Immigration control & crime and punishment are inexorably woven into the social fabric of CA history. By the 1890’s, the Native populations had been decimated by way of cultural genocide, Mexican dispossession of CA was complete, and Anglo-American settler occupation was in full bloom. Infused by Manifest Destiny, these settlers believed the bounties and resources of CA belonged exclusively to them and their families. The post Gold Rush era set in motion an explosive xenophobic movement that targeted Chinese extinction and forever altered the carceral landscape of CA. Through the lens of immigration we can better understand the foundation of incarceration as a tool for social control in CA society in ways that look shockingly familiar to the features we observe today.
As the California indigenous populations declined, Chinese immigrants rapidly became the largest nonwhite population in CA. Chinese immigration was immediately perceived as a threat to the fantasy of Manifest Destiny by Western settlers. Anglo-American settlers asserted political dominance over CA society by passing anti-Chinese legislative acts that consolidated Anglo-American power. During the Gold Rush, the Foreign Miners Tax charged non-citizens a hefty fee to mine. CA also denied Chinese immigrants the right to vote and banned them from testifying against whites or sitting on juries. Settler law allowed whites to assault, kidnap, or even murdered Chinese immigrants without legal consequence. This reign of terror culminated in the 1871 Chinese massacre in Los Angeles in which 500 whites mobbed Chinese neighborhoods, setting fire to homes & businesses, before torturing and lynching 17-20 Chinese immigrants. This event was the largest ever mass lynching in American history.
Despite oppressive conditions in which Chinese immigrants faced wanton theft and violence at the hands of whites, they continued to arrive each year by the thousands. In response, the Geary Act of 1892 transformed Western hopes of expelling Chinese immigrants into a formal legislative proposal that aimed to ‘absolutely prohibit the coming of Chinese persons into the United States’. The Geary Act required all Chinese laborers to apply for a certificate of residence, but they could only secure this certificate on the testimony of a credible white witness who could confirm they arrived prior to 1882. Any Chinese immigrant who failed to comply with the Geary Act was subject to imprisonment at hard labor for a year and/or immediate deportation. This new law marked a sweeping expansion of immigration control and married immigration to crime and punishment in a historically unprecedented and constitutionally dubious fashion.
In May of 1893 the Supreme Court held an emergency session to hear its very first deportation case under the Geary Act. Fong Yue Ting v. United States rested on the central issue of implementing a criminal punishment — deportation — without due process of the law. The Supreme Court unequivocally deferred to Congress’s plenary power over matters of immigrant expulsion and concluded no authority to intervene. Further, the Court decided that deportation was not a criminal sanction, which would trigger constitutional protections, but, rather, an administrative process not subject to due process protections. In other words, deportation was found not to be imprisonment in a legal sense. That’s insane, folks. Deportation is, by definition, punishment. It involves an arrest, deprival of liberty, removal from one’s family, home, and community, and being sent away to a distant land. This case still stands as good law today and has shaped the contours of immigration law for over a century.
Since 1896, federal authorities have conducted over 50 million deportations and forced removals from the United States. According to the Fong Yue Ting ruling, none of the millions of deportees were imprisoned as a punishment for crime. Immigrant detention has emerged as one of the most dynamic sectors of human caging. So many immigrants clog correctional facilities in CA that private corporations like Geo Group have contracts to hold detainees in facilities throughout CA.
CA is home to more undocumented immigrants than any other state. Some observers may wonder why so many immigrants, including children and families, are caged in jails and detention centers. Others may wonder why more cages aren’t being built. Few may understand that a settler law from 1892 built the structure of immigration control we live in today. Deportation no longer explicitly target Chinese immigrants, but the regime of immigration control is no less racialized. The criminal justice system, or in this case the domain of civil law, has long been used as a vehicle to perpetuate a caste based society in CA. This blogger happens to believe that no human beings are ‘illegal’.