Vol. 13 No. 4 (April 2003)

DETAINED: IMMIGRATION LAWS AND THE EXPANDING I.N.S. JAIL COMPLEX by Michael Welch. Philadelphia: Temple University Press, 2002. 264 pp. Cloth $59.50. Paper $18.95. ISBN: 1-56639-977-7 (cloth). ISBN: 1-56639-978-5 (paper).

Reviewed by Daniel Levin, Department of Political Science, University of Utah.

Recent headlines tell an important story. Following the events of September 11, 2001, the Justice Department detained hundreds of Muslim and Arab men, denying many of them access to legal representation or communication with their families, and refusing even to release their names. Many of those detained were eventually deported. More recently, the Immigration and Naturalization Service (INS) has required male aliens who are citizens of Arab and Muslim nations to register with the service; a number of those who registered were detained for at least short periods of time. Receiving fewer headlines, the INS has increased its vigilance over the nation’s borders and has continued practices begun under the 1996 amendments to the immigration laws which allow for increased detention, expedited deportations, and the deportation of individuals convicted of a wide variety of criminal offenses, even if that conviction preceded the passage of the 1996 amendments. Michael Welch’s book, DETAINED: IMMIGRATION LAWS AND THE EXPANDING I.N.S. JAIL COMPLEX, is therefore exceedingly timely. And rarely has such a controversial subject deserved a well-written, careful and scholarly assessment.

Unfortunately, DETAINED is not that book. Written in often sensationalistic prose, DETAINED is a polemic that reads more like investigative journalism for a leftist magazine than a university press book. Welch’s major thesis is that “moral panic” over immigration has caused Congress to pass increasingly punitive immigration laws and that, in enforcing those laws, the INS has become part of a “corrections-industrial complex” that is unnecessarily cruel and which operates primarily for the financial gain of assorted federal and local bureaucracies. This is a legitimate argument that might be sustained through a careful reading of immigration policy. However, Welch allows moral indignation to overpower reasoned analysis and paints an entirely one-sided view of larger U.S. immigration policy as based in little more than racism, hysteria, and bureaucratic venality, while ignoring the very real consequences of illegal immigration and the all too real concerns for national security of recent days. And while Welch repeatedly portrays, through vignette, the human tragedy that often accompanies arrest for illegal entry into the United States, he does not provide any realistic policy alternatives other than an open border. One can entirely agree with Welch’s larger point, that the current system of detention and neglect that characterizes U.S. immigration policy is unnecessarily punitive and disdainful of human rights, yet find Welch’s account unsatisfying.

In particular, Welch prefers the individual horror story over systematic analysis, and while “data” may be the plural of “anecdote,” he rarely pauses to provide the reader with any sense of how representative these stories are. Instead, the reader plows through a stream of horror stories, all of which center on some fine upstanding immigrant, who perhaps has a drug conviction in his past, whose detention has been a source of great distress for his family. In one instance, the exact nature of the offense is not recounted, but the poor immigrant’s wonderful character as a father and provider is, at great length, perhaps due to Welch’s only source, a feature story in the FORT LAUDERDALE SUN SENTINEL quoting the individual in question, his girlfriend, his minister, several other  incarcerated individuals, two Democratic members of Congress critical of current policies,  three additional critics of the deportation policy, but no one from the INS or Justice Department or any other supporter of current immigration policy (pp. 171-173). Still, the original newspaper story is more sympathetic to the government than Welch, noting that the INS is attempting to implement policies to improve conditions at detention centers and that the policy has been most often used to deport serious or habitual criminals. Welch mentions neither of these relevant pieces of information. Even more problematically, one chapter begins with the story of “Dr. X,” an Afghan physician whose treatment by the INS is compared by Welch with his persecution by the Taliban. Not only is such a comparison rhetorically excessive, but the only cited source is an op-ed piece in the L.A. TIMES by actress Sigourney Weaver (pp. 83-84).

Welch’s legal and political analysis is not much better in its tenor or sources. At one point, Welch quotes “experts” who describe the 1996 legislation as being “steeped in contradictions and inconsistencies” (p. 33)—the cited experts are the ACLU, Amnesty International, and the Lawyers Committee for Human Rights. Most particularly, Welch seems to rely on ACLU press releases for much of his legal analysis. I personally believe that the ACLU has had a very positive role as an active advocate for immigrant rights.  But there is a world of difference between advocacy and analysis, and Welch does not even begin to consider alternative arguments put forward by the government, groups opposing illegal immigration, or even the courts. Virtually every judicial decision upholding immigrants’ rights is applauded; while those with which Welch disagrees are disposed of with quick contempt, usually with a quote from a critic of immigration policy substituting for useful analysis. Similarly, virtually all of Welch’s descriptions of conditions within INS facilities are taken from the reports of Human Rights Watch and Amnesty International. Both are fine organizations, but neither is a neutral observer, and Welch does not perform any original research. He does not report even attempting to visit a facility himself, nor does he report any interviews with INS or Justice Department officials. The only time he quotes such officials is when they are criticizing the congressional statutes at issue. And in his foreword, Welch thanks “those committed to the preservation of human rights” from whom he “learned a great deal about the plight of [INS] detainees;” all of his teachers are associated with liberal or religious advocacy groups (p. ix). Perfect objectivity may be an illusion, and advocacy is perfectly acceptable, but there is something to be said for fairness in a scholarly publication.

