Locking up migrants fighting to stay in the United States is permissible, the Supreme Court reiterated in February. The Court’s ruling mocks justice, but isn’t a big surprise. The federal laws under the Court’s consideration breathe life into a mean-spirited immigration law enforcement regime that holds tightly to the misguided belief that migrants pose a threat that prisons are best suited to extinguish.
In Jennings v. Rodriguez, five justices overturned the decision of the U.S. Court of Appeals for the Ninth Circuit allowing migrants detained by the Immigration and Customs Enforcement (ICE) agency to request bail from an immigration judge. Under the Ninth Circuit’s procedure, immigration judges were free to deny bail to migrants deemed likely to abscond or endanger the public. After February’s Supreme Court decision, ICE agents are able to lock up migrants convicted of a range of crimes and keep them imprisoned while they fight their way through the notoriously backlogged immigration courts. There are currently almost 700,000 cases in the country’s immigration courts. Stretching back to the Obama era, ICE wants people convicted of a range of crimes—from the most serious on down to petty offenses like shoplifting—to sit in jail while the wheels of immigration-court justice turn ever so slowly. In his dissenting opinion, Justice Breyer noted that, on average, the migrants involved in these cases spend one year in prison. Many others, he noted, are confined much longer. “The Government detained one noncitizen for nearly four years after he had finished serving a criminal sentence,” Breyer noted with evident shock.
Despite its substantial impact on migrants, the majority opinion tacks a narrow legal path. It focuses on a technical feature of legal doctrine about the proper method of interpreting the text of statutes enacted by Congress. It does not address constitutional concerns, such as due process, the ancient notion that everyone is entitled to a fair hearing before a neutral arbiter. Indeed, the lead attorney for the migrants quickly announced that he looks forward to returning to the lower courts to litigate the due process issues that prolonged confinement by ICE—the Homeland Security branch responsible for detaining migrants with immigration court cases—raises. We can expect those cases to begin appearing in federal courts within a few months.
As if anticipating that the next step for immigration detention is a full-blown constitutional battle, the three justices who dissented—Breyer and his colleagues Justices Ginsburg and Sotomayor—provided a lengthy road map of due-process history and legal doctrine that they consider relevant. To them, the entire history of Anglo-American law stretching back to at least the 13th century demands access to bail and, by implication, a hearing at which a detained individual can request bail. Federal immigration law’s refusal to let many migrants ask a judge to release them from detention clashes with this long-standing practice, they claimed. Justice Kagan recused herself, presumably because she worked on this case prior to joining the Court. Her questions during oral argument suggest she is likely to side with the dissenters when the constitutional challenges bounce their way up the federal court system.
In discussing the rich history of procedural concerns embedded into the United States’ legal tradition, Breyer and the dissenters showed their hand. But they did so in a way that could spell trouble for migrants. Nowhere in their 33-page opinion do they reference the powerful words written by Robert Jackson, one of the towering figures of 20th century Western law. A member of the Supreme Court, Justice Jackson seared his name into the monuments of justice when he accepted President Franklin Roosevelt’s appointment to lead the victorious nation’s prosecutions of high-level Nazi officials at Nuremberg. With the world watching, Jackson took to heart the need to respect the accused despite accusations that they had led the worst type of atrocities known to humanity.
There he described the critical role that procedure plays in ensuring the legitimacy of legal proceedings. Jackson was remarkably attuned to the perils of brute force. It would have been easy for the United States and its allies to take the remaining Nazi leaders to the gallows. But, he wrote, giving them anything less than a “full and fair opportunity to defend themselves” would harm the Allies as much as the individual defendants. “To pass these defendants a poisoned chalice is to put it to our own lips as well. We must summon such detachment and intellectual integrity to our task that this Trial will commend itself to posterity as fulfilling humanity’s aspirations to do justice,” he wrote in his official report to the International Conference on Military Tribunals.
Back in the United States a few years later, these lessons were not lost on Justice Jackson. When federal officials relegated Ignatz Mezei—a longtime permanent resident, but not citizen, of the United States—to indefinite detention on Ellis Island, the majority of the Supreme Court called the tiny speck in New York Harbor Mezei’s “temporary refuge.” Jackson fired back memorably: “That might mean freedom, if only he were an amphibian!” He compared Mezei’s situation to the “protective custody” administered by Nazi officials prior to their killing untold numbers in concentration camps. Fearing the progression from U.S. immigration prisons to Nazi death mills, he worryingly asked whether the law had anything to say if federal officials chose to “effectuate his exclusion [by] eject[ing] him bodily into the sea.” Justice Breyer and his supportive colleagues seem to have missed this decades-old concern and the power of Jackson’s unparalleled perspective. Without acknowledging Jackson, pages into his dissent, Justice Breyer asks, “Would the Constitution leave the Government free to starve, beat, or lash those held within our boundaries?”
