It Takes A Nation of Detention Centers to Hold Us Back

Human Rights
It was with an 'insiders' perspective that Professor Michael Welch began to study what he calls an "undeniable reality" about the American prison system: color and class. Before joining the faculty at Rutgers University in New Brunswick, New Jersey, Welch's experience on the 'inside' included employment in county jails, state prisons and even the Federal Bureau of Prisons in Fort Worth, Texas. The experiences gave him invaluable, firsthand insight into the real lives of prisoners and correctional officers alike. Other insights were soon to follow.

"One of the things that is just difficult to overlook as a criminologist ... is that criminal justice policy in the U.S. is about race," says Welch. "Most anyone who has really examined the situation has reached that conclusion."

An author of several books addressing issues of social control and the criminalization of protest, Welch began to take an interest in a growing trend: the detention of undocumented immigrants in the early 1990s.

In 2001, the Immigration and Naturalization Service (INS) spent roughly $900 million on costs related to the detention of immigrants. And those figures are only likely to grow in the aftermath of 9-11, particularly as the widespread arrests and detentions of immigrants have saddled the agency with additional responsibilities it seems ill-equipped to handle.

In this exclusive interview, Silja Talvi talks with Professor Welch about his new book, Detained: Immigration Laws and the Expanding I.N.S. Complex, and explores how anti-immigrant sentiment--and crisis legislation--feeds off ethnic stereotyping, notions of cultural supremacy, and moral panic.

LiP: Criminal justice and corrections have been your areas of expertise for some time now. Given the plethora of criminal justice issues in the U.S., why did you decide to focus on immigrants?

MW: As an expert in incarceration, I was puzzled that other criminologists were not taking a look at the Immigration and Naturalization Service (INS), since they were really running their own incarceration project ... it's an incarceration phenomenon that should be taken seriously. The INS is not even conforming to the Bureau of Prisons in terms of their standards of confinement. So I approached the study of the detention of immigrants from the point of view of a criminalization campaign, that being an immigrant or an undocumented foreigner in the U.S. is one that's been framed along the lines of criminal justice. It has criminalized these people and their situations, and by incarcerating them they're reinforcing the notion that these people belong behind bars.

In a nutshell, my approach to this is two-fold: It's an examination of the criminalization process and it's also an examination of how this process is racialized.

LiP: Are certain groups of immigrants treated differently by the INS?

MW: What is going on in the INS--which parallels other forms of racial profiling--is that [they are relying on] constructs that are based on stereotypes.

Back in the 1920s, Walter Lippman and said that stereotypes are pictures in our heads, and those pictures in our head correspond to profiling ... These are constructs developed to suggest that these people are menacing and can be easily generalized because they're reinforced by old, tired stereotypes ...

So when you ask people about illegal immigrants, they think primarily of Central Americans, Africans, Mexicans, Chinese, but they don't often think of Irish, Canadians, Austrians, or the English. These are constructs being based on stereotypes of what the problem is ... and the problem has a face, and the face is that of a non-white immigrant. There's enormous uneven treatment of the "illegal alien." There's greater public concern over "non-whites" than there are of "white" immigrants.

I draw a lot of parallels to the War on Drugs. The War on Drugs is putting more cops in bad neighborhoods, focusing on guys selling $3 rocks. They're not busting in the doors of wealthy, middle-income residents who are engaged in the recreational use of cocaine.

LiP: How do the conditions of confinement differ in INS facilities from those of prisons?

MW: Overall, the conditions of confinement are not great, and in some cases, they are abysmal. It's inherent in the problem of farming out detainees. The INS only has so much room or capacity to house their detainees, so they've embarked on this huge, complex system of utilizing as many as 900 county jails, state prisons, and private facilities. [Detainees are welcomed] because the INS pays twice the rate.

They're being detained while their hearings are being processed. By and large, they're not being detained for reasons of flight, because the INS knows that these people are not going to flee. These people want their day in court. Secondarily, the INS knows that these immigrants are not a threat to the community, because if they had committed a criminal offense, they would be processed through the criminal justice system.

The housing of them in county jails and other prison facilities only reinforces the criminalization process. Because once they're in the county jail, those who work in the jail don't know who their [captives] are. Prisoners have to obey the rules, regardless of their circumstances.

So on the one hand, you have conditions that aren't great, but anyone who has been locked up knows that being confined is really next to torture and death. Locking someone up is arguably one of the worst things a human being can do to another.

We're locking up people who don't need to be locked up ... we have a culture that has a very cavalier attitude toward locking people up ... in an effort to avoid complex issues. This is particularly atrocious when you consider that we do the same for asylum seekers. I refer to a couple of cases in my book about the survivors of torture who are detained in county jails, and who don't understand the language, or the nature of the situation. You can imagine the terror that these people experience.

