Alan Stanley
Wed, 11/03/2021 - 06:40
Edited Text

Keiler Taylor Beers
A thesis submitted in partial fulfillment of the requirements for
graduation with Honors in Politics.

Whitman College

Eloy Detention Center, operated by Corrections Corporations of America.
Photo taken by Keiler Beers, April 2013, in Eloy, Arizona.


Certificate of Approval
This is to certify that the accompanying thesis by Keiler Beers has been accepted in
partial fulfillment of the requirements for graduation with Honors in Politics.

Jack Jackson

Whitman College
April 25, 2014


This project would have been impossible without the many figures of support I relied
upon throughout the process.
I want to thank Jennifer Devine for making me slow down and articulate why this project
mattered in the points when I needed that most. Paul Apostolidis has been a tremendous
guide and a mentor for three years now, and my college experience was richer because of
him. Thanks to Shampa Biswas, for opening my eyes for the first time—I’ll never look at
the world the same again. Susanne Beechey kept me sane at this school, and always
reminded me to breathe. Melisa Casumbal and Bruce Magnusson both provided me with
fresh tools to approach this project when I was stuck in neutral. Keith Farrington
encouraged me to pursue the project from the very beginning. I also want to thank Jack
Jackson for pushing me at every stage along the way, and challenging me to think deeper
about my argument.
To Austin, Ethan, Kemper, and Meg—big love and thanks for putting up with me and my
rants about this stuff for the past year. Huge admiration and gratitude go to Kate,
Genevieve and Julia for constantly reminding me why this was important, making me
care about it, and being there almost every day for the past year to hold my hand
throughout the process.
Without Amanda, Riley, Jeff and Katie at the Earlham College Border Studies Program
this project would never have existed. Thank you, without exaggeration, for shaping the
path my life is taking.
Finally, I want to thank the entire Taylor clan, especially my parents, for making me the
semi-adult I am today, and for supporting me every step along the way.


Table of Contents
Acknowledgements ......................................................................................................... iv
Table of Contents.............................................................................................................. v
Section I: The “End” of Slavery .................................................................................... 1
Section II: Slavery as Exception...................................................................................... 2
State Bondage: Shifting Spheres of Subjection........................................................6
Section III: Rise in Racialized Mass Incarceration ...................................................... 9
The Racialization of Prisons ................................................................................ 13
Objective Suffering: Prisons as a Site of Violence......….......................................17
Section IV: Immigrant Detention as Systemic Slavery .............................................. 21
The Othering of Migrants ………………………………………….…………….22
The Construction of Illegality……………………………………………………25
The Circular Flow of Human Migration………………………………………...28
The Rise of Private Prisons…………………………….………………………...30
Beyond Prisons......................................................................................................34
Section V: Conclusion.........…......…..........................................….................................35
Section VI: Works Cited ...............................................................................................38


On January 31st, 1865, after considerable debate, Congress passed the 13th
Amendment to the United States Constitution, marking the formal abolition of the
institution of slavery within the U.S. and its territories. However, the text of amendment
also includes a consequential caveat: slavery and involuntary servitude were ruled illegal
“except as a punishment for crime whereof the party shall have been duly convicted.”
The effects of this exception are perhaps underestimated; while recent scholarship has
brought attention to its existence and the ensuing consequences for emancipated slaves,
its relation to other contemporary institutions of racial control has not been extensively
explored. The sheer breadth and magnitude of the horrors of chattel slavery in the
American South is unmatched by any other period in our country’s history. Thus, I find it
critical to note from the outset that my research does not aim to suggest that there could
be a completely identical form of slavery currently present in our country. To do so would
obscure the historical legacy of de jure chattel slavery by diminishing our collective
memory of the institution. It is neither useful nor appropriate to deny chattel slavery its
place in history as an atrocity bar none.
However, as most people of color know today, the abolition of institutional slavery
hardly marked the end of racial inequity, nor of white supremacy. Perhaps most
disturbing of all has been the rise of what Jonathan Simon calls “governing through
crime”: a deliberate practice on the part of the state to manage, control and regulate its
citizens by implementing increasingly punitive measures which direct massive numbers
of people into our nation’s prison system.1 At the end of 2012, there were more than 2.4


Jonathan Simon, Governing Through Crime  : How the War on Crime Transformed American Democracy
and Created a Culture of Fear (Oxford University Press, 2007).


million people incarcerated in U.S. prisons—nearly 2.9% of the country’s population.2
When you include residents on parole or probation—who are also under systems of
carceral control— the number skyrockets up to nearly 7 million. Despite being a
combined 30% of the country’s population, African-Americans and Latinos comprise
more than 60% of those imprisoned. Recently, the number of undocumented migrants
held in prison has also dramatically increased, and nearly 30,000 are held in detention on
any given day.3
Given that there is a disparity in penal representation, and even a racial under caste
that has persisted for centuries in this country, my research asks, what are the links
between antebellum U.S. chattel slavery and current systems of mass incarceration? In
what ways is the unequal and systematic incarceration of African Americans a form of
slavery with connections to the past, but particular to the present? How could privately
owned immigrant detention facilities, as part of a larger prison industrial complex, both
illuminate and complicate these connections?

On March 30th, 1908, Green Cottenham, a 22 year old black man, was sentenced
to a year of hard labor without pay. He had been convicted of vagrancy after not
being able to show proof of employment to the sheriff of Shelby County, Alabama.
Unable to pay the vast array of fines assessed for this crime, he was held in
prison for three days before being sent to the Slope 12 coal mine, where he died
barely four weeks later of tuberculosis.4
Even immediately following its enactment, the Thirteenth Amendment would prove
unable to protect former African slaves from falling into the same state of subjection that

Lauren E. Glaze and Erinn J. Herberman, Correctional Populations In the United States, 2012 (Bureau of
Justice Statistics, December 19, 2013).
Banking on Bondage: Private Prisons and Mass Incarceration (New York, NY: American Civil Liberties
Union, 2011): 16
Douglas A Blackmon, Slavery by Another Name: The Re-enslavement of Black Americans from the Civil
War to World War II (New York: Doubleday, 2008). A full account of Cottenham’s plight is outlined in
Blackmon’s book.


had previously controlled their lives. In the years following the Civil War, economic
chaos and a decimated infrastructure wrecked havoc upon the South. State governments
were in deep debt due to their tremendous expenditures during the war, and with the
abolition of slavery an economy that had become one of the most prosperous in the world
because of the slave labor African chattel slaves provided was on the verge of collapse.5
After leaving their plantations, freed slaves wandered the country in search of work,
causing panic and outrage among whites who feared retribution for their past violent
rule.6 The unexpected presence of nearly 4 million newly freed slaves threatened not only
the wealthy planter elite, but even lower-class whites who suddenly found their one mark
of superiority—their race—eliminated. Desperate to reclaim their position in a
hierarchical society, white leaders in nine Southern states enacted a set of laws known as
the Black Codes, which sought to undermine Radical Reconstruction and the fundamental
aim of the Thirteenth Amendment.7
An infamous example of these laws was the Vagrancy Act of 1865, which required
all free blacks to carry written proof of employment; one’s failure to do so would result in
a conviction of “vagrancy” with a fifty-dollar fine.8 If one could not pay the fine, any
white man who was willing to pay it could hire out her or him. Since preference was
given to the vagrant’s former master, many ended up being returned to the same place

