Article notes by the authors. [1] [2]

In 2004, a woman who was formerly a teacher of an ethnic group in Myanmar (previously Burma), entered the state of Texas and applied for asylum under U.S. asylum statutes, alleging to have been a victim of torture and persecution due to her religion and ethnicity. As a result, she was placed in a detention center in El Paso, Texas. This teacher's case has gotten caught up in a network of new anti-terrorism laws that construed her support for a resistance organization in Myanmar as potential grounds to deny her claim. Three additional members of this group were also detained on the same charges.[3] Congress eventually changed the law and she received asylum. This asylum seeker is not alone; she joins thousands of foreign-born women who have entered the U.S. criminal legal system[4]—whether on alleged immigration violations or infractions of criminal laws.[5]

In this article, we argue that research and policymaking need to interrogate the current practices of incarcerating the foreign-born through the lens of gender—and we offer some guidelines for doing so. Today, the intersection between immigration and incarceration is in need of substantially more research and activist illumination—as scholars have not, until recently, connected these two bodies of research.[6] The intersection of immigration, incarceration, and gender cries out for even more clarity. To date, there is very little research on gender—and particularly on women—as particular members of the foreign-born who are sitting in U.S. jails and prisons. While anecdotes about this intersection abound, in addition to some broad, general statistics, we are in need of much more in-depth information. One barrier to this research task has to do with the dearth of data on immigration and crime more generally, since neither the Uniform Crime Reports nor the National Victimization Survey disaggregate the data by nativity or country of origin.[7]

A key reason for this research need is the increasing presence of women as immigrants and as prisoners. At the beginning of the twenty-first century, the United States is witnessing a rise in its immigrant population, its prison population, and the share of women in both of these groups. Incarceration rates for male and female adults across federal, state, and local facilities quadrupled between 1980 and 2005, when it reached 2.2 million.[8] From 1995 to 2005, the number of women in prison has increased at nearly double the rate for men.[9] It has increased eight-fold between 1980 and 2005. (Unquestionably, the incarcerated population is still overwhelmingly male, even with these increases. Nevertheless, the absolute increase of women, particularly poor women of color and immigrants—especially Latinas and African origin women—must be confronted.) Additionally, women constitute a rising share of the undocumented immigrant population in the United States, and are now the majority of those entering the country legally. Women are entering through more legal means at higher rates as well, comprising 55.5% of new Legal Lawful Permanent Residents in 2006.[10] Although precise numbers do not yet exist on the proportion of the prison population made up of foreign-born women, a large share of the growth in the female prison population has been among non-citizen immigrants (e.g., drug mules, see below). This does not necessarily reflect increased criminal activity, but a drastic change in the creation and enforcement of certain laws.

Demographics

Who are the women immigrating to the United States today? In 2004, the top ten countries from which U.S. adult women originated (in order beginning with the highest) were Mexico, China, the Philippines, India, Vietnam, South Korea, Cuba, El Salvador, Germany, and Canada.[11] The top states in which foreign-born women reside (in order, beginning with the highest) are California, New York, Florida, Texas, New Jersey, Illinois, Massachusetts, Arizona, Washington, and Virginia. Significantly, these states represent every geographical corner of the United States, and include states that were traditional gateways for new immigrants—New York and California, for example—and the "emerging gateway" states that have only recently begun to attract large numbers of immigrants from the post-1965 wave—Virginia and Washington. After arrival, a substantial proportion of these women enter the U.S. labor force, where they are employed in all ranges of the socioeconomic spectrum. While many are running their own businesses and moving into professional-level jobs, there continues to be a strong concentration of immigrant women in low-wage labor. In 2003, 61.7% of employed foreign-born women earned less than $25,000 per year, in contrast to 54.4% of employed native-born women.[12]

Women Caught in the Criminal Legal System [13]

What do we know about women in prison? The number of women (across ethnic groups and nativity) in state and federal prisons has increased eight-fold, from 12,300 in 1980, to 107,518 in 2005.[14] An additional 94,571 women were held in local jails in 2005,[15] with another 956,200 out on probation and 93,000 on parole.[16] This means that more than 1 million women are under the control of the criminal justice system. This feminization of the prison population is reflected most intensely in racially disadvantaged groups. Two-thirds of female federal inmates in state and federal prisons and local jails in the United States are women of color (primarily Black and Latina).[17] Thus, it is key to understand the racialization of prisons as well as their gendered (and classed) nature: it is primarily poor men and women of color caught in the criminal justice system.[18]

