Latinos and Incarceration: Prisons, Jails, and Immigration Detention

Kathleen Pequeño spoke with Angela Arboleda, Associate Director for Criminal Justice Policy with the National Council of La Raza, about over-representation of Latinos in prison, jail, and immigrant detention thanks to “incarceration fever.” NCLR is the largest national Latino civil rights and advocacy organization in the United States, and Angela spoke with us by phone from Washington, DC.

Justice Matters (JM): Tell us the extent of Latino over-representation in the criminal justice system. How bad is the problem?

Angela Arboleda (AA): It is pretty bad. Of the 6 million people in the criminal justice system and the 2.2 million people behind bars, approximately 75% are people of color. In the federal system, for example, at least one in six people is Latino and one in four is African American. We know that there is a problem with Latino over-representation in the justice system, that there is a large and growing number of Latinos behind bars. In 2004 we looked at the issue closely for our book, “Lost Opportunities: the Reality of Latinos in the U.S. Criminal Justice System” and we had three major findings.

The first finding is that there is no adequate data collected that is separated by race and ethnicity. For decades we didn’t know the extent of the problem. According to government data, there were no Latinos in the justice system; we were an invisible population, because Latinos were mostly counted as white and occasionally as Black.

Having an inaccurate count of who is in prison leads to problems down the road. For example, there aren’t enough court interpreters, and the kinds of services people receive inside prison -- as well as re-entry services -- are not tailored to respond to the needs of Latino prisoners who may have language barriers.

For the last eight years or so data collection has improved significantly, and now we have a much better picture of the numbers of Latino in the federal criminal justice system.  Unfortunately, data collection at the state level is still a problem; its accuracy varies from state to state.  For example, in states like California and Florida where the Latino population is large and well established, data may be collected accurately; however, in states where the Latino community is growing, like in North Carolina or Iowa, data on Latinos in the justice system is still lacking. This will lead to recidivism, as I’ll discuss in a moment.

The second finding was that the majority of the people who are involved in the federal criminal justice system are serving time for non-violent offenses. The first kind is nonviolent, drug-related offenses: possession, for example. Then there are also status violations, such as immigration violations. The vast number of Latinos in the federal system are in for those two types of offenses.

The last finding was that Latinos do not have access to programs that are culturally and linguistically appropriate. From the front end of the system (arrest), to court, to post-adjudication, to sentencing and re-entry, we know people are not being served; there are not equal opportunities to access programs. For example, we know there are Latinos who need drug treatment and mental health services, and of course there are not enough of these services to begin with, but then when they finally make it to the top of the list, they find that they the programs available don’t work for them because they may not speak English well and they are unable to take full advantage of the programs. This in turn will decrease opportunities for them to get well and to prepare themselves for re-entering society. This is related to the problem of not knowing how many Latinos there are who need the programs.

JM: So, in the jurisdictions where we do see an over-representation of Latinos, why is that happening?

AA: If we take the system from the beginning to the end, we see the discrepancies all along. Latinos are disproportionately targeted for traffic stops and arrest. With respect to immigration, we are more likely to be stopped and questioned, including at the workplace, and in predominately Latino neighborhoods.

When it comes to court and pre-trial, we know that Latinos are less likely to be released pre-trial than their white or Black counterparts.

If we keep going down the line, there is a deficit in indigent defense (public defenders). The limited numbers of attorneys are not able to speak Spanish and are not well-trained to know the impact of felony convictions on immigration status. Often public defenders recommend that someone plead guilty, but in immigration, that could have dire consequences.

JM: And let’s talk more about the immigration detention system.

AA: First I’ll point out that being in this country illegally is not a criminal offense; it is a violation of civil law not criminal law. Immigration violations should not be punished in the same way as criminal violations.

A violation of civil law, for example, is when an employer discriminates against an employee. That is unlawful, and the employer is punished by getting a fine, but they don’t go to prison -- there are other options for employers who violate civil law. But for immigrants who are here illegally and violate the same type of law -- civil law -- they are taken to special Immigration and Customs Enforcement (ICE) facilities, specifically for immigrant detention, or sometimes they are taken to local jails and prisons that contract with ICE.

Even though they haven’t broken a criminal law, immigrants may wind up confined with people who have been convicted or are being detained for violent offenses.

For example, when the police arrest a person who has assaulted his wife and stabbed her, the very same officer can grab someone later who was drinking in public and then was disorderly when police stopped him --- and he’s an undocumented immigrant. Both these folks will go to the same jail, spend the same 12 hours together, but the batterer might be released after 12 hours, and the immigrant will stay there. One reason is because of the perceived flight risk, and another is that a lot of jurisdictions are unclear on their responsibilities to notify ICE. So we know that there are immigrants who stay in jail a long time while the local authorities try to figure out what to do.

JM: And can you talk about what it means that in some communities, police now actively enforce immigration law?

AA: Right after September 11th, Florida deputized 36 regular law enforcement officers to enforce immigration law. Regular police officers are charged to protect the community from burglaries, assault -- their mandate is not to look for people who have violated civil laws like employment or immigration laws. But after September 11th, there was a perceived shortage of people who could investigate people who were possibly here illegally.

There has been a wave of states -- on their own -- directing their local police officers to enforce immigration law. This varies from jurisdiction to jurisdiction. One problem is that officers receive limited training; in some instances we’ve heard that the training consists of watching a video. But immigration law is very complex and merits more in-depth training.

Secondly, like all communities, the Latino community wants the police to keep us safe. But because now police are enforcing immigration laws, there’s a hesitancy to call police when there is an attack going on. There’s fear that the police will ask everyone involved for papers. Even if a person has papers, others in their family may not have them. The reality is that many immigrant families are mixed-status; and as a result a lot of the gains of community policing (the push for police to partner with communities to increase public safety) have been shattered by this change in police practice.

JM: I think sometimes once people start to think about using prisons to address a problem, it’s as if they forget about other options. How should we be responding to our problems with immigration?

AA: We need to fix our immigration system. There needs to be a realistic understanding of our country’s labor demands, and a way for immigrants to be able to come here legally for seasonal work.

We need to make sure there is a way for people who have been living here for years to incorporate into society, to leave the shadows. Immigrants are working, paying taxes, and taking care of children. Immigrants are part of our economy and we need to have realistic expectations of who they are, what they can do, and a path to citizenship for all the people who have been here for years. Paying a fine, learning English, that’s building the path. There are a lot of possible solutions besides incarceration.

But by focusing on incarcerating immigrants for immigration offenses -- including current proposals for even more immigration detention prisons -- we're wasting valuable resources that could be invested in more effective, long-term solutions to fixing our immigration system.

This interview originally appeared in the Summer 2007 issue of Justice Matters.