Alexander C Lichtenstein, Twice the Work of Free Labor: The Political Economy of Convict Labor in the
New South (London; New York: Verso, 1996): 4.
Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York,
NY: The New Press, 2010): 28.
David Oshinsky, “Convict Labor in the Post-Civil War South: Involuntary Servitude After the Thirteenth
Amendment,” in The Promises of Liberty: The History and Contemporary Relevance of The Thirteenth
Amendment, ed. Alexander Tsesis, (New York: Columbia University Press, 2010), 100. “Radical
Reconstruction” referred to a movement among self-proclaimed Radical Republicans who came into power
during the elections of 1866 and pushed for sweeping political changes to promote full equality for
African-Americans. Eric Foner’s A Short History of Reconstruction: 1863-1877 is an excellent brief on the
Douglas A Blackmon, Slavery by Another Name: The Re-enslavement of Black Americans from the Civil
War to World War II (New York: Doubleday, 2008). 53


where they had previously been enslaved.9 While this law, and others like it, was
selectively applied to directly target blacks, there were some laws that explicitly targeted
“free Negros.” For example, whites took advantage of the ambiguity of laws prohibiting
only blacks from engaging in “mischief, insulting gestures, and the vending of spirituous
or intoxicating liquors” to vigorously prosecute those who dared to subvert their
traditional role as a subhuman commodity.10 Even for a minor crime like public
drunkenness, prison was threatened for those who could not pay the stated fine. Of
course, since freed blacks were unlikely to be hired by a white employer, and nearly all
had no property or savings, virtually none had the financial resources needed to avoid
imprisonment. Following their brief incarceration, convicts were leased to former slave
owners who were eager to reclaim a labor force that required minimal expenses. This
suggests that ever since the abolition of formal slavery under the 13th amendment,
incarceration has played a critical role in coercing and controlling racialized and
exploited bodies.
David Oshinsky details the material conditions of convict leasing where former
slaves were brought from the prison to work under conditions virtually indistinguishable
from their former plantations. On private or prison farms, the convict laborers were
forced to sleep on bare ground and received frequent lashings for poor performance. “Not
a single leased convict,'' Oshinsky notes, ''ever lived long enough to serve a sentence of
10 years or more.''11 Indeed, his startling claim that convict leasing was “worse than
slavery” is legitimized by his explanation that, unlike under chattel slavery, lessees had
no economic incentive to treat their prisoners well. After all, chattel slaves had been a

Ibid., 101
David M. Oshinsky, Worse Than Slavery (Simon and Schuster, 1997): 46.


substantial capital investment for their owners, whereas a convict could be quickly—and
cheaply—replaced if they were to die. Even after the system of convict leasing was
abolished in the 1880’s, these men (and they were mostly men) were transferred to local
prisons. In Mississippi, the system was replaced by the Parchman Farm, a prison on
20,000 acres of cotton fields used between 1904 to the 1930’s. Oshinsky describes the
farm, essentially a plantation, where white guards and supervisors kept armed watch over
black prisoners as they picked thousands of bales of cotton.12 Both Parchman and the
larger system of convict leasing might have been found unconstitutional, but the
exception provided by the Thirteenth Amendment allowing for enslavement of convicted
criminals prevented such rulings.
This practice of black convict leasing served multiple purposes. First, it acted as a
cushion for the Southern economy in the post-War recovery by continuing the practice of
free labor. It lowered the tax rate for whites and generated revenue needed for
reconstruction of schools, roads and other infrastructure.13 Farms that required a colossal
(and free) labor force stayed afloat when they had seemed destined to dissolve.14 Most
importantly, the system maintained the belief in white supremacy when a racial paradigm
shift would have been, to former slave owners, catastrophic. Thus, convict leasing made
continued economic development of the South compatible with the maintenance of racial
domination. The resurrection of the sight of black bodies working under white
supervisors rekindled the dominant narrative of racial superiority. As Oshinsky notes, “In
a region where dark skin and forced labor went hand in hand, convict leasing became a


Ibid., 160.
Oshinsky, “Convict Labor,” 105.
James L. Roark, Masters Without Slaves: Southern Planters in the Civil War and Reconstruction, First
(Toronto: W.W. Norton and Company, 1977).


functional replacement for slavery, a human bridge between the Old South and the
New.”15 He demonstrates that the formal abolition of slavery meant very little in terms of
the manner in which blacks were regarded, as convict leasing under the rule of the 13th
amendment’s punishment exception allowed for the subjugation and control of the very
people the amendment promised to free.

State Bondage: Shifting Spheres of Subjection
However, these laws did far more than just reinstate previous relations of forced
labor. While these restrictions sought to reclaim the same racial order that had existed
pre-Emancipation, they also instituted a shift towards state, instead of private,
management of blacks. Oshinsky explains, “Following emancipation, black crime and
punishment moved well beyond the plantation. Thousands of former slaves were now
being arrested, tried and convicted for acts that had once been dealt with by the master
alone.”16 Black crime, then, had become an offense against the state, rather than against
just an individual. The state had shifted from regulating to inflicting punishment and
control, as whites were no longer able to personally mete out arbitrary punishment to
their former black chattel. It is at this moment, I argue, that subjection of non-whites
began to adapt to become primarily a form of state violence, instead of state-sanctioned
private bondage.
It is important to note this system of violence was not due exclusively—or even
primarily—to the moral failings of individual actors. Indeed, Sadiya Hartman’s Scenes of
Subjection reveals how ostensibly liberal, anti-slavery reforms by the state actually
strengthened the growing racial caste. Liberalism’s reliance on abstract visions of

Oshinsky, “Convict Labor,”105.


universality, and the efforts to diffuse equality, inevitably resulted in apportioning of
individual responsibility for acts of racism instead of an indictment of the state.17 Since
the formal abolition of the institution, and the conferring of certain rights, would seem to
negate claims for racial subjection, the conditions post-antebellum clearly demonstrate
that it was the state, and not individual actors, that wielded ultimate control over the
former slaves. She says,
Although it appeared that the state refused to intervene into the private by declaring
it a law-free and voluntary sphere, the state was already there and actively
governing the conduct of individuals. This disavowed regulation of the private
engendered the subordination of blacks while claiming the noninvolvement of the
state…The innocence of the law…and the state…was maintained by denying the
public character of racism and attributing it to individual prerogatives.18
Even though the government had put into place political reforms that ostensibly promoted
equality (such as the 13th Amendment), its refusal to govern individual behavior
promoted the beginning of the fallacy of a “color-blind” state. Under this narrative, it
could be only the cruelty of those who had leased black convicts, and not a failing of the
state, which accounted for the continued discriminatory treatment of freed slaves.
Nevertheless, many texts dealing with post-Reconstruction race relations,
including Oshinsky’s, fail to take into account the possibility that the forms of racial
subjection that allowed for the continuation of slavery did not end with the convict lease
system.19 Hartman expertly exposes the inaccuracy of this claim by examining Plessy v.


Saidiya V. Hartman, Scenes of Subjection: Terror, Slavery, and Self-Making in Nineteenth-Century
America (New York, NY: Oxford University Press USA, 1997), 122.
Hartman, 201
Douglas A Blackmon, Slavery by Another Name: The Re-enslavement of Black Americans from the Civil
War to World War II (New York: Doubleday, 2008); Matthew J Mancini, One Dies, Get Another: Convict
Leasing in the American South, 1866-1928 (Columbia, S.C.: University of South Carolina Press, 1996);
Alexander C Lichtenstein, Twice the Work of Free Labor: The Political Economy of Convict Labor in the
New South (London; New York: Verso, 1996). Each work draws important attention to the system of
convict leasing but does not consider the possibility that enslavement continued after this institution’s


Ferguson, the infamous 1896 Supreme Court case that upheld segregation on the grounds
of “separate but equal”, to show that such limited framings of slavery had deleterious
effects. When there was a suggestion that the racial segregation plaguing the plaintiff,
Plessy, constituted a badge and incident of slavery, the court responded by narrowly
defining slavery exclusively as chattelism, or the ownership of one human being by
another.20 As a result,
The subjection of blacks fundamental to slavery and the antebellum social order,
as well as the public nature of the institution, was denied, thereby enabling the
Court to conclude that the legal distinction between the white and colored race
had ‘no tendency to destroy the legal equality of the two races, or reestablish a
state of involuntary servitude.’ In this regard, Plessy’s interpretation of slavery
sanctioned segregation precisely by minimizing the scope of slavery, denying its
extant legacy, and intensifying its badges and incidents.21
What makes the court’s interpretation so significant is that, from the outset, the ability of
the Thirteenth Amendment’s clause granting Congress the power to address the badges
and incidents of slavery was limited not only by the clause exempting punishment, but by
the court’s insistence that slavery could only be defined as private ownership of another
person. While an author like Oshinsky would no doubt contest the comparison of his
argument to the court’s decision in Plessy, it is precisely this unwillingness to see slavery
in anything other than human chattelism or forced labor that, I argue, allowed new
institutions of racial domination to emerge in the next century.
Thus, not only has the Constitution sanctioned slavery as an appropriate form of
punishment for a crime under the 13th Amendment, but the Supreme Court has officially
codified a limited interpretation of slavery exclusively as the ownership of another human

abolition in the 1920’s. Indeed, Blackmon’s book includes the subtitle “The Age of Neoslavery” with
discrete beginning and end dates, suggesting that this epoch came to a defined close.
Hartman, 194.


being. As previously mentioned, any suggestion of a current form of slavery is not
intended to obscure the historical memory of our nation’s very recent brush with the
practice’s most odious form. But, as I will argue, both incarcerated African-Americans
and undocumented Latino migrants in detention are subjected to a form of racialized
oppression that can also be constituted as a form of slavery. This regime of enslavement
post-Antebellum is predicated upon a system of objective violence that entails
criminalization, incarceration, and racial control.

