Detained: Immigration Laws and the Expanding I.N.S. Jail Complex

Buy this book from Temple University Press

Summary || Table of Contents || Reviews

Welch, Michael (2002) Detained: Immigration Laws and the Expanding I.N.S. Jail Complex. Philadelphia: Temple University Press.

In DETAINED, Welch explores the fallout of moral panic over immigrants in the early and mid-1990s. During that period, social and economic anxieties were aggravated by increased numbers of legal and illegal immigrants perceived as threats to American society. Immigrants were blamed for draining public services, "stealing" jobs from U.S. citizens, and contributing to the problem of crime. In the wake of the 1993 bombing of the World Trade Center, the debate over immigration was shaped significantly by growing fear of terrorism. In 1996, Congress responded by passing expansive laws, imposing such harsh provisions as mandatory detention and deportation. Critics argued that such legislation violated civil liberties and human rights; correspondingly, in 2001, the Supreme Court ruled that many facets of the 1996 statutes were unconstitutional. This book examines the adverse effects that 1996 laws have had on the criminal justice and correctional systems, in particularly a booming detainee population and an array of human rights violations. DETAINED offers sensible recommendations for reform along with an enlightened understanding of immigration.

Whereas DETAINED concentrates on the 1996 legislation and its adverse effects on immigrants, those controversies have moved to the forefront of the American conversation on immigration since September 11, 2001. Indeed, the terrorist attacks on the World Trade Center and the Pentagon have given the debate over immigration control a new resonance. In the epilogue, we shall examine closely the government's campaign to fight terrorism at home, especially the use of racial profiling, mass detention, and secret evidence. As the country recovers from the tragedies of September 11th, renewed discourse over immigration is imbued with anxieties over national security along with concerns for civil liberties.

Table of Contents

Chapter 1: Introduction
Chapter 2: Moral Panic Over Immigrants
Chapter 3: The Campaign Against Immigrants
Chapter 4: Ironies of Immigration Control
Chapter 5: Criminalizing Asylum Seekers and the Indefinitely Detained
Chapter 6: Warehousing Illegal Immigrants
Chapter 7: Neglecting Unaccompanied Children
Chapter 8: The INS Detention Industry
Chapter 9: Reforming the System
Chapter 10: Epilogue: September 11th, 2001 and the Challenge Ahead

LiP Magazine's award winning journalist, Silja Talvi interviewed Michael Welch about his book DETAINED: IMMIGRATION LAWS AND THE EXPANDING I.N.S. JAIL COMPLEX. To read that interview go to: (IT TAKES A NATION OF DETENTION FACILITIES)


"Welch shows in riveting detail how American immigration law and policy have increasingly relied on incarceration, locking up thousands of immigrants not because they pose any real danger, but as a collective expression of moral panic and hostility toward perceived outsiders. In the wake of September 11, as government officials exploit immigration law for criminal law ends, Welch's cogent analysis could not be more timely and important. This is critical reading for anyone concerned with how this nation of immigrants treats immigrants in the years to come."
--David Cole, Professor, Georgetown University Law Center, legal affairs correspondent, The Nation, author, Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security

"This is a timely and striking study. Michael Welch shows the ugliness of the formidable powers given to the INS ('Expedited Removal,' 'Indefinite Detention'): asylum seekers criminalized; refugees stigmatized and illegal immigrants warehoused ( 20,000 in 2001, many in local jails and detention centers run for corporate profit). Detained demands an audience well beyond its subject and geographical borders."
--Stanley Cohen, Professor of Sociology, London School of Economics, author, States of Denial: Knowing About Atrocities and Suffering.

