Locking up Hope:
Immigration, Gender, and the Prison System

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.¹ Moreover, the National Immigrant Justice Center suggests that over all, women comprise 10 percent of the immigrant detention population.²

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.³ 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.⁴ 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.⁵

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.⁶ 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.⁷ 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.⁸ 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.⁹

Subsequent research has repeatedly and consistently confirmed lower crime rates among the foreign-born.¹⁰ 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.¹¹ A recent Chicago study across 180 neighborhoods between 1995 and 2002 revealed lower crime rates among the Latin American immigrants than the native-born.¹² 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.¹³ 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.

1. Paige Harrison and Allen Beck, Prison and Jail Inmates at Midyear 2004, Bureau of Justice Statistics Bulletin, 2005, NCJ 208801. [↩]
2. National Immigrant Justice Center. Briefing Paper: The Situation of Immigrant Women Detained in the United States, April 16, 2007. [↩]
3. “Immigration and Criminal Justice Fact Sheet” (PDF), Women in Prison Project, Correctional Association of New York, April 2007 [↩]
4. Mark Dow, American Gulag: Inside U.S. Immigration Prisons (Berkeley: University of California Press, 2004), 15. [↩]
5. Ibid. Also see Shamita Das Dasgupta’s Body Evidence: Intimate Violence against South Asian Women in America, (New Brunswick: Rutgers University Press, 2007). [↩]
6. Ramiro Martinez Jr. and Abel Valenzuela Jr., ed., Immigration and Crime (New York and London: New York University Press, 2006), 2-3. [↩]
7. bid, p. 7. [↩]
8. W.I. Thomas and Florian Znaniecki, The Polish Peasant in Poland and America (Chicago: University of Illinois Press, 1918), Vol. 5. [↩]
9. Martinez and Valen, p. 7. [↩]
10. For a very recent example, see Teresa Watanabe, “Immigrants Boost Pay, Not Prison Populations, New Studies Show,” LA Times, February 8, 2007. [↩]
11. 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. [↩]
12. Rumbaut and Ewing, 13. [↩]
13. Rumbaut and Ewing, 1. [↩]