On July 15th, 1995, a 33 year old black man named Curtis Wilkerson committed a crime
that would get him sentenced to life in prison. He stole a pair of socks, valued at $2.50,
from a mall store in Whittier, California. Because he had two prior convictions (both
nonviolent offenses for a pair of robberies he committed in 1981, when he was 19), he
was sentenced to life in prison under California’s Three Strikes Law, which mandates 25
years-life for a third felony charge.22
In the wake of several legal victories in the middle of the 20th century, many
envision the United States as having undergone a fundamental shift away from any form
of institutional racism. To be sure, court decisions like Brown v. Board of Education and
legislative acts such as the Civil Rights Act of 1964 did alter the legal landscape for many
African-Americans by giving them legal recourse to fight discrimination in domains such
as public schools and the voting booth.23 Slavery, under this narrative, was a horrific stain
on the country’s history that bears no relevance to the present day. After all, the country
elected a black man to the White House, signs saying “Whites Only” are gone, and public
lynchings of blacks, though disturbingly frequent during the early half of the 20th

Matt Taibbi, “Cruel and Unusual Punishment: The Shame of Three Strikes Laws,” Rolling Stone, March
27, 2013.
Of course, even these victories have been recently undermined. In 2013, the Supreme Court gutted the
heart of the Voting Rights Act by invalidating sections which required federal approval for redistricting and
local practices. Chief Justice John Roberts defended the decision by saying “our country has changed”: a
disturbingly cogent example of colorblind rhetoric positing our nation as beyond racial inequity.


century, no longer occur. It is out of this myopic viewpoint focused on highly visual
markings of progress that terms like “post-racial” and “colorblind” emerge, suggesting
that whatever discrimination people of color still face results from aberrant prejudice of
individuals, and not a racially-biased system. In the wake of President Barack Obama’s
2008 election, Dr. John McWhorter, a senior fellow at the Manhattan Institute, claimed
"It's smack down to think America is still all about racism. Racism is not Black people's
main problem anymore. To say that is like saying the earth is flat."24 McWhorter’s claim
was one of many that suggested Obama’s election signaled an end to racial division in
this country.
On the surface, our nation does—mostly—operate under an officially colorblind
framework. There are no longer laws that specifically target individual races for separate
treatment, and race is a protected class under federal law for matters like employment and
housing. Thus, for many, the notion of a current racial caste and contemporary legacies of
slavery is inconceivable. However, this obfuscation of state-sponsored racism it is a
fantasy, and a harmful one. It results in a form of laissez-faire racism that blames nonwhites for their lower economic standing, instead of seeing how structural forces have
caused this imbalance. In fact, Hartman’s exposure of the fallacious “noninvolvement” of
the state in the subordination of blacks towards the end of the 19th century is equally
relevant to discussions of contemporary systems of racial control. Hence, I argue that the
legal, political framework of the United States is still fundamentally rooted in the same
network of racial subjugation that governed the practices of terror and white supremacy
outlined in the previous chapter. While this pattern of institutional racism affects nearly


Lydia Lum, “The Obama Era: A Post-racial Society?,” Diverse: Issues in Higher Education, February 5,


every sector of the United States, there is perhaps no system more indicative of the ways
in which the legacies of slavery have persisted than the criminal justice system. Most
germane to my specific argument is the rise in mass incarceration during the latter half of
the 20th century. Thus, in this chapter I outline a brief history of racial disparities in the
American prison system, arguing that it is an institution that has always been imbedded
with racial bias.
While “mass incarceration” seems to be synonymous today with criminal
punishment, it is actually a relatively recent phenomenon. Two principal features
distinguish it from traditional carceral punishment. First, mass incarceration “implies a
rate of imprisonment and a size of population that is markedly above the historical and
comparative norm for societies of this type.”25 Second is the “social concentration of
imprisonment’s effects.”26 Though widespread incarceration with no discernible group
target would not fit the definition, the past century’s patterns of incarceration plainly do.
Surprisingly, until the 1970’s, the prison population was relatively stable, and the
country’s imprisonment rate fluctuated mildly around 110 per 100,000 citizens, a figure
consistent with most democracies today.27 Many prominent penologists of the early-mid
20th century time actually predicted the steady decline of the prison as an institution of
punishment.28 They argued that an increasing distrust of government and a growing
antipathy towards prisons would lead to its eventual eradication.


David Garland, Mass Imprisonment: Social Causes and Consequences (London: SAGE Publications,
2001): 1
Ibid., 2
Todd R. Clear and Natasha A. Frost, The Punishment Imperative: The Rise and Failure of Mass
Incarceration in America (NYU Press, 2013): 19.
Ibid., 30.


However, during the 1970’s, beginning with President Richard Nixon, the United
States began a vigorous campaign called the “war on crime,” even though crime rates
were steady at the time. The specter of this “war” fed popular concerns over public safety
and in turn justified the further expansion of punitive forms of policing and justice. As a
result, the prison system expanded rapidly in the following decade. During the 1980’s,
each Republican candidate for president routinely made repressive measures—mandatory
minimum sentences for drug users, the reestablishment of the death penalty and
additional prison construction—centerpieces of their campaign.29 In the following
decade, President Bill Clinton recast himself, and the Democratic Party, as equally
“tough on crime,” employing measures such as hiring one hundred thousand additional
police officers to enforce drug laws.30
Due in no small part to the combined efforts of Presidents Clinton, Ronald
Reagan and George Bush Sr., the prison population spiked 790% since 1980.31 During
the entire 20th century, the number of federal and state prisons grew from 61 in 1923 to
592 in 1974, finally reaching 1,023 at the end of the century.32 This growth reflects, as
Joel Dyer notes without hyperbole, “the largest prison expansion the world has ever
known.”33 In the years between 1980-2000, the United States built more prisons than had
ever existed in the rest of the nation’s history.34 Today, 750 out of every 100,000
Americans are behind bars, a proportion unmatched by any other country in the world,


Marc Mauer, Race to Incarcerate (The New Press, 2006): 59-67.
Ibid.., 69.
Nathan James, The Federal Prison Population Buildup: Overview, Policy Changes, Issues, and Options.
(Congressional Research Service, January 22, 2013): 51.
Sarah Lawrence and Jeremy Travis, The New Landscape of Imprisonment: Mapping America’s Prison
Expansion (Washington, DC: Urban Institute Justice Policy Center, April 2004): 8.
Joel Dyer, The Perpetual Prisoner Machine: How America Profits from Crime (Basic Books, 2000): 2.
Lawrence and Travis, “The New Landscape of Imprisonment” 4.


even in nations under highly authoritarian regimes.35 Put in disturbingly stark terms, the
number of those incarcerated in the United States is greater than the combined
populations of Walla Walla, Portland (OR), Seattle, and the entire state of Wyoming.36
Therefore, while the sheer number of bodies driven into our prison system is itself
disturbing, I enter into a conversation that focuses particularly on the profound racial
disparities in these prisons.

