Foreigners in a carceral age: immigration and imprisonment in the United States.

JurisdictionUnited States
AuthorBosworth, Mary
Date22 March 2011


More than a decade ago, Jonathan Simon warned of an expanding interest in locking up refugees. (1) According to Simon, asylum seekers were to provide a new population for mass incarceration. The border was to become the new criminal justice frontier. In 2010, Simon's view appears to have been borne out, though perhaps not entirely as he predicted. While the imprisonment of immigrants has indeed boomed in recent years, (2) it is not refugees but a rather more varied population of non-citizens--undocumented workers, "criminal aliens," and "enemy combatants"--that has filled American penal institutions. This Article considers these foreigners behind bars. (3)

In effect, the group of foreign nationals incarcerated in the United States is composed of two intersecting populations: those non-U.S. citizens held in jails and prisons awaiting trial or following conviction for criminal offenses, and those detained purely under immigration powers. Where and when these foreigners are held varies. Upon completion of their criminal sentences, foreign offenders may be detained--often in the same prison or jail in which they were previously house--under immigration powers pending deportation. immigration detention has become mandatory for asylum seekers who arrive without proper documentation and is sometimes used for those with paperwork. (4) Similarly, non-citizens on U.S. soil who have committed what are otherwise civil offenses regarding their immigration status--by, for example, failing to renew their visa or working without one--may be detained prior to their removal. (5) At the most extreme end, those "captured" in pursuit of the "war on terror" are detained in a web of facilities, most of which are offshore. (6)

Given the range of foreign nationals who are incarcerated in the United States, it is somewhat surprising that so few criminologists since Simon have examined the intersections between imprisonment and immigration. Unlike legal scholars, geographers, and anthropologists, most sociologists of punishment and imprisonment remain wedded to a nationalist vision of state control, one unaffected by growing transnational flows and mobility. (7) Seeking to counteract this trend, we revisit Simon's work and document the various ways in which border control has become imbricated with prison. After examining the statistics on foreign prisoners, we explore the growing overlap between criminal justice and immigration policy a shift that scholars have dubbed "crimmigration." (8) We then assess the legislation that enables crimmigration and the conditions within immigration incarceration regimes, considering what both mean for penal practice and reform.

In 1998, Simon asked what the rebirth of immigration imprisonment suggested about the future of American prisons. (9) Today, we argue that a complex and variegated "problem" of foreignness is emerging within American prisons as populations of so-called criminal aliens and immigration detainees grow and intersect with domestic offenders and penal policy. Whereas immigration imprisonment once seemed a relic of early to mid-twentieth century immigration policy, (10) this practice has resurged to become an increasingly common feature of American penality in recent years. Over the past decade, there has been a significant expansion in the number of convicted foreign nationals and in the parallel and intersecting system of immigration detention. (11) The problem of foreignness also extends beyond statistics to the wider marginalization and mistreatment of non-citizens, a practice forged during the "war on drugs" in the disproportionate incarceration of African Americans and Latinos. (12) The non-citizen, we argue, is the next and newest "enemy" in an American war on crime. Whether empirical or symbolic, then, the growing emphasis on foreignness in penal policy raises concerns about due process, the conditions of incarceration, and the very purpose of the penal institution.

We call on criminologists and criminal justice policy makers to take these matters seriously, not simply because of the number of foreigners behind bars, but also for the insight they offer into the shifting nature of imprisonment in an era of globalization and social and economic upheaval. More prosaically, we argue that turning attention to incarcerated foreigners can refocus prison studies and penal reform. Those designated as non-U.S. citizens encompass a broad range of people, from new arrivals and long-term residents to economic migrants and terror suspects. Such variety resists generalization; yet as others have noted, imprisoned foreigners often have distinct, urgent, and unmet needs. (13) This Article seeks to direct greater policy and theoretical attention to these foreigners and to these issues.