"Michael Welch offers not just a comprehensive review of the devastating impact of U.S. anti-immigrant laws and policies since 1996, but a compelling explanation for how a nation of immigrants could adopt an 'us versus them' attitude toward newcomers. Of particular significance is Welch's description of the emergence of a 'corrections industrial complex,' comprised of localities, for-profit prisons, vendors, and contractors who have a financial interest in the further expansion of INS's disgraceful detention system. Rather than seeking to integrate the nation's historic immigrant population, U.S. immigration policy is increasingly based on a criminal justice paradigm. As Welch points out, the result is a growing population of second-class non-citizens and their families. The book should be required reading for policy makers and citizens concerned about our nation's just treatment of immigrants."
--Donald Kerwin, Executive Director, Catholic Legal Immigration Network, Inc.

"This is a well-written and timely analysis of INS detention policies and the controversies surrounding them. The hallmark of Welch's work, both here and in his previous publications, is the care he takes in presenting controversial issues.Welch has already set the stage for a more in-depth analysis of a subject that has now attained mythopoetic status.Welch has written a fine book that provides a framework for understanding the extraordinary tradeoffs between security and civil liberties that will soon be part of the American conversation."
--Professor Mark Hamm, Indiana State University, author, The Abandoned Ones: The Imprisonment and Uprising of the Mariel Boat People.

"In Detained, Michael Welch, addresses the large void in the research literature by focusing on the impact of contemporary immigration laws and policies on newcomers in the United States. By exploring the fairness and utility of the 1996 immigration (Illegal Immigration Reform and Responsibility Act) and anti-terrorism (Antiterrorism and Effective Death Penalty Act), laws passed by Congress, Welch provides insight into a topic that has been driven by fear, anecdotes, impressions and stereotypes. Against the backdrop of September 11, the analysis in Detained is quite powerful.

Welch also makes a contribution to sociological theory in Detained. At least since the work of Stanley Cohen and others, the concept of 'moral panic' has generally been applied to episodes dealing with deviance, social problems, or some other type of disaster in the making. However, according to the literature and data provided in this book, the current moral panic over immigrants and crime is now one of immigrants and terrorism, a societal reaction that is widespread as America recovers from September 11. Thus, at the very least, this book makes us think about how the stereotype of the immigrant criminal morphed into the immigrant terrorist, a symbol used by immigration opponents to advocate more restrictions on newcomers.

Given the void in the literature and the many positive contributions it offers to sociologists, Detained moves the immigration and crime literature on major step forward in shattering the stereotype of the crime-prone immigrant."
-Professor Ramiro Martinez, Jr., Florida International University, quoted in Contemporary Sociology.

"In Detained, Michael Welch focuses on the changes in immigration policy between 1996 and 2001 and their effects on detention. Welch's book is scholarly in tone and style. While he only briefly touches on the post-9/11 environment, his book is highly relevant to scholars, both because the problems he details continue today, and because he thoughtfully frames the issues surrounding immigration in a larger socio-political context.

Welch usefully analyzes immigration policy in sociological and criminological terms. In the first few chapters, he explains the social construction of immigration as an American 'social problem' in the 1990s. Documenting the emergence of moral panic over immigration, he observes the primacy of fear over data in shaping both crime and immigration policy. Although nativists and restrictionists often opposed all immigration, Welch illustrates how public debate largely focused on undocumented immigrants, criminal aliens, and terrorists, smoothing the way for the passage of restricting laws and enabling the INS to expand its power and its control tactics. Coupled with moral panic in the society at large, this expansion of power and control helped produce human rights abuses against immigrant detainees-not only undocumented immigrants, criminal aliens and alleged terrorists, but also legal immigrants, legal residents, and citizens.

Welch argues that after 1996, American immigration control policies increasingly followed a criminal justice paradigm, in part because of the moral panic driving legislative changes. Concerns about crime, terrorism, welfare and immigration overlapped and contributed to new laws built on a criminal justice/enforcement model. Net-widening reforms decried by Welch include a new and retroactive list of deportable crimes which included very petty crimes, and a changed (enlarged) definition of 'aggravated felon' in which a crime need be neither aggravated nor a felony to subject a person to mandatory detention and deportation.

