With the Trump Administration threatening to carry out a wave of mass deportations, understanding the history of federal attempts to secure state and local cooperation in immigration enforcement feels more urgent than ever. Immigration law scholars have devoted considerable attention in recent years to the federal government’s deepening cooperation with state, county, and local law enforcement agencies, part of a growing focus within immigration law scholarship on the intersection of immigration law and criminal law (or “crimmigration law”). In large part, the story that legal scholars have told centers on the past three decades, a period in which both immigration detention and federal-state cooperation have dramatically expanded.
A new book from historian Brianna Nofil, The Migrant’s Jail: An American History of Mass Incarceration, makes a persuasive case for understanding such cooperation along a much longer timeline. Centering on the county jail, the book tells “a national story about local institutions” (P. 14), one that offers new insights into the dynamics of immigration federalism and the symbiotic relationship between the criminal legal system and the ostensibly civil regime of immigration law.
The Migrant’s Jail begins its story in 1903 in the Franklin County Jail in upstate New York, a 6-cell facility condemned as unsafe for use as a jail but used, regardless of its dangerous conditions, for holding Chinese migrants apprehended on the U.S.-Canada border. Most scholarship on immigration enforcement in the Chinese Exclusion era has focused on the Pacific coast, but Nofil offers a striking statistic: three-quarters of the Chinese migrants detained at the turn of the twentieth century were apprehended east of Ohio. Local jails in small towns like Malone, New York, played a central role in the machinery of Chinese exclusion, Nofil argues, and in the process, brought federal dollars into local economies. The sheriff in Malone, for example, could make a year’s salary in a single month by engaging in the “business” of detaining migrants.
This revenue stream is just one of the themes in Nofil’s account that will resonate with observers of contemporary immigration detention. Others include the government’s practice of moving detainees from one location to another to manipulate which court they ended up in; the government’s use of prosecutorial discretion to manage budgetary constraints and to defuse criticism when sympathetic cases garnered media attention; and the difficulties that detainees faced in accessing legal representation in remote locations.
From this starting point, The Migrant’s Jail traces the shifting geographies and institutional structures of migrant incarceration across the span of the twentieth century. By the 1920s, county jails held increasing numbers of Canadian and European migrants, including women and children. Local communities showed few qualms about subjecting racialized others to substandard conditions, but the specter of white women and children in such facilities prompted calls for reform. These debates played a substantial role, Nofil shows, in the establishment of the federal Bureau of Prisons in 1930.
The county jail temporarily recedes to the periphery in the middle chapters of The Migrant’s Jail, as the book turns to the expansion of federal facilities in the 1930s and ‘40s, the unprecedented scale of the detention of Japanese nationals as “enemy aliens” during World War II, the detention of suspected subversives at federal facilities such as Ellis Island in the postwar years, and the supposed decline of immigration detention with the passage of the McCarren-Walter Act in 1952. Nofil argues, however, that detention was far from over, and that “the immigration service never fully broke its bond with local jails.” (P. 85.) At the same time that the government was shutting down Ellis Island and beginning to release many European migrants on bond, it was also launching “Operation Wetback,” a massive enforcement campaign against Mexican migrants in the Southwest that depended on hundreds of county jails as well as newly constructed federal facilities.
The expansion of federal facilities in the Southwest, Nofil argues, “signaled that the federal government was ready to make serious investments in a permanent system of migrant incarceration.” (P. 117.) The Migrant’s Jail traces both the growth of these investments and the continuing salience of the county jail through the latter half of the twentieth century and into the twenty-first. Against the backdrop of the expansion of federal facilities and the advent of private prisons, Nofil’s focus remains on local cooperation and the flexibility that it offered the federal government.
Across these various contexts, Nofil documents the ways in which jails have long functioned as a “space that produced and confirmed racial difference.” (P. 30.) Detention, Nofil argues, has been most politically popular when it has targeted “people deemed racially unassimilable or unfit for citizenship – people whom many Americans imagined might belong in jail.” (P. 10.) In seeking local cooperation, the federal government has relied not only on offering financial incentives but also on promoting the idea of “unauthorized migration as an existential, racialized threat that demanded the assistance and resources of localities.” (P. 6.)
The Migrant’s Jail also shows, however, that this racialized, carceral logic has not gone uncontested. Drawing on an impressive range of sources, Nofil paints a vivid picture not only of the suffering and isolation that migrants experienced in custody, but also of the many acts of resistance, both large and small, that took place. County jails were “sites of coercion and neglect” but also “sites where migrants lodged legal claims, plotted escapes, organized with aid groups, and fought for the right to stay in the United States.” (P. 2.) Residents of cities and towns across the country have spoken out against contracts with federal immigration authorities and against federal detention facilities being situated in their communities. Immigrants’ rights groups have organized to protect detainees and have pursued sophisticated litigation strategies.
In telling this story, The Migrant’s Jail argues for a reconceptualization of the relationship between immigration enforcement and the criminal legal system. Crimmigration law scholars have written extensively about the importation of criminal law norms into the ostensibly civil realm of immigration law. Nofil argues that ideas traveled in both directions: “[I] immigration enforcement did not merely borrow the infrastructure, legal precedents, and practices of late twentieth-century criminal punishment. Instead, in countless small towns, suburbs, and cities, migrant incarceration activity expanded the power and capacity of local, state, and federal governments to imprison.” (P. 4.) Throughout the book, Nofil documents the emergence of an “interconnected carceral state.”
The Migrant’s Jail also offers a new perspective on immigration federalism. It is widely recognized that the power to restrict immigration shifted from state and local authorities to the federal government in the wake of the Civil War, and some have viewed recent attempts by states to reclaim some of this power as an attempt to turn back the clock. Nofil argues, however, that the post-Civil War shift was not as clear cut as it has been made out to be and that the detention of migrants in county jails in the early twentieth century returned some of the power to local communities, in ways that worked both for and against the interests of migrants: “Reliance on localities enabled unprecedented, large-scale deportations in some moments and incapacitated the immigration service in others.” (P. 13.)
The Migrant’s Jail is a welcome addition to recent scholarship on the history of immigration detention by scholars such as Kelly Lytle Hernández, Kristina Shull, Elliott Young, Jessica Ordaz, Ana Raquel Minian, and Carl Lindskoog. This growing body of work offers crucial insights that should inform the work of crimmigration law scholars.
