Imprisoning by choice

It’s long ceased to be newsworthy that the United States leads the world in incarceration or that the “war on drugs” played a pivotal role in creating the mass incarceration that defines the late twentieth century and early twenty-first century exercise of penal power. What we don’t hear about as often is how exactly we got to this point and whether it protects our communities. And almost never do we here about how mass incarceration is playing out in the crimmigration world.

In a meticulously researched, accessible tome, Why Are So Many Americans in Prison?, Steven Raphael from UC Berkeley and Michael A. Stoll from

UCLA tackle those questions and come out with a clear answer: we imprison so many people because we want to and we pay little heed to the fact that mass incarceration as practiced in the United States does little to keep us safe. The pair provides detailed analysis after analysis to show that imprisonment didn’t result from more crime, increased drug use, the movement to deinstitutionalize the mentally ill, or other common explanations. Instead, they conclude that “so many Americans are in prison because we are choosing through our public policies to put them there” (page 27).

This is an important insight for people interested in crimmigration law. Followers of know quite well that the federal government has increasingly relied on criminal prosecutions to target immigration law violators, a sharp departure from historical practice. Raphael and Stoll explain this policy change vividly when they report that “Between 2000 and 2009…the number of arrests for immigration offenses [increased] from 6 per 100,000 to 28” (62). Likewise, the number convicted and imprisoned has skyrocketed. “Between 1985 and 2000, the likelihood of being sent to federal prison increased…by twenty-six percentage points for those convicted of an immigration offense” (64). And once imprisoned, they also spent more time behind bars. “[S]entences for immigration offenses increased by 49 percent” in that same time period, they find (66). The end result is that we are now more likely to prosecute and convict people who violate immigration law and they are more likely to spend more time in prison than in previous years.

This is nonsensical. Immigration law violators almost never pose a threat. They are, by definition, nonviolent offenders. All that’s required for a conviction, after all, is that they enter the United States without the federal government’s blessing. Incarcerating large numbers of people who have committed minor, nonviolent offenses, Raphael and Stoll, go on, does little to deter future offending (233).

Besides, there are options available to avoid imprisonment. Raphael and Stoll aren’t focused on immigration offenses, so they don’t mention the alternatives to imprisonment that we’ve used in the past. With the important exception of Asian migrants, unauthorized migration was relatively unheard of before 1965 because most people were welcomed to the United States. Indeed, as I wrote in Creating Crimmigration (pages 1488-89), today’s picture of illegality—the unauthorized Mexican migrant—didn’t really exist until 1976 when Congress capped the number of Mexicans who could be granted permission to enter the United States in any given year. Importantly, the cap was well below the number of Mexicans who had been coming to the United States for years, thus it wasn’t particularly surprising that people kept coming—only after 1976 they came in violation of the law.

The fact that Raphael and Stoll don’t mention this isn’t a flaw in their project. It’s simply outside the scope of what they engaged in. It’s up to those of who interested in the use of incarceration to regulate immigration law to apply their critical insight—that, in the United States, policy drives mass imprisonment—to other areas. Doing that will help us understand why crimmigration law exists and what can be done about it.

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