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Congress Owes Immigrants A First Step Act

In the United States, even bad citizens like Donald Trump, Reps. Chris Collins (R-NY) and Duncan Hunter (R-CA), and Charles Kushner (Jared’s dad) have rights. They have the right to an attorney, to remain silent, and to a speedy trial. In the case of Collins and Hunter they even evoke enough empathy from Republican voters to get re-elected while under federal criminal indictment. Charles Kushner, a convicted felon, was offered a plea deal, and served part of his prison sentence in a halfway house.

Other people who commit crimes do not receive this type of consideration. It has taken Congress decades to address the growing prison population, which has been fueled by policies that pipe people of color into the justice system on drug-related offenses. After several failed attempts to fix the broken criminal-justice system, Congress passed “The First Step Act.” The bill is just that, a first step. Among other provisions, the it will ease federal mandatory-minimum sentences, and narrow the sentence disparity between crack and powder cocaine. Congress can’t directly modify state or local laws, and this law doesn’t really attempt to do so indirectly, but it also does nothing to address immigrant detention, which is managed at the federal level.

There is one very good reason why the First Step Act does not address immigrant detention. That is because detention is considered civil in nature, despite the prison-like qualities of detention facilities. Immigrants are made to wear uniforms and their contact with the outside world is limited. These detention centers are meant to hold and process immigrants for possible deportation. Because detention is civil, our government does not extend legal protections to immigrants like the right to a speedy trial, or a ban on cruel and unusual punishment. Immigrants are held in remote detention centers, most of them for-profit facilities, where they face overcrowded, filthy, and at times inhumane conditions.

A 2017 report by the Department of Homeland Security found issues, which “undermine the protection of detainees’ rights, their humane treatment, and the provision of a safe and healthy environment.” In fact, ICE has recognized at least 185 deaths in detention from October 2003, and July 2018.

Why does this happen? Follow the money. In August of 2016, the Justice Department announced plans to end the use of private prisons. In the same week, details of a $1 billion contract awarded to CoreCivic to build a detention center to house women and children who are seeking asylum in the U.S were made public. It’s worth noting Jeff Sessions, before being pushed out as attorney general, rescinded the Justice Department’s directive letting the private sector back into the federal prison racket.

Private prisons have powerful lobbyist in Washington, and as criminal-justice reform efforts have threatened their capacity to profit off of federal incarceration, they have shifted their focus into the realm of civil detention. These two systems are inextricably connected. Criminal justice reform and immigrant rights advocates must support each other’s efforts and remain vigilant.

The average daily population of detained immigrants has increased from 6,785 in 1994 to 38,106 in 2017, and it will only continue to increase if action is not taken. Trump’s proposed 2019 Budget includes funding for 52,000 detention beds. According to the Center for American Progress for-profit detention companies like CoreCivic operate two-thirds of detention beds today, and their facilities receive more complaints than government operated ones.

According to the Center for Responsive Politics, CoreCivic has spent more than $17 million over the last decade on lobbying efforts. These endeavors led to legislation such as minimum sentencing and three strikes. The consequences of these laws are finally being addressed with the First Step Act. But these companies will not go out of business without a fight. They will look for new sources of revenue—incarcerating immigrants primary among them.

In fact, in their 2017 annual report, CoreCivic listed as a major accomplishment a “contract extension from Immigration and Customs Enforcement at our 1,000 bed Houston Processing Center,” and boasted of their more than thirty year partnership with ICE.

As Democrats promote further criminal-justice reforms, they cannot lose sight of the pain increased enforcement will inflict on immigrant communities. Members of Congress must not only fight for the incarcerated population, but also for the immigrants in detention. We can start by providing legal counsel, and demanding immigrants be held in locations where they can access legal services and where they can be visited by family members—another First Step Act, to provide immigrants basic rights when they find themselves in the custody of the U.S. government.