Bryan Caplan  

Imprisoning Immigrants: What the ACLU's Doing About It

McCloskey on Piketty... Mission creep...
The once-true stereotype that illegal immigrants get deported, not imprisoned, is fast becoming obsolete.  But there is a glimmer of hope.  Open borders activists aren't the only people who care about this issue.  The ACLU in particular is taking a serious interest:

Dozens of tired, bedraggled men line up in shackles to plead guilty en masse. A judge claims his personal best is sentencing 70 people in 30 minutes: an average of twenty-five seconds per person to review the charges, hear his or her plea, and hand down a sentence.

No, this is not Egypt or Russia. It's the United States, in federal courthouses along the Southwest border.

What's driven our courts to adopt such assembly-line justice? Operation Streamline, a "zero tolerance" program that began under Bush and expanded under Obama.

Traditionally, federal authorities handled illegal immigration through the comprehensive enforcement scheme available under civil immigration laws. That enforcement scheme--which has deported about 2 million people over the past five years--already results in significant unfairness. But under Operation Streamline, authorities both process apprehended migrants for deportation and refer them for criminal prosecution for crossing the border.


Together, misdemeanor and felony border-crossing prosecutions now dominate federal dockets. In 2013, 80% of the federal criminal cases filed in Arizona and New Mexico, 83% of the cases filed in western Texas, and 88% of the cases filed in southern Texas were for illegal border-crossing. Nationwide, one out of every two cases filed by federal prosecutors was for border-crossing.

The latest from the ACLU's Carl Takei:

No one who has been to Willacy County Correctional Center or the other dozen private, for-profit "criminal alien requirement" prisons around the country could have been surprised by this weekend's riot. As many as two-thirds of the men incarcerated at Willacy refused to participate in work details and then set fire to three of the ten housing tents, apparently in protest of poor conditions.

The Management & Training Corporation -- the nation's third-largest private prison company -- houses most of the roughly 2,800 men at Willacy not in buildings, but in ten Kevlar tents that contain all but a few hundred of the prison's approximately 3,000 beds. You get a cell only if you're sent to solitary, which can happen for no reason other than that there are too many prisoners to fit in the tents (each tent is filled with about 200 closely-spaced bunks).

The CAR detention center, outsourced by the federal Bureau of Prisons, house low-custody (i.e., those whom the authorities consider generally well-behaved), non-U.S. citizens who are serving sentences for federal crimes. They essentially fall into two groups of people: immigrants serving time for drug offenses, and immigrants serving time for the felony of reentering the United States after they had previously been deported.

There are thirteen CAR prisons holding around 25,000 people nationwide, spread across Georgia, Mississippi, New Mexico, North Carolina, Oklahoma, Pennsylvania, and Texas. The amount of time people spend in the facilities varies widely depending on why they landed there. Sentences for illegally reentering the United States average around 18 months. Thanks to mandatory minimums, prisoners serving sentences for drug offenses can spend decades in a CAR prison.

The ACLU doesn't merely publicize these horrors; they document them first-hand.  Takei:

In 2013, I visited Willacy to interview prisoners as a part of the ACLU's report on the five CAR prisons in Texas. The 2014 report was based on nearly five years of interviews and document review. We found that men held in these private prisons are subjected to shocking abuse and mistreatment, including getting thrown into isolation cells for complaining about bad food and poor medical care, being denied both urgent and routine medical care, and being cut off from contact with their families. Bureau of Prisons policies also exclude immigrants from many types of rehabilitative programs -- schooling, vocational training, and the like.

At Willacy, the men we spoke to described squalid and overcrowded conditions in the prison's tents, with insects crawling into their bunks and malfunctioning toilets constantly backing sewage water into the living areas. When people protested to get the toilets fixed, the protest leaders were locked in isolation cells.


If ICE's civil detention system is closed to outsiders and too often evades sunlight, then the CAR prisons exist entirely in the shadows. Although the isolated locations of ICE detention facilities often make it difficult for attorneys and family members to meet with detainees, the situation is far worse at CAR prisons. At one, the warden denied the ACLU's request for attorney visitation with a curt letter demanding to know why our meetings with prisoners "might be appropriate" and asserting that the Bureau of Prisons' policies allowing confidential attorney visits "do not apply at this facility." (His intransigence was rewarded; later that year, the warden was promoted to a managing director position at his private prison company.)

