Undocumented immigrants are often reduced to a subhuman status due to stereotypes that portray them as bearers of disease, crime, and economic destruction. Although many people fear that undocumented immigrants are importing diseases to the United States, research has shown that immigrants in the United States are, on average, healthier than their native-born counterparts, and do not carry any increased risk of sparking an epidemic (Beirich, 2007). The perception that undocumented immigrants are responsible for higher crime rates is deeply rooted in American public opinion as portrayed by the media. Millions of Americans believe that undocumented immigrants are more prone to criminal activity than the rest of the population and that “Latino immigrant men molest girls under twelve, although some specialize in boys, and some in nuns” (Quoted in Beirich, 2007: para. 1).  This fear often justifies mass incarceration in the eyes of many Americans. Lastly, and probably the most pervasive misguided perception, is that undocumented immigrants depress the wages of Americans and “steal” their jobs. Several studies have shown that immigrants have created jobs and contribute more in taxes than they use in services. Because of their status, undocumented immigrants can never reap the benefits of social security or any other federal government program, even though they pay into this system. These myths reveal the dominant views in which undocumented immigrants are portrayed as outsiders leeching on to the recipient nation.

Undocumented immigrants are not the only group that is feared and portrayed in a negative light in the United States. Minority groups are constantly at a disadvantage because they are forced to occupy lower classes. Racism has become a systemic institution that is deeply rooted in America’s history. The concept of Black inferiority was culturally based, and it still resonates today––we have grouped people to fit into certain categories. African Americans have been systemically at a disadvantage in all aspects of public and private life because of it. Undocumented immigrants, more specifically undocumented Latino immigrants, face a similar form of disadvantage due to being framed as outsiders and intruders who crossed the border illegally into the United States. This creation of boundaries between “us” and “them” serves to further alienate migrants as distinct from the rest of the population, thereby unworthy of the same recognition and entitlements.

Origins of Mass Incarceration

Over the past quarter century, the mass incarceration of African Americans had been the largest of any racial group in the history of the United States; however, immigrant detention has become the largest mass incarceration movement in recent years. This article brings to light the injustices that occur in immigration detention centers and the difference between prison labor in the criminal justice system and detainee labor in detention centers.

Although there are laws like the Civil Rights Act of 1964 which call for an end to segregation in public settings and ban discrimination based on color, racism is still fundamentally rooted in the political framework of the United States. De facto segregation and discrimination based on race continue in our society.  As might be expected, discrimination based on race is heavily reflected in the American prison system. Racial minorities make up less than half of the population in the United States, but comprise more than half of the prison population. Racial disparities within the prison system are not new phenomena as prisons have historically been racial in their characteristics.

The dividing line between slavery and involuntary servitude as forms of punishment moved the country away from formal enslavement. However, subsequent history questions the story about the Thirteenth Amendment as marking the end of institutionalized slavery, racial inequality, and white supremacy.

Mass Incarceration Generally

Mass incarceration, although a relatively new phenomenon, can be distinguished from traditional prison punishment in two ways: (1) mass incarceration “implies a rate of imprisonment and a size of population that is markedly above the historical and comparative norm for societies of this type;” and (2) the “social concentration of imprisonment’s effects” (Garland, 2001: 1). Mass incarceration is a function of the shift from rehabilitative to punitive imprisonment and is tied to the rise of private prisons, which warehouse prisoners and tend to keep them for longer periods.  As a result, it has had a greater negative effect on communities of color, especially young men, and on immigrant communities.  

Blackmon argues that the term mass incarceration “refers not only to the criminal justice system but also to the larger web of laws, rules, policies, and customs that control those labeled criminals both in and out of prison” (Blackmon, 2008: 13). As Alexander accurately states, “mass incarceration in the United States had, in fact, emerged as a stunningly comprehensive and well-disguised system of racialized social control that functions in a manner strikingly similar to Jim Crow” (Alexander, 2010: 4). A shockingly high number of racial minorities are subjected to the discriminatory practices within the criminal justice system. Mass incarceration arose as a critical role in coercing and controlling racialized groups of people. Per Blackmon, “those trapped within the system are not merely disadvantaged, in the sense that they are competing on an unequal playing field or face additional hurdles to political or economic success; rather, the system itself is structured to lock them into a subordinate position” (Blackmon, 2008: 180).