Overall, things aren't great. And especially in light of the alternatives, which are to release them into the community, allowing them to continue to work, support their families and relatives, and reduce the financial burden on the INS and the taxpayers.

LiP: In conducting your research into the treatment of immigrants and the implementation of immigration laws for this book, what findings or themes surprised you the most?

MW: Nothing really surprised me as much as confirmed a lot of my suspicions ... The situation for the INS detainees is in large part because the INS really doesn't know what's happening to their [detainees]. And I don't think they really care ... they seem to have the approach that if there's a problem, there will eventually be a criminal investigation, and then they'll look into it.

[My research also] confirmed the central component of race. Racializing the phenomenon also makes it a little bit easier to live with the situation facing immigrants if you're a mainstream white American. If we were mistreating middle income white people the same way in immigrant detention or in the criminal justice system ... there would be moral outrage.

I think we still live in a racial hierarchy and non-whites are criminalized very easily if they have a minor brush with the criminal justice system. Individual acts are very easily seen as emblematic of that person and their [ethnicity] ... And the more the INS looks like a criminal justice system, the more socially acceptable it is for the agency to continue to rely on incarceration and detention.

LiP: On any given day, how many people are being held in INS detention?

MW: In my book, I offer the estimates from a couple of agencies, including the INS. And the ballpark figure is roughly 24,000 people, including juveniles.

LiP: In the past, the anti-immigration movement has easily been categorized as a partisan issue spearheaded by political conservatives. But you make the case that the growing national trend of detaining and deporting "undesirable" immigrants has drawn supporters from both parties, from conservatives and self-described liberals alike. What's given rise to this kind of bipartisan anti-immigrant sentiment?

MW: The debate over immigration is a very complex one.

You will have, on the one hand, some political leaders who talk the talk that we're a nation of immigrants and we should adhere to the principles of accommodating new arrivals. Once you see who they favor in terms of restrictions and enforcement--I'm speaking in general terms--it's often that they change their tune. Then instead of immigration, it's a criminal justice or a national security issue.

LiP: And were those some of the arguments that were being made in 1996 when the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) and the Anti-Terrorism and Effective Death Penalty Act (AEDPA) were signed into law during Clinton's presidency?

MW: Yes. There were rumblings years before that, when the World Trade Center was first bombed in 1993. That contributed to the stereotype that immigrants--especially from the Middle East--were terrorists. And that was a slow burning issue that then escalated with the bombing of the federal building in Oklahoma City in 1995.

LiP: Even though that had nothing to do with immigrants whatsoever ...

MW: Right.

LiP: As I recall, within minutes, reporters and commentators on television news were speculating that Middle Eastern Muslims were involved ...

MW: Absolutely. In fact after McVeigh was apprehended, there were many journalists who were still writing that we had the wrong guy; that a white guy who served in the Persian Gulf War could not be responsible for this, and that it had to be a [foreign] terror network.

LiP: You write in Detained about the "moral panic" that has contributed to a "disaster mentality" about immigration, including refugees and asylum-seekers who now seem to elicit little sympathy compared with decades past.

Could you expand on the concept of America's "moral panic" where immigrants are concerned? If there's no real threat to our societal values and interests, why the hysteria?

MW: Moral panic is a sociological theory that I borrow from British criminology in the 1960s. Moral panic refers to a turbulent and exaggerated response to a social problem. The disaster mentality component of moral panic draws attention to a sense of urgency, and that's why moral panic or hysteria over any given issue explains why it so easily and quickly manifests in legislation and social policy. It's easy to pass legislation when people are worried sick ...

Moral panic is a construct that helps us understand how that anxiety is experienced at the collective level. The disaster mentality is easily seen in the rhetoric used by politicians ... and they contribute to a sense of urgency that something has to be done now.

LiP: And where immigrants are concerned, how is that sense of urgency or disaster mentality being manipulated?

MW: Let's go back to the internment of Japanese Americans. You probably couldn't find a more docile group than Japanese Americans in the 1940s. They cooperated with the internment, they lost their homes and businesses, and they were still demonized by American citizens and political and military leaders.

Nowadays, with the roundup of Arabs and Muslims, the experience very closely parallels the interment of Japanese Americans. They are people who are easy to identify, and easy to dislike. They're non-white non-Christians in a prevailing American culture that places great emphasis on whiteness and Christianity ...

Along with the racial component, the religious component is very difficult to overlook. They're not rounding up Presbyterians.

LiP: You've stated that mass arrests and the continued practice of detention of immigrants actually erodes the efforts to try to track down terrorists hiding out in the U.S. How so?

