The criminalization of improper border crossings costs taxpayers billions but does little to stifle the flow of illegal immigrants
In April, members of the immigrant advocacy group Enlace rallied on the doorsteps of U.S. Sen. Ron Wyden’s Portland office.
They were there to encourage the senator, whom they see as an ally, to introduce legislation that would stop private prisons from qualifying for Real Estate Investment Trust status, which allows the for-profit companies to rake in millions of dollars in tax-free revenue. They brought with them a request bearing roughly 750 signatures.
Private prisons have become the sole focus of Enlace’s campaign efforts. Enlace is an immigrant and low-wage-worker advocacy alliance with offices in Portland, Los Angeles, New York and Mexico City.
But why are immigrant advocates putting all their energy into taking on the prison industrial complex?
About six years ago, Enlace members were growing frustrated as mass deportation was inhibiting them from effectively organizing; active members and leaders were continually arrested, incarcerated and then deported.
In an effort to get at the root of the criminalization of immigrants, they began to examine what they viewed as anti-immigrant laws, said Enlace’s Portland-based campaign organizer, Amanda Aguilar Shank.
And what they discovered, she said, was that “the private prison industry lobby was a driving force.”
Operation Streamline
Since 2005, the lengthy incarceration of immigrants caught illegally entering the United States has cost American taxpayers $7 billion, estimates a 178-page report released July 13.
“Indefensible: A Decade of Mass Incarceration of Migrants Prosecuted for Crossing the Border” chronicles how America’s current immigration policies were shaped and how the incarceration of illegal immigrants is contributing to our nation’s mass incarceration problem.
The report was authored by national advocacy groups Grassroots Leadership and Justice Strategies.
Its release follows the 10-year anniversary of Operation Streamline, a policy put in place under the George W. Bush administration in 2005.
This policy ushered in an era of mass criminalization and incarceration of unauthorized immigrants. Before Operation Streamline, improper migration was typically handled as a civil, not criminal, matter, and civil provisions were used to remove illegal immigrants when the issue arose.
Inserting the criminal process is not a replacement for the civil process, said Judy Greene, one of the report’s authors and director of Justice Strategies, “but simply postpones that process for days, months or even years,” with “huge additional costs” to taxpayers.
Operation Streamline made it possible to expeditiously prosecute mass numbers of immigrants by arraigning, convicting and sentencing up to 80 immigrants caught improperly entering the U.S. in the same courtroom, at the same time.
This has resulted in the prosecution of nearly three-quarters of a million people for illegal entry over the past decade.
FURTHER READING: The militarization of our borders — a booming industry
According to Greene, during the year 2000, before Operation Streamline, 7,900 cases of felony re-entry were filed nationwide. In 2015, that number had ballooned to 33,800.
The crackdown on illegal border crossings has drastically increased profits for private prison companies that now operate 62 percent of the nation’s 250 immigration detention facilities.
The largest, Corrections Corporation of America, listed profits of more than $1 billion from 2012 to the end of 2015.
Nine of Corrections Corporation of America’s 61 correctional facilities are immigrant detention centers.
There are no federal immigrant detention centers in Oregon. Instead, Oregon’s illegal immigrants are held in county jails and holding facilities before being transferred to out-of-state federal prisons – frequently the Northwest Detention Center in Tacoma, Wash. It’s a federal prison reserved for immigrants, and it’s privately owned by the second-largest private-prison company, GEO Group.
Northwest Detention Center is one of the largest immigration prisons in the country, and in 2015, nearly 1,000 people were transferred from Portland District Office Holding Facility to it and other immigrant detention centers, according to a data research group at Syracuse University called the Transactional Records Access Clearinghouse, or TRAC. It also reported that 13 correctional facilities in Oregon transferred people to immigrant detention centers last year.
Many of these prisons are rife with abuse, leading to protests and hunger strikes, the report states.
“Indefensible” found that increased felony prosecutions for re-entry, which can carry up to a two-year prison sentence, drove contracts for 13 new, privately operated immigrant detention facilities from 2000 to 2013.
First-time illegal entry is a misdemeanor and carries a sentence of up to 180 days.
While many who are prosecuted come into contact with the criminal justice system when they are caught crossing the border, others are deported after they are incarcerated for other crimes, which can drastically increase the length of their stay in an immigrant detention center.
But when people who are prosecuted for re-entry have a prior criminal history, Greene said, they can receive a sentence many years longer than the two-year maximum.
Human Rights Watch and Drug Policy Alliance have connected what they call the “war on immigrants” to the war on drugs.
FURTHER READING: Street Roots' ongoing coverage of the war on drugs
From 2007 to 2012, more than 250,000 deported immigrants had a drug offense as their most serious conviction, and of those, 34,000 were deported for simple marijuana possession, according to data compiled by the two groups.
During that same period, deportations for people convicted of drug possession increased 43 percent.
Not all immigrants who get deported are here illegally. People living in the U.S. as legal residents can face deportation if they commit a crime.
Today, non-citizens make up 23 percent of the federal prison population, and illegal border crossing prosecutions accounted for an astounding 49 percent of all federal prosecutions in 2015, according to “Indefensible.”