Although mass incarceration began with the confinement of Black people in early American history, the concept is still the same; “mass incarceration is a set of structural arrangements that locks a racially distinct group into a subordinate political, social, and economic position, effectively creating a second-class citizenship” (Alexander, 2010: 180). Detainee labor is often described as “modern-day slavery” in the sense that it involves the exploitation of systemically oppressed people. Immigrant detainee labor is basically a continuation of exploited labor through incarceration. The human rights of undocumented migrant populations are frequently overlooked even though they are greatly diminished by the racialized practice of mass incarceration.

Lack of Constitutional Rights

Being in the United States without legal authorization is a civil offense, not a criminal one, which leaves these detainees stripped of the protections afforded to them by the Sixth Amendment, namely the right to a speedy trial and the right to counsel. The lack of these basic constitutional rights opens immigrant detainees to a greater level of exploitation, a level of exploitation that is comparable to the enslavement of Blacks, subordination through the Black Code laws, and now within immigrant detention centers. In most criminal sentencing systems, judicially found facts that employ the use of a minimum sentencing structure are exactly that––judicially found facts. The guilt is determined by a trier (finder) of fact or by a jury; however, citizen or not, immigrant detainees are being subjected to an unlawful mandatory sentencing system that denies them the protections that are granted in other situations where one’s freedom is at risk. It is quite appalling that this is common practice in the “Land of the Free.”

According to the Pew Hispanic Center, the number of unauthorized immigrants arriving in the United States has declined in recent years, but this has not halted the number of detained immigrants in the prison system. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) has led to an increase in immigrant detention. This law “place[s] obstacles in the path of desperate, and often confused, asylum seekers, and contain[s] provisions that strip immigrants of many of the rights to fair hearings, judicial review, and relief from unreasonable detention that U.S. citizens take for granted” (ABA, 2004: 1). The IIRIRA has also broadened the definition of various crimes, which has resulted in mandatory detention and deportation. For instance, it expanded the definition of “aggravated felony” to include crimes such as “[h]air pulling, a high school brawl . . . shoplifting, joy riding, passing bad checks, and other relatively minor offenses” that now can result in mandatory detention and deportation (ABA, 2004: 24 ). Originally, the term aggravated felony applied only to truly serious crimes such as murder, drug trafficking, and trafficking in firearms or destructive devices. A conviction for any of these lesser crimes, however, now results in automatic removal and permanent expulsion.
As stated previously, violating immigration law is not a crime. It is a civil offense overseen by the Department of Homeland Security (DHS), which determines whether or not an individual can remain in the United States. Civil detention serves a different legal rationale than prison. According to 8 U.S.C. § 1227, an alien is considered deportable for any of the following: 1) if, at the time of entry, he or she was present in the United States in violation of this Act, 2) whose nonimmigrant visa has been revoked, 3) violated nonimmigrant status or condition of entry, 4) was involved in marriage fraud or smuggling, or 5) permanent resident status has been terminated. Alien removal proceedings are governed by the Immigration and Naturalization Act, 8 U.S.C. § 1231(a)(1)(A), which states that “when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days” (8 U.S.C. § 1231[a][1][A]). More often than not, aliens are detained for well over the ninety-day period based on the rationale that prolonged detention ensures that immigrants show up for their court dates before an Immigration Judge, instead of disappearing into American society after arrest. Even though many detainees may pose no risk to society and would not be considered a flight risk, they are forced to endure harsh conditions of confinement until they have the opportunity to appear before a court to have a bond set or their case heard. The right to a bond hearing within a reasonable period of time after being arrested is a fundamental right afforded to criminal defendants, but it is not currently afforded to detained immigrants.  Thus, it may be years before immigrants in detention centers find out whether they are considered a flight risk or a danger to society. As described in Rodriguez v. Robbins, Chavez-Alvarez v. Warden York County, and Giron v. Shanahan, recent court decisions have ruled that indefinite detention without a bond hearing violates the due process rights of detained individuals. However, in North Carolina, three judges were refusing to hold bond hearings for detainees.