One consequence of criminalization and net-widening has been a heavy reliance on detention. . . Welch discusses another form of abusive detention, motels with private security guards in which detainees may be held for months without fresh air or telephones, and in which they may also be shackled and sexually abused. These 'Motel Kafkas' some operated by Wackenhut, are just one example of a larger phenomenon characterizing detention facilities: as Welch observes, they tend to be 'total institutions' which deprive detainees of any contact with the outside world, far exceeding restrictions on ordinary criminal offenders in most US jails and prisons.

Welch notes that groups meriting special protection under international law, such as asylum seekers, refugees, and children, are instead treated as the same as other detainees. For example, Welch observes that the USA is the only western nation that detains child refugees, in contravention of both international and US law. These children are often sent to juvenile facilities, and even to adult jails, and are sometimes detained separately from their parents.

Indeed, one theme prominent is the argument that immigration detention has become a huge profit center in what Welch calls the 'corrections-industrial complex'. The commodifcation of immigrant detainees and their concomitant shoddy treatment are inevitable by-products of these contracts. . . Welch sees detainees as 'raw materials' for the corrections industry and their long periods of detention as guarantees of its profitability. Commodification is often explicit: some officials refer to detainees as 'product' that will never be exhausted.

Welch points out that if the INS (and now ICE) did not waste funds paying contract facilities to house so many of its detainees, it could provide more humane housing at a lower cost, and some of the savings could be redirected into services to immigrants.

Given that the US is largely a nation of immigrants, this is an ironic and regrettable outcome, and for that reason alone this book deserves a wide audience. Moreover, in detailing the inherent unsoundness of public-private detention partnerships, and in revealing another instance of modern-day 'total institutions,' this book also merits an audience among scholars of punishment."
--Professor Ann M. Lucas, San Jose State University, USA, in Punishment and Society: The International Journal of Penology.

"The United States was conceived and expanded as a nation of immigrants, yet since the creation of an independent nation in 1787, the status of immigrants has often been a contentious and highly emotional issue . . . In Detained, Michael Welch extends this assessment of the nation's immigration dilemma to the legislative and enforcement initiatives of the 1990s. Nonetheless, he affirms that the restrictionist responses of the 1990s were triggered by 'moral panic," which he characterizes as a 'turbulent and exaggerated response to a putative social problem.' Welch contends that new legislative initiatives were 'influenced less by sound policymaking and more by exaggerated political rhetoric . . . [and] the culmination of demagoguery emblematic of moral panic, especially considering that popular perceptions of immigrants were channeled through the distorted lens of racial and ethnic stereotypes.' He then critically analyzes how the INS enforced these laws as shaped by hard-line crime control policy 'base on the three P's: penalties, police, and prisons.'

Welch documents his major contentions by first carefully analyzing the rhetoric and documentation employed by proponents of immigration to ensure that passage of the 1996 laws. He then recounts in detail the abuse and arbitrary practices employed by the INS officials when enforcing these laws. His thoughtful review offers invaluable insights that extend our understanding of both recent immigration policy and criminal justice policy. The concluding chapter relates to this recent history to the responses toward immigrants that were triggered by the traumatic terrorist bombing attack of September 11, 2001."
--Athan Theoharis, Marquette University, quoted in Political Science Quarterly.

"Detained is a timely new book on the anti-immigration legislation and policies of the United States, since 1996. It provides a detailed and well-documented account of the major events that culminated in the recent "anti-terrorists" laws that allow immigration officials, among other policing authorities, to enforce laws without permitting judicial review. Based on the meticulous and exhaustive use of original documents, library research, actual interviews, and fieldwork, this is a book for everyone interested in understanding the relationship between policy and law enforcement, and the impact of the current immigration legislation on the lives of ordinary immigrants and their families.

Michael Welch, in his ground breaking study, uses a time tested sociological theory of mass hysteria and moral panic in analyzing the current wave of immigration policies and practices governing immigration. In the process, he calls lawmakers, enforcers, and citizens, alike, to account for the gross mistreatment of many immigrants, today, who have committed no serious crimes but who are, needlessly, lingering and suffering inside the criminal justice system of the United States.

