Lessons learned, lessons lost: immigration enforcement's failed experiment with penal severity.

• Author: Miller, Teresa A.

ABSTRACT

This article traces the evolution of "get tough" sentencing and corrections policies that were touted as the solution to a criminal justice system widely viewed as "broken" in the mid-1970s. It draws parallels to the adoption some twenty years later of harsh, punitive policies in the immigration enforcement system to address perceptions that it is similarly "broken," policies that have embraced the theories, objectives and tools of criminal punishment, and caused the two systems to converge. In discussing the myriad of harms that have resulted from the convergence of these two systems, and the criminal justice system's recent shift away from severity and toward harm reduction, this article suggests that the criminal justice system has been more proactive in compensating for its excesses than the immigration enforcement system and discusses the reasons why.

TABLE OF CONTENTS Abstract Introduction A. An Immigrant Experience in 1900 B. An Immigrant Experience in 2000 I. Recent History &the Criminal Justice System in the United States A. The Severity Revolution & Mass Incarceration B. Penal Severity Produces a Range of Harms C. "Severity Fatigue" Prompts Ameliorative Reforms II. A Recent History of the Immigration System in the United States A. Dangerous Discourse B. Over-Incarceration of Immigrants C. Civil "Exceptionalism" Within Criminal Law Enforcement and Punishment 1. ICE Detainers Exempt Non-U.S. Citizens From Opportunities Broadly Afforded to Prisoners 2. ICE Detainers Adversely Affect the Provision of Criminal Bail to the Criminally Charged III. Bigger Picture: Importing the Criminal System's Severity Absent its Reforms Conclusion INTRODUCTION

1. An Immigrant Experience in 1900

   Annie Moore, an Irish girl from County Cork arrived in New York City by boat on January 1, 1892. Departing Ireland from Queenstown on December 20, 1891 aboard the S.S. Nevada, after twelve days at sea Annie arrived at Ellis Island on Thursday evening, December 31st. She would be processed through Ellis Island the following rooming, New Year's Day, which was also Annie's fifteenth birthday. Accompanied by her two younger brothers on a quest to join parents who had already landed in New York, Annie has the distinction of being the first person to pass through the newly opened Ellis Island Immigration Station. (1)

   On that Inaugural day, 700 immigrants arriving in three separate ships were processed at Ellis Island. (2) At the time, the federal Treasury Department--home of the newly-created federal Bureau of Immigration--was charged with enforcing a modest set of admission qualifications, including proof that the immigrant was not a criminal, a lunatic, a pauper, or diseased. (3) The ship's captain had supplied to the Collector of Customs a manifest listing the names of all the passengers, and an inspector had collected a federal tax of roughly fifty cents per arriving immigrant to pay into a federal immigrant welfare fund. (4)

   The screening process was administrative and extensive. After leaving the ship and entering the inspection station at Ellis Island, Annie, her brothers, and the 700 other new arrivals walked up a steep stairway leading to the Registry Room in the main building, past doctors who looked over each of them and occasionally wrote something in chalk on their coats: "L" for lame, "H" for heart trouble, "E" for eye problems, "K" for hernia, "G" for goiter, and "X" for mental deficiency. (5) Those who were sick were removed from the line and denied entry. (6) The first examination was for lice, and those infested had their heads shaved. (7) Then, each immigrant had to remove his or her clothing to be examined for skin disease. (8) During the eye exam, each immigrant had their upper eyelid flipped back with a hooked instrument to allow a doctor to examine the eyeball for trachoma, a contagious eye disease. (9) After waiting to reach the doctors who did the physical examinations, immigrants underwent mental examinations as well. (10) Arriving immigrants who passed health inspection were then interviewed by clerks who recorded vital statistics and background information. (11)

   Annie's immigration experience, and that of many other Europeans arriving at Ellis Island near the turn of the century reflected the recent federalization of a nascent immigration system. (12) The examinations took place in a special, centralized receiving station constructed by, and staffed with, federal dollars, and supervised by the Department of the Treasury. (13) The goal of this process was to determine the eligibility of arriving immigrants for admission based upon a limited (although growing) set of exclusion grounds and to efficiently dispatch the new arrivals to their destinations. (14) Those who did not appear to qualify for admission would be identified by inspectors as they wound their way through the long inspection lanes, pulled out for secondary inspection, and possibly held until a return voyage could be arranged. (15)