More than 70% of women inmates are incarcerated for non-violent crimes such as fraud, drug offenses and sex work (prostitution in the criminal justice lingo). Women in state prisons in 2003 were more likely than men to be incarcerated for a drug offense (29% vs. 19%) or property offense (30% vs. 20%) and less likely to be incarcerated for a violent offense (35% vs. 53%).[19] These women's involvement in the drug trade does not translate into higher rates of drug use or addiction. Black and Latina women and men are much more likely to be incarcerated for drug offenses, even though they are not more likely to use drugs than the white population. In New York State, almost 80% of women who were incarcerated for drug offenses in 2007 were women of color. Of all women incarcerated in New York State, 47% are African-American and 22% are Latina.[20] The Women's Prison Association observes: "Yet despite their roles as relatively minor players in the drug trade, women—disproportionate numbers of them African American and Latina—have been 'caught in the net' of increasingly punitive policing, prosecutorial, and sentencing policies."[21] Foreign-born women, in fact, are often used as drug "mules"—they are used to import and/or export illegal drugs across borders; in these cases, women are conduits in the trade but not principle dealers. Human trafficking is also directly related to immigration. An unknown number of foreign-born women arrested for prostitution and/or drugs have been trafficked into this trade, and are virtually enslaved. The U.S. State Department's 2005 estimate was that 17,500 to 18,500 people are trafficked into the United States annually across all forms of forced labor, although estimates are rough.[22] While it is sex workers who are more commonly arrested, the traffickers often escape, as they are much more difficult to track down.

Incarcerated women share a range of experiences as women in U.S. society, further supporting the need to take a gendered perspective in analyzing incarceration: More than half the women in state prisons have been abused prior to their incarceration: 47% physically abused and 39% sexually abused (with many being survivors of both types of abuse).[23] Additionally, nearly 20% of imprisoned mothers report that they had been homeless the year prior to their incarceration,[24] which for some of these women is likely to be a result of the abuse they were escaping. An even more commonly shared demographic experience between these imprisoned women is that of motherhood: More than 65% of women in state prisons are mothers of children under the age of 18.[25]

In addition to the physical and emotional problems these women face from abuse both prior to their imprisonment and while in prison, a range of additional health care needs also surface. Nearly a quarter of women in state prisons, for example, have a history of mental illness. And 2.4% women in state and federal prisons were HIV positive in 2004, compared with 1.7% of men. The women's figures rate as high as 14.2% in New York State and 15.6% in Rhode Island.[26]

Immigration and Incarceration

It is our argument that foreign-born women and men, in recent years, have become more entwined with the criminal legal system due to changing immigration laws, changes in enforcement, and more aggressive detention and deportation measures. In tandem with this enhanced enforcement, harsher penalties for drug offenses and "tough on crime" policies have also caught the foreign-born in the broader net of arrests and sentencing. As a result, the prison system has been bulging at the seams, spawning a host of new and expanded facilities to accommodate the influx. The immigration rights movement, which has become publicly visible beginning in 2006, insists that the current immigration system is broken; the U.S. need for workers far outnumbers the legal employment visas that the system allows, for example, forcing more to obtain work outside of the visa system.

Although clear data are not available on the nativity of the prison population across the United States, we do have some general statistics on the total numbers of non-citizen immigrants in prison. Overall, in mid-year 2005, 6.7% of State and Federal inmates were not U.S. citizens. In 2004, 91,800 non-citizens were held in Federal (62%) or State (38%) prisons. This represents more than 20% of all prisoners in Federal custody and 10% of the prison populations of Arizona, New York, Nevada, and California.[27] Moreover, the National Immigrant Justice Center suggests that over all, women comprise 10 percent of the immigrant detention population.[28]

However, the growth in the number of imprisoned among the foreign-born does not represent a spike in crime rates among these groups, but shifts in federal immigration policy. Two laws that Congress passed in 1996, the Anti-terrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act, for example, increased the range of types of offenses considered to be deportable and removed the right of immigrant defendants to obtain bail.[29] Suddenly, non-citizen legal residents could be detained for a misdemeanor as inconsequential as jumping a subway turnstile and, amazingly, for infractions for which they had already served a sentence.[30] Secondly, increased enforcement of immigration law to curb the number of undocumented immigrants in the United States is filling detention centers—and even county jails—daily. Although this enforcement has been on the rise for several years, a post-9/11 climate of xenophobia and concern over border control has fueled the acceleration in arrest and imprisonment.[31]

Crime and the Immigration Debate

As Ramiro Martinez has written, public concerns in the United States over the relationship between immigration and crime date back more than one hundred years. In a peculiar version of race science, those groups of immigrants deemed "inferior" were assumed to be more prone to criminal activities. Such assumptions were among the rationales behind the decisions to pass the Emergency Immigration Act of 1921 and the Immigration Act of 1924, with major restrictions on the numbers of immigrants allowed to enter the country.[32] The twenty-first-century debates over immigration policy often echo these early, presumed correlations between "immigrant" and "criminal character." The frequent use of the term "illegals" in our public dialogues today, in fact, summons up an image that conflates the civil infraction of entering the country without documents with a more serious infraction of criminal law.

