Undocumented : How Immigration Became Illegal (9780807001684) (15 page)

Streamline and other criminal prosecutions account for only a fraction of immigration arrests. Most of the 391,953 immigrants removed were apprehended in the interior through ICE enforcement and apprehension operations, and their removal was ordered by immigration judges without any involvement of the criminal justice system. Some of those arrested by ICE enforcement operations inside the country, though, come into ICE custody with current or prior criminal charges.

The intersection of criminal law with civil immigration law creates a web of complexity in which many immigrants and their attorneys become entangled. Increasingly, criminal charges are resolved through plea bargains rather than contested in court. In a plea bargain, the accused agrees to plead guilty to a lesser but still criminal charge in exchange for receiving a lighter sentence, frequently a suspended sentence or probation rather than jail time. Strikingly, more than 96 percent of those arrested on federal charges pled guilty in 2011.
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For an immigrant, though, a criminal conviction on even a minor charge can render him or her deportable. Legal permanent residents (green card holders) may also find themselves in immigration detention if they are convicted of a crime. Or if they are discovered by immigration authorities to have previously been convicted of a crime that is a deportable offense. Or even if they are discovered to have been convicted of a crime that was not a deportable offense at the time, but later became one. Even decades-old minor drug-possession convictions have become grounds for deportation.

The public defenders that most poor immigrants rely on in criminal cases generally have little knowledge of immigration law or the possible implications of a guilty plea. One attorney told the American Immigration Lawyers Association (AILA): “On the one hand . . . the immigration matter should not affect the criminal case, and, from an intellectual purity standpoint, that makes a lot of sense. But [for the client], that makes no sense at all. It’s part of their circumstances. . . . I have to be aware of that, and I need to give advice based upon what their circumstances are.” Public defenders, AILA explained, rarely have the time or resources to research the immigration implications of their advice to their clients. Most are juggling twice as many cases as are allowed by the American Bar Association. Less than a third worked with immigration attorneys in their cases involving immigrants, even though their decisions could directly affect their clients’ immigration status.
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RAMPING UP THE NUMBERS

In early 2010, James Chaparro, director of ICE Detention and Removal Operations (DRO), wrote an internal memo—later obtained by the
Washington Post
—noting that while the number of removals of criminals so far that year had been satisfactory, the agency’s numbers in removing “non-criminal aliens” were too low. “As of February 15, 2010, DRO removed or returned 60,397 non-criminal aliens which is an average of 437 removals/returns per day. The current non-criminal removal rate projections will result in 159,740 removals at the close of the fiscal year. Coupling this with the projections in criminal removals only gives us a total of just over 310,000 overall removals—
well
under the Agency’s goal of 400,000.” For the first time, the agency had explicitly acknowledged having an established target.
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Chaparro insisted that field agents increase the average daily population in ICE detention facilities to 32,600 and “[i]ncrease the number of Tier One Non-Criminal Fugitive alien arrests along with Tier Two arrests (Re-Entry/Reinstatement) in every field office.” He recommended that each office process thirty to sixty noncriminal cases per day in a “surge” aimed at meeting deportation quotas.
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Basically, the memo instructed ICE officers to increase the detention and deportation of noncriminals and of “criminals” whose only offense was reentry into the country, in the interest of meeting the annual deportation goal.
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Another program that helped ICE increase its numbers in the Obama years was Secure Communities. Introduced by the Bush administration and piloted in a number of cities around the country in late 2008, Secure Communities requires law enforcement agencies in participating jurisdictions to automatically share with ICE the fingerprints of anybody arrested. If ICE flags the individual as potentially deportable, the agency issues a detainer. When the person is released, he or she is turned over to ICE. The Obama administration initially stated that participation was voluntary, but later announced that the program would be required nationwide by 2013. Eighty-three percent of those who come into ICE custody through Secure Communities are sent to ICE detention centers. Ninety-three percent are Latino.

Promoters touted the program as a way to “remove dangerous criminals from your community.”
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However, only about half of those deported through Secure Communities fit the profile of a criminal—that is, had been convicted of a crime other than a traffic or immigration violation. The only violation for 45 percent of those deported was being “present without admission”—that is, being undocumented. Only half of those deported received a hearing before an immigration judge to determine their deportability. The other half were simply deported under ICE administrative procedures or pressured into taking voluntary departure. By late 2011, 226,694 immigrants had come into ICE custody through Secure Communities.
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DETENTION, INC.

