César Cuauhtémoc García Hernández,
Naturalizing Immigration Imprisonment,
103 Cal. L. Rev. 1449
Available at: http://scholarship.law.berkeley.edu/californialawreview/vol103/iss6/1
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 civil and criminal entryways into immigration imprisonment across every level of government.
Examining the population of immigration prisoners as a whole provides crucial insights into how we arrived at this state of large-scale immigration imprisonment. While political motivations similar to those that fueled the rapid expansion of criminal hyper-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: there are now billions of dollars, tens of thousands of prison beds, and hundreds of 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. The Article concludes by suggesting that policy makers, rather than continuing further along this path, should seek a future that reflects immigration law enforcement’s past—when imprisonment was the exception rather than the norm.