Despite the prevalent stereotypes, even some of the first sociological research on this phenomenon, conducted by The Chicago School of Sociology in the early twentieth-century, uncovered the social, rather than biologically racial, nature of criminal activities, and found that most foreign-born were less inclined toward crime than the native-born.[33] Thus, public stereotypes about criminality and the foreign-born never had a solid research base. The Chicago School researchers W.I. Thomas and Florian Znaniecki produced an in-depth study of early 20-century Polish immigrants in Chicago, and chronicled the cases of delinquency among some juvenile boys and prostitution among some girls in the community. Thomas and Znaniecki's analysis of these cases, however, theorized that these behaviors were rebellious acts related to the situation of social disorganization experienced by the immigrants adjusting to a new setting coupled with the teens' exposure to new norms and difficult conditions in the rapidly changing urban environment.[34] Other Chicago researchers at the time documented the decrease in crime rates among immigrant and Black youth when those same youth moved to better neighborhoods.[35]

Subsequent research has repeatedly and consistently confirmed lower crime rates among the foreign-born.[36] A number of researchers have contested the social disorganization theory, observing that social control in immigrant communities is quite strong; they have found, in fact, that immigration has a stabilizing effect on neighborhoods.[37] A recent Chicago study across 180 neighborhoods between 1995 and 2002 revealed lower crime rates among the Latin American immigrants than the native-born.[38] And as immigration rates in the United States have increased,including higher numbers of undocumented workers, crime rates have decreased. This trend is also evident at the local level: in those major cities with the highest numbers of immigrants.[39] Additional research is needed on a national and local scale, however, with more attentiveness to disaggregating ethnic backgrounds more specifically. The Chicago School, for example, went so far as to document not only the countries of origin, but the regions within those countries of their research subjects. Using such an approach, however, must not move into a cultural essentialism that equates criminality with ethnic origin. It is important, though, to advance our knowledge beyond our present-day studies, where the tendency in current data collection is to document "races" only (white/black/Latino/a). A number of new community-based studies are beginning to pay closer attention to such details.

If nativity is not correlated with criminality, what do we make, then, of the upsurge of immigrants in our jail and prison systems? In part, the answer has to do with more aggressive practices that entail locking up people on immigration infraction charges while they are awaiting asylum decision, or in a holding pattern awaiting deportation, as well as new (1996) laws mentioned above (including drug laws). Much of it also has to do with the complex and confusing relationship between civil and criminal law when it comes to immigration matters.

Issues at the Intersection of Immigration and the Criminal Justice System

One issue in understanding the intersection of immigration and the U.S. criminal justice system is that of interpretation and enforcement of U.S. law in both arenas. The New York Times has recently referred to this intersection as the "nearly impenetrable maze where immigration law and criminal law meet."[40] These laws exist in separate codes, and while immigration law is largely a federal domain (and is under civil law), criminal law straddles both state and federal statutes. Compounding the problem is that in recent years, immigration laws have been changing at rapid speeds. It is often the courts that have to untangle this maze. In December of 2006, the U.S. Supreme Court, in an 8-to-1 decision, did clarify one area of this confusion. They ruled that a non-citizen is not required to be deported for a drug crime that is only a misdemeanor under federal law, yet is a felony in the state where the immigrant was tried.[41] Although no longer an inevitability, it is still a possibility that deportation can occur under these conditions.

In recent years, the prison system has expanded dramatically, and an increasing share of that expansion is driven by the introduction of more private prisons: institutions operating for profit and run by a handful of large corporations. Private prisons make up about 6 to 7% of all prisons and incarcerate a somewhat larger percentage of all prisoners (state, federal, and local). Helping to fuel this massive growth is the burgeoning number of immigrants arrested for short-term detention pending a decision on their immigration status or pending a deportation. Additional arrests stem from the increasing militarization of the U.S. border to tighten security and apprehend border crossings. For example, two companies—Corrections Corporation and Geo—run half of the 16 federal detention centers, and have expressed interest in getting more business as federal immigration officials beef up the ranks of detainees. After President Bush announced a decision to escalate federal spending on immigration detention, both companies enjoyed increases in their stock values. From February 2006 to May 2007, for example, Geo's stock price more than doubled.[42] And the beds are filling: today, the United States detains 230,000 people per year for immigration offenses; this is more than three times the number that were detained annually only nine years ago. The government also rents beds in 312 county and city jails, where detainees are mixed with other prisoners. These detention practices cost the federal government $1.2 billion per year.[43]

"Help Us and Ask Us Questions:" This plea was scribbled by a child and handed to visitors from Lutheran Immigration and Refugee Service (LIRS) and the Women's Commission for Refugee Women and Children at a detention center where the immigrant child was locked up with her family.[44] In 2006 and 2007, an accelerated pace in immigration raids of places of employment across the United States has resulted in the rounding up of record numbers of suspected undocumented immigrants for detention and deportation. The federal government arrested 1.6 million foreign-born individuals in 2006 and detained 230,000.[45] Federal authorities were holding an estimated 26,500 undocumented immigrants in 2007.[46] In their February 2007 report, the LIRS and Women's Commission documented prison-like conditions for both women and children in two of these centers. The 2006 opening of the 512-bed T. Don Hutto Residential Center in Texas was intended to rectify a prior policy by the Immigration and Customs Enforcement (ICE) of the Department of Homeland Security of separating families during the detention process. Yet the agency representatives who visited the Center noted that Hutto still resembles the prison-cell architecture of its former use as an institution for criminals. Women receive inadequate prenatal care, and children were often separated from their parents.[47]