Detainee Labor and the Thirteenth Amendment

Although there are significant differences between the harm inflicted on African Americans by Europeans and the harm associated with detainee labor, drawing a comparison between the two reveals critical themes surrounding discrimination based on race and nationality today.

Thirteenth Amendment

Immigration detainee labor raises the issue of whether this labor is a violation of the Thirteenth Amendment’s prohibition of slavery and involuntary servitude. The Thirteenth Amendment, ratified by Congress in 1865, states that “neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Congress shall have power to enforce this article by appropriate legislation” (U.S. Const. amend. XIII, § 1).

Many thought the ratification of the Thirteenth Amendment and abolition of institutionalized slavery would end racial inequality; however, it did not. The Thirteenth Amendment abolished slavery and involuntary servitude, but slavery and involuntary servitude were still permissible as a form of “punishment for crime whereof the party shall have been duly convicted” (U.S. Const. amend. XIII, § 1). A new form of involuntary servitude arose through the practice of detainee labor. This exception became a basis for a de facto re-creation of enslavement.

The Thirteenth Amendment marks a dividing line in the American story of aspiration to freedom as unique to this world. Yet, the aspiration has not fully achieved its purpose of ending all forms of forced labor aimed at the same minority racial groups formerly enslaved. The Thirteenth Amendment proved ineffective in protecting former slaves from falling back into their previous enslaved state (Blackmon, 2008). Due to this, southern states enacted a set of laws known as the Black Codes which sought to undermine the fundamental aim of the Thirteenth Amendment. Black Codes were selectively applied to persons of color. For example, Black Codes prosecuted people of color for engaging in “mischief, insulting gestures, and the vending of spirituous or intoxicating liquors” (Blackmon, 2008: 101). Violations of these ambiguous laws often resulted in Black imprisonment for inability to pay the fines imposed on them. Following the end of the Civil War, former slaves were often arrested for minor violations, were easily convicted, and forced to work for little or no pay, thereby creating the convict leasing system. This system differed from slavery but had affinities with it in that it consisted of forced labor. It became the basis of the system of forced labor by today’s modern private prison industry.
While exploited custodial labor first emerged on the backs of African Americans in the infamous forms of convict leasing and chain gangs following the abolition of slavery, it did not end there. As Blackmon sets out, convict forced labor became “slavery by another name” (Blackmon, 2008: 101). The convict leasing system worked hand-in-hand with the Black Codes to allow white plantation owners to maintain control over the lives of imprisoned African Americans. The convict leasing system slowly disappeared during the late nineteenth century but what replaced it was a more brutal form of forced labor, chain gangs. Prisoners in southern chain gangs worked under inhuman conditions and in chains “permanently riveted on them, and were worn every minute of the time” (Friedman, 94). Today, although cheap labor is significantly less physically brutal, it is still a widespread practice and a source of cheap economic labor for private prison systems.

Immigration Detention

Since 2009, Congress has ensured through legislation that more than 33,000 noncitizens are, on average, detained each day. This per-day detention average is the result of a Congressional mandate first passed in 2008 subjecting DHS to what has been referred to as a “bed quota” (DWN v. ICE). Many individuals who cross the border into the United States are coming in search of the “American dream.” They are simply looking to work toward a better life for themselves and their families. Others are looking to flee violence and poverty in their home countries. Included here are individuals, families, and unaccompanied minors; all ranging in age, race, and immigration status. Half of all immigrant detainees held in detention have no criminal record, and many of them have been in the United States for several years. Not everyone who the government has placed in removal proceedings are undocumented individuals who entered without inspection or overstayed their visas. In fact, some are lawful permanent residents or asylum seekers, torture survivors, human trafficking victims, longtime lawful permanent residents, or parents of United States’ citizen children. Due to 8 U.S.C. § 1226(c), many of those detained are subjected to mandatory detention, thus imprisoning a group of people that have already suffered victimization in their own countries.