What is most striking about his study is that he allows the detained immigrants and their families to speak for themselves. He tirelessly tracked down representative cases documented in the newspapers and legal files to see, firsthand, the situation of the innocent immigrants trapped inside the prison system, and to let their "voices" be heard. The result is a poignant and well-written account of their plight. Moreover, the epilogue contains a well-written and balanced coverage of current legislation passed since September 11, 2001. No serious scholar, who is interested in the application of legal knowledge to the solution of social problems, can afford to not to read this articulate appraisal of the immigration system of our times."
--Kathleen Nadeau, California State University, San Bernardino, quoted in Western Criminology Review.

"Ironically, for a nation of immigrants, the United States has evolved a decidedly anti-immigrant and anti-immigration policy - not just after September 11, but beginning much earlier. That policy is the subject of Detained, a recent book by Michael Welch, a professor of criminal justice at Rutgers University. In this illuminating and disturbing book, Welch examines current U.S. immigration policies and practices. Under these practices, those who violate even minor INS regulations face criminal penalties, including incarceration, and lifelong stigma. Why are our policies towards immigrants so harsh? Welch isolates a number of causes. First, America has long been ambivalent toward immigrants. Second, the "industrial-incarceration" complex makes big bucks out of building big prisons. Large numbers of detained immigrants help to justify its existence. Third, immigrants are easy scapegoats for national ills. Today, it is "terrorism;" in the past it has been crime. Welch does a good job explaining current immigration policies as a product of "moral panic" - that is, the phenomenon in which society unfairly scapegoats an individual or a group, claiming they are to blame for some societal problem, or that they are otherwise a threat to the society's values or interests. The hallmarks of "moral panic," Welch explains, are stereotype and prejudice. During the Clinton years of welfare "reform," immigrants, as a group, were prominent among those who were blamed for the breakdown of the entitlement system. Detained should be read by anyone interested in learning about the origins of the evolving "us versus them" posture that stigmatizes, criminalizes, and incarcerates immigrants in the name of "freedom" and "national security." The way a country treats its vulnerable residents should be of concern to all Americans who profess to value human rights. But, as the draft of Patriot II suggests, the treatment of immigrants may foreshadow the treatment of citizens in the years to come. In this regard, Detained, serves up an oblique warning: Americans ignore current immigration practices at a very real risk to their own freedom. For the way "we" treat "them" now, may be a precursor to the way our government treats us in the not-too-distant future."
--Elaine Cassel for FindLaw's Legal Commentary, March 7, 2003. Cassel practices law in Virginia and the District of Columbia and teaches law and psychology. She is the author of Criminal Behavior and is chair of the American Bar Association's Science and Technology Law Section's Behavioral Science Committee.

In Detained: Immigration Laws and the Expanding I.N.S. Jail Complex, a timely and thorough analysis of recently enacted U.S. immigration laws, and the INS' expanding reliance on the use of prisons to control immigration, author Michael Welch superbly demonstrates the events leading up to this horrific event and the anti-immigration sentiment that had been building throughout the 1990s. Unfortunately, as Welch's analysis reveals, these immigration laws have, too often, been proved to be ineffective.

Welch accurately and persuasively reviews the five components of "Moral Panic" (concern, hostility, consensus, disproportionality, and volatility), in relation to America's view on immigrants in the early 1990s through the present. He argues that "heightened concern over immigration in the early mid-1990s, like other moral panics, created a tense atmosphere that America was under siege, leading to a disaster mentality in which people felt an urgency to do something." Once the heightened concern is in place, the remaining components of moral panic flow naturally and uncontrollably. This moral panic obviously has intensified since Sept. 11, 2001 and Welch's epilogue clearly addresses the additional laws (U.S. Patriot Act) enacted in the immediate aftermath of the tragedy. While acknowledging that the current fear of terrorism and anxiety over national security is justified, Welch cautions against enacting laws that will undermined civil liberties for all Americans and further erode immigrants' rights and the fair and just treatment of immigrants, refugees and asylees.