The book American Gulag opens with a chronicled story of an African woman who fled to the United States to escape a kidnapping threat from her country's military. Upon arrival, like many who cross U.S. borders daily without legal documents, she was thrown into a detention center to await trial for an asylum visa. She was shackled to another detainee, verbally abused and threatened by those in charge, and strip-searched. After a year and a half in the center, she was finally granted asylum and released. But reflecting on her incarceration experience, she reports that all of her joy is now gone.[48] Lawyers of another asylum seeker from Somalia requested her release from a prison to her family members in the United Sates on the grounds that she had been raped in view of her children while in Somalia. The request was denied due to a rule that only prisoners who were "near death" or were government witnesses could be released.[49] The 2004 CourtTV film Chasing Freedom dramatized for popular audiences a true story of an Afghan woman escaping the Taliban and seeking asylum in the United States. The film documents one obstacle after another that the asylum seeker and her attorney face in winning her release from a detention center in which she lived in humiliating conditions.[50]

These women, and many others like them, reside either in institutions designed for criminals or in institutions where treatment resembles that of prisons for those who have violated criminal law. This occurs even though they are being punished for civil infractions—even if we consider an asylum request to be an infraction. Reports of abuse within these centers include strip searches, rape, and other forms of sexual assault. Detainees remain for months in these facilities; some stay for years. Lebanese and Iranian women at Florida's Krone Detention Center report having their head covers removed in front of others, prompting begging and crying. Their captors reportedly laughed at them. Yet another woman who was awaiting the results of her husband's asylum application was thrown into solitary confinement while pregnant, and miscarried a few days later. She was transferred to a hospital, but with armcuffs and shackles on her legs; the shackles were left on while she was treated. The warden publicly defended the shackling, explaining that every inmate is to be treated equally.[51] Here the warden is implying that women are to receive the exact same treatment as men, and should not get "special consideration" based on gender. Ironically, asylum seekers are typically escaping torture, violence, war, or other types of persecution often related to gender—and must re-live such traumas at the hands of those who they hoped would rescue them.

In January 2007, the American Civil Liberties Union filed a lawsuit against a San Diego, California private correctional facility where immigrants are detained, questioning the constitutionality of the overcrowded, degrading conditions.[52] In February 2007, the bi-partisan U.S. Commission on International Religious Freedom gave low marks to the Department of Homeland Security for its failure to implement changes in the incarceration system for asylum seekers. Two years prior, the Commission issued a disturbing and critical study of human rights abuses in those institutions.[53] In May 2007, the U.N. Special Rapporteur on the Human Rights of Migrants, Jorge Bustamante, came to the United States on a fact-finding mission to visit detention centers where migrants are held. His itinerary was approved by the U.S. State Department. Although he visited a Florence, Arizona facility and was pleased with the facility, he has since been denied access to the facilities in Hutto, Texas and the Monmouth County Correctional Institution in Freehold, New Jersey. The denial at the Hutto center was due to a pending lawsuit by the ACLU against its conditions. In response, Mr. Bustamante surmised that "My interpretation is that someone in the United States government is not proud of what is happening in those centers."[54]

Other Intersections: The Example of Domestic Violence in Immigrant Communities

Even in cases where the immigrant man is the alleged perpetrator, a woman can conceivably be caught up as a victim of the U.S. criminal justice system. One of those situations involves domestic violence. In addition to the fact that a history of abuse is one of the predictors of women's incarceration, as mentioned above, an experience with such violence can result in other potential involvements with the system.[55] The decision about whether or not to report the abuse for a foreign-born woman is a complex one.

First, a woman who is in an uncertain legal status or whose immigration status is tied to that of her husband face might have deep fears around deportation of herself or her children if she approaches the police. The threat of deportation is commonly used by abusers against their partners. Many women are not familiar with the laws and rights related to domestic violence, which may differ dramatically from their home countries. Although a growing number of women are immigrating to the United States alone, a substantial sector has come either as a dependent on a male partner's visa or to marry a U.S. citizen through the increasingly popular mail-order bride business. If these women are not yet proficient in the English language and/or do not know the criminal legal system and their rights, they may feel even more entrapped, to the point where they may be risking theirs and their children's lives.

Second, even if a woman's legal status is not an issue, the possibility of her husband's entry into the criminal legal system can have a major impact on her life and livelihood.[56] A recent case, for example, in which an immigrant Chinese woman called the police to intervene in a domestic dispute resulted in the incarceration of her husband; her intention was to ask for police mediation, which is the role that police would play in her home country. The subsequent incarceration of her family's main breadwinner placed economic strains on her family, which intimidated other immigrant women from following suit.[57] Anecdotes abound of women in other immigrant communities who found themselves in similar circumstances.

