CounterPunch
The War on Immigrants
Detained in America
By ELAINE CASSEL
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 ca n
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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