Naturalizing Immigration Imprisonment

Abstract

Only recently has imprisonment become a central feature of both civil and criminal immigration law enforcement. Apart from harms to individuals and communities arising from other types of immigration enforcement, such as removal, imprisonment comes with its own severe consequences, and yet it is relatively ignored. This Article is the first to define a new prison population as those imprisoned as a result of suspected or actual immigration law violations, whether civil or criminal, a population that now numbers more than half a million individuals a year. It is also the first to systematically map the many entryways into immigration imprisonment across every level of government and involving civil and criminal law enforcement tools.

Examining the population as a whole provides crucial insights as to how we arrived at this state of mass immigration imprisonment. While political motivations — parallel to those that fueled the rapid expansion of criminal mass incarceration — may have started the trend, this Article demonstrates that key legal and policy choices explain how imprisonment has become an entrenched feature of immigration law enforcement. In fact, legislators and immigration officials have locked themselves into this choice, as there are now literally billions of dollars, tens of thousands of prison beds, and innumerable third parties invested in maintaining and expanding the use of immigration imprisonment. Using the literature on path dependence and legal legitimacy, this Article explains the phenomenon of immigration imprisonment as a single category that spans all levels of government. Rather than continue further along this path, the Article concludes by suggesting that policymakers should seek a future reflective of immigration law enforcement’s past when imprisonment was the exception rather than the norm.