After outlining the foundation of the "Campaign Against Immigrants" that was based on moral panic, Welch continues to demonstrate how many asylum seekers and other indefinitely detained immigrants have become one of the main targets of the 1996 laws, and have subsequently been criminalized and warehoused in prisons. He further reveals how their detainment has resulted in substantially increased profits for prison-management companies as well as local counties, which are generously compensated to house these "detainees."

Detained is a thorough and poignant review of the INS' detention policies that examines the majority of issues that many immigrants, refugees and asylum seekers face when entering the U.S. Its author succinctly tackles a vast and controversial body of law, and his analysis of the INS' failure to implement the 1996 laws fairly is convincing and, at times, heart wrenching. This book can serve as a guide for Americans as we begin to balance our legitimate fear of terrorism and our long-held cherished belief of freedom and justice for all."
-- Ayesha C. Blackwell is an associate at Epstein, Becker, and Green, specializing in immigration law, quoted in Lawyer's Bookshelf and New York Law Journal.

"Keeping up with developments in the detention of immigrants is a full-time occupation these days and, according Rutgers University criminologist Michael Welch, a booming industry. It is far from facetious, in fact, to suggest that this is a field that is likely to grow exponentially in years to come for those who'll make their living in custody-maintenance or critical assessment.

Professor Welch's previously published work investigates moral panics, punitive social control, and the ironies of imprisonment, and there is no shortage of attention to each of these social dynamics in this insightful and revealing volume. In this book, Welch examines recent immigration law and the use of detention and its impact on legal as well as illegal immigrants, their communities and families, and society in general. A particular concern is the nature and extent of the use and expanding use of detention and the industry that supports it

Immigration laws in the 1980s and 1990s have expanded the scope and intrusion of Immigration and Naturalization Service (INS) authorities in the lives of not just illegal immigrants, but also legal and lawful immigrants. Welch, whose research for this volume includes extensive review of governmental documents, newspaper articles, and official and non-governmental reports, as well as interviews with advocates, attorneys, governmental officials and others active in address immigrant detention issues, argues, 'Not only have recent changes in immigration law failed to accomplish their stated objectives, but because the laws emphasize confinement, those violating revised immigration laws are unnecessarily detained for protracted periods of time in facilities known for their harsh conditions.'

Welch examines the harsh nature of these conditions, the detention of juvenile immigrants, INS policies and practices that exacerbate the use of detention, and the politically-imposed limits of INS efforts to "humanize" the detention process through confinement standards. Welch also notes the interlocking of the criminal justice and immigration systems' use of detention and incarceration, and the growth of a 'correctional-industrial complex.'

'Over the past two decades,' Welch writes, 'crime control initiatives have increasingly adopted hard-line measures based on the three Ps: penalties, police, and prisons. While neglecting crucial crime control strategies that attend to adverse societal conditions, including poverty and inequality, the new penology reinforces a commitment to coercive social control by relying more on prisons than alternatives to incarceration. Regrettably, the INS has taken its cues from the prevailing criminal justice agenda by channeling more resources into enforcement and detention while neglecting its responsibility of providing services that help immigrants assimilate.'

In addition, Welch offers a range of policy and practice alternatives in this readable and, as I've said, revealing account."
--Russ Immarigeon quoted in Correctional Managers Report.

"In Eden, Texas, population 2,500 fully half the population is behind bars. They are prisoners at the Eden Detention Center, owned and operated by Tennessee-based Corrections Corporation of America under contract to the Federal Bureau of Prisons. The prisoners are all immigrants, serving their sentences for federal crimes, but ultimately slated for deportation (now called "removal"). CCA is the result of a merger between the Maryland-based Prison Realty Corporation, whose president, D. Robert Crants III, has stated that the Eden Detention Center will 'generate returns unparalleled' in the industry. The jail is the largest employer in town, a lonely burg near San Angelo once known for mohair and wool production.