    Jonathan Simon's Refugees in a Carceral Age was a prescient vision of American imprisonment. Published three years before the passage of the 2001 USA PATRIOT Act (the Patriot Act) (14) and more than a decade before Arizona sought to enact the nation's "toughest" immigration law in 2010, (15) Simon's article envisioned an expansion of immigration imprisonment across the United States. Simon located the origins--and to some degree, the future--of this imprisonment practice in public attitudes toward refugees in the wake of the 1981 Mariel Boatlift, which brought nearly 100,000 Cuban migrants to Florida's coastline in just under a month. (16) The Mariel Boatlift precipitated the creation of Miami's Krome Avenue Detention Center, the first in a wave of immigration "service processing centers" run by the U.S. Immigration and Naturalization Service (INS) (17) (now U.S. Immigration and Customs Enforcement (ICE)). (18)

    In Krome and places like it, the federal government effectively reinvented an immigration imprisonment practice that had died out when Ellis Island closed its doors in 1954. (19) Simon saw this reinvention of immigration imprisonment as a deeply problematic turn in both immigration policy and penal practice. Concerned in particular with the use of indefinite administrative detention, the erosion of due process rights, and racialized disparities in the treatment of refugees, Simon argued that immigration imprisonment in the early 1990s represented "an important mutation of imprisonment as a modern technology of power." (20) He warned that this "mutation" could and likely would continue into the twenty-first century, shaping the future of American incarceration. (21) Today, there is little doubt that key aspects of Simon's vision have come to pass.

    The immigration detention system has expanded rapidly. In 2008, the year for which the most recent statistics are available, ICE imprisoned nearly four times the number of people the INS did in the early 1990s. (22) ICE now owns eight privately-operated service processing centers and oversees another seven fully-privatized contract detention facilities. Even with these new institutions, however, ICE cannot hope to house all of its detainees. Instead, it places the majority (52%) in more than 350 "local and state government facilities"--that is, prisons and jails that it pays for as needed. (23) This practice reveals a system in which criminal and administrative state institutions are interchangeable.

    Such flexibility has both enabled and encouraged a ballooning immigration incarceration rate. Since 1985, the number of immigrants detained by ICE has multiplied dramatically. This increase was particularly sharp at the turn of the twenty-first century: in 1985, at year-end there were 1593 immigrants in detention; in 2000, there were 13,676; and in 2006, the figure jumped to 27,634. (24) By 2008, the tally of ICE immigration detainees at year-end had reached 34,161. (25) In addition to this population, the number of detainees incarcerated in jails has grown over the last decade as well. In mid-year 2009, the Federal Bureau of Justice Statistics reported 24,278 "confined persons held for ICE" in local and county jails, a figure nearly double the equivalent population housed in U.S. jails in 2000. (26)

    This expansion of immigration detention has occurred alongside--and within--a broader boom in American incarceration. It is well documented that since the late 1970s, the American inmate population has ballooned, reaching nearly 2.3 million in 2009 by one count and more than one in every 100 adults in 2008 by another. (27) While some attention has been paid to the race and gender composition of this population, little equivalent work has been written on matters of citizenship. (28) This is a notable oversight, for a considerable number of individuals convicted of regular criminal offenses are not U.S. citizens. Indeed, as the overall number of imprisoned individuals has increased, so has the tally of foreigners. In the most recently published national figures dating to mid-year 2009, 94,498 non-U.S, citizen offenders were recorded in the custody of state or federal correctional authorities, representing 4.1% of the total prison population. (29)

    Non-U.S. citizen prisoners are not spread evenly around the country, nor are statistics on them gathered consistently. New York and Colorado, for instance, include "foreign born" prisoners in their calculations regardless of citizenship status, (30) and some evidence suggests that U.S. citizens have been mistakenly identified as foreign, and have even been deported. (31) in figures for 2009, non-U.S, citizens constituted around 14% of the total federal and state prison population, (32) with particularly high concentrations of non-citizens in federal or state prisons in California, Texas, New York, and Florida. (33) In 2007, non-citizens constituted nearly 8% of the total jail population. (34) Unfortunately, no more recent statistics for foreign offenders in jail have been published since that time. Assuming similar rates of confinement for 2010 for state and federal prisons and...

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