The Racialization of Prisons
Any claims to a racially neutral justice system are instantly eviscerated upon
examination of the racial demographics of our nation’s prisons. More than 60% of our
nation’s prisoners are people of color, while only 40% of the country is a racial minority.
Put differently, one in every fourteen black men was imprisoned in 2006, compared with
one in every one hundred and six white men.37 Young black men face even steeper odds.
One in nine black men between the ages of twenty and thirty-five was behind bars in
2006.38 Perhaps most disturbing is the fact that a black child born today has a one in three
chance of being imprisoned at some point in their life. 39 If the child is white, their
chances fall to 1 in 17. These statistics plainly show the racial representation disparities
in prisons, but some argue that these figures accurately reflect crime rates, and that blacks
simply commit more crimes. This argument relies upon the false premise that policing is
performed in racially neutral ways—that every equal crime receives equal punishment.

PEW Center on the States, One in 100: Behind Bars in America 2008 (Washington, DC: PEW Charitable
Trusts, 2008), 5.
City and state populations taken from the 2010 United States Census. U.S. Census Bureau, “2010 Census
Interactive Population Search,” (accessed
March 7, 2014).
Thomas P. Bonczar, Prevalence of Imprisonment in The U.S. Population, 1974-2001, Bureau of Justice
Statistics, Special Report (U.S. Department of Justice, 2003).
Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York,
NY: The New Press, 2010): 100.
Marc Mauer, Race to Incarcerate (The New Press, 2006): 137.


However, research has consistently shown that police are more likely to patrol lowincome communities of color, and largely avoid, for example, white suburbs.40 As
Michelle Alexander notes, “Subjecting people to stops and searches because they live in
‘high crimes’ ghettos cannot be said to be truly race-neutral, given that the ghetto itself
was constructed to contain and control groups of people defined by race.”41 Thus, even
supposedly “colorblind” police tactics are inherently imbued with spatial tactics of racial
Alexander provides an especially cogent summation of the forces that drive these
racially imbalanced statistics, focusing almost exclusively on the War on Drugs and the
deleterious effect it has had on communities of color. Police conduct drug operations
primarily—and deliberately—in poor communities of color, leading to disproportionate
drug arrests of these groups, even though several studies have shown that all races use
drugs as nearly identical rates.42 While the majority of drug dealers are white, nearly
three-fourths of all prisoners charged with illegal drug distribution are Latino or black.43
Alexander also focuses on the “invisible punishment” that offenders face upon leaving
the prison, experiencing discrimination—legally— in nearly every sector of their new life
due to their criminal record. This results in what Loic Wacquant terms the “closed circuit
of perpetual marginality,” wherein ex-offenders are subject to a profound web of laws
and restrictions that collectively ensure their subsequent re-incarceration.44 This process


Douglas Smith, Christy A. Visher, and Laura A. Davidson, “Equity and Discretionary Justice: The
Influence of Race on Police Arrest Decisions,” Journal of Criminal Law and Criminology 75, no. 1 (1984):
234–49; William J. Chambliss, “Policing the Ghetto Underclass: The Politics of Law and Law
Enforcement,” Social Problems 41, no. 2 (May 1, 1994): 177–94.
Alexander, New Jim Crow, 132.
Ibid., 99
Ibid., 98
Loic Wacquant, “From Slavery to Mass Incarceration,” New Left Review, II, no. 13 (February 2002): 41–


guarantees that victims of racially unequal policing are likely to remain in systems of
carceral control long after their initial sentencing.
Alexander’s analysis of this “invisible punishment” draws particular attention to
the crucial distinction that while nearly two million people are currently in prison, more
than 7.3 million are under some form of correctional control. Parole and probation still
control the lives of ex-offenders, as someone with a prior conviction will spend their life
governed by additional rules that someone without a record would not. Violating these
rules can quickly land someone back in prison, and each time they move through this
“closed circuit”, their parole, a virtual net of control, becomes tighter and more
restrictive. This distinction is crucial, as it extends any critique past a simplistic
understanding of punishment residing solely within the walls of the prison, and
illuminates the ways in which the subjugation of black bodies extends into every sector of
societal life. Thus, much in the same way that emancipated slaves were subject to laws
that intentionally targeted them for minor offenses, incarcerated blacks also face
additional restrictions upon their release that most whites do not. Due to the allencompassing specter of carceral power, Alexander states, “the nature of the criminal
justice system has changed. It is no longer concerned primarily with the prevention and
punishment of crime, but rather with the management and control of the dispossessed.”45
This carceral control is nearly as pervasive outside the prison as it is within its walls.
Similarly, the governance of African chattel slaves extended past the plantation, as their
race perpetually marked them as someone else’s property. Thus, it is inaccurate to
distinguish enslavement from incarceration on the basis of a temporally defined
punishment. Rather, given that a black child born today has a one in three chance of

Alexander, 188.


being imprisoned during their life, their subjection can extend, without hyperbole, for a
This notion of carceral control was pioneered by the late political theorist Michel
Foucault. Foucault argues, by contrasting modern responses to crime with an example
during 18th century France, that the locus of punishment has shifted away from the body
and now addresses the prisoner’s soul.46 In doing so, instead of focusing on inflicting
bodily punishment, the modern prison operates as a form of social control and selfdiscipline that mirrors the surveillance and omnipresence of Jeremy Bentham’s
Panopticon.47 The Panopticon was Bentham’s design for a prison in which a “watchman”
could oversee all of its inhabitants without them knowing whether or not they were being
watched, thus creating a constant perception of surveillance, which in turn led to selfdiscipline.48 Foucault argues that the Panopticon has expanded to all of social life, rather
than to discrete individual buildings, forming a larger carceral network. The carceral state
can be seen as the precursor to the current term “Prison Industrial Complex”, coined by
Angela Davis, wherein the power of the prison diffuses into every sector of contemporary
life through the intricate connections of various institutions and the prison.49 Foucault’s
conceptualization of this omnipresent prison, then, overlies with Alexander in an
important way: a prisoner’s release from formal incarceration is woefully overstated, as
the power of the carceral state serves to trap a criminalized body in a web of illegality
that not only punishes them outside of the walls of the prison, but is so deeply entrenched
in every social institution that it ensures a prisoner’s eventual return. For people of color,

Michel Foucault, Discipline and Punish: The Birth of the Prison (Random House LLC, 1977).
Ibid., 200-204.
Ibid., 201.
Angela Davis, “The Prison Industrial Complex.” Lecture at Colorado College, Colorado Springs, CO,


this net is particularly difficult to exit, as they suffer from unequal policing practices that
only further their likelihood of return to the prison.
As evidenced by these authors and countless others who have argued for the
identification of prisons as a site of deep exploitation, racism and repression, the politics
of incarceration reflect a profound racial prejudice. However, mere recognition of the
prison’s racial inequity is insufficient and fails to address its far-reaching subjugation of
non-whites. Drawing upon the work of Orlando Patterson, Slavoj Žižek, Loïc Wacquant
and Eduardo Mendieta, I argue that the true effect of these practices extend past a
simplistic condemnation of certain racist laws. Instead, the very nature of imprisonment
is imbued with racialized violence. Much in the same way, it would be foolish to claim
that all acts of terror against blacks immediately post-Emancipation were due to a single
flawed constitutional amendment. The amendment, after all, facilitated the subjugation of
blacks, but did not govern or create the deeply entrenched racism in the South at the time.