   During this era, even immigrants who were processed through Ellis Island and admitted to the United States could subsequently be deported on the basis of either (1) error during the inspection process (e.g., the arriving immigrant lied about a previous criminal conviction), or (2) the arriving immigrant's violation of the conditions of admission (e.g., becoming a public charge within one year after admission, a ground for deportation under the Immigration Act of 1891). (16) These subsequent deportation proceedings were initiated not as an exercise of social control over individuals long resident in the United States, but as an extension of the power to admit (or refuse admission to) arriving aliens--a power that was an immediate part of the exclusion process. (17) Despite the harsh consequences, these sorts of deportation laws--based upon a contractual model of arriving immigrants agreeing to abide by conditions of admission during a "probationary" period of one year (later expanded to three years in 1903)--were nevertheless consistent with traditional civil and regulatory models. (18)

2. An Immigrant Experience in 2000

   Consider the experience of Luis Quezada nearly 100 years later. Mr. Quezada had already crossed the border into the United States and was residing in Colorado. (19) Like Annie Moore, Quezada came to the United States to reunite with family members. One Saturday afternoon, Mr. Quezada was taken into custody on a criminal arrest warrant for failure to appear in court on a traffic violation. (20) That same day the Jefferson County Jail received an immigration detainer stating that Mr. Quezada was being investigated by Immigration and Customs Enforcement (ICE) to determine whether he was subject to removal for unlawful presence in the United States and that the jail was required to detain Quezada for forty-eight hours. (21) The following Tuesday, Quezada appeared before a judge who sentenced him to time served and ordered him released from custody. (22) Shortly after the judge ordered Quezada released, the jail notified ICE by fax that Quezada was "ready for pick-up." (23) By that Friday, Quezada maintains, the county's state criminal and federal statutory authority to continue detaining him had expired, (24) yet officials at the Jefferson County jail did not release him until forty-seven days later despite repeated protests from Quezada and his family members. (25) The ACLU is now suing Jefferson County on constitutional grounds as well as state tort law grounds for Quezada's wrongful imprisonment. (26)

   Contrast the experiences of Annie Moore and Luis Quezada. Whereas Annie was screened for admissibility upon arrival at Ellis Island, where a deportation would be initiated through direct contact with federal immigration authorities, Quezada came to the attention of immigration authorities indirectly through contact with local law enforcement in a criminal matter. As a criminal offender, Quezada was afforded Due Process of law, and the matter of the unanswered court summons that triggered Quezada's initial detention was processed in a timely fashion. However, the matter of Quezada's immigration status--treated as a quasi-criminal matter--subjected him to lengthy, and arguably unlawful incarceration. Authorities operating within the idiom of criminal law enforcement misused a civil immigration law tool (i.e., immigration detainer) to exercise custody over an individual absent the customary checks on the discretionary actions of law enforcement agents. Despite repeated requests by family members and the detainee himself, Quezada was denied release from custody, opportunity to post bail, and a fair and prompt hearing. (27)

   The contrast between these two stories demonstrates that immigration law, a set of rules designed in part as a civil and federal means of regulating the inclusion, exclusion and expulsion of non-citizens has, in the twenty-first century, imported many of the theories, methodologies, and most significantly, objectives of criminal law enforcement. This has occurred despite of important distinctions between a civil immigration system of regulation and the criminal punishment system.

   The power to regulate immigration is vested in the federal government and derives primarily from sovereign powers enumerated in the Constitution. (28) The power to admit, exclude, and expel foreign subjects is understood to be "inherent" in the sovereignty and nationhood of the United States. (29) An elaborate web of federal agencies involved in such diverse operations as collecting taxes on imports, issuing visas, processing citizenship applications, patrolling the border, apprehending and removing a growing class of deportable non-citizens, and hearing administrative appeals of immigration judges' decisions are all consolidated under the Department of Homeland Security (DHS). (30) As such, immigration law operates as a civil system, highly administrative in nature, and entirely distinct from...