Third, a woman might risk her own imprisonment in such cases. Some states have a dual-arrest policy, where both parties in a domestic dispute are arrested. The victim risks being misunderstood and inadequately defended in the U.S. courtroom. One researcher observed a situation where a foreign-born domestic violence victim's position got twisted into that of a perpetrator. This victim's courtroom testimony about the abuse fell prey to a mistranslation, which amounted to a confession of guilt on her part for the offense, without her knowledge.[58]

Taking a gendered perspective on these immigration-incarceration interfaces need not focus solely on the direct relationship that women might have with the criminal legal system. The post-9/11 surveillance and arrests of foreign-born men as part of the "war on terror" are often husbands, sons, and fathers of immigrant women—resulting in major disruptions in family income and stability.[59] A key example was the National Security Entry-Exit Registration System (NSEERS)—the 2002 "special registration" program the Bush administration enacted, which required foreign-born men from particular Muslim countries to register, submit to an interview, and be photographed and fingerprinted. Widespread confusion resulted over the target communities and requirements of this initiative. Thousands of registrants, believing to be in voluntary compliance of the law, were subsequently rounded up by the Department of Homeland Security: 2,870 were detained and another 13,799 were put into removal proceedings. The measure prompted mass emigrations to countries like Canada, and had a major economic impact on the Pakistani and Bangladeshi communities in New York.[60]

Learning From the Incarcerated Immigrant Woman

Further research and analysis into the presence of foreign-born women in our jails and prisons could potentially offer a broader perspective on the issues facing both incarcerated populations generally and immigrant populations generally. How many other prisoners are accidental victims of the system, through false arrests, misunderstood courtroom testimony, or lack of knowledge of an increasingly complex set of laws? How is the transportation of incarcerated women to locations far from their homes—in special detention centers away from access to community resources—a shared problem by many prisoners, increasingly shipped to states other than their own? And what situations of native-born imprisoned women mirror those of the asylum-seekers thrown into cells with more serious criminals?

For example, a Sierra Leonean woman detained in Wisconsin experienced severe cramping and abdominal bleeding, a sympton she had suffered ever since she was forced to undergo female genital mutilation as a teenager. Her requests for medical care were frequently ignored. She also suffered from Post-Traumatic Stress Disorder due to the violence she witnessed during her home country's civil war and a rape she survived while she was living in the United States as a refugee. As a result, the woman occasionally became agitated during her nearly three years in the jail. ICE cited her outbursts as justification for housing her with violent criminal inmates.[61]

Since migration policy and incarceration of newcomers places the U.S. system more centrally in an international spotlight regarding human rights questions, an exposure of the experiences of detained immigrants might also shed light on the treatment of the native-born in our prisons. Viewed from this perspective, how is a "human right" (using international treaty definitions) distinct from a "civil right" of citizens within a situation of incarceration? Since a "civil" right is tied to citizenship, non-citizen immigrants have a more restrictive set of rights. For example, the International Covenant on Civil and Political Rights requires that "[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person."[62] Does such a requirement have bearing on women stripped of headscarves, shackled while pregnant, or placed in punitive prison environments for violating an immigration law?

A significant and growing constituency in the United States is subject to a set of laws that they have no voice in making or changing. What avenues can be opened to allow the non-citizen foreign-born to be represented in policy making? And how can the specific voices and needs of women be brought to the table? By virtue of their incarceration—including parents jailed for using a belt to discipline their child, which is accepted in their home cultures—future citizenship rights will be limited. In some states, these prisoners have lost their voting rights for years, if not for life. The popular historic American conception of a citizenry rooted in immigrant communities is in jeopardy if part of that community is disenfranchised and if the feeling of hope—which is a sustaining force of immigrants—is eroded.

Immigrant women who have been victims of violence must be able to tell their stories and be allowed asylum without having to endure even greater violence in and by the criminal legal system. In several studies with detainees at a number of different prison facilities, there have been widespread allegations of physical, sexual, and verbal abuse by corrections officers and other correctional personnel.[63] In addition, inadequate medical and mental health resources for women generally, and women with infant and small children in particular, are documented in these same reports. Moreover, the roundup and jailing of immigrant mothers who are at work, and their removal to prisons far away from their children and their homes, is a situation of terrible trauma all the way around. We must be aware of both the immigrant and non-immigrant children whose mothers have been ripped from their lives—sometimes without any notice and with tragic consequences.[64]

Ironically, prisoners are now being used in jobs where laws do not allow immigrants to perform the cheap labor that immigrants have always done. For example, in Picacho, Arizona, claims are made that U.S. farmers are using prison labor because of a lack of immigrants: "With tightening restrictions on migrant workers, some farmers are turning to the incarcerated."[65] This does not bode well for either immigrants or native poor people who lack necessary jobs in their home communities. Tragically, some of the very jobs that prisoners perform while in prison have been sent overseas for cheaper labor and are now coming back to U.S. prisons, as international labor becomes more costly. Not only are these jobs not available in the community leading to imprisonment, but when ex-offenders are released back into the community, the jobs are still not there, but in the prisons themselves! This vicious cycle is exacerbated when we add the role of immigrants to the picture, as well as native-born poor people and people of color.

Addressing Policy

At the time of writing, in 2007, national legislators are agreed that the immigration system needs to be overhauled—but that is where the agreement ends. Congressional debates are polarized between those who would strengthen existing laws and enforcement and those who propose a more open policy for newcomers. In 2006, a series of federal bills was proposed in one of the houses of the U.S. Congress that could potentially move immigration law into a direction that further blurs the boundaries between police-enforced criminal law and the civil statutes under the purview of the federal immigration system. Congress continued to consider such bills in 2007 in its debates over immigration reform, but did not reach a resolution. Addressing basic flaws and gaps in immigration law could potentially alleviate some systemic problems enumerated here.