MW: The government inadvertently defeats its own policies and practices by resorting to tactics that erode public trust.

The INS is an agency that has two mandates: on the one hand it has to coercively control people and on the other, it has to control people in less coercive manners--providing services and helping them pursue naturalization and so on.

In the specific case of the "war against terror," those policymakers continue to make public announcements that citizens should be mindful of suspicious activity. Now the only people who can really detect suspicious activity by other immigrants are people who live in those communities.

And so that's one of the great ironies of this kind of social control; it erodes the cooperation of these immigrant communities. Those who have access to attorneys are unwilling to cooperate with the government without their attorneys present. This turns the whole process into an adversarial relationship.

When a government sets out to interview thousands of young Arab Muslim men, I think that they're publicly announcing that they don't have a lot to go on and that they're embarking on a fishing expedition ... we don't have a lot of clues, so let's go after everybody. And that exhausts resources.

When you tell law enforcement agencies that they have to round up this many people rather than honing their investigation, they're going to spend a lot of time dealing with people with minor visa violations who are not a threat to the community. Those cases still have to be investigated, reported, written up, and [that's less] time to pursue concrete clues. It strikes me as a very large, very poorly guided fishing expedition.

LiP: In the December 2001 Los Angeles mass detention, the INS apparently rounded up at least a few Iraqi and Iranian Jews ...

MW: The code word is "Middle Easterner," for sure.

I think that's a dark side of American culture. America is really globally isolated by two oceans--and really doesn't care what happens to the south or north of us. We're really culturally disinterested in other people and other languages and other religions and philosophies.

Anything that is different than us is experienced as something bad. That's a concept that sociologists use called ethnocentrism: looking at our culture from a point of view of superiority.

LiP: Some European legislators have made the case that although a kind of moral panic may exist--whether about terrorism or some other form of crime--that their legislation does not move as quickly through their parliaments as our legislation can move through Congress--and therefore the issues involved receive far more consideration.

MW: The response to September 11th is found in European legislation as well. Amnesty and Human Rights Watch have followed such legislation very closely--those laws that have made it easier for the authorities to detain foreign nationals. In many ways, these laws resemble the USA PATRIOT Act. The United States is not alone in this regard.

Moral panic is a phenomenon that can and does take place in other countries and societies. But back to your point about European politics ... What you do find in Western Europe is that the parliamentary system is one that has many divergent voices of labor, conservatives, the Greens, and they have to work together as a coalition.

The European Union as well as the UK, France, Spain, Italy and Germany have passed legislation similar to the USA PATRIOT Act, but generally, their laws are developed with a little bit more consideration because you have so many different voices that must be heard. I think that if we had more political choice in the U.S., we wouldn't have such bad legislation ...

LiP: In August 2001 Human Rights Watch (HRW) released a report about the treatment of immigrants since 9/11, noting that the Justice Dept. "flouted regular procedures" to keep non-citizens in the custody of the INS on the off-chance that they would be linked to terrorist activities.

These practices are considered a form of "preventative detention", according to HRW. In your opinion, is this an accurate assessment of what's going on?

MW: The work of Human Rights Watch is profoundly important. They do really terrific work ... They know what they're doing and they don't back down. They are one of many human rights groups that have added significantly to a larger resistance against these policies.

In terms of preventative detention, I'm don't think that the U.S. Department of Justice (DOJ) sees it as a form of preventative detention. My sense is that this is such a large dragnet that I find it hard to believe that the DOJ believes that everyone they detain is a potential risk. I think that they've dragged the net so broadly that they know that they're picking up people that don't belong in that net. That's their own flawed program for law enforcement.

What I see going on is the INS and law enforcement agencies just rounding people up. They don't know who they're picking up. It could be a Christian from India, or a Sikh. They don't care. They're not providing evidence to justify these detentions.

The DOJ has taken a very strong stand on protecting its secrecy. This is the most secretive administration in recent memory ...

While there are some people who are being individually targeted, on the whole, I think that they're just rounding people up. For instance, inviting all those eligible to adjust their status at an INS office, and then handcuffing them and carting them off.

I'm not critical of the use of the term "preventative detention," but I see it more as a roundup than a selective process. It's a roundup that is driven by race and perceptions of religion.

LiP: What about "indefinite" and "secret" detention? Before 9-11, hadn't the Supreme Court ruled that indefinite detentions were, in fact, unconstitutional?

Are substantial numbers of immigrants being treated this way in the U.S.? And if so, how is this legal?

