Near Denver, migrants are locked inside a prison tucked into an industrial quarter. To the southwest, in the vast space between Phoenix and Tucson, they are surrounded by barbed wire in facilities that seem to rise right out of the Sonoran Desert. Imprisoning migrants this way is lucrative for prison corporations and politicians, and it’s common. But the United States hasn’t always embraced the idea.
In 1954, President Dwight Eisenhower’s attorney general, Herbert Brownell Jr., announced a decision to shut down major immigration detention facilities along both coasts, including Ellis Island. While the policy didn’t entirely abolish immigration imprisonment, it came close. A few years later, the Supreme Court declared this a sign of “an enlightened civilization.”
The United States has veered far from the enlightenment that the Supreme Court imagined 65 years ago. Under President Barack Obama, the Department of Homeland Security locked up more migrants than ever (the average daily population of migrants in detention facilities in 2016 was 34,000); President Trump’s administration locked up even more (the average population in 2018 was 42,000).
From asylum seekers to longtime legal residents who have committed crimes, immigration prisons spare no one. In them, people — including children, who the United Nations says should never be detained — often find trauma. Two doctors who regularly work with the D.H.S. were so appalled by the agency’s confinement of children that they wrote to Senators Charles Grassley and Ron Wyden in 2018 describing an infant who lost one-third of his body weight over 10 days yet was never given IV fluids or sent to an emergency room. Other children, they added, had their fingers lacerated by heavy doors in a converted medium security prison in which they were confined. Detention is so harmful to children, they concluded, that the “fundamental flaw of family detention is not just the risk posed by the conditions of confinement — it’s the incarceration of innocent children itself.” But the practice continues.
Kamyar Samimi, a green-card holder with 40 years in the United States, died 13 days after ICE agents took him into custody. When he arrived at a private prison in suburban Denver, he told prison officials of medication his doctor prescribed to control an addiction. The prison’s doctor never bothered to see him. Soon his health tumbled; nurses gave him half the medicine that the prison doctor ordered. Nurses said he was faking, hoping to get drugs, an internal review released a year later revealed. Finally, after he had become too ill to be moved into a wheelchair, as he vomited and urinated on himself, prison guards called for an ambulance. Emergency responders arrived four minutes later, but Mr. Samimi stopped breathing before they could get him into the ambulance. His death was tragic, but not isolated. Since Oct. 1, two of ICE’s detainees have died.
It is time to reconsider this practice. The United States should shut down its immigration prison system. The federal government should redirect the billions of dollars it currently spends jailing migrants — $2.7 billion alone in 2017 for ICE’s detention system — to helping them navigate the labyrinthine legal process.
To navigate high-stakes immigration court cases, migrants need the benefit of lawyers, social workers and case managers. Right now, most get none of those. In immigration court, there is no government-paid lawyer, and most detained migrants can’t afford to hire one. But going back to the Reagan administration, pilot projects that offer support consistently display remarkable success getting migrants to show up for court dates and stay out of trouble.
In an immigration court system that handles 200,000 cases a year, there are bound to be some people who flout the rules. And there will be others who get their day in court only to lose. When that happens, two options are available. We could task law enforcement officers with arresting and deporting those people, or we could turn the other way. For decades, the bipartisan consensus has been to rely on arrest and deportation.
But what if we asked this instead: What good comes from locking up migrants? Republicans declare that we need to detain migrants to uphold the rule of law. Democrats add that detention helps keep our communities safe. Neither of these claims stands up to scrutiny.
The rule of law isn’t a blunt hammer. Prosecutors regularly choose whether to go after U.S. citizens who have committed crimes. Even when evidence of guilt is strong, there might be other reasons to let illegal activity slide: Perhaps a first-time offender deserves a second chance or putting a parent in jail would do more harm than good. Whatever the reason, the Supreme Court declared in 1985, prosecutors have “broad discretion as to whom to prosecute”— or in not prosecuting. It’s up to prosecutors to weigh the harm that prosecution seeks to remedy. When it comes to immigration law violations, locking up migrants is applying brute force to a minor transgression.
Fears that migrants will endanger the public are similarly flimsy. First, reams of evidence show that migrants aren’t any more dangerous than people born in the United States. Second, coming to the United States to request asylum, as many people currently locked up by ICE have done, doesn’t suggest a willingness to commit crime.
Even when migrants have a criminal history, immigration prison isn’t the right answer. It’s the job of police officers to prevent and investigate crime. At best, adding ICE to the mix is redundant. At worse, it’s demeaning. Take David Rodriguez’s experience in a Houston prison. Growing up on the streets of Mexico City, he made his way to the United States as a teenager. Years later he had a green card and celebrity status as the chef at a trendy Houston cafe and the owner of a fashionable boutique.
When he and his fiancé were harassed as they returned home one evening, he swung a baseball bat in their defense. A felony assault charge for the incident was ultimately lowered to a misdemeanor, the judge didn’t sentence him to jail, and seven years went by without a problem. When returning home from his honeymoon in Belize, the idyllic days of beachside lounging turned into a nightmare. He was detained by Customs and Border Protection in Miami and then directed to a private immigration prison in Houston, where he was arrested. Despite never having been convicted of a deportable offense, he’d been mistakenly flagged as having committed a felony. He told me he realized how lucky he was to have a family that could afford to hire a lawyer. “Because you’re an immigrant, you’re guilty until proven innocent,” he said.
In the years after President Eisenhower’s administration led the federal government tantalizingly close to de facto abolition of immigration prisons, the country boomed, our cities diversified, and courts maintained a central role resolving disputes in our messy democracy. Growing pains and all, the United States progressed with migrants free to live as ordinary people. Since then, we have swerved far from that past. To put someone behind bars, we should demand an exceptional justification. So far, the government hasn’t found one.
César Cuauhtémoc García Hernández is an associate professor of law at the University of Denver and the author of “Migrating to Prison: America’s Obsession With Locking Up Immigrants.”
