More than a decade ago, Jonathan Simon warned of an expanding interest in locking up refugees. (1) According to Simon, asylum seekers were to provide a new population for mass incarceration. The border was to become the new criminal justice frontier. In 2010, Simon's view appears to have been borne out, though perhaps not entirely as he predicted. While the imprisonment of immigrants has indeed boomed in recent years, (2) it is not refugees but a rather more varied population of non-citizens--undocumented workers, "criminal aliens," and "enemy combatants"--that has filled American penal institutions. This Article considers these foreigners behind bars. (3)
In effect, the group of foreign nationals incarcerated in the United States is composed of two intersecting populations: those non-U.S. citizens held in jails and prisons awaiting trial or following conviction for criminal offenses, and those detained purely under immigration powers. Where and when these foreigners are held varies. Upon completion of their criminal sentences, foreign offenders may be detained--often in the same prison or jail in which they were previously house--under immigration powers pending deportation. immigration detention has become mandatory for asylum seekers who arrive without proper documentation and is sometimes used for those with paperwork. (4) Similarly, non-citizens on U.S. soil who have committed what are otherwise civil offenses regarding their immigration status--by, for example, failing to renew their visa or working without one--may be detained prior to their removal. (5) At the most extreme end, those "captured" in pursuit of the "war on terror" are detained in a web of facilities, most of which are offshore. (6)
Given the range of foreign nationals who are incarcerated in the United States, it is somewhat surprising that so few criminologists since Simon have examined the intersections between imprisonment and immigration. Unlike legal scholars, geographers, and anthropologists, most sociologists of punishment and imprisonment remain wedded to a nationalist vision of state control, one unaffected by growing transnational flows and mobility. (7) Seeking to counteract this trend, we revisit Simon's work and document the various ways in which border control has become imbricated with prison. After examining the statistics on foreign prisoners, we explore the growing overlap between criminal justice and immigration policy a shift that scholars have dubbed "crimmigration." (8) We then assess the legislation that enables crimmigration and the conditions within immigration incarceration regimes, considering what both mean for penal practice and reform.
In 1998, Simon asked what the rebirth of immigration imprisonment suggested about the future of American prisons. (9) Today, we argue that a complex and variegated "problem" of foreignness is emerging within American prisons as populations of so-called criminal aliens and immigration detainees grow and intersect with domestic offenders and penal policy. Whereas immigration imprisonment once seemed a relic of early to mid-twentieth century immigration policy, (10) this practice has resurged to become an increasingly common feature of American penality in recent years. Over the past decade, there has been a significant expansion in the number of convicted foreign nationals and in the parallel and intersecting system of immigration detention. (11) The problem of foreignness also extends beyond statistics to the wider marginalization and mistreatment of non-citizens, a practice forged during the "war on drugs" in the disproportionate incarceration of African Americans and Latinos. (12) The non-citizen, we argue, is the next and newest "enemy" in an American war on crime. Whether empirical or symbolic, then, the growing emphasis on foreignness in penal policy raises concerns about due process, the conditions of incarceration, and the very purpose of the penal institution. …