Objective Suffering: Prisons as a Site of Violence
The act of incarceration, irrespective of the relative functionings of each
institution, is an act of violence. This claim relies on Žižek’s crucial distinction between
subjective and objective violence. The former is violence “clearly performed by an
identifiable agent,” such as whippings or sexual assault.50 It is seen as an aberration from
a non-violent normal, and as such is condemned for its seemingly appalling nature. In
contrast, objective violence “is precisely the violence inherent to this ‘normal’ state of
things. Objective violence is invisible since it sustains the very zero-level standard


Slavoj Zizek, Violence: 6 Sideways Glances (Picador, 2008): 1.


against which we perceive something as subjectively violent.”51 So prison, though it may
seem to be an unquestioned component of our social system, is a site of objective
violence precisely because it is able to largely conceal its deleterious effects from the
public behind a functioning veneer. This latent violence is in direct contrast with highly
visible incidents of racism; on the surface, the absence of tangible examples, like public
lynchings, lends credence to the idea of a “post-racial era.” Thus, while acts of physical
violence do occur within these prisons, it would be misleading to focus exclusively on
subjective violence without attending to the more nuanced, but no less destructive, forms
of objective violence which permeate the institution of the prison.
Eduardo Mendieta, in his analysis of Angela Davis’ body of work, helps to further
elucidate the violent nature of prisons, stating, “not only is the body of the condemned to
be disappeared, concealed, stolen away to spaces of absolute regimentation, but the body
as such is to become the target of extreme and ceaseless control, domestication,
regimentation, and production.”52 This violence, then, is rooted in the very nature of the
act of imprisonment, wherein one’s mobility, free will and agency are limited. The racial
disparities in prison populations reveal mass incarceration to be a clear act of racial
control through the ritualized violence that “expiates the excesses of the racialized
polity.”53 After all, the growing conflation of blackness with crime has allowed for the
massive rise in the prison industry without mainstream cries of outrage. When asked
about the rates of crime, most people will overestimate the degree to which racial


Ibid., 2.
Eduardo Mendieta, “Scholar’s Symposium: The Work of Angela Y. Davis,” Human Studies 30, no. 4
(2007): 297.
Ibid., 306.


minorities are responsible for acts of crime.54 This objective violence, which maintains
the subjugation of blacks, becomes the means by which the state can justify the
entrenched white supremacy that is a continuation of the importation of black slaves to
the American South. Subjective acts of violence against people of color are more likely to
provoke moral outrage, whereas objective violence is able to hide the clear links between
repeated acts of enslavement manifesting with each successive generation in the United
This conclusion cannot be overstated. It does blacks’ condition in this country a
great disservice when policy changes such as sentencing reform are suggested as the
ultimate remedy for racial injustice. While these reforms are certainly necessary and
urgent, viewing them as the end goal for racial justice drastically underestimates the
extent to which racism is ingrained in the fabric of our nation’s political and economic
system. Orlando Patterson expertly describes the state of subjection among slaves by
coining the term “social death.” Slaves, under this conception, experience total alienation
from any identity apart from their role as a slave, as well as a loss of freedom and
political power. They become wholly dependent upon their master’s will, and as a result
experience a form of division from the social and political sphere that is so extreme it can
be termed “death.”55
This term is expanded by Loic Wacquant, who draws together Patterson’s theory
into the discussion of prisons by saying that prisons, along with Jim Crow, urban ghettos
and slavery (the four “peculiar institutions” that have subjected blacks) are all subject to


Alexander, 106.
Orlando Patterson, Slavery and Social Death: A Comparative Study, 1st edition (Cambridge, Mass.:
Harvard University Press, 1985).



the process of social death by “extruding [blacks] from the social compact.”56 Wacquant
identifies three areas in which prisoners are the recipients of an exclusionary closure of
social death similar to slaves. The first is the denial of cultural capital through the barring
of ex-felons from Pell Grants, effectively expelling inmates from higher education.57 As a
result, they are denied the opportunity for social recognition and economic mobility.
Second, prisoners are refused access to “social redistribution” through provisions in laws
such the Work Opportunity and Personal Responsibility Act of 1996 (welfare reform),
which prohibited most ex-convicts from receiving forms of assistance like Medicaid and
public housing. Finally, convicts are excluded from political participation through
criminal disenfranchisement laws, essentially silencing all claims to an ex-felon’s
political life. Wacquant states that this process of “triple exclusion” amounts to a social
death akin to slavery because they collectively bind the imprisoned to their criminal
identity and eliminate their most basic freedoms. Furthermore, Wacquant asserts that
both slavery and enslavement are “race-making” institutions. That is, they,
Do not simply process an ethnoracial division that would somehow exist outside
of and independently from them. Rather, each produces (or co-produces) this
division (anew) out of inherited demarcations and disparities of group power and
inscribes it at every epoch in a distinctive constellation of material and symbolic
forms. And all have consistently racialized the arbitrary boundary setting AfricanAmericans apart from all others in the United States by actively denying its
cultural origin in history, ascribing it instead to the fictitious necessity of
This conclusion reveals the ways in which the prison inherently subjects blacks to a
process of continued domination, reifying the racial boundaries that have persisted since
the Antebellum South. These boundaries, through the rise of racialized mass


Wacquant, 57
Ibid., 58.
Ibid., 54


incarceration, result in this fundamentally violent phenomenon of contemporary slavery.
After all, disturbingly high numbers of racial minorities are enmeshed in a criminal
justice system that inherently depends upon their subordination, life-long subjection and
systematic societal exclusion. In recent years this structural inequality has expanded, and
now subjugates yet another racialized group.

In March of 2013, I met Julian Vanegas, a 21 year old from Honduras, in the Arizona
desert. A year earlier, he had crossed the border and settled in Arizona, working in the
fields, before ICE apprehended him for a traffic violation. Following his arrest, he was
held in a private detention center and subsequently deported to Nogales, Mexico. Going
back to Honduras felt like a death sentence due to crippling poverty in his home village,
so he immediately tried to cross again. His first attempt failed, and feeling that he had no
other option, he instantly decided to make the journey across the barren desert yet again.
After five days without food and water, on the verge of dehydration, he stumbled into the
desert camp where I worked. His skin and black clothes were covered in thick dust and
spots of grey vomit; a symptom of the cow-tank water he drank out of desperation despite
knowing it was contaminated.
Despite the important contributions to a new conceptualization of an imbedded
racial hierarchy that governs the carceral state, I want to extend the argument of racial
subjection to undocumented migrants. 59 While they are also profoundly affected by the
practices of racialized mass incarceration, they are all too often excluded from the same
discourses. In making this claim, I first draw upon scholarship and primary sources that
cast migrants as harbingers of disease, crime and economic destruction. These narratives
play a significant role in reducing migrants to a subhuman state wherein they are denied
political and social agency. I then utilize theoretical conceptions of “illegality” to explain
how migrants have been converted into an (in)disposable commodity.

A multitude of terms is used to classify those who move to a country without legal authorization. I use
the terms migrant and immigrant somewhat interchangeably to reflect the various usages of my sources,
though I prefer the term “migrant.” The term “immigrant” is “posited always from the standpoint of the
migrant-receiving nation-state, in terms of outsiders coming in” (De Genova 2002: 421). Because my
research focuses exclusively on migrants who have emigrated outside of traditional legal channels, any
reference to “migrant” refers to those who do so illegally, unless otherwise specified.


The Othering of Migrants
Although people of various races and nationalities migrate to the United States
without proper documentation, the trope of “illegal immigrant” in recent years has been
applied, almost without exception, to Latinos, and especially Mexicans. As Konrad
Aderer explains, “the criminalization of illegality has always constellated around racist
tropes, but the use of nationality as a biopolitical category complicates the issue of racism
with a geopolitical aspect.”60 Aderer elucidates how prejudice against undocumented
migrants is the combination of traditional forms of racial bias and also fears rooted in
nationalistic ideology. Thus, it is important to note that a discussion of international
migration can never be separated from questions of racial and citizenship privilege. These
discourses perpetually imagining “illegal immigrants” as Mexicans are imbued with
certain recurring themes.
One such theme is the fear of increased disease. Dave Gibson, just one of
countless others making similar claims, asserted in a Norfolk Crime Examiner article on
June 3, 2009, “Tuberculosis, hepatitis, dengue fever, chagas, and even leprosy are being
imported into the U.S. inside the bodies of illegal aliens. A virtual 'hot-zone' of disease
can be found in this nation’s border states.” On the contrary, research has shown that
migrants in the United States are, on average, healthier than their native-born
counterparts, and do not carry any increased risk of spreading an epidemic.61 Another
popular concern regarding migrants is that they commit more crimes than U.S. citizens
do. Conservative talk-show host Lou Dobbs once claimed, “a third of the prison


Konrad Aderer, “Endgame Nearing an End: The Production of Bare Life under the U.S. Deportation
Regime” (Graduate thesis, CUNY Graduate Center, 2011).
Heidi Beirich, Immigration: Getting the Facts Straight, Intelligence Report (Southern Poverty Law
Center, Summer 2007).


