeas corpus so that people condemned to die are more certain to be executed than have their cases undergo meaningful review; and

(3) gave the Immigration and Naturalization Service new and expansive powers.

Among its more draconian provisions, this law:

(1) allows the INS to reclassify some misdemeanors (shoplifting and possession of small amounts of drugs) as aggravated felonies requiring detention and discretionary deportation;

(2) makes the reclassification of petty crimes retroactive, so that immigrants with convictions 15, even 20 years old, can be rounded up and deported; and

(3) permits children who have been separated from their parents at the border or otherwise (perhaps abandoned by their parents on arrival here) to be held in adult prisons, without access neither to attorney, guardian ad litem, education, or any other service a compassionate nation should provide innocent minors.

Post-September 11 Immigration Policies

The events of September 11, 2001 left politicians demanding to know why INS had let several of the hijackers “slip through the cracks” and enter and/or remain in this country illegally. In what some say were actions designed to draw attention away from its own ineptitude, the INS enacted new regulations imposing stringent regulations on immigrants lawfully in the country.

These include those requiring the periodic registration of almost all men of color from Middle Eastern, Arab, and Muslim countries who are currently in the country, legally or otherwise (a practice that showed the spectacle of the INS locking up hundreds and hundreds of hard-working men for “technical violations,” many caused by the INS’s inaction on papers appropriately filed with them by the very men they arrested.

Immigrants can be detained without being charged with any offense for months, even years (and hundreds have been since September 11) and, if they have hearings at all, they may be in secret and without benefit of counsel. Their family members may never know that they have been detained, even deported. If countries to which INS wishes to deport them won’t accept them, they may be imprisoned forever, under current regulations, in INS custody.

People here on temporary visas are subject to increased scrutiny and surveillance. Foreign visitors can be now fingerprinted and photographed upon entry in the US and their comings and goings tracked. A mandated reported system for foreign students has colleges and universities becoming partners in law enforcement with the INS, as they must fulfill stringent reporting requirements about their students and notify the INS about even the most minor violations of school regulations.

The Prison Industrial Complex

America in the 21st century is an incarceration-happy nation. More than 2 million people are incarcerated in federal and state prisons, a 100 percent increase from 10 years ago.

As staggering as that statistic is, the INS data is even more so. For in four years-from 1997 to 2001- the number of INS detainees increased by 150 percent-from 8,200 to more than 20,000. Welch believes that these incarceration policies are being used as a means of social control. He provides evidence that INS calculated the cost of detention versus the costs of services to immigrants, and concluded that incarceration is cheaper than education, health care, and other social services.

Congress continues to increase the INS funds allocated to detention, one-third of which is spend on renting cells in remote local counties where there are beds to spare. State prisons and local jails reap mighty profits from housing INS detainees. Whether current INS policies are being crafted by design to fill those beds, the result is unquestionable. Welch tells of a Delaware jail warden who places a call to INS when he has beds to fill. “Send me 70 inmates,” he says, and they appear in a matter of days.

Moral Panic

Welch also examines current immigration policies as a product of “moral panic,” a sociological construct that involves labeling an individual or a group to blame for some societal problem, or as a threat to normative values or interests. The hallmarks of moral panic are stereotype and prejudice. As an example, in the Clinton years of welfare “reform,” immigrants were blamed, along with “welfare mothers,” for the breakdown the entitlement system. Now, immigrants from the Middle East are seen as terrorist threats.

Post September 11, the fact that the hijackers were in the country at all (at least one of them on a student visa) suddenly made immigrants the scapegoat for September 11. No matter that we learned that the information that could have nabbed several of the hijackers was known or knowable to INS, Justice, and the CIA-the problem was immigrants, not bungling federal agents.

Would halting immigration “stop” terrorism? Of course not. Not only are there American born and bred terrorists (think Timothy McVeigh and Theodore Kaczynski, for starters), but also “illegal” persons can enter our borders through Canada and Mexico.

But well educated, even “liberal,” Americans, often have a hard time finding empathy for the plight of Middle Eastern immigrants. In the “war on terrorism” it’s “them” versus “us.”

With the INS reorganized as of March 1 and operating within the Department of Homeland Security, policies against immigrants and citizens that are undemocratic, un-American, and inhumane are likely to continue unabated. And, if and when the Domestic Security Enhancement Act of 2003 (already nick-named Patriot II), becomes law, any American citizen, American citizens who support the lawful activities of an organization the executive branch deems “terrorist” may be presumptively stripped of their citizenship and deported to parts unknown or detained by INS indefinitely.

Detained should be read by anyone interested in learning about the origins of the evolving “us versus them” posture that stigmatizes, criminalizes, and incarcerates immigrants in the name of “freedom” and “national security.” The way this country treats its vulnerable residents should be of concern to all Americans who profess to value human rights. But, as the draft of Patriot II suggests, the treatment of immigrants may foreshadow the treatment of citizens in the years to come.

In this regard, Detained serves up an oblique warning: Americans ignore current immigration practices at a very real risk to their own freedom. For the way “we” treat “them” now, may be a precursor to the way our government treats us in the not-too-distant future.

ELAINE CASSEL practices law in Virginia and the District of Columbia and is a contributor to Counterpunch and Findlaw.com, where a shorter version of this review originally appeared. She is the chair of the American Bar Association’s Behavioral Science Committee of the Science and Technology Law Section and is the author, with Douglas Bernstein, of Criminal Behavior (Allyn & Bacon, 2001). She also teaches law and psychology. She can be reached at: cassel@counterpunch.org.


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