What Does the 'War on Drugs' Have to Do With Immigration Detention? Everything.

What Does the 'War on Drugs' Have to Do With Immigration Detention? Everything.

"Immigration Detention as Punishment led me farther back in time to the beginning of the “war on drugs.” 1986 was the birth year of modern “immcarceration” (hat tip to Anil Kalhan for that evocative term), when Congress ordered the Defense Department to make detention facilities available to the Attorney General for “illegal alien felons and major narcotics traffickers,” and authorized police to request immigration “detainers” from federal immigration officials. Most importantly, Congress channeled funding to state and local governments, the Bureau of Prisons, and the immigration agency for detention connected with “illegal alien” involvement in drug trafficking and crimes of violence. Later, Congress specified that jails and prisons and other comparable facilities were appropriate, even desirable, for detaining noncitizens.

Locating the birth of modern immigration detention within the war on drugs allows García to connect the rise of detention with the contemporaneously swelling penal prison population. He shows how the mandatory minimum sentences and sentencing guidelines that came into vogue in criminal law in the ‘80s and ‘90s, limiting judicial discretion and expanding prosecutorial power, appeared in refracted form in immigration provisions that introduced mandatory detention provisions and constrained judicial power to avert deportation. Seen through this historical lens, immigration detention “became an integral part of the punitive consequences” of the war on drugs. García’s meticulous unfolding of the legislative history of immigration detention constructs a persuasive argument that Congress intended immigration detention to perform a punitive function." - Prof. Juliet Stumpf, reviewing César Cuauhtémoc García Hernández, Immigration Detention as Punishment, 61 UCLA L. Rev. (forthcoming 2014), available at SSRN.