population in this country is estimated to be illegal aliens.” Similarly, in 2000 the
National Opinion Research Center’s General Social Survey found that 73 percent of
Americans believed that immigration causes higher crime rates. This fear of migrants as
dangerous criminals often acts to justify massive deportations. However, a study by UCIrvine showed that migrants are five times less likely to be in prison than native-born
Americans are.62 Finally, perhaps the most pervasive fear regarding immigrants is that
their arrival inherently portends domestic job loss and economic catastrophe. As is
expected given the pattern I have outlined, these fears are unfounded. Several studies
show migrants actually create jobs and contribute more in taxes than they use in
services.63 These myths reveal the way in which migrants are viewed as impending
cultural invaders, and always as an outside force that will wreak havoc—be it disease,
crime or unemployment—on the recipient nation. When these frames dominate political
discussion, migrants become dehumanized.
However, many groups in the United States are viewed with condescension and
fear. After all, African-Americans experience discrimination in virtually every realm of
private and public life. Latinos, and more specifically undocumented Latino migrants, I
argue, face a related form of subjection due to framings of “otherness” which have
plagued them for over a century.64 Similarly to African slaves, migrants are under the


Rubén G. Rumbaut, “Undocumented Immigration and Rates of Crime and Imprisonment: Popular Myths
and Empirical Realities” (presented at the Police Foundation National Conference on “The Role of Local
Police: Striking a Balance Between Immigration Enforcement and Civil Liberties,” Washington, DC,
Aviva Chomsky, “They Take Our Jobs!”: And 20 Other Myths About Immigration (Boston, Mass.:
Beacon Press, 2007).
My focus here on the ways in which undocumented Latinos have been oppressed in the United States
should not be read as an attempt to victimize them, nor to posit them solely as the recipient of abuse
without any form of retaliation. However, it is out of the scope of this project to highlight the many
impressive instances of organizing and resistance by Latinos to these systems of oppression. Such neglect
should reflect only upon the limitations of my own project.


purview of Orlando Patterson’s social death. Lisa Marie Cacho draws Patterson’s theory
into discussions of migrants by stating that they are a group that has been made
“ineligible for personhood: [they are] subjected to laws but refused the legal means to
contest those laws as well as denied both the political legitimacy and moral credibility
necessary to question them.”65 “To be ineligible for personhood,” she continues,” is a
form of social death.” The identity of migrants as subjected to social death is “achieved
through inscription of boundaries which serve to demarcate an ‘inside’ from an ‘outside,’
a ‘self’ from an ‘other,’ a ‘domestic’ from a ‘foreign.’”66 The creation of boundaries thus
serves to further alienate migrants as distinct from the rest of the population and therefore
undeserving of the same recognition and entitlements.67
This process of othering is, at its root, an act of racial control. Judith Butler asserts
that, “one way of ‘managing’ a population is to constitute them as less than human
without entitlement to rights.”68 Accordingly, this identification of undocumented
migrants allows for their complete subordination, under the legal justification that they
are rightlesness criminals. However, it would be a mistake to assume that these acts of
control are carried out exclusively by a sovereign entity, in this case the United States
government. Roxanne Doty complicates a simplistic reading of government authority,
and supports the Foucauldian notion of power not resting exclusively within discrete
structures and state systems, by shifting the focus away onto society as a whole. She


Lisa Marie Cacho, Social Death: Racialized Rightlessness and the Criminalization of the Unprotected
(New York: New York University Press, 2012): 64
David Campbell, Writing Security: United States Foreign Policy and the Politics of Identity (U of
Minnesota Press, 1992): 8.
Of course, this reading of boundaries, drawn to a full conclusion, would suggest that the very nature of
division through borders and formal citizenship, predicated upon the nation-state system, is inherently
imbued with unequal opportunity and injustice. However, a full exploration of the implications of this
argument are outside of the scope of this particular thesis.
Judith Butler, Precarious Life: The Powers of Mourning and Violence (Verso, 2004): 98.


shows that individual actors too play a role in the commodification of migrants by
espousing and supporting rhetoric of migrants’ inhumanity.69 As a result of this
“othering,” migrants’ enslavement is justified on the basis of their ineligibility for

The Construction of Illegality
At its root, this “othering,” and thus the original justification for migrants’ state of
exclusion, rests upon the fact that they do not hold rights within the United States
precisely because they “belong” to another sovereign nation, or to no state at all. Due to
our reliance on a nation-state system in which rights are only given within the bounded
rights framework of a particular nation, undocumented migrants are seen as irrevocably
distinct from the rest of the populace. Under this nation-state framework, “so-called
sacred and inalienable human rights are revealed to be without any protection precisely
when it is no longer possible to conceive of them as rights of the citizen of a state.”70
Since migrants are “stateless,” they are unprotected and fall accordingly into this state of
ineligibility for personhood, or social death.71 Being outside of the bounded framework of
the law contributes to the conception of migrants as “illegal,” as they are seemingly in
direct opposition to sovereign law by their unauthorized presence in the U.S. Certain
terminology also reflects similarities between the current plight of these migrants and
other marginalized groups. Undocumented migrants’ moniker as “illegals,” and the


Roxanne Lynn Doty, “States of Exception on the Mexico–U.S. Border: Security, ‘Decisions,’ and
Civilian Border Patrols,” International Political Sociology 1, no. 2 (June 2007): 113–37
Giorgio Agamben, Means Without End: Notes on Politics, (Minneapolis: University of Minnesota Press,
2000): 18.
In Hannah Arendt’s Origins of Totalitarianism, she similarly discusses how Jews’ attempts to find refuge
under global human rights fell short, refuting ideal of “inalienable rights.” Hannah Arendt, The Origins of
Totalitarianism (Cleveland: The World Publishing Company, 1951). See in particular the chapter “The
Decline of the Nation-State and the End of the Rights of Man.”


accompanying specter of fear, is also reflected in legal scholar Katheryn Russel-Brown’s
term “criminalblackman.” She uses this epithet to describe how the stereotyping of black
men as innately violent criminals has resulted in a fear-inducing archetypal figure that
universally defines their existence. 72 Yet, while there are critical similarities between the
social constructions of blacks and migrants, the latter suffers additionally from the
geopolitical rendering of them as unprotected by native law.
In addition, migrants’ illegality is compounded by the fact that their unauthorized
presence in this country puts them at constant risk for removal. Marie Woodling
succinctly captures the precise nature of undocumented Latinos’ illegality, saying,
There always exists an underlying ‘threat’ that they can be easily disposed of and
replenished if their productivity becomes spent, or if they no longer accept the
conditions of subordination. Their inherent disposability is an implicit part of their
illegality, which can potentially be invoked at any time by a citizen. It is part of
what makes them (in)disposable to the state.73
Thus, migrants’ illegality becomes a defining aspect of their identity and facilitates their
transformation into a disposable commodity, which I argue is the basis of their
enslavement. However, essential to the understanding of this disciplinary act is that the
production of migrant illegality (and subsequent criminalization) is never solely an
attempt to achieve the “putative goal of deportation.”74 Thus, it is crucial to note the
distinction between deportation and deportability, for it is the latter that has brought
about the transformation of migrants into a disposable commodity. Deportability speaks
to this specter of deportation and the fear that it inspires, rather than the act of literal

Katheryn K Russell, Color of Crime: Racial Hoaxes, White Fear, Black Protectionism, Police
Harassment, and Other Microaggressions. (New York: New York Univ Press, 1998): 14.
Marie Woodling, “Marginal Life: The Production of the Undocumented and (il)legality at the U.S.Mexican Border,” in International Relations and States of Exception: Margins, Peripheries, and Excluded
Bodies, ed. Shampa Biswas and Sheila Nair (London; New York: Routledge, 210). 147
Nicholas De Genova, “The Legal Production of Mexican/Migrant ‘Illegality’,” in Governing
Immigration through Crime: a Reader, ed., Jonathan Xavier Inda and Julie A. Dowling (Stanford,
California: Stanford University Press, 2013): 54.