Policy changes and full investigations of the conditions of incarceration could make a world of difference in the situations of immigrants generally—and immigrant women in particular. A small number of recent pieces of legislation now exist to provide relief to victims of domestic violence and trafficking that are particularly useful to those who feel they risk arrest or deportation in coming forward. These include the T Visa, which offers a legal visa for trafficking victims who cooperate with investigations of the traffickers, the U Visa, which also provides a visa for victims of some violent crimes, and provisions of the Violence Against Women Act (known as VAWA), which allows domestic violence victims to apply for legal status independent of their abuser. Usage of these remedies is low, as many women are not familiar with these visas or fear other consequences if they were to enter the legal system.

Advocates call for a range of additional changes to U.S. law that would help reverse the more egregious conditions that immigrant women in the criminal justice system currently face, as well as those who come in contact with the criminal justice system as victims, partners, parents, children, family and friends of offenders. In considering any such changes, it is critical that the voices of incarcerated immigrant women be heard. Among the proposals are:

• Overhaul the immigration system to reduce the numbers of deportations and detentions by providing legal pathways into U.S. society.
• Provide alternatives to incarceration for civil offenses such as violations of immigration law, including awaiting a decision on an asylum case; low-level drug and non-violent crimes, which affect women disproportionately (both U.S. citizens and immigrant women); and mothers who have committed nonviolent crimes and have dependent children.
• Offer gender- and culture-sensitive programs for immigrant women who seek help for such problems as drug addiction, domestic violence, and mental health; who are arrested or incarcerated so that they have access to information and legal assistance in their own language; who are in court, ensuring that women's rights are protected and that appropriate language translation is used; and who are in jails and prisons, accommodating their particular needs related to health, reproduction, and motherhood.
• Increase enfranchisement options for former or current offenders.

Conclusion

We have presented here an outline of several key areas of concern that call for applying a (raced/classed) gendered lens to the intersection of immigration and incarceration. The policy areas listed above would be steps in the right direction toward addressing these issues. Policy-making needs to be critically informed by solid social-scientific research, as well as such initiatives as investigative journalism. Therefore this article proposes that such research give broader and deeper attention to the growing presence of foreign-born women in our jails and prisons. There are, admittedly, many challenges to such a task: the difficulty of access to those "inside," the fear of future consequences that inmates feel if they speak up, the constant moving of detainees held on immigration charges from facility to facility, and the loss of contact with former detainees who have been deported. Such challenges call for stronger communication linkages between researchers, journalists, advocates, local ethnic communities, and policy makers—including international human rights monitoring bodies. Social and political action are essential if we are to change the conditions for immigrant (and non-immigrant) women caught in the web of the criminal legal system.

Authors' Resources

• Natalie J. Sokoloff, "Women Prisoners at the Dawn of the 21st Century," Women & Criminal Justice, 16(1/2): 127-135.
• Natalie J. Sokoloff, "The Impact of the Prison Industrial Complex on African American Women," Souls: A Political Journal of Black Politics, Culture and Society, 5(4): 31-46, Fall 2003.
• The Criminal Justice System and Women: Offenders, Prisoners, Victims, and Workers. Edited by B.R. Price and N. J. Sokoloff, Eds. 2004. McGraw-Hill.
• Domestic Violence at the Margins: Readings on Race, Class, Gender, & Culture. Edited by N.J. Sokoloff with C. Pratt, Eds. 2005. Rutgers University Press.
• Multicultural Domestic Violence Bibliography by Natalie Sokoloff
• Women and Current Immigration Policies by Elizabeth J. Clifford and Susan C. Pearce.
  Fact Sheet (PDF) published by Sociologists for Women in Society Fall 2004

Endnotes

1. This article served as the basis for a discussion during The Scholar and Feminist Conference XXXI: Engendering Justice: Prisons, Activism and Change, Barnard College, April, 2006. [Return to text]

2. Both authors contributed equally to the writing of this article. [Return to text]

3. Irwin, Tim, "Anti-terrorism legislation delays entry of refugees to United States," UNHCR, September 6, 2006. [Return to text]

4. We use the terms criminal legal and criminal justice systems interchangeably. The reason for focusing on the criminal legal system is that, too often, this is a system of injustice, not justice, to poor, minorities, women, and immigrants (see Andrea Smith, "Looking to the Future: Domestic Violence, Women of Color, the State, and Social Change," Domestic Violence at the Margins: Readings in Race, Class, Gender & Culture, N. Sokoloff with C. Pratt, Eds., Rutgers University, 2005, 416-434). [Return to text]

5. According to the Associated Press, more than 1,000 "illegal" immigrants are located in Oregon's prisons, making up 7 percent of Oregon's state prison population. See The Associated Press, "News of the Week: More than 1,000 Illegal Immigrants in Oregon Prisons," August 26, 2007. Thus, 1,000 of Oregon's 13,3000 inmates are being detained and will be deported after serving their sentences. [Return to text]