Private Prison Systems

Per West’s Encyclopedia of American Law, detainees are persons kept in jail despite not having been convicted of a crime.  There are about 350 immigrant detention facilities located across the United States with over 32,000 detention beds available (U.S. ICE, 2009). On any given day, there are, on average, 30,000 people in administrative immigration detention centers, which costs an estimated $159 per bed day (Global Detention Project, 2017). The United States spends nearly $6 billion on Immigration Customs and Enforcement (ICE) operations alone, and government funding for ICE has steadily increased each year (U.S. ICE, 2010). The immigration detention system in the United States relies heavily on subcontracting with the private prison industry and with local jails and prisons. In many ways, privatization of the detention system creates pressure for increased detention. The annual cost of detention alone in 2009 was nearly $2.5 billion, which has directly benefited the private prison industry (U.S. ICE fiscal year 2010). Subcontracting with private prisons distances the Federal Government from the daily detention center operations and can potentially lead to abuse within the system due to a lack of oversight and monitoring.

New immigration laws have led to these mass incarcerations, which have in turn, created cheap labor for private companies. Detainees are forced to work long hours for as little as thirteen cents a day, saving the government and private companies millions a year because it allows them to avoid paying outside contractors the federal minimum wage (Urbina, 2014). This seems ironic as it is illegal for detainees to work because of their illegal alien status. In most private detention centers, migrants participate in “Voluntary Work Programs,” carrying out the basic functions of the facility including working in the kitchen, painting walls, gardening and cleaning the facility.

For example, Pedro Guzmán, a Guatemalan native, was held for roughly nineteen months at Stewart Detention Center in Lumpkin, Georgia where he worked as a chef being paid $1 a day in the kitchen while he had made $15 an hour when he was free (Urbina, 2014). He stated that he had been required to work even when he was running a fever and that guards threatened him with solitary confinement if he was late for his 2 a.m. shift (Urbina, 2014). As a result of his detention, Guzmán’s family incurred more than $75,000 in debt from legal fees and lost income (Urbina, 2014).

Many incarcerated migrants do in fact work under coercive control, threatened with solitary confinement if they refuse to comply (Starr, 2015). This type of coercion makes the “voluntary work program” involuntary. Being forced to partake in labor with little to no pay is essentially involuntary servitude, which was supposedly abolished by the Thirteenth Amendment to the U.S. Constitution. Per Bouvier Law Dictionary, involuntary servitude is defined as:
employment that is physically or legally coerced. Involuntary servitude occurs when a victim is forced to work for a person or entity by the use or threat of physical restraint or physical injury, including the use of threat or coercion through law or the legal process, or the use of fear of such means (Sheppard, 2012: para. 1).Per West’s Encyclopedia of American Law, there are two essential elements of involuntary servitude: (1) involuntariness, which is compulsion to act against one’s will; and (2) servitude, which is some form of labor of another (2008, para. 1).

The privatization of these detention centers has brought to light the underlying ideology of neoliberalism which advocates the very idea of the government retreating from the welfare and social functions of immigrant detention centers and allowing for the privatization of them. Private prison companies are paid by ICE daily per inmate and per bed. In order to make this operation profitable, private companies often specify the occupancy rate ICE is obligated to supply.  The immigrant population within these detention centers has become a function not of crime rates and public safety, but of supply and demand and contractual obligation. The private prison system is not regulated as are state run facilities, and because their primary purpose is profit, they are likely to skimp and save on costly goods, services, and programs. It is clear that a neoliberal transformation of the prison system has resulted in a situation where undocumented detainees are forced to work to increase the profit margin for corporations.