In addition to ICE itself, there are powerful interests supporting the detention industry, ranging from private prison companies to elected officials who see prisons as a boost to local economies. The Immigration and Naturalization Service (precursor to today’s ICE) started to contract out its detainees to private prisons in the early 1980s when the detention system started to exceed its capacity of beds. By 1989, the agency was holding about two thousand people a day, with five hundred in private facilities.
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Over the past three decades, immigration violations served as a reliably increasing source of revenue for private prisons.
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As ICE detention rates doubled to the current rate of four hundred thousand a year in the first decade of the twenty-first century, the proportion of immigration detainees held in privately run detention facilities also rose, from one-quarter to one-half.
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Private prisons specialize disproportionately in detaining immigrants, who tend to be young, healthy, and nonviolent, and therefore among the cheapest and the most profitable inmates to house.
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The first private prison company, the Corrections Corporation of America (CCA, founded in 1983), was poised to benefit from and promote the increases in criminal sentencing and immigrant detention in the 1990s. According to Travis Pratt, professor of criminology at Arizona State University, who studied the private prison industry’s lobbying campaigns, “The private prisons industry has a very, very heavy lobby in most states and the federal government to increase sanctions for a number of offenses. They’ve been doing this for a very long time. It’s a multi-million-dollar lobbying effort. . . . And they’ve been exceptionally successful—longer sentences for more types of offenses means more inmates, more inmates means they have to be housed somewhere, which translates to greater profits for that industry. They have a very clear agenda there, and they’ve been unapologetic about it. They haven’t hidden that at all.”
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Between 2002 and 2012, private prison companies had spent over $45 million in campaign contributions and lobbying.
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The GEO Group (founded in 1984) currently runs 109 facilities in the United States, the United Kingdom, Australia, and South Africa, with 75,000 beds in the United States; CCA has 60 in the United States that can hold 90,000 inmates, and Management and Training Corporation (MTC), founded in 1987, runs 22 prisons in the United States with 29,500 beds.
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CCA is the fifth-largest corrections system in the country, following the federal government and three states.
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In 2010, GEO and CCA together earned revenues of over $2.9 billion.
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They have spent millions of dollars lobbying over the past decade.
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The private prison industry has a vested interest in increasing both the criminalization of immigrants and the drug wars that criminalize African Americans. “Our growth is generally dependent upon our ability to obtain new contracts to develop and manage new correctional and detention facilities,” CCA explained to its shareholders. “The demand for our facilities and services could be adversely affected by . . . the decriminalization of certain activities that are currently proscribed by our criminal laws.” In particular, CCA warned, “any changes with respect to drugs and controlled substances or illegal immigration could affect the number of persons arrested, convicted, and sentenced, thereby potentially reducing demand for correctional facilities to house them.”
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Company officials were optimistic, though, that ICE would continue to supply “a significant portion of our revenues.”
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The Justice Policy Institute concluded in 2011 that “[w]hile private prison companies may try to present themselves as just meeting existing ‘demand’ for prison beds and responding to current ‘market’ conditions, in fact they have worked hard over the past decade to create markets for their product. As revenues of private prison companies have grown over the past decade, the companies have had more resources with which to build political power, and they have used this power to promote policies that lead to higher rates of incarceration.”
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One avenue they have used is the American Legislative Exchange Council (ALEC), a “conservative, free-market orientated, limited-government group,” in the words of staff director Michael Hough.
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Legislators pay $50 a year to join, while companies pay tens of thousands of dollars for a seat at the table, giving ALEC a total budget of over $6 million a year. ALEC’s main focus is on drafting model legislation. Because it does not officially lobby, it doesn’t have to disclose its activities. Because it’s a nonprofit, corporations can deduct their donations to the organization.
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“Is it lobbying when private corporations pay money to sit in a room with state lawmakers to draft legislation that they then introduce back home? [ALEC senior director of policy Michael] Bowman, a former lobbyist, says, ‘No, because we’re not advocating any positions. We don’t tell members to take these bills. We just expose best practices. All we’re really doing is developing policies that are in model bill form.’”
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At an ALEC meeting in late 2009, Arizona senator Russell Pearce first presented his proposal for what became the state’s radical anti-immigrant Senate Bill 1070, and a draft for the model legislation was outlined. S.B. 1070 required immigrants to carry proof of their documentation at all times and required local law enforcement officials to detain immigrants unable to produce such documents. After it became law in April 2010, S.B. 1070 became the prototype for anti-immigrant legislation passed in Georgia, Alabama, Indiana, South Carolina, and Utah in the following years.

Two representatives of CCA, which clearly stood to benefit from the bill, sat at the table where the text was agreed upon. “Asked if the private companies usually get to write model bills for the legislators, Hough said, ‘Yeah, that’s the way it’s set up. It’s a public-private partnership. We believe both sides, businesses and lawmakers should be at the same table, together.’”
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ALEC and CCA influence was evident not only in the shaping of the legislation, but in the response among legislators: “As soon as Pearce’s bill hit the Arizona statehouse floor in January . . . thirty-six co-sponsors jumped on, a number almost unheard of in the capitol. . . . Two-thirds of them either went to that December meeting or are ALEC members.” Furthermore, a report continued, “thirty of the 36 co-sponsors received donations over the next six months, from prison lobbyists or prison companies—Corrections Corporation of America, Management and Training Corporation and The Geo Group.” Two of Arizona governor Jan Brewer’s top advisers were former lobbyists for private prison companies.
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Referring to the passage of S.B. 1070, the president of GEO Group stated, “I can only believe the opportunities at the federal level are going to continue apace as a result of what’s happening. Those people coming across the border and getting caught are going to have to be detained and that for me, at least I think, there’s going to be enhanced opportunities for what we do.”
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Indeed, CCA and GEO Group doubled their revenues from the immigration detention business between 2005 and 2012.
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Depressed communities can see private prisons as engines of economic opportunity. One such area is Pinal County, Arizona. CCA is the largest employer in the county, where five facilities hold up to three thousand detainees a day.
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“The expanding prison populations have allowed small towns to carry budget surpluses in a state that has otherwise been pummeled by the recession,” explains journalist Chris Kirkham. “Prison communities have largely avoided the dire economic straits suffered by Arizona communities in every direction, where the housing bust and subsequent foreclosure crisis have ravaged local government coffers.”

The Pinal County town of Florence, with a population of 7,800, also houses 17,000 detainees. Flush with state revenues from the prison industry—$5.2 million in 2011—the town has been able to offer services and build infrastructure like skate parks, dog parks, and sports fields. Deputy town manager Jess Knudson bragged that Florence was “one of the few towns in Arizona that has been able to stay in the black with this recession.” For Florence, as well as neighboring Eloy and other Arizona communities, “boosting the prison population has emerged as a primary economic development strategy.” The county too has a financial incentive—$2 per day per prisoner, which adds up to over a million dollars a year—and County Sheriff Paul Babeu has been a champion for ramped-up immigrant detentions.
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