6. Rubén G. Rumbaut, et al., "Immigration and Incarceration: Patterns and Predictors of Imprisonment among First- and Second-Generation Young Adults," in Ramiro Martinez Jr. and Abel Valenzuela Jr., ed., Immigration and Crime (New York and London: New York University Press, 2006), 65. [Return to text]

7. "Immigrant Assimilation and Crime: Generational Differences in Youth Violence in Chicago," in Ramiro Martinez Jr. and Abel Valenzuela Jr., ed., Immigration and Crime (New York and London: New York University Press, 2006), 37. [Return to text]

8. Rubén G. Rumbaut and Walter A. Ewing, "The Myth of Immigrant Criminality and the Paradox of Assimilation: Incarceration Rates among Native- and Foreign-Born Men" (PDF) (Washington DC: Immigration Policy Center), Spring 2007, 6. [Return to text]

9. For a summary of the data on women's experiences with prison between 1970 and 2004, see Natalie J. Sokoloff, "Women Prisoners at the Dawn of the 21st Century," Women & Criminal Justice, 16(1/2): 127-135. (2005). Paige M. Harrison and Allen J. Beck, "Prisoners in 2005" (PDF), Bureau of Justice Statistics Bulletin, Washington, DC: U.S. Department of Justice, November 2006, 4-5. [Return to text]

10. Kelly Jeffereys, "U.S. Legal Permanent Residents: 2006," Annual Flow Report March 2007. Washington, DC: DHS Office of Immigration Statistics. [Return to text]

11. American Community Survey, U.S. Census Bureau, 2004. [Return to text]

12. Susan C. Pearce, "Immigrant Women in the United States: A Demographic Portrait" (Washington DC: Immigration Policy Center), Summer 2006. [Return to text]

13. Unless otherwise indicated, this section is from Factsheet: Women in Prison, The Sentencing Project, Source: Bureau of Justice Statistics, 2004. It is based on Sokoloff's presentation in "Women Prisoners at the Dawn of the 21st Century," op. cit. and Natalie J. Sokoloff, "The Impact of the Prison Industrial Complex on African American Women," Souls: A Political Journal of Black Politics, Culture and Society, 5(4):31-46, Fall 2003. [Return to text]

14. Paige M. Harrison and Allen J. Beck, "Prisoners in 2005" (PDF), Bureau of Justice Statistics Bulletin, Washington, DC: U.S. Department of Justice, November 2006, 4. [Return to text]

15. Paige M. Harrison and Allen J. Beck, "Prison and Jail Inmates at Midyear 2005" (PDF), Bureau of Justice Statistics Bulletin, Washington, DC: U.S. Department of Justice, May 2006, 8. [Return to text]

16. Lauren E. Glaze and Thomas P. Bonczar, "Probation and Parole in the United States, 2005," Bureau of Justice Statistics, U.S. Department of Justice, November 2006. [Return to text]

17. Lawrence A. Greenfeld and Tracy L. Snell, "Women Offenders" (PDF), Bureau of Justice Statistics Special Report, 1999. [Return to text]

18. For an analysis of how race historically influences the prison system in the U.S., see Loic Wacquant, "From Slavery to Mass Incarceration: Rethinking the 'Race Question' in the United States." New Left Review, 2nd series, 13 (February 2003): 40-61. For an analysis of the race, class, gender intersectional approach to crime and justice, see Barbara Raffel Price and Natalie J. Sokoloff (eds.), The Criminal Justice System and Women: Offenders, Prisoners, Survivors, and Workers, 3E. New York: McGraw-Hill and Julia Sudbury (ed.), Global Lockdown: Race, Gender, and the Prison-Industrial Complex. New York: Routledge. [Return to text]

19. "Fact Sheet: Women in Prison," The Sentencing Project, December 2006. [Return to text]

20. "Women Prisoners and Substance Abuse Fact Sheet," Women in Prison Project of Correctional Association of New York, 2002. [Return to text]

21. Judith Greene and Kevin Pranis, "The Punitiveness Report," Women's Prison Association. [Return to text]

22. "Fact Sheet: Distinctions between Human Smuggling and Human Trafficking" (PDF), Washington, DC: U.S. Department of Justice Human Trafficking and Smuggling Center. [Return to text]

23. Caroline Wolf Harlow, "Prior Abuse Reported by Inmates and Probationers" (PDF), Bureau of Justice Statistics Selected Findings, April 1999. [Return to text]

24. "Women in Prison Fact Sheet" (PDF), Women in Prison Project, Correctional Association of New York, 2002. [Return to text]

25. "Imprisonment and Families Fact Sheet" (PDF), Women in Prison Project of Correctional Association of New York, March 2007. [Return to text]

26. Laura M. Maruschak, "HIV in Prisons, 2004," Bureau of Justice Statistics Bulletin, November 2006, NCJ213897, p. 3. [Return to text]