Mandatory Sentencing

Furthering the injustices that undocumented immigrants face in detention centers, current immigration deportation laws impose mandatory minimum sentences for immigrants who have been previously convicted of aggravated felonies. According to Bill 114 H.R 3011, the Senate has proposed to amend the Immigration and Nationality Act which establishes mandatory minimum sentences for aliens who were previously removed and have sought reentry. Often times, these mandatory minimum sentences impose excessive sentences disproportionate to the crimes committed for which they have already served time in the criminal justice system.

While detained, undocumented individuals are overwhelmed by the challenges they confront. Not only are they stripped of their constitutional rights, but it is also extremely difficult for them to win in court proceedings because of the strict criteria that must be met in order for a claim to be valid. For example, for an inmate to prevail on a claim of medical mistreatment, the inmate must allege “acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs” (Clement v. Crawford, 1993 U.S. App. LEXIS 8746, 1). The indifference to medical needs must be substantial. Inadequate treatment due to negligence, inadvertence, or differences in judgement between an inmate and medical personnel do not constitute cruel and unusual punishment (Clement, 3). Furthermore, in order to test the validity of constitutional challenges, courts must give deference to the adoption and execution of institutional policies and are to judge prison regulations by a lenient reasonableness standard (Clement, 6). Under this standard, a prison regulation will be found valid if it “is reasonably related to legitimate penological interests” (Clement, 6).

Detainees as a source of cheap labor

Detainees are a source of cheap labor for contractors, similar to the way that slaves were a source of cheap labor in the 1800s. Privately owned prisons are a demonstrative example of chattel slavery and until the early 1980s, there were virtually none within the United States. Between 1990 and 2009, the number of prisoners in private prisons increased by 1600% (U.S. DOJ, 1997). During this decade two companies emerged that dominated the private prison industry and led the way to what we currently have today– Corrections Corporation of America (CCA) and GEO Group. Private prisons are often regarded as a more cost-effective alternative to public institutions, although several studies have already disproven this claim.

Private prison companies operate more than half of the immigration detention centers across the country. CCA and the GEO Group, Inc. remain among the largest private prison operators in the United States. While it is illegal to employ immigrants without documents, these private prisons employ thousands of undocumented immigrants through detainee “voluntary” work programs in the detention centers. The Federal Government, “which forbids everyone else from hiring [employees] without documents has effectively [circumvented that requirement and has] become the [largest] employer of undocumented immigrants in the country” (Starr, 2015: xx). Immigration detention has become a very lucrative business and detainee labor plays a significant role in how these private corporations maximize their profits.

In 2013, “at least 60,000 immigrants worked in the federal government’s nationwide patchwork of detention centers—more than worked for any other single employer in the country” (Urbina, 2014). Cheap labor at 13 cents an hour “saves the government and private companies $40 million or more a year by allowing them to avoid paying outside contractors the $7.25 federal minimum wage” (Urbina, 2014).

According to several studies on ICE data, detainee labor has saved counties and detention centers several thousands of dollars by relying on detainees for janitorial work, kitchen work, and other work that is integral to the running of and daily functions of detention centers. More than 135,000 immigrants a year have been involved in these Voluntary Work Programs, where private prisons and the government avoid paying more than $200 million in wages that outside employers would collect (Urbina, 2014). Furthermore, Sheriff Richard K. Jones of Butler County, Ohio, said his county saved at least $200,000 to $300,000 a year by relying on about 40 detainees each month for janitorial work (Urbina, 2014).

Human Rights Violations

The increased use of private prison systems has led to the rise of risks associated with human rights abuses which target individuals most at risk--like children, women, asylum seekers, trafficking victims, the elderly, and the sick. Other concerns raised by non-governmental organizations and other advocates include the lack of access to legal representation, frequent transfers of detainees without providing notification to family members or attorneys, the absence of a registration system for subcontracted detention centers, and the use of detention facilities in remote locations often thousands of miles away from the detainee’s home community in the United States. As mentioned above, these concerns arise out of the fact that ICE facilities run by private corporations are not overseen or effectively monitored by the Federal Government.