‘Nothing has worked’
A key finding of “Indefensible” is that there is no convincing evidence showing the threat of incarceration has acted as a deterrent to illegal immigration. This is because economic circumstances and family responsibilities are the drivers of improper migration, the report found.
“Nothing has worked to stem the tide,” said Felix Recio, retired federal magistrate judge, during a conference call arranged to correspond with the report’s release.
Before retiring three years ago, he presided over courtrooms in the southern Texas border town of Brownsville, where he handled more than 17,000 illegal-immigration cases. He was interviewed about his experiences for the report.
“The only thing we have done is affected the lives of many people whose only crime is a desire to exercise their human rights to feed and care for themselves and their families,” Recio said.
He does not, however, discount the United States’ sovereignty and duty to protect its borders.
“The challenge is to find a way of respecting individual rights, and the rights of government,” he said. “The problem is that those governmental rights and programs are too often used as justification for violating individual rights in a dehumanizing way.”
Report author Bethany Carson at Grassroots Leadership said at the report’s release that during the course of her research, she heard heartbreaking stories from families who had been negatively affected by the prosecution of improper entry.
“I saw the prosecution of men who fled their countries after losing fathers, brothers and cousins who were murdered by gangs,” she said. “In our research we found that the majority of judges and attorneys we spoke with, who hear these cases on a daily basis, do not believe that prosecutions are an effective deterrent to unauthorized migration.
“For a decade, we have wasted billions of taxpayer dollars on a policy that lines the coffers of for-profit prison corporations and feeds mass incarceration,” she said.
Policy through the years
In earlier decades, migration from Mexico to the U.S. for seasonal work was largely legal. “Indefensible” chronicles how larger numbers of Latinos began visiting the U.S. during World War II legally to fill a manual labor shortage under a government program, a practice that was expanded over time.
This free flow of migrant workers became embedded in the agriculture and unskilled labor markets. It also enabled workers to provide their families back home in Mexico with financial support.
In the 1960s, Congress ended the legal flow of seasonal migrant labor between the U.S. and Mexico after labor unions and their allies cried foul. Workers continued to migrate, and employers continued to give them work – all without authorization.
In the 1980s, politicians began to exploit the issue for political gain, the report states, with candidates and lawmakers demonizing migrant workers by calling them “illegal aliens.”
President Ronald Reagan reframed the problem as a national security issue, and the ensuing enforcement crackdown on improper border crossings made it increasingly difficult for laborers to move between the two countries, leading many workers to settle and start families in the U.S.
In December 2005, the U.S. Department of Homeland Security began to implement Operation Streamline as part of its zero-tolerance initiative.
According to the Center for Responsive Politics, 2005 was also the year Corrections Corporation of America spent more on lobbying than it has any other year between 1998 and 2016, the time frame for which data were provided. It spent $3.38 million on lobbying that year, and with good results – it reported that its profits increased 46 percent between 2005 and 2011, and today it houses more illegal immigrants than any other private prison company.
Like other private prison companies, CCA includes a lock-up quota in its contracts. This clause requires state and federal governments to keep a certain number of beds filled, or otherwise pay for unused beds at the expense of the taxpayer.
The authors of “Indefensible” suggest Operation Streamline was a way to placate Congress into passing some kind of immigration reform package. It just didn’t work.
Now, thousands of these workers are sitting behind bars for what, the report’s authors say, amounts to simply trying to provide for their families.
While the U.S. has seen bipartisan support for reducing the nation’s prison populations and ramping down the war on drugs, there has been little effort to address the growing problem of migrant incarceration, the report’s authors argued.
But advocacy groups are finding they have some allies in Congress, including Wyden, who on July 14 followed through on Enlace’s request and introduced legislation that would exempt private prisons from claiming Real Estate Investment Trust status.
Private prisons have avoided paying more than $113 million in taxes by using this tax law since 2013, according to Enlace.
“As part of rethinking our criminal justice system, particularly as it results in the mass incarceration of low-income and minority individuals, the tax rules for (Real Estate Investment Trust status) must be changed so that we are not encouraging companies to unjustly profit from prison detention services,” Wyden said at the announcement of his bill.
“This legislation would significantly weaken the for-profit prison industry,” Enlace’s Shank said.
After Enlace decided to target for-profit prisons, it founded the National Prison Divestment Campaign, which now includes black, Latino and immigrant groups working together, to “end private prisons as one part of a larger push to end the era of mass criminalization of communities of color,” Shank said.
In addition to eliminating private prisons’ ability to claim tax-exempt status, the coalition is pushing for divestment in Corrections Corporation of America and GEO Group, as well as banks that financially back them.
According to the coalition, universities, churches and local and state governments invest in private prisons through management companies such as Blackrock, Lazard and Vanguard without even knowing it.
In February, Portland’s Socially Responsible Investments Committee voted unanimously to recommend the city of Portland divest from Wells Fargo & Co. due to its financial backing of for-profit prisons. As of March 31, Portland had a market value of $62 million in Wells Fargo holdings.
According to Enlace, this was the first time a public body voted to divest from Wells Fargo based on its involvement with the prison industry.
emily@streetroots.org