In Detained: Immigration Laws and the Expanding I.N.S. Jail Complex, Michael Welch (professor of criminal justice at Rutgers University) relies on a phenomenon he has described in other books and articles-'moral panic'-to explain how fear and profit have combined to reward private and real estate investors and local government without improving safety for the public or justice for prisoners . . . As Welch has explained, the term refers to 'a turbulent and exaggerated response to a social problem.'

His facts, figures, and quotes are sobering, if unsurprising . . . According to Welch, CCA, the outfit that runs the jail in Eden, enjoyed financial returns 'in the top 20 percent of the stock market returns over the past 10 years.'

In the end, Congress and the voting public must decide whether or for how long the 'moral panic' over aliens-and the lure of profit for places like Eden, Texas-will continue to dominate over common sense and justice."
--Dan Kowalski, Editor-in- Chief of Bender's Immigration Bulletin (a LexisNexis publication) and a deportation defense attorney in solo practice in Austin, quoted in The Texas Observer.

"Detained provides a criminologist's perspective on the rapid expansion of immigration detention in the United States. Michael Welch argues that the sociological concept of 'moral panic' explains the enactment of restrictive legislation in 1996, which, in turn sparked a massive increase in incarceration of noncitizens at the hands of the INS (and now the Department of Homeland Security).

The book illustrates both the promise and pitfalls of an interdisciplinary approach to migration scholarship. Detained is an important antidote to what Welch identifies as a 'poverty of interest' about INS detainees. The book is most useful in recounting their plight to a new and wider audience. Its most compelling chapters distill investigations by human rights organizations and from newspaper reports a chilling account of what Welch terms the 'warehousing of illegal immigrants.'

The basic premise of Detained-that criminology provides important tools for analyzing immigration policy is profoundly useful." -Professor Margaret H. Taylor, Wake Forest University of Law, quoted in International Migration Review.

Since 1996, immigrants have experienced increasingly unfair treatment at the hands of the Immigration and Naturalization Service (INS), and the situation will only get worse in the post-Sept. 11 era, according to Michael Welch, associate professor in the Criminal Justice Program on the New Brunswick Campus.

Welch's latest book, Detained: Immigration Laws and the Expanding I.N.S. Jail Complex (Temple University Press), explores how during the economic downturn of the early 1990s immigrants came to be seen as a drain on American society, "stealing" jobs from U.S. citizens and contributing to the problem of crime. Fear of terrorism also contributed to this negative perception, especially after the 1993 bombing of the World Trade Center by Arab militants, Welch reports.

As a result, in 1996 Congress passed immigration laws that contained several harsh provisions, including mandatory detention and deportation for those deemed undesirable. Welch argues that these new laws, including the Anti-Terrorism and Effective Death Penalty Act and the Immigration Responsibility Act, violate immigrants' civil liberties and human rights by unfairly targeting those who have had minor brushes with the law.

"The INS has enjoyed new and expansive powers that allow the agency to detain and deport any legal and illegal immigrant who has been charged with or convicted of even a minor offense such as shoplifting or low level drug violations. Typically people convicted of these crimes are placed on probation. But the rules are different for immigrants," he points out. "Compounding the harshness of these revised statutes, enforcement was retroactive, meaning that persons convicted before 1996 were also subject to detention and deportation."

Welch notes that these laws also restrict due process by limiting judicial review of deportation and detention decisions. Indeed, according the statutes, the INS is not required to disclose evidence before detaining and deporting suspected terrorists.

Welch, who is planning to write a sequel called Scapegoats of September 11th: Hate Crimes and State Crimes in the War on Terror, said things are likely to get worse for immigrants and visitors who are coming to the United States.

Borrowing from Human Rights Watch, Welch says, "Using nationality, religion and gender as a proxy for suspicion is not only unfair to the millions of law-abiding Muslim immigrants from Middle Eastern and South Asian countries, it may also be an ineffective law enforcement technique," Welch adds. "Such targeting has antagonized the immigrant and religious communities whose cooperation with law enforcement agencies could produce important leads for the investigation."
--Miguel Tersy, Rutgers Focus