We might never find out, but will that be because that type of barbarity doesn’t occur or because it’s successfully concealed? In Jackson’s time, a migrant pushed offshore into the Atlantic was more likely to end up on the ocean floor than the front pages of the newspapers. So too, the migrants treated inhumanely today are more likely to be frightened and deported into silence than they are to submit a lawsuit in federal court for their right to adequate medical care or to be free of sexual assault. ICE might very well “starve, beat, or lash” imprisoned migrants without our knowing.
There is good reason to worry about conditions inside ICE’s prison network. Internal and external investigations reveal a prison system clouded in abuse and secrecy. People detained in its $2 billion network of 200 prisons are routinely denied needed medical care. Deaths are not uncommon. In the Bush years, enterprising journalists revealed glaring attempts to cover up deaths. Describing roadblocks she encountered investigating detention-center fatalities, the former New York Times reporter Nina Bernstein wrote, “In the realm of immigration detention, the role of [ICE] public affairs officers, I learned, was to help hide, manipulate, and airbrush reality.”
Now we learn that ICE’s contracting practices make internal oversight all but impossible. A week before the Supreme Court issued the Jennings opinion, the Department of Homeland Security’s internal watchdog released a scathing report of improper contracting that enriches private-prison corporation CoreCivic (formerly known as the Corrections Corporation of America, or CCA). The contracting process ICE used to get its largest prison up and running “deliberately circumvented” the federal government’s procurement requirements, the Inspector General reported. Letting a small town in Arizona “act as a middleman, for which it collects about $438,000 in annual fees” was also wrong and went directly against the advice of ICE’s own lawyers. Worse, the contract means that “CCA’s performance is effectively insulated from government scrutiny.” Lacking enforcement powers, all the Inspector General can do is call out ICE. It’s up to Congress to care, and so far it hasn’t shown an appetite. It is a good time to be a private-prison corporation contracting with ICE, and a bad time to be a migrant surrounded by their barbed-wire fences.
In contrast to the dissenters, the three justices who wrote the Court’s lead opinion—Justices Alito and Kennedy, plus Chief Justice Roberts—kept their broader views off the pages of the Jennings decision. Just because they concluded that a law passed by Congress lets ICE detain migrants for months or years on end, it doesn’t mean they will necessarily decide at a later time, under a different set of legal questions, that the Constitution does too. But I don’t have high hopes about how they will vote when the constitutional due-process questions come directly before the Court. Justice Kennedy, for example, disagreed with a 2001 decision limiting detention after an immigration judge ordered removal, which the migrants’ attorneys hoped to build from, and sided with a 2003 decision barring some migrants from going before an immigration judge to request bail while awaiting an immigration judge’s decision. Neither Roberts nor Alito were on the Court at the time.
We will have to see how those constitutional challenges to prolonged confinement shake out, but it’s almost inevitable that the boundaries of the government’s imprisonment power will be tested once more. The Trump administration carries a noticeably heavy hand toward immigration-law enforcement. ICE reports that it detains, on average, 38,000 people every day. That’s a record, surpassing the previous high of 34,376 reached during the last full reporting year under President Obama. Despite imprisonment now being a central feature of immigration policing under Democratic and Republican administrations, ICE’s detention network remains problem plagued. Since October 1, at least four people have died inside an ICE facility.
There is a remarkable irony in this convergence of events. In the space of one week, ICE received the power to detain migrants for prolonged periods even while it was harshly criticized for violating its own rules and helping private-prison corporations avoid oversight. The people stripped of the opportunity to escape imprisonment—it is worth repeating that we are talking about the mere opportunity to ask for bail, not a guarantee that a judge will grant bail—must remain confined even as the government declares itself an illegal actor who has deliberately subverted the accountability of internal oversight. In the process, it is perhaps concealing more of the illegality that often occurs inside ICE prisons. Those of us on the outside may never know.
This single week in the life of immigration imprisonment teaches us that irony does not necessarily involve contradiction. There is a palpably perverse logic to these developments. Immigration prisoners have been marginalized to the point of erasure from law’s embrace. Law, the Supreme Court’s decision and Inspector General’s report illustrate, has no room for the migrant locked up for violating formal rules about cross-border mobility. Like prisoners everywhere, imprisoned migrants have been removed from the public sphere. They are shipped to remote facilities, surrounded by barbed wire, and isolated from supportive legal advocates or relatives. In the immigration court system, there is no right to a government-paid attorney. Too poor to hire one, 86 percent of ICE prisoners wage their final fight to remain in the United States on their own. Standing across the courtroom from a trained government prosecutor, they are effectively battling with their eyes blindfolded and hands tied behind their backs.
