Thursday, August 7, 2008

How Early Release Turned into Indefinite Detention: Criminal Alien Laws from the 1990s

I've been writing this summer about David, a US citizen who should have been paroled in 2005 but continues to be held in Hancock State Prison in Sparta, Georgia because of wrongfully initiated deportation proceedings that have twice been terminated by an immigration judge. Nonetheless, the Department of Homeland Security attorneys continue to appeal and the Georgia Correctional Authority continues to hold David. (To read more on this case, see yesterday's post and also the posts tagged David.)

Why is this Happening?

Yesterday's post ended with a quotation from David's attorney's response to the DHS appeal charging them with failure to carry out their duties as government officials to the rule of law and justice. Neil Rambana alleged a procedural quagmire depriving David of his liberty.

Why the quagmire? What kind of quagmire is this, exactly? It turns out that David's situation is not an esoteric anomaly but symptomatic of a quiet scheme whereby state prisons and the INS and now DHS were collaborating to rip off the federal government and deport aliens without due process.

As readers of “Thin ICE” may have noticed, some of the detentions of US citizens I describe were occurring before 9-11. The mechanisms for deporting US citizen are not the result of a newly over-vigilant DHS but were put in place during the Clinton administration.

In 1994, just before the elections that gave Republicans a majority and elevated Newt Gingrich to Speaker of the House, Congress passed the most expansive and expensive crime bill in history. One key part aimed at deporting aliens who were convicted of a felony. The ostensible goal was budgetary: in exchange for identifying criminal aliens and targetting for early parole on condition of deportation those convicted of nonviolent offenses, Congress was going to reimburse the state prisons and jails for alien inmates. The funds appropriated for this purpose alone were enormous:
`(A) $130,000,000 for fiscal year 1995;
`(B) $300,000,000 for fiscal year 1996;
`(C) $330,000,000 for fiscal year 1997;
`(D) $350,000,000 for fiscal year 1998;
`(E) $350,000,000 for fiscal year 1999; and
`(F) $340,000,000 for fiscal year 2000.

The program has been reauthorized and is now called the State Criminal Alien Assistance Program.

Subsequent authorizations were between $250 and $565 million per year.

In other words, Congress wanted to give states an incentive to identify and deport criminal aliens. The outlay in federal expenditures, the thinking went, would be dwarfed by the savings from states not having to care for another country's criminals. A requirement for the funding is that states house all those classified as criminal aliens in maximum security facilities.

Even before the measure was implemented it was clear that the states realized that this was a huge bonanza for them, and that the big money was not going to be from the early release of inmates, but from the federal funds coming to them once they identified their inmates as aliens. Here's what the Texas legislative analyst wrote of the program in the 1994 Identify All Incarcerated Illegal Aliens and Deport Eligible Nonviolent Criminal Aliens:

The recently passed federal Violent Crime Control and Law
Enforcement Act of 1994, popularly known simply as the "Crime Bill," creates an additional incentive to identify all incarcerated illegal aliens. The bill provides that the federal government will compensate states and local jurisdictions for the average cost of incarceration of undocumented criminal aliens.11 Any enhancement to TDCJ's current method should improve its ability to properly identify undocumented aliens.

Later the report states:
The major gains to general revenue would be in the form of additional federal aid received under the Crime Bill for compensation to the state for the incarceration of illegal aliens.

In 1996, this measure was further strengthened through the Illegal Immigration Reform and Immigrant Responsibility Act, a law designed to harm immigrants in many ways, including by depriving them, and therefore also citizens, of due process rights during immigration proceedings. The bill lowered the threshold for deportation to a felony OR two misdemeanors, and it added language bolstering the criminal identification and deportation program:
“To the extent of available appropriations, funds otherwise made available under this section with respect to a State (or political subdivision, including a municipality) for incarceration of an undocumented criminal alien may, at the discretion of the recipient of the funds, be used for the costs of imprisonment of such alien in a State, local, or municipal prison or jail.” (Sec. 328).