deportation. This force subjects migrants into a relationship of servitude that is
exacerbated by their subsequent incarceration. After all, studies have shown that
undocumented immigrants, for fear of arrest, are less likely to report crimes against them,
venture into public spaces less often, visit local businesses less frequently, and
deliberately avoid interaction with institutions that they fear could expose their
citizenship status.75 This constant fear limits the ability of migrants to proceed through
their daily lives in the same way that a citizen could. The creation of insecurity, based on
their “illegal” nature, isolates migrants from the rest of society. Living in a separate
sphere, constantly fearing deportation, consequently reduces the likelihood of any
formidable resistance against those who have defined the condition of their illegality.
The nature of these circumstances bears an unmistakable resemblance to the
plight chattel slaves faced in the American South. After all, Patterson’s notion of “social
death” helps to conceptualize a contemporary phenomenon of subhuman existence, even
as our nation espouses supposedly “liberal” tenets of opportunity and egalitarianism.
Migrants are subject to the whims of the state in ways reminiscent of how African chattel
slaves were to their masters. Moreover, migrant workers are conceived as a disposable
commodity similar to how slaves under convict leasing were worked without concern of
death; both institutions rely upon the knowledge that a virtually endless reserve of bodies
exist to replace those that have been spent. However, an admittedly crucial divergence
emerges in the face of actual deportation, and not simply “deportability.” After all, what
kind of slavery could exist with the concurrent aim to expel said slaves? Would that not
seem to suggest that there is a vested interest in purging the country of these bodies?


Rand Capps et al., Paying the Price: The Impact of Immigration Raids on America’s Children
(Washington, DC: Urban Institute, 2007): 43.


Possibly, if not for the concept of the “revolving door” of immigration, which I argue
demonstrates an implicit knowledge by state actors of the circular flow of migration
caused in large part by United States’ economic policies.

Circular Flow of Human Migration
An entire compendium of the root causes of migration is not possible within the
scope of this project. Fortunately, much has been written about the forces that drive
migration. As any summation here will be limited, I have focused primarily on the
influence of economic instability to demonstrate the United States federal government’s
complicity in maintaining the revolving door. The 1994 North American Free Trade
Agreement (NAFTA) is perhaps the most dramatic and telling example of the United
States’ economic policies causing migration from Mexico. NAFTA lowered import
barriers on agricultural products, and as a result, cheap corn flooded the Mexican market.
Local farmers suddenly found themselves competing against agribusinesses from the
United States who received direct government subsidies for producing corn, and as a
result, only the most affluent and efficient Mexican farmers could compete in their
national market. 76 Following NAFTA’s implementation, Mexico’s 52% poverty rate,
which was already alarming by any measure, climbed to 69% in just two years.77
Consequently, countless peasants who could not afford to continue farming moved North
to the United States. Rufino Dominguez, head of the Oaxacan Institute for the Care of
Migrants, said, “There are no jobs here, and NAFTA made the price of corn so low that
it’s not economically possible to plant a crop anymore…We come to the U.S. to work


Cacho, Social Death, 123.


because we can’t get a price for our product at home. There’s no alternative.”78 Clearly,
the United States’ vested interest in achieving free trade across the Americas has had an
undeniable effect on the flows of migrants towards this country.79 The United States’
continued support for NAFTA, in the face of clear evidence showing the law has caused
northward migration, demonstrates a continued interest in the importation of human
capital.80 However, U.S. immigration policy specifically stipulates that economic
impoverishment is insufficient grounds for granting asylum or refugee status.81 The
figure below shows the spike in migration following NAFTA (1994) from Mexico to the
United States.



Ibid., 124.
The Central American Free Trade Agreement (CAFTA), NAFTA’s Central American counterpart, was
ratified in 2005 despite resistance by rural agricultural communities in multiple countries.
John Audley et al., “NAFTA’s Promise and Reality: Lessons from Mexico for the Hemisphere,”
Carnegie Endowment for International Peace, 2003; Ranko Shiraki Oliver, “In the Twelve Years of
NAFTA, the Treaty Gave to Me...What, Exactly…,” Harvard Latino Law Review 10 (2007): 53.
U.S. Citizenship and Immigration Services. Questions and Answers: Refugees. Available at: Accessed
Audrey et al., “NAFTA’s Promise and Reality,” 51.


However, the importation of migrants is a crucial, yet incomplete, portion of the
“revolving door” of immigration. An increasingly militarized spectacle of apprehension,
detentions and deportations within the interior combines with the “banality of a virtually
permanent importation of undocumented migrant labor” into a circular flow that assures
our dependence upon migrant labor is unquestioned by the general public.83 As
demonstrated by the notion of “deportability,” deportation—or the threat of it—forces
migrants into a subhuman existence, always on the verge of being removed. For many,
this threat manifests in their incarceration, pursuant to deportation proceedings. Drawing
upon the conclusions of the previous chapters, I explore this particular act of
imprisonment as a new form of slavery.

The Rise of Private Prisons
Although it could be argued that all incarceration is an act of enslavement, I have
chosen to narrow my focus to privately owned prisons, as they are a particularly
demonstrative example of the connection between historical practices of chattel slavery
and current racial subjection. Until the early 1980’s, there were virtually no private
prisons within the United States. In that decade, two companies emerged that dominate
the industry today—Corrections Corporation of America (CCA) and GEO Group.
Between 1990 and 2009, the number of prisoners in private prisons increased by
1600%.84 Private facilities are frequently proffered as a more cost-effective alternative to
public institutions, though several studies have refuted this claim.85 While for-profit


De Genova, “The Legal Production of Mexican/Migrant ‘Illegality’”, 53.
United States Department Of Justice, Bureau Of Justice Statistics, “Census Of State And
Federal Correctional Facilities-1995” (1997); Heather C. West, et al., United States Department Of Justice,
Bureau Of Justice Statistics, “Prisoners In 2009”, Table 19 (2010)
Sviva Shen, “Private Prisons Cost Arizona $3.5 Million More Per Year Than State-Run Prisons,”
ThinkProgress, accessed March 21, 2014; FY 2010 Operating Per Capita Cost Report: Cost Identifcation


companies hold approximately 6% of state prisoners and 16% of federal prisoners, an
astonishing 49% of immigrant detainees are held within private prisons.86 This curious
discrepancy between the spaces of civilian and immigrant detention heightens the need to
examine the relationship between for-profit prisons and immigrant detention.
Private prisons have not always played such a pervasive role in immigrant
detention. In 1994, the average daily population of immigrant detainees in the U.S. was
6,785.87 In 2001, the number had tripled, to 20,429. By 2010, it had reached an all-time
high of 31,020 every day— an increase of 457% since 1994.88 Tellingly, the number of
detainees in private facilities rose 49% during this time. The manner in which this
transpired further demonstrates the existence of contemporary slavery. According to a
report by the National Public Radio, private prison executives played a crucial (but
clandestine) role in the efforts to draft and pass Arizona’s SB1070, which requires state
police officers to ask people for their citizenship papers during a law enforcement stop if
they have “reasonable suspicion” that the person may be in the country illegally.89 In the
wake of SB1070, undocumented arrests in the state of Arizona skyrocketed, and private
prisons subsequently saw an explosion of inmates—and profits. In the past year, the
industry’s influence became even clearer, as private prison corporations took an active
role in lobbying for more punitive, incarceration-driven immigration policies, including
mandatory detention and the definition of immigration violations as felonies. Among the
and Comparison of State and Private Contract Beds (Arizona Department of Corrections: Bureau of
Planning, Budget and Research, April 13, 2011).
West, et al “Prisoners In 2009”; Detention Watch Network, “The Influence Of The Private Prison
Industry In Immigration Detention,”
Banking on Bondage: Private Prisons and Mass Incarceration (New York, NY: American Civil
Liberties Union, 2011): 16
Ibid., 17.
Laura Sullivan, “Prison Economics Help Drive Ariz. Immigration Law,” National Public Radio, October
28, 2010, accessed January 26, 2014,


