Imprisoning Immigrants: What the ACLU's Doing About It
By Bryan Caplan
The once-true stereotype that illegal immigrants get deported, not imprisoned, is fast becoming obsolete. But there is a glimmer of hope. Open borders activists aren’t the only people who care about this issue. The ACLU in particular is taking a serious interest:
Dozens of tired, bedraggled men line up in shackles to plead guilty en masse. A judge claims his personal best is sentencing 70 people in 30 minutes: an average of twenty-five seconds per person to review the charges, hear his or her plea, and hand down a sentence.
No, this is not Egypt or Russia. It’s the United States, in federal courthouses along the Southwest border.
What’s driven our courts to adopt such assembly-line justice? Operation Streamline, a “zero tolerance” program that began under Bush and expanded under Obama.
Traditionally, federal authorities handled illegal immigration
through the comprehensive enforcement scheme available under civil
immigration laws. That enforcement scheme–which has deported about 2 million people
over the past five years–already results in significant unfairness. But
under Operation Streamline, authorities both process apprehended
migrants for deportation and refer them for criminal prosecution for crossing the border.
Together, misdemeanor and felony border-crossing prosecutions now
dominate federal dockets. In 2013, 80% of the federal criminal cases
filed in Arizona and New Mexico, 83% of the cases filed in western
Texas, and 88% of the cases filed in southern Texas were for illegal
border-crossing. Nationwide, one out of every two cases filed by federal
prosecutors was for border-crossing.
The latest from the ACLU’s Carl Takei:
No one who has been to Willacy County Correctional Center or the
other dozen private, for-profit “criminal alien requirement” prisons
around the country could have been surprised by this weekend’s riot. As
many as two-thirds of the men incarcerated at Willacy refused to
participate in work details and then set fire to three of the ten
housing tents, apparently in protest of poor conditions.
The Management & Training Corporation — the nation’s
third-largest private prison company — houses most of the roughly 2,800
men at Willacy not in buildings, but in ten Kevlar tents that contain
all but a few hundred of the prison’s approximately 3,000 beds. You get a
cell only if you’re sent to solitary, which can happen for no reason
other than that there are too many prisoners to fit in the tents (each
tent is filled with about 200 closely-spaced bunks).
The CAR detention center, outsourced by the federal Bureau of
Prisons, house low-custody (i.e., those whom the authorities consider
generally well-behaved), non-U.S. citizens who are serving sentences for
federal crimes. They essentially fall into two groups of people:
immigrants serving time for drug offenses, and immigrants serving time
for the felony of reentering the United States after they had previously
There are thirteen CAR prisons holding around 25,000 people
nationwide, spread across Georgia, Mississippi, New Mexico, North
Carolina, Oklahoma, Pennsylvania, and Texas. The amount of time people
spend in the facilities varies widely depending on why they landed
there. Sentences for illegally reentering the United States average
around 18 months. Thanks to mandatory minimums, prisoners serving
sentences for drug offenses can spend decades in a CAR prison.
The ACLU doesn’t merely publicize these horrors; they document them first-hand. Takei:
In 2013, I visited Willacy to interview prisoners as a part of the ACLU’s report
on the five CAR prisons in Texas. The 2014 report was based on nearly
five years of interviews and document review. We found that men held in
these private prisons are subjected to shocking abuse and mistreatment,
including getting thrown into isolation cells for complaining about bad
food and poor medical care, being denied both urgent and routine medical
care, and being cut off from contact with their families. Bureau of
Prisons policies also exclude immigrants from many types of
rehabilitative programs — schooling, vocational training, and the like.
At Willacy, the men we spoke to described squalid and overcrowded
conditions in the prison’s tents, with insects crawling into their bunks
and malfunctioning toilets constantly backing sewage water into the
living areas. When people protested to get the toilets fixed, the
protest leaders were locked in isolation cells.
If ICE’s civil detention system is closed to outsiders and too often
evades sunlight, then the CAR prisons exist entirely in the shadows.
Although the isolated locations of ICE detention facilities often make
it difficult for attorneys and family members to meet with detainees,
the situation is far worse at CAR prisons. At one, the warden denied the
ACLU’s request for attorney visitation with a curt letter demanding to
know why our meetings with prisoners “might be appropriate” and
asserting that the Bureau of Prisons’ policies allowing confidential
attorney visits “do not apply at this facility.” (His intransigence was
rewarded; later that year, the warden was promoted to a managing
director position at his private prison company.)
When we were able to interview prisoners, they described not only
abuse and mistreatment, but a system that made it difficult or
impossible for them to even complain about their mistreatment. Grievance
systems often allowed no appeals above the private prison warden. Some
staff refused to accept grievance forms written in Spanish — a
particularly effective way of quashing grievances for a population of
largely Latino immigrants. Many prisoners reported that they were
threatened with solitary confinement — and in some cases, actually
thrown in isolation cells–for assisting others with drafting grievances
or filing lawsuits.
And the Bureau of Prisons’ oversight mechanisms offer little
protection. In one case, the agency renewed a private prison contract
even after its own monitors noted that the prison was “unable to
successfully achieve their own plans of action to correct deficient
areas.” The conclusion: “Lack of healthcare has greatly impacted inmate
health and wellbeing.” Since then, the ACLU has continued to receive
reports of medical understaffing, the spread of contagious diseases,
policies that obstruct access to medical care, and even deaths at this
It’s easy to believe that private prisons are part of the problem. The government is the customer, and one of the main services the government is buying is (im)plausible deniability. If government prisons abuse immigrants, government officials might get in trouble. If companies hired by the government abuse immigrants, government officials can feign shock, cancel the contract, hire a different company, and resume oppression as usual. Farcical, but it works.
In any case, though, poor prison conditions are not the fundamental problem. The abuse that overshadows all others is imprisonment for breaking unjust laws. Preventing foreigners from coming here to better their lives through honest toil is wrong. Imprisoning them for coming here to better their lives through honest toil is a travesty.