The lack of adequate care within the walls of immigrant detention centers has had debilitating effects on those who have been detained. Those detained often suffer from debilitating psychological symptoms due to confinement and remote location from their families. Deaths go unnoticed by the community. The rising death tolls in detention centers further demonstrates the systemic racism that prevails in the United States. The lack of medical care occurs across immigrant detention centers. For example, at the Otay Mesa Detention Facility in California many pregnant women came forward accusing DHS of improperly detaining them and failing to provide them with adequate medical care. Since August 2016, ICE has had a policy of not detaining pregnant women unless under “extraordinary circumstances,” and in those cases providing access to “immediate counseling” and a “full range of reproductive health care options” (Etehad, 2017).  A recent report from the Women’s Refugee Commission on women asylum seekers in the U.S. found that pregnant women detained by ICE receive only the bare minimum of services and accommodations, and are routinely denied extra blankets, additional food, and adequate prenatal care.

This arbitrary detention regime perpetuates many human rights abuses. Detention centers were originally designed as short-term holding facilities which is why there are very few standards regulating conditions within these facilities. Today, however, detainees are often not provided with basic needs due to extensive backlogs and overpopulation in these detention centers. Detainees are denied medical treatment, access to phones, legal services, or access to legal materials to prepare a compelling case or complain about the substandard treatment.

Conclusion

While the main purpose of the Thirteenth Amendment of the U.S. Constitution was to prohibit slavery and involuntary servitude, the exception within this amendment allowed for a type of enslavement as a form of punishment for those who were convicted of a crime. This exception demonstrates the difficulty of dismantling the legacy of slavery in the United States. Although slavery inflicted upon African Americans and the harms associated with detainee labor are significantly different, one can still draw a comparison between the two based on racial discrimination. Racial discrimination is deeply rooted in America’s history, and it continues to be a persistent social problem today. Inherent racism has led to the creation of boundaries between “us” and “them” that serve to alienate both African Americans and undocumented immigrants as distinct from the rest of the population and therefore undeserving of the same recognition and entitlements.

Detainees are treated like criminals, yet are not even afforded the same rights as criminals. Most undocumented immigrants are not detained because they present a public security threat, but are detained in order to compel them to appear in court while their deportation cases proceed. ICE detention is not supposed to be a form of punishment but merely a holding center for those awaiting hearings or who are seen as a flight risk. Therefore, there is a legal difference between prisoners who have committed a criminal offense and detainees who have committed a civil offense.

Immigrant detainee labor should be prohibited because it is a violation of the Thirteenth Amendment. Immigrant detainees are held for an indefinite period of time which violates their due process rights under the Fourteenth Amendment. This is because being in the United States without authorization is merely a civil offense, not a criminal one. Detainees are left stripped of the protections afforded to them by the Sixth Amendment, namely, their rights to a speedy trial and the right to counsel.

Unfortunately, being detained indefinitely is not the only injustice that plagues undocumented immigrants. While detained, migrants are forced to work long hours for little pay to afford supplies in commissary. This is due to the fact that many immigration detention centers have been privatized to allow for cheap labor. Thus, detainees both sustain and maintain the institution that is incarcerating them. Immigrant detainee labor has raised the issue of whether migrant labor within detention centers is a violation of the Thirteenth Amendment’s prohibition of slavery and involuntary servitude. Involuntary detainee labor should be prohibited because it constitutes a form of involuntary servitude; although plainly different from the enslavement of African Americans it leads to pain, suffering, and, in many cases, death.

The Thirteenth Amendment is marred by the fact that people within various minority groups continue to be enslaved. However, racialized mass incarceration of both African Americans and undocumented immigrants has reduced their role in society to that of a subhuman state due to various stereotypes that portray both groups of people as inferior to White Americans. This type of confinement demonstrates how slavery has merely been re-created and not eliminated in America.

Endnotes
1Alejandra is a third-year student at the MSU College of Law and is the Legal Research and Writing Scholar with JSRI and the Latino Law Society for 2017-18.  She is the President of the Latino Law Society at the MSU College of Law.
 

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