Document Type


Publication Date

Fall 2021


Criminal legal reform and measures to reduce carceral populations have received increasing media and public policy attention nationwide. These efforts have mainly ignored a parallel development: the consistent rise in the use of immigration detention over the last decade. This Article bridges that gap by arguing that ongoing efforts to decarcerate states and localities may be foiled by immigration detention. This argument relies on three different descriptive claims. First, much scholarly work has shown the extent to which vested interests have hampered criminal legal reform; these same interests could look to immigration detention as an alternative protection. Second, the extent to which both the criminal and immigration systems have intertwined has primed us for expanding the use of jails and prisons as tools of immigration control. Third, there is empirical evidence showing a causal connection between empty jail bed space and rising immigration detention at the local level. The Article then argues that if decarceration efforts are premised on the condemnation of the extensive use of carceral institutions, they are incomplete without including measures to address immigration detention. In addition, scholars interested in the effects of incarceration need to account for immigration detention and incarceration together as confinement, because not doing so will skew studies on the impact of decarceration.