27. Paige Harrison and Allen Beck, Prison and Jail Inmates at Midyear 2004, Bureau of Justice Statistics Bulletin, 2005, NCJ 208801. [Return to text]

28. National Immigrant Justice Center. Briefing Paper: The Situation of Immigrant Women Detained in the United States, April 16, 2007. [Return to text]

29. "Immigration and Criminal Justice Fact Sheet" (PDF), Women in Prison Project, Correctional Association of New York, April 2007. [Return to text]

30. Mark Dow, American Gulag: Inside U.S. Immigration Prisons (Berkeley: University of California Press, 2004), 15. [Return to text]

31. Ibid. Also see Shamita Das Dasgupta's Body Evidence: Intimate Violence against South Asian Women in America, (New Brunswick: Rutgers University Press, 2007). [Return to text]

32. Ramiro Martinez Jr. and Abel Valenzuela Jr., ed., Immigration and Crime (New York and London: New York University Press, 2006), 2-3. [Return to text]

33. Ibid, p. 7. [Return to text]

34. W.I. Thomas and Florian Znaniecki, The Polish Peasant in Poland and America (Chicago: University of Illinois Press, 1918), Vol. 5. [Return to text]

35. Martinez and Valen, p. 7. [Return to text]

36. For a very recent example, see Teresa Watanabe, "Immigrants Boost Pay, Not Prison Populations, New Studies Show," LA Times, February 8, 2007. [Return to text]

37. Alejandro Portes and Alex Stepick, City on the Edge: The Transformation of Miami Prisons (Berkeley: University of California, 1993) and Min Zhou and Carl L. Bankston III, "Delinquency and Acculturation in the Twenty-first Century: A Decade's Change in a Vietnamese American Community," in Ramiro Martinez Jr. and Abel Valenzuela Jr., ed., Immigration and Crime (New York and London: New York University Press, 2006), 117-139. [Return to text]

38. Rumbaut and Ewing, 13. [Return to text]

39. Rumbaut and Ewing, 1. [Return to text]

40. Linda Greenhouse, "Court Rejects Interpretation Of Immigration Drug Law," New York Times December 6, 2006. [Return to text]

41. Ibid. [Return to text]

42. Meredith Kolodner, "Private Prisons Expect a Boom; Immigration Enforcement to Benefit Detention," New York Times, July 19, 2006; and May 12, 2007 stock quoted at www.marketwatch.com. [Return to text]

43. "Detaining America's Immigrants: Is this the Best Solution?" (PDF), Detention Watch Network. [Return to text]

44. "Locking up Family Values: The Detention of Immigrant Families" (PDF), Lutheran Immigration and Refugee Service and the Women's Commission for Refugee Women and Children, February 2007. [Return to text]

45. "Advocates Speak of Workers' and Detainees' Rights," American Civil Liberties Blog, May 14, 2007. [Return to text]

46. Spencer S. Hsu and Sylvia Moreno, "Border Policy's Success Strains Resources: Tent City in Texas Among Immigrant Holding Sites Drawing Criticism." Washington Post, February 2, 2007. [Return to text]

47. "Locking up Family Values...," ibid, p. 2. [Return to text]

48. Dow, ix-xiii. [Return to text]

49. Dow, 32. [Return to text]

50. See information about the Chasing Freedom Campaign by Human Rights First. [Return to text]

51. Dow, 178-179. [Return to text]

52. "ACLU Sues U.S. Immigration Officials and For-Profit Corrections Corporation Over Dangerous and Inhumane Housing of Detainees," January 21, 2007. [Return to text]

53. "USCIRF Finds Disappointing Response from Departments of Justice and Homeland Security to its Recommendations on Expedited Removal Process," Washington, CD: U.S. Commission on International Religious Freedom [Return to text]

54. Julia Preston, "U.N. Official Says He's Been Denied Access to U.S. Immigrant Jails," New York Times, May 15, 2007. [Return to text]

55. Hoan N. Bui, In the Adopted Land: Abused Immigrant Women and the Criminal Justice System, New York: Praeger, 2002. [Return to text]

56. See Bui, Ibid., 2002. [Return to text]

57. Personal conversation with a Chinese-American woman. [Return to text]

58. Personal conversation with a colleague of the courtroom observation. [Return to text]

59. See Das Dasgupta, op. cit., 2007. [Return to text]

60. "Targets of Suspicion: The Impact of Post-9/11 Policies on Muslims, Arabs and South Asians in the United States," Immigration Policy in Focus, May 2004, Washington, DC: Immigration Policy Center. [Return to text]

61. National Immigrant Justice Center, "The Situation of Immigrant Women Detained in the U.S.," op cit., p. 5. [Return to text]

62. "International Human Rights Standards Governing the Treatment of Prisoners," Human Rights Watch Prison Project. [Return to text]

63. National Immigrant Justice Center, The Situation of Immigrant Women Detained in the U.S., op cit. [Return to text]

64. See Nell Bernstein, All Alone in the World: Children of the Incarcerated. New York: The New Press, 2005. [Return to text]

65. E.g., see Nicole Hill, "US Farmers Using Prison Labor," Christian Science Monitor Online, August 22, 2007. [Return to text]