MW: You're absolutely right ... The "Ma decision" (ed: a Supreme Court ruling on two related cases, Zadvydas v. Davis and Ashcroft v. Ma), applied to Vietnamese, Cubans, Palestinians, Cambodians and others who were considered undeportable "lifers" in the INS detention facilities because their countries of origin would not take them back.

In the Ma decision, the Supreme Court ... ruled that the INS could no longer hold these men indefinitely, and that they must be released. Here we are, a year and a half later, and most of them are still behind bars. So, even though the highest court in the land has ruled against the executive branch, those who are locked up are at the mercy of the government. The judiciary has a difficult time getting immigrants released, and has cited the Ashcroft administration's failure to comply with court orders. So, the law of the land has been changed in terms of indefinite detention but these guys are still locked up.

That's one of the dangers of bad legislation. Very often, Americans have a cavalier attitude toward legislation, thinking that if it really becomes bad enough, we can change it by taking it to the courts. But federal and state legislatures do not have good records of changing their own bad policies ... and in the meantime, what do you tell people who are sitting in [indefinite detention]?

LiP: Did the passage of the USA PATRIOT Act make the use of secret evidence and indefinite detentions even easier for Ashcroft and law enforcement officials?

MW: Yes. We can expect a Supreme Court decision this term, maybe as early as May, on an attempt to settle on the use of secret evidence.

A Cincinnati Court ruled against the Ashcroft policy, starting that [the DOJ] didn't have the authority to engage in secret hearings. The Philadelphia decision said that, for the most part, the US Attorney General should not engage in secret evidence and hearings, but under certain circumstances, he could.

LiP: You've argued that the incarceration of immigrants is the next, highly profitable frontier for private corrections companies like Wackenhut and CCA, among others.

Advocates of privatization would argue that privately-run facilities save taxpayers money while abiding by INS regulations about the treatment of immigrants. Why should Americans be concerned if private companies are getting into the business of detaining refugees and immigrants?

MW: First of all, we should confront the myth that privatization saves money. The books of these private correctional facilities have been examined by the General Accounting Office and other agencies, and there is not a savings passed onto taxpayers.

This goes back to government accountability. We're allowing government to abdicate its responsibility to care for and house people that the government detains, and passing it onto the lowest bidder. We're passing this problem into an economic framework that is driven by revenue and maximizing profits.

The detainees are raw materials, and correctional companies have to cut operational costs, and cutting operational costs is a code word for reducing labor costs. So they hire the fewest number of corrections officers and they compete against the fast food industry for workers. These are not professionally trained corrections officers who see themselves as career officersincluding the many whom I've known at correctional facilities around the country. These are people who have a job for $5.50-$7.00 an hour. They think, "My job is to make sure that these guys don't leave and are kept in line." That's the economic environment in which these detainees are being placed.

Cutting corners, in some cases that I documented in my book, are even done in terms of food. Detainees left to fight for food. Or, in some cases, cutting corners means reducing clothing. One of the institutions that I discuss in my book ... in there, during the cold weather, they decided that the detainees are not allowed to go outside because company would have to purchase coats.

It contributes to the dehumanizing process of being detained. They're being criminalized and treated as lawbreakers. Compounding matters, they're treated as raw material there to generate revenue.

LiP: What hopes do you have, if any, of the restructuring of the INS under the new Department of Homeland Security? Are you optimistic about the upcoming split of enforcement and service responsibilities where immigrants are concerned?

MW: One bright spot--and I'm very cautious in my optimism--is the plan to move juveniles into another agency, the Office of Refugee Settlement in the Department of Health and Human Services. That's one positive thing. The other split between enforcement and service, we'll have to see how that unfolds.

The whole dual mandate has been a problem from the beginning. The lion's share of resources and interests go into law enforcement, in effect compromising services to immigrants who are entitled to them.

Still, it's a step in the right direction. I don't think that necessarily means that life is going to be easier for immigrants, asylum seekers and refugees. I think things will remain difficult for these populations ... There have been some steps in right direction, but I think that until we really democratize our government, poor people, racial and ethnic minorities will be discriminated against. The problems that we see in the INS are reflective of larger social problems.

Democracy is a rough-and-tumble form of social and human organization. It's not for the squeamish. And that's the brilliance of democracy, that is has diversity. It has divergent points of view. I quote Nat Hentoff in my work--he's a great constitutional journalist--and he says that the First Amendment gives you the right to tell people what they don't want to hear, and that's the nature of democracy.

Imposing secret hearings and secret detentions is undemocratic. We should demand that the government be accountable and tell us who they've locked up. Where are they and what are the circumstances?

Silja J.A. Talvi is a freelance journalist and winner of the first-place magazine feature writing award from the Western Washington chapter of the Society of Professional Journalists.

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