Last week, the U.S. Bureau of Prisons began the highly touted “early release” of 6,000 people from federal prison. As expected, the usual suspects have responded by propagating fear about people with criminal priors while others are celebrating it as a logical next step in criminal justice reform. Perhaps others, still, will take credit for leading the largest early release in U.S. history. Few, however, are talking about one third of those eligible for release that are not being released at all.
Led by the U.S. Sentencing Commission, the release reflects the national consensus supporting reforms to address overcrowded prisons and archaically punitive drug sentences. After years of demands for meaningful reform, this should be a historical moment. Instead, the Department of Homeland Security (DHS) is using immigration status to undermine sentencing reform.
It turns out that about 2,000 of those eligible for early release are noncitizens, including Legal Permanent Residents, facing continued incarceration and deportation. This, in spite of a determination made by an independent federal agency that concludes they have served a complete fair sentence and now qualify to be free people.
The justification by some has been simplistic but offensive: These 2,000 will be “happy that they’re being released” even if they are “going home to another country.” Undoubtedly, few of the 158,000 individuals currently fighting their deportations would agree with that take.
Instead of truly being sent “home“ —to their families in the U.S.— one third of the individuals who have served their time and been identified for early release will be transferred to another federal prison: immigration detention. And in further disregard for the significance of a sentenced-served, DHS will then deport them.
Is subjecting people who have served their time (and been identified as eligible for early release) to prolonged detention and deportation anything less than punishing someone multiple times for a single act? Such an arrangement should offend our collective notion of justice and learned aversion to double jeopardy. At what point do we reject DHS’s use of immigration status to undermine progress on criminal justice reform and the finality of criminal sentences?
To make matters worse, those who have possible claims for relief will likely not have a lawyer. The fortunate few who have access to counsel can pursue a form of relief at the expense of remaining in detention even longer because of the low likelihood a judge will grant bond. Per usual, it is up to already impacted legal service providers and immigrant rights groups to carve capacity out of thin air to serve the 2,000 potential new clients. This is a crisis of access to justice.
Whether we’re talking sentencing or police impunity, criminal justice reform will require an accounting for the decades-long conflation between immigration and criminal law. Such an accounting is necessary, now, so that immigration will cease to be an excuse for more unconstitutional stops by the police. So that Sheriffs will be subject to accountability for their subhuman treatment of immigrants. So the presence of federal immigration officials in our local jails will no longer go unquestioned. And so that deportations can no longer be used to undermine the victories of criminal justice reform.
Until then, DHS’s use of deportations to cut corners on sentencing reform means that a woman —a sister, daughter, and mother— previously identified for early release will sit in immigration detention with the looming threat of imminent deportation, lamenting, “we never even saw the sunlight.”
Monika Langarica is a first-generation Chicana from southeast San Diego, CA, a graduate of U.C. Berkeley School of Law, and a Fellow at a nonprofit providing immigration services. She seeks to interrogate the conflation of the systems of criminal and immigration law. Follow her on instagram and twitter: @mylangarica