When we were able to interview prisoners, they described not only abuse and mistreatment, but a system that made it difficult or impossible for them to even complain about their mistreatment. Grievance systems often allowed no appeals above the private prison warden. Some staff refused to accept grievance forms written in Spanish -- a particularly effective way of quashing grievances for a population of largely Latino immigrants. Many prisoners reported that they were threatened with solitary confinement -- and in some cases, actually thrown in isolation cells--for assisting others with drafting grievances or filing lawsuits.

And the Bureau of Prisons' oversight mechanisms offer little protection. In one case, the agency renewed a private prison contract even after its own monitors noted that the prison was "unable to successfully achieve their own plans of action to correct deficient areas." The conclusion: "Lack of healthcare has greatly impacted inmate health and wellbeing." Since then, the ACLU has continued to receive reports of medical understaffing, the spread of contagious diseases, policies that obstruct access to medical care, and even deaths at this prison.

It's easy to believe that private prisons are part of the problem.  The government is the customer, and one of the main services the government is buying is (im)plausible deniability.  If government prisons abuse immigrants, government officials might get in trouble.  If companies hired by the government abuse immigrants, government officials can feign shock, cancel the contract, hire a different company, and resume oppression as usual.  Farcical, but it works.

In any case, though, poor prison conditions are not the fundamental problem.  The abuse that overshadows all others is imprisonment for breaking unjust laws.  Preventing foreigners from coming here to better their lives through honest toil is wrong.  Imprisoning them for coming here to better their lives through honest toil is a travesty.

HT: Zoe Carpenter in The Nation

COMMENTS (12 to date)
Ray Lopez writes:

Good article. US citizens living overseas, as I do, get treated much better than foreigners in the USA (one reason may be that a lot of us expats spend more money to support the locals). But I do notice that foreign countries like Thailand and the Philippines have been taking an immigration 'hard line', since they ape the USA in everything the USA does, with foreigners who don't comply with ever-changing foreigner visa requirements. For example, you need permission with an 'exit visa' before you can legally leave a country like the Philippines, which a lot of foreigners on long-term visas forget when rushing to an airport to catch a quick flight, and in Thailand overstaying your visa even by a few hours is often an offense that results in a shakedown (via fines) to resolve. Blame (or credit) the USA's Draconian laws. By contrast, in Greece I use my Greek passport when leaving and my US passport when entering, with impunity (since Greek immigration does not really check once they see an EU passport) which confuses the heck out of US Immigrations when viewing my US passport, which has numerous stamps from a couple of dozen countries on every page, to the extend they just throw up their hands and waive me in. My subtle revenge at unjust US non-open borders laws.

As for the author's stab that there's no justice, it's true, but justice is often about expediency not true justice. Hence 'plea bargaining' to crimes you never committed, and the 'felony murder' rule, which blames a perp for crimes that their fellow gang members committed. In the USA (and elsewhere, since most of the world apes the USA) this has been going on for the better part of half a century now.

John Smith writes:

Outrageous. That Bryan thinks that the taxpayers' money should be spent on fancy treatment for criminals.

Prisons are *supposed* to be cruel. If they are fancy and nice, they are known as resorts.

If Bryan's complaint was that these are innocent people, that would be one thing. But his complaint is that the prisons aren't fancy enough.

The marginal tax dollar should be spent on improving the welfare of decent hardworking Americans and not on criminals.

[I favour drastically more open immigration]

Nathan writes:

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RPLong writes:

John Smith, you write:

Prisons are *supposed* to be cruel.
Meanwhile, the Constitution of the United States reads
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Prof. Caplan is writing about the American situation, and I realize it is possible that you are not an American. In that case, you should note that our constitution expressly prohibits cruel punishment. Your statement is not true of the American prison system, at least insofar as the Constitution is concerned.

MikeDC writes:

The prisoners here

essentially fall into two groups of people: immigrants serving time for drug offenses, and immigrants serving time for the felony of reentering the United States after they had previously been deported.

