December 10, 2009 - TERRY GROSS, host:
This is FRESH AIR. I'm Terry Gross.
My guest, journalist Tom Barry, has been writing about what he describes as the new face of imprisonment in America: immigration prisons along the border in Texas, New Mexico and Arizona.
In the late '90s, and then again after 9/11, new laws were enacted to crack down on illegal immigration. According to Barry, the number of immigrants in the criminal justice system has grown 400 percent in the past four years. This crackdown has led to the growth of immigrant prisons that are owned by local governments but operated by private corporations, financed publicly by tax-exempt bonds and located in remote, depressed communities. Their remote locations makes these prisons and the prisoners invisible to most Americans.
Barry visited 11 prison towns along the border over the course of nine months. His report on how profits, poverty and immigration converge in these prisons is published in the current edition of the Boston Review. Barry has researched immigration for the past 30 years. He's a senior analyst at the Center for International Policy, where he directs the TransBorder Project. He write the blog Border Lines.
Tom Barry, welcome to FRESH AIR. Many of the people who are in the prisons that you've been investigating are called criminal aliens. What does that mean?
Mr. TOM BARRY (Center for International Policy): Well, there isn't a real precise definition of criminal aliens. The general definition is that these are non-citizens who have committed crimes, either immigrants who are illegal or legal immigrants that have committed crimes. However, the definition - the working definition - has expanded dramatically since 1996, when they added a whole new level of criminal violations that mean that a criminal violation is not only faced criminal consequences for that but then is deported, but more particularly, since 2005, that simple border-crossers, illegal border-crossers, are now criminal aliens and are not just deported - put over the border - but spend time in prison first, before they're deported.
GROSS: What's the logic behind the decision, stemming from 2005, to imprison people who have crossed the border illegally and then deport them, as opposed to just deporting them?
Mr. BARRY: Well, the standard line from the Department of Justice and the Department of Homeland Security is that we're upholding the rule of law, that these people are breaking the law, they need to suffer the consequences. But if you look beyond that, the strategy behind it, they'll say, just as clearly, that this is a strategy of deterrence.
We want to punish these people to send a message, both to them, to their families, to people in Mexico and farther south, that they shouldn't come to the United States because they're going to be imprisoned and imprisoned as long as 20 years. It's generally much less, but if you cross illegally a number of times, you could be in prison for 20 years, simply because you're crossing the border illegally.
GROSS: So is that filling a lot of our prisons now?
Mr. BARRY: Yes. Both Bureau of Prisons and U.S. Marshals Service are complaining that there's a crisis, that they can't find places for all these criminal aliens, that it's growing, that the number of immigrants in the U.S. Marshals Service Prisons and Bureau of Prisons is growing dramatically, 400 percent in the last four years. And to deal with that, what they do is create special prisons for criminal aliens.
They separate them from the general population, and part of the logic of that is that they're separated, and they don't cause any trouble because they're not integrated with the general population. Immigrants have very few connections with lawyers. Generally, they're far away from their families in the United States.
They're taken from states and brought to the far reaches of West Texas. And so they're alone, it doesn't cause problems for the private companies that operate them or for the Bureau of Prisons. It's a very convenient system.
GROSS: So there's basically, like, a new and growing, separate justice system for criminal aliens?
Mr. BARRY: Yes, that's right. There's a separate penal system, certainly. Previously, most immigrants who were picked up for crossing illegally were just put across, back across the border. They were not charged criminally. Now, in the last few years, since they're being charged criminally, they're transferred from the Department of Homeland Security, which is administrative, it doesn't address crime and punishment, to our Department of Justice, which deals with crime and punishment so that increasing numbers of immigrants are - go from ICE, the Department of Homeland Security, to our criminal justice and penal system.
GROSS: So do they have their own lawyers?
Mr. BARRY: They have lawyers. Unlike the immigration system, if you're part of the criminal justice system, that you have a right to a lawyer, you have a right to a court-appointed lawyer. However, they only get one lawyer, and this one lawyer is responsible for as many as 80 immigrants. Actually never talks to these immigrants, has a paralegal come in and write up a little thing, and then he meets them the first time on the day of the conviction and the sentencing.
And they're convicted and sentenced en masse, that I have gone to a number of courts where you have 50, 60, 70 immigrants all being trooped into a courtroom, all in shackles, and all asked if they understand their rights and if they're guilty. And they all reply, in unison, yes, and then they're escorted out of the prison and back to the private prison that they came from. That - we wouldn't treat citizens this way.
GROSS: The people in the prisons that you've been writing about are not just illegal immigrants who have illegally crossed over the border into the United States and are being imprisoned to be later deported; there's also a lot of legal immigrants who are in these prisons. On what grounds are they there?
Mr. BARRY: They're there because since the mid-1990s, there's been written into immigration statutes, something called aggravated felonies. If you are an immigrant, a legal immigrant, and you have been convicted of an aggravated felony, then you are subject to mandatory detention and removal from this country.
The term aggravated felony has nothing to do whether it's aggravated, or little to do with whether it's aggravated or a felony, that these are generally minor charges. And what I have found in the U.S. Marshals Service and Bureau of Prisons - generally, these are small crimes, which - generally drug-possession crimes.
It's up to the discretion of Immigration Customs Enforcement to consider it, or not, an aggravated felony.
Most times, they consider any kind of crime that an immigrant does an aggravated felony. Then they're subject to mandatory detention and removal, and this is happening frequently. It's now routine.
GROSS: So are saying basically, like, if you're caught, say, holding a small amount of marijuana, that could be an aggravated felony? If you're a legal immigrant, you could be sent to one of these prisons and deported?
Mr. BARRY: That's right, but it's even worse than that. If, as a young person, you were convicted of drug possession - only convicted. Generally, these people were not sentenced, they didn't serve any time in prison.
But if they were convicted, it's on their record, so now as the data systems are now being integrated between the immigration service and the FBI, these records are picked up so that any kind of identification check - whether it be a traffic stop or an airport security or even welfare - that it's discovered that you've had a past conviction. You've been here most of your life - that you can be picked up by immigration and detained and deported. This is happening routinely.
GROSS: So in other words, you'd be deported for a crime that you were already convicted of in the past?
Mr. BARRY: That's right. It's - because of these new laws, starting generally in the mid-1990s, yes, they're retroactive.
GROSS: Is that considered double jeopardy?
Mr. BARRY: It is double jeopardy, yes, but that term is used quite often, and what has happened in the legal community is that they're seeing that this merger of the immigration system and the criminal justice system, it has created new responsibilities for lawyers because lawyers will often say, well, you can plead this case and then, you know, get off, you're not going to serve any time. But if you plead, and it's on your record as a 16-year-old, 17-, 18-year-old boy or girl - that it's on your record - you never served time, and then 10 years later, they'll pick you up and take you away from your family, and you land up in a country you've never been to.
GROSS: My guest is Tom Barry. His article on immigration prisons in the Southwest, along the Mexican border, is published in the current edition of Boston Review. We'll talk more after a break. This is FRESH AIR.
(continue article at NPR)