Courts and government officials insist that ICE doesn’t imprison. Its facilities are “detention centers” or “processing centers.” Anything but prisons. Yet most of their locations are county jails; ICE rents bed space from sheriffs. Most of the rest of the facilities are modeled on prisons and jails. Obama’s point person to reform the ICE detention system, Dora Schriro, wrote back in 2009 that “ICE relies primarily on correctional incarceration standards designed for pre-trial felons and on correctional principles of care, custody, and control.” The Supreme Court says the people forced to live there are not being punished. They are held, in Justice Alito’s words, to “give immigration officials time to determine the alien’s immigration status”—that is, to figure out whether they belong on this side or that side of the imaginary line called a border. To the people locked up, it is hard to believe that this distinction matters. “They call immigration detention civil confinement,” the former ICE detainee Malik Ndaula put it, “but prison is prison no matter what label you use, and prison breaks people’s souls.”
Paired with the Inspector General’s report, the Supreme Court’s decision in Jennings promises to continue pushing ICE’s prisoners into a legal invisibility. Do with them what you will, how you will, the pair of announcements suggest; neither judge nor government overseer will bother to intervene. Writing in Justice Jackson’s time, not our own, the exile-turned-piercing-analyst-of-Nazi-horror Hannah Arendt described law’s role in cheapening life to the point of disposability. In her towering Origins of Totalitarianism, Arendt captured the most extreme example of law becoming subservient to politics. Instead of ensuring that politics remains measured, law became the vehicle for stripping people of recognition. Citizens who lost the protection of a nation-state became stateless individuals. Suddenly, they were the “scum of the earth,” subjected to arbitrary exercises of the state’s power “against which there are no lawyers and no appeals.” To the law, their voices ceased to ring. They might as well not complain, for a complaint only matters if it is heard. To the law, they became invisible, not because the law could not see the stateless but because the law did not care to do so. They continued to exist only as the dark to the light of juridical civilization.
The immigration prisoner of the 21st century United States has also been pushed beyond the law. While the prison’s physical architecture segregates and isolates, its legal architecture erases. Immigration prisoners can be confined without permission to appear before a judge to ask for release even while ICE deliberately runs around the government’s own policies and grants a protective shield to prison profiteers. It’s unclear who might intervene. Migrants will keep fighting. Lawyers will keep pushing. But their path becomes steadily steeper. The Trump administration is intent on expanding ICE’s detention capacity. Well before then, immigration detention was a machine seemingly capable of propelling itself. A former ICE acting director under Obama, John Sandweg, recently said that it “weighed heavily” on him to see so many people locked up. About 5,000 people, he added, should be confined; the rest should be watched through “safer, more humane” means. Instead, the agency detained upwards of 80 percent of the people it arrested while he was in a leadership position there.
Like Arendt’s analysis of early 20th century Europe, Sandweg’s comments reveal an important feature of immigration imprisonment overlooked in the modern fascination with Supreme Court machinations. Courts matter, but the fight over immigration imprisonment isn’t primarily about law; it’s about politics and the vision of morality that propels it. It is important to resist the immigration prison’s power to dehumanize migrants if only because migrants are, after all, people. At the same time, the power of immigration imprisonment isn’t only legal. It’s not, as the proponents of more policing claim, about protecting the rule of law. The law can’t rule what the law can’t see, and the Supreme Court’s decision and the Inspector General report remind us that the law has no interest in lifting the veil that covers immigration prisons.
If that is to change, it will have to be forced by a politics that upends laws that refuse to see the humanity of people pushed to the margins. Instead of arguing over who is so dangerous that the criminal-justice system needs a backup in the form of ICE imprisonment, we should ask about the harms of imprisonment and ills it supposedly cures. Instead of debating the number of people who can’t be trusted to show up for immigration court dates, we should ask what horrors occur if they don’t. Instead of presuming that the law, at its core, is right, we should ask why we in the United States fetishize prisons. Simply, it is time to take up the call to abolish immigration prisons not only because a world in which ICE locks up zero people every day is better than one in which it locks up 38,000 but also because the process of getting there from here promises a refreshing reckoning with law’s power to imprison swaths of humanity.
These are big questions that demand big answers. Asking them now won’t stop Trump before the November midterms or the 2020 presidential election. But refusing to take them up will mean that immigration imprisonment will continue to grow larger and harsher. Whether under a liberal Democrat or a neo-racist Republican, immigration imprisonment has shown its resilience. Arguing about how many people should be imprisoned and how they should be treated certainly matters. It would make a difference if Sandweg had overseen a prison population of 5,000 instead of 33,000, just like it would be significant if no one died inside ICE’s facilities. But arguing about immigration imprisonment’s contours has failed spectacularly to limit its growth or end its remarkable ability to worsen, even end, human life. While courtroom arguments focus on due process, conversations outside those ornate halls need to ask more fundamental questions about the role of the prison in regulating migrants’ lives.