The bill further states that “Of the $130,000,000 appropriated in fiscal year 1995 for the State Criminal Alien Assistance Program, the Department of Justice disbursed the first $43,000,000 to states on October 6, 1994, 32 days before the 1994 general election, and then failed to disburse the remaining $87,000,000 until January 31, 1996, 123 days after the end of fiscal year 1995.” This section goes on to complain that the States are owed $66,000,000 in funds for housing “documented illegal immigrant felons,” when in fact the people identified as “illegal” were never given hearings before this designation was assigned. (Section 328).

If Congress only pays for aliens, then the state prisons can ask the federal government to pay for anyone's incarceration by designating them aliens. Since there are no hearings to determine or even appeal this, the only losers are the inmates. (Section 250 gives the INS the authority to deport people who have records of criminal convictions and Section 328 provides the rules for implementing this policy through the prisons.)

Sure enough, this is exactly what happened to David, giving Georgia Correctional Authorities an incentive to not only misclassify a US citizen as an alien, but also to hold him for a period longer than he would otherwise be incarcerated. Each day David is held means more money going to the Georgia state prisons.

The evidence for this is as follows:

-The Notice to Appear form used for David's initial reclassification in 1999 was printed in 1997 by the INS as part of “removal proceedings under section 240 of the Immigration and Nationality Act,” relying on the section allowing for the use of state records of a criminal conviction to be grounds for the removal of aliens.

-The form used for David's parole is one that was issued in 8/95 and titled: “Order of Conditional Transfer to I.N.S. Detainer, with Detainer.” Its language is consistent with the 1994 law.

It states that the Georgia State Board of Pardons and Parole has been

“informed by the United States Department of Justice Immigration and Naturalization Service that the subject of this Order is an alien subject to deportation, and the Board finds the welfare of the citizens of Georgia and the orderly administration of this state's penitentiary resources would be best served by an action allowing the subject of this Order to depart Georgia custody for the sole and limited purpose of enabling such actual deportation action to occur.”

The order concludes, “Failing actual deportation, the subject of this Order shall be returned to Georgia custody to resume service of all sentences without credit for the time lapsing while out of Georgia custody.” This means that David's prison sentence could be extended an additional 8 months, the amount of time he was released for deportation proceedings into ICE custody.

-If the incarceration of 8 years for a prison sentence of ten years for a nonviolent crime is not sufficient evidence in itself of Georgia pocketing the federal per diem money for housing aliens, rather than releasing them early, then perhaps the direct statement of a Parole Board officer should suffice. In mid-July, before I saw a copy of David's "early" parole on condition of deportation order, I had been asking various Georgia prison officials whether aliens who were paroled on condition of deportation were paroled and deported earlier than they would be if they had been citizens, or whether they served the same length in prison that they would serve if they were US citizens.

Most prison officers said they had wondered about this themselves and didn't know. But when I finally found someone in a policy-making position in the Parole Board office, here's what he said: “If the Parole Board in Georgia makes a decision to grant parole, they don't make it earlier than what it would be if they do not have an ICE detainer.” He reiterated the point later in the conversation, as I was asking about the particulars of David's case, “Just because they have an ICE detainer does not mean we will consider them [for parole on condition of deportation].” This is a direct violation of the federal law under which Georgia is receiving compensation for their criminal aliens.

During this conversation, I pointed out the contradiction of this officer conceding that for David to be paroled on condition of deportation he would have had to have served his entire sentence and him also stating that David would be reincarcerated rather than released after the judge issued an order terminating his deportation proceedings.

If they only release people for conditional parole who have served out their sentences, then on what grounds can these people be returned to prison if ICE does not deport them?

His reply: “This conversation is over.”

After reading the language of the so-called early deportation orders, the travesty of law and justice become even more clear. Georgia is using David to line the coffers of their prison system. Georgia saves money only if it releases people classified as US citizens. It earns money by holding people it helps ICE classify as aliens, even if these people are also US citizens denied due process necessary for them to maintain their citizenship rights, including at minimum protections again wrongful imprisonment.

Tomorrow: Habeas petition filed for Maryland inmate in similar situation.

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