I'm in favor of more lenient drug laws, but this clearly falls outside of "honest toil" and into the realm of legitimate reasons to exclude folks.

And... such prisons are always going to be necessary even if one supports a very broad opening of the borders with only "keyhole" solutions in place.

ColoComment writes:

Apart from the prison conditions issue:

Asserting that the law is unjust is begging the question. But aside from that, whether the law is just or unjust, the foreigners have broken the law as it exists, knowing that it exists and breaking it notwithstanding. The normal consequence of transgressing a law is punishment (although you can certainly dispute the method.) That's not "abuse"; that's keeping civil order.

They should be excused? Both Thoreau and King accepted the consequence of their deliberate acts of civil disobedience and used it in furtherance of their goal of changing the law.

If you do not like the law, work to change it, but do not excuse or promote lawlessness.

Glenn writes:

What makes the law "unjust", beyond Bryan's disagreement with it?

Every state on the planet - today and historically - has reserved the right to regulate the crossing of its borders. Those who violate those regulations have always and everywhere been criminals.

Bryan's preferred policy appears to be deportation (to be honest, it's amnesty, but let's pretend he recognizes the reality that border control is a sovereign responsibility of functional states). Great. This is also the preferred policy of the United States (when it isn't ignoring the law wholesale). More than 90% of illegal border crossers will face no legal repercussions. Of the minority that do, more than 80% will simply be deported, at the cost of the taxpayer.

Less than 20% of 10% will face legal repercussions, and there are almost always going to be aggravating circumstances (repeat crossers, smuggling, other criminal activity or criminal association, etc). You'll note that no data is provided in the original post on these facts, or any data that would allow readers to get a sense of scale on this issue.

Mark writes:


Every state on the planet - today and historically - has reserved the right to regulate the crossing of its borders. Those who violate those regulations have always and everywhere been criminals.

This is actually pretty recent. Writing in 1930 about the "extraordinary episode in the economic progress of man" Keynes described:

The inhabitant of London could ... secure forthwith, if he wished it, cheap and comfortable means of transit to any country or climate without passport or other formality, could despatch his servant to the neighboring office of a bank for such supply of the precious metals as might seem convenient, and could then proceed abroad to foreign quarters, without knowledge of their religion, language, or customs, bearing coined wealth upon his person, and would consider himself greatly aggrieved and much surprised at the least interference. But, most important of all, he regarded this state of affairs as normal, certain, and permanent, except in the direction of further improvement, and any deviation from it as aberrant, scandalous, and avoidable.

(see here).

The assertion of control over borders in the present manner exercised by nation states is new. It is, therefore, worth asking whether these new found restrictions are moral or advantageous in some way. Bryan has written up some arguments here.

Its also possible that the net tax benefit gained from illegal immigrants (see here for a review) would more than offset the cost of deportion. I am not sure on this last part. If we just cared about taxes letting them stay in a worker program that excludes them from social services would be a huge tax win.

MikeDC writes:

It's true that historically there were few to no restrictions on naturalization but one can't separate that one "freedom" from the vastly different notions of state and citizen prevalent in those times. No welfare state, much greater economic freedom, but likely much less in the way of freedom or formal rights unless you were a man of means.

Ali Bertarian writes:

Regarding: "Preventing foreigners from coming here to better their lives through honest toil is wrong."

They broke the law. Should the government ignore its laws, Mr. Caplan?

It is also wrong to release law breakers who are allowed to be parasites on the taxpayers. You are thereby compounding the wrongs. If you, Mr. Caplan, take personal responsibilty for those law breakers and their subsequent behavior rather than the taxpayers, then let's release them.

John Smith writes:

To RPLong:

I disagree with that clause of your constitution. Prisons should seek to reform. They should also seek to instil fear and suffering.

If criminals can be persuaded to reform *purely* through encouragement alone, then they are unlikely to be criminals in the first place.

In any case, isn't that cruel *and* unusual? Rather than either.

Mark writes:

@Ali Bertarian

The United States was formed essentially in protest to unjust laws by England. Most of us today would regard the underground railroad as good although, at the time, by U.S. law, they were all criminals engaging in theft and illegal transport. Also its not obvious or clear that immigrants are take more than they pay in taxes, overall they could be providing a net fiscal benefit.

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