Natalie J. Sokoloff and Susan C. Pearce, "Locking up Hope: Immigration, Gender, and the Prison System" (page 4 of 6)

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]

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