“Gang of Eight”—a bipartisan group of senators responsible for drafting an immigration
bill— all but two received substantial financial contributions from private prison
corporations.90 Given that ICE (Immigration and Customs Enforcement) pays contractees
like CCA an average of $122 per day for each immigrant detainee, these corporations
plainly have a vested interest in ensuring further incarceration of migrants.91 Under the
provisions laid out under the Senate’s proposed immigration bill, S.744, the number of
criminalization measures would increase. For example, an initial $46 billion is set aside
for militarization of the border to provide for additional apprehension technologies such
as watchtowers, camera systems, ground sensors, drones, and helicopters. In addition, the
bill maintains the Department of Homeland Security’s “bed mandate” requiring the
detention of 34,000 migrants every day—a blatant exposure of a criminal justice system
that is not responsive to actual crime rates, but to profit-driven quotas. Finally, the bill
would triple the amount of criminal prosecutions performed daily under Operation
Streamline, a grotesque federal court proceeding in which up to seventy migrants are
tried and sentenced en masse in each courthouse every day in several cities on the
While executives from CCA and GEO Group deny any furtive involvement in
crafting immigration policy, they make no attempt to deny the effect of legislation on
their business. In a 2010 Annual Report filed with the Securities and Exchange
Commission, CCA stated, “The demand for our facilities and services could be adversely

Laura Carlsen, “With Immigration Reform Looming, Private Prisons Lobby to Keep Migrants Behind
Bars,” Huffington Post, March 5, 2013, accessed March 14, 2014
The Math of Immigration Detention: Runaway Costs for Immigration Detention Do Not Add Up to
Sensible Policies (National Immigration Forum, 2010), 2.
A Guide to S.744: Understanding the 2013 Senate Immigration Bill, Special Report (Immigration Policy
Center, n.d.), accessed April 14, 2014.


affected by…leniency in conviction or parole standards and sentencing practices.”
Specifically regarding immigrant detention, they continued, saying, “Immigration reform
laws which are currently a focus for legislators and politicians at the federal, state and
local level also could materially adversely impact us.”93 After all, while incarcerated in
private prisons, immigrant detainees produce tremendous profits for prison executives. In
2010, the annual revenues for CCA and Geo Group alone had reached nearly $3 billion.94
In that year, the president of each company received more than $3.2 million in “executive
compensation.” These profits come, unsurprisingly, at the expense of further exploitation
of migrants, which I argue is frighteningly similar to the economic success of chattel
slave owners in the American Antebellum South.
While I have argued for a conception of slavery that does not rely solely on the
presence of forced labor, many incarcerated migrants do in fact work under coercive
control. In most private detention centers, migrants labor in “Voluntary Work Programs,”
carrying out all of the basic functions of the facility including work in the kitchen,
painting walls, mowing the lawns and cleaning the floors.95 Florence Correctional Center
in Florence, Arizona is one of many facilities that pays immigrant detainees an
“allowance” of just $1 a day to perform all of the managerial tasks that keep the facility
running. The horrible irony here, of course, is that many of these detainees were arrested
for working in the United States without documentation, and yet they are readily
consumed as cheap labor while incarcerated in order to maintain the workings of the
prison, much as they had upheld the functioning of the larger economic system as an

Banking on Bondage, 55.
Ibid., 13.
“‘Voluntary’ Work Program Run in Private Detention Centers Pays Detained Immigrants $1 a Day,”
Truthout, July 27, 2012,


undocumented worker. Thus, the nature of the economic exploitation becomes
increasingly clear. Immigrants are detained against their will and are forced to work for
shockingly low wages—wages which they cannot negotiate. The system directly funnels
the profits of this labor into the pockets of the prison executives.
However, I maintain that detainees’ labor within prison is actually largely
irrelevant to the nature of their exploitation. As previously mentioned, each detainee
generates an average of $122 profit per day that they are incarcerated—taxpayer money
that is siphoned directly towards prison corporations whether or not they carry out any
labor. Given that this profit is forcibly extracted (there are no illusions that migrants are
detained willingly), I assert that this relationship is inherently predicated on an act of
exploitation, whether or not any actual labor is performed. Even the 750 detainees in the
Tacoma Detention Center who are currently on strike for higher wages, though they are
no longer performing labor, are still generating a profit just by virtue of being held in a
prison that collects financial earnings off of its prisoners. They, too, have been subjected
to a process of enslavement due to the ceaseless exploitation, dispossession, control and
production that have defined their existence in the United States.

Beyond Prisons
Of course, while private prison executives hold the most responsibility for this
particular method of enslavement, they are by no means the only ones who have a role in
perpetuating the system. A reading that suggests otherwise would be blind to my own
culpability. After all, every American relies on upon undocumented migrant labor.
Vendors sell agricultural products at speciously low prices, and studies have shown that


citizen wages increase with the presence of an underpaid labor force.96 And yet, despite
this dependence, the majority of the federal government has been unwilling to entertain
the notion of fully incorporating these migrants as full citizens. Incarceration and
deportation, then, act to “expiate the excesses of the racialized polity” by allowing this
dependence on exploited labor without having to accommodate any genuine
transformation of our economic system.97 If the federal government did indeed deport the
nearly 12 million undocumented people in the country en masse, the economy would
suffer a drastic hit, much in the same way that the Southern economy collapsed following
the formal abolition of chattel slavery. Admittedly, there are those who do not profit off
the continued incarceration and deportation of migrants. The Agriculture Workforce
Coalition, for example, is a group of agricultural businesses that coalesced over their
shared concerns over migrant labor loss.98 While they do advocate for immigration
reform that provides a legalized status for migrant workers, this interest is rooted more in
economic self-preservation that any altruistic desire to fully emancipate dependent
laborers. Accordingly, even these efforts demonstrate a dependence upon the
uninterrupted existence of continually reinvented practices of enslavement postAntebellum.

While it is certainly not the only cause of racial inequality and labor exploitation
in this country, the 13th Amendment was clearly unable to succeed in its most basic

Robert Lynch and Patrick Oakford, The Economic Effects of Granting Legal Status and Citizenship to
Undocumented Immigrants (Center for American Progress, March 20, 2013); Gianmarco I.P. Ottaviano and
Giovanni Peri, “Rethinking the Effect of Immigration on Wages” (University of California Davis and
Bocconi University, 2010).
Mendieta, 306.
“Why Action Is Needed | Agricultural Workforce Coalition,” accessed April 22, 2014,


intention of preventing successive incarnations of slavery. Convict leasing, racialized
mass incarceration of blacks and detention of migrants in private facilities all demonstrate
how the institution of slavery has been modified, rather than eliminated, to accommodate
subsequent generations of racial minorities. Even in the wake of seemingly progressive
steps to eliminate racial inequality, systems of racial control have only strengthened in
the century following Brown v. Board. Of course, the savagery of chattel slavery remains
the most shameful instance of racial subjugation in our country’s history. Nevertheless,
an instinctive refutation of the notion of contemporary slavery also dangerously obscures
the extent to which racial subjugation is embedded within the very framework of our
nation’s economic and political system. While there may no longer be slave plantations,
millions of black and brown bodies are still warehoused in systems of profound violence,
and are faced with ceaseless control and death due to our nation’s continuous reliance
upon this system of violence. The unbroken nature of this pattern also reveals the
difficulty of dismantling it. No single act of Congress, even one eliminating the criminal
exception clause in the 13th Amendment, can immediately repair the deep and lasting
harm that the legacy of slavery has wrought on this country. And yet, Jack Balkin and
Sanford Levinson title the 13th Amendment the “Dangerous Amendment” in recognition
of its potentially powerful role in addressing the true badges and incidents of slavery.
They state, “Once it is acknowledged that ‘slavery’ need not be identical to or closely
resemble African chattel slavery, the attack on slavery might threaten not only modern
capitalism and the modern state, but also any number of traditional social formations and
traditional status relations.”99 It is perhaps for this reason that the 13th Amendment has


Jack M. Balkin and Sanford Levinson, The Dangerous Thirteenth Amendment, SSRN Scholarly Paper
(Rochester, NY: Social Science Research Network, July 22, 2012), 1475.


been limited in its ability to eliminate slavery—it is potentially so far-reaching that it
could justify a truly radical transformation of the American political and social order. A
sweeping eradication of more expansive forms of slavery, the criminal exception clause
notwithstanding, would be truly revolutionary indeed.


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