Most disappointingly, Welch fails to provide any new theoretical insights into the question of immigration policy.  Indeed his theory is where all the trouble begins. Welch  relies on the sociological theory of “moral panic,” which holds that certain social problems create so much anxiety – either among certain elites or among the general population – that policy-making is typified by scapegoating and hysteria. Welch happily focuses on the arguments of anti-immigration advocates Peter Brimelow and Pat Buchanan, who often use language that focuses on race and cultural differences as reasons for reducing immigration, but the 1996 law was written and passed by neither of these gentlemen. An in-depth analysis of the Act’s legislative history would have produced more compelling evidence of racism if it existed, but such a history is absent from this book. And the 1996 legislation actually allowed for increased immigration, including immigrants from non-European countries. Instead, almost all of the policies adopted in the 1996 statutes, upon which Welch focuses the majority of his attention, targeted either those entering into or remaining in the U.S. illegally, or those with prior criminal records. While the requirement that even legal resident aliens who were convicted of a range of crimes in the distant past be deported results in human hardship and the law’s inflexibility is a source of injustice, it is hardly the racist form of McCarthyism Welch portrays it to be.

To make his argument, Welch must discount the idea that Americans may oppose immigration for economic reasons. In his own conclusion, Welch notes that moral panic over immigration is more intense in periods of economic contraction, while it diminishes during prosperity. Welch portrays this as irrational, based on the work of economists who find immigration to be a source of economic growth. But why use a theory of moral panic at all? Is it really irrational for the public to view immigrants as potential competition for scarce jobs? While very few Americans may wish to actually compete for the jobs filled by recent immigrants, it is hardly a form of panic to assume that the basic laws of supply and demand apply. And even if economists view immigration as economically beneficial, as Welch maintains, there is no reason to believe that, if the public does not agree, it is because of a hidden racist agenda. The American public is fully capable of ignoring economic scholarship entirely on its own.

Welch’s other theoretical approach, embodied in what he calls the “corrections-industrial complex,” is equally problematic and comes close to vulgar Marxism. Consider the following quote, referring to the long-term detention of Cubans who immigrated during the Mariel episode: “With implications to the new penology, the Mariel phenomenon proved lucrative for the INS as it strengthened its ties to the emerging corrections-industrial complex. The Mariels represented another aggregate with promising potential as raw materials, and the INS wasted little time in commodifying them for financial gain” (pp. 159-160). Welch simply assumes that budgetary expansion is the ultimate goal of INS policy, as if it were common knowledge that all bureaucracies are inherently imperialistic. Similarly, much of Welch’s argument follows from evidence that a number of local jails have found that taking INS prisoners can provide fiscal support. This may be true and important, but the link to INS policy or the 1996 legislation is far from obvious. To sustain his argument, Welch must document lobbying behavior on behalf of the jails and provide evidence that the guiding force behind INS policymaking is budgetary expansion. He does neither.

The new atmosphere post-September 11 has provided many new reasons for concern for immigrants’ rights. And the problems with the INS preference for detention are severely compounded in many cases by the Justice Department’s policy of secret detention and denial of counsel. The increased, and unwanted, attention to Muslim and Arab men by the FBI and INS should trouble anyone interested in true equal protection, and may provide a real example of moral panic which, because of its particularity, differs significantly from the 1996 statute. Other problems may emerge with the division of the INS into two separate agencies responsible for enforcement and providing services to immigrants and the agency’s incorporation into the Department of Homeland Security. But what is most needed by the largest number of those detained for ordinary infractions of immigration law is a faster adjudicatory process supported by increased congressional funding of immigration judges and review panels along with more humane conditions of incarceration. Those are reforms which are guided by common sense and common decency. They do not require the recitation of horror stories and accusations of bigotry and venality on the part of public officials with little evidence beyond the fact that enforcement of immigration law has a disparate effect on immigrants. The careful and scholarly book so needed in this field is still to be written.

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Copyright 2003 by the author, Daniel Levin.