As you drive out of Miami to the west on a single, straight road and the Everglades expand all around, a certain infamous facility lies behind the treeline: the Krome Service Processing Center. It used to be a missile testing site before it was repurposed to hold detained migrants who are waiting for their futures to finally arrive, whether that is in or out of the United States. Growing up in South Florida, Brianna Nofil would hear how Krome was a place of inequality where mainly Haitian migrants were held in dire conditions. The existence of such a place filled her with curiosity. “I was always very interested in what this sort of strange space in the community was. It’s incredibly inaccessible. It’s geographically isolated. And it’s in this sort of weird legal middle ground where it is incarcerating people, but not for a crime. That paradox was at the center for me. How does the United States develop this massive system of incarceration that resembles criminal incarceration in every way, but is also legally completely distinct and separate?”, she says in a video call with EL PAÍS.
That initial curiosity has only gotten sharper and more formal with the passing of time, just as immigration has loomed larger and larger over the public discourse with Donald Trump’s bursting on to the scene. For 14 years, Nofil researched the topic and the result saw the light recently. At the end of October, The Migrant’s Jail: An American History of Mass Incarceration was published by Princeton University Press. It is an examination of a century of political, ideological and economic exchange between the United States’ immigration bureaucracy and the criminal justice system, which has given rise to the world’s largest system of migrant incarceration. Today, as the threat of “the biggest deportation in history” is accompanied by a massive question mark that asks how such a thing could be done, Nofil’s findings and historical perspective provides clues about a system and a set of strategies that are already in place to detain migrants awaiting trial or expulsion.
Question. When does the criminalization of migrants begin?
Answer. The way it’s criminalized changes over time, but the first major immigration law the U.S. passes is the 1882 Chinese Exclusion Act, which bars all migration of Chinese laborers. But when the U.S. passes this law, the immigration bureaucracy itself is quite small. The U.S. starts to have to reckon with questions like whether to hire people whose job is immigration enforcement? To build detention facilities to hold people who are apprehended or who we want to deport? It’s a logistical problem that still occurs today. So at the end of the 19th century, we start to see some of this infrastructure start to get built up, both in terms of legal precedents that make it harder for migrants to access the courts, but also of figuring out how migrants can be held in prisons and held in jails.
Q. What about the 1929 Undesirable Aliens Act?
A. It is the first law that criminalizes unauthorized border crossing. Prior to that, immigration offenses are solely civil or administrative. But with the passage of the 1929 law, it means that you can not only face administrative detention for crossing a border, but you can now also face criminal punishment.
Q. And can it be used today?
A. Yeah, the law is still on the books, but it isn’t enforced. And part of the reason for that is the cost of incarcerating someone. The U.S. would rather just deport someone rather than charge them with a crime, incarcerate them, then administratively detain them and then deport them. It’s cheaper. However, part of what we saw under the first Trump administration was that they were enforcing this policy. So a lot of family separation was that parents were being criminally charged for border crossing. So it’s a testament to the danger of these old immigration laws that are impossible to read and not be struck by how deeply racist they are; so centered in eugenics and notions of Mexican migration as a threat. And now it is a law that can be deployed strategically.
Q. What about asylum seekers? When were they criminalized?
A. That happens in the later 20th century. Coming out of World War II, the U.S. has a very specific idea of what a refugee should look like. They imagine refugees as people who wait in Europe in camps, and then the U.S. sends for them. But that really starts to change in the 1980s when for the first time the U.S. is going to see really large numbers of folks from the Caribbean who are showing up mostly in Florida and claiming asylum. This is going to happen under the Reagan administration. And they’re going to become really fixated on this idea that we have to deter asylum seekers. So detention becomes a really core piece of that. The Reagan administration is incredibly explicit about what they’re doing: this idea that if you can make the process of claiming asylum miserable enough, that will stop people from attempting it altogether. All of this contributes to the emerging notion that still persists today, that asylum seekers are another form of a legal immigrant. They’re gaming the system. And that they basically should have no protections that are distinct from that of other migrants.
Q. How big a part of mass incarceration is migrant detention?
A. It’s a huge component. One of the reasons is because the vast majority of people who are entering ICE custody today are being apprehended by regular local law enforcement. As the resources of policing and incarceration in the U.S. have expanded, it has also expanded the number of ways you could end up in deportation proceedings. And it has also expanded the amount of space to detain migrants. Both because of the rise of private prison companies, many of which started building regular prisons, but now make the vast majority of their income from migrant detention facilities; but also because the number of jail and prison beds in the United States in general is so high that it means there is just a lot more space that the immigration service can rent when it wants to carry out deportations. So even though legally one is a form of administrative imprisonment, and the other is a form of criminal punishment, these are taking place in the same physical space, and they are building upon each other.
Q. Why don’t immigration services build their own jails?
A. ICE’s claim for why they rely so heavily on private contractors today is that it is more efficient, they can build faster, and they claim it is cheaper. However, I think both of these claims are somewhat tenuous. I think there’s also some other big reasons the immigration service doesn’t want to run their own facilities. I think the biggest reason is accountability and visibility: giving these contracts to private prison companies, to localities, it insulates the immigration service both legally and politically. When there are disasters, whether it is stories of abuse or whether it is uprisings of migrants at these facilities, the immigration service almost always says that it’s the fault of a bad contractor. They’re able to continually point to these contractors as bad apples while keeping the larger system intact.
Q. And now that Texas has offered land to build new detention centers on the border?
A. We’ll have to see, one thing we can know from history is that building new detention centers from scratch is rarely the government’s first choice because it is really expensive. And it also directs a lot of attention: you’re going to have protesters in a way that if you take an existing building and just start using it for immigration detention, it’s a lot less visible. So they’re much more interested in sort of repurposing and reusing space than they are in building things from scratch. But anything is possible, so the other thing I would keep an eye out for is that if this happens, it is going to be done with private contractors. Someone is going to get a sweet contract to build this facility and there is going to be massive amounts of money made at every step of this process.
Q. Do you think there is a point when the incentive is not the immigration control, but rather just detention for detention sakes because it’s profitable?
A. So one of the ways that the detention budget works today is that there is a bed minimum. What that means in practice is that even if demand dips, the government is still paying for that number of detention beds, largely to private contractors. And these private prison companies are major donors, but they’re an easily identifiable villain if you’re critical of this system. They are just the tip of the iceberg of all the companies that are profiting here. Data and software companies are making massive amounts of money. The companies that physically move migrants between the sites in this detention network. The companies that charter the flights that deport migrants. There are all of these other services, including food or medical care, that are required to keep people alive in these detention sites. And every single one of those services has been outsourced. So there is just an unthinkable amount of money to be made, even beyond the private prison company itself.
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