We Are All Criminals

The "good immigrant/ bad immigrant" narrative puts all of us in danger

Note: Yesterday, I watched Haymarket Book’s book launch event (virtual) for John Washington’s “How to Close a Camp.” I recommend the book and suggest everyone check out upcoming events.

One aspect of Trump 2.0’s mass deportation regime has been the incarceration of immigrants as a matter of policy. Not only are more immigrants being arrested – including lawful residents, refugees who have been vetted, students on visas, and children – current policies have interpreted existing laws to require the detention of everyone. Immediately after being snatched off of the street, people of all ages are quickly shuttled off to local jails or large detention centers in Texas and Louisiana. (Presuming they are not killed first.)

The immigration system does not have a presumption of release; people must prove to a judge that they qualify for bond and are not a flight risk. Trump 2.0 policies have interpreted current legislation to allow even more people to be detained; this has never been illegal per se, but it has not traditionally been the policy. One reason is that Americans tend to view incarceration as just, necessary even, for people who have been accused of crimes. The American public is less accustomed to seeing people who have not been accused of crimes being consigned to warehouses. But this is less a matter of whether people deserve to be in jail – I would argue no one deserves such a thing – and more about what Americans consider to be criminal.

Many commentators have focused on the fact that most of these people do not have criminal records. In a widely-praised New York Times op-ed from a few months ago, David French noted that keeping people in prisons who are not criminals likely violates the Eight Amendment’s prohibition against “cruel and unusual” punishment. He grounds his analysis in the innocence of the people being sent to gulags: “It’s as if we’re throwing people into overcrowded jails for the legal equivalent of failing to pay a credit-card bill or losing a lawsuit — immigration detention as the new debtors’ prison.” (He then points to the fact that most violations of immigration law are either civil violations or misdemeanors, both reasons why people are arrested and jailed every day.)

There are three problems with this assumption that immigration do not deserve prison – indeed, it is a violation of their rights –because they are not criminals.

First, as I mentioned above, the immigration system has long treated immigrants as criminal per se. It is not true that immigration detention was historically reserved for the “worst of the worst.” Immigration detention (called that because jail and prison are technically reserved for criminals; the circularity should be noted) has long been punitive regardless of whether the people consigned to that fate are “criminals.” It became even more so after 9-11 when many Muslims were arbitrarily arrested, jailed and tortured not because they had committed “crimes” but because the government thought they might. Now children are incarcerated alongside their former classmates; pregnant women and girls are held in a breeding gulag in Texas, and the government is attempting to purchase tens of billions of dollars’ worth of warehouses across the country to hold people it deems unnecessary to the body politic.

Second, the American criminal system regularly jails and imprisons people who have not committed a crime under the traditional meaning of the word. I could point to the people who are factually innocent and rot in prisons across the country, or those who committed homicide in self-defense – a privilege granted to many white men – but were still sent to prison. I could point to people jailed pretrial, people who have not been convicted or a crime. (Some might argue that few people are detained pretrial who are not accused of “violent crimes,” but that is not true.) There are people in jail because of a failure to pay fines or medical bills. Babies are in jail by virtue of being born there, often on the floor, with the birthing mother managing to both give birth and deal with the afterbirth alone, cries ignored or mocked. One woman described chewing through her own umbilical cord; another burrowed into a jail mattress to keep her newborn warm and alive. Some people in prison have been ordered released, whether because a court overturned their conviction or an executive has granted clemency – Leonard Peltier, unlike those in jail for crimes related to January 6, was not released for over a month after Joe Biden commuted his sentence. In 2023, the Fifth Circuit even held that the Louisiana Department of Corrections could no longer enjoy the legal privilege of “qualified immunity” because of a scourge of “overdetention,” a terms even that court found was a “euphemism for prisoners illegally incarcerated beyond the terms of their sentence.” And some people are in jail and prison literally because they were forgotten.

This brings me to my third and most important reason why we should not focus on criminality and justice. When some of us are criminals, we are all criminals. And I don’t mean in the literal sense, that people commit small crimes every day (they do). I mean that politicians, legislatures, prosecutors, police, and judges decide not just who is guilty of a crime, but what a crime looks like. Does it look like standing on a street corner, holding up a cell phone or waiting for the train? Does it look like setting Waymos on fire? Does it look like writing an email, an op-ed or distributing zines? Does it look like simply existing, living in a skin that some people view as immediately suspect? Does it look like living, loving, breathing?

The answer at this point should be obvious. Under a fascist regime, we are all criminals. Some knew this early and tried to warn us. Some are finding it out, including people who voted for the very regime that is now calling them criminal. I am weary of the oft-made claim that what ICE and CBP are doing is not “immigration enforcement,” as if that would be a good reason to have armed troops descending upon cities, suburbs, highways, and places of business. Immigration enforcement and criminality are inextricably intertwined, not by accident, but through a series of policy choices that made hundreds of thousands of people “criminals” overnight. No, they are not going after the “worst of the worst,” a framing that has only ever served to justify torture and death. It is because there is no such thing.

What we are currently seeing reveals just how permeable the word “criminal” is. When they come for one of us, they come for all of us.

The government will continue to argue that the people it kills, injures, and imprisons deserved it. We recently witnessed federal agents scramble to argue that a man killed by ICE agents was in a truck with stuff on the dashboard that could maybe be meth. A man who was likely killed by guards in Camp East Montana had been previously convicted of “sexual contact with a person under 11” over 20 years ago, among other criminal charges, facts that DHS took pains to highlight. Alex Pretti and Renee Good were dangerous agitators. Those who speak for the regime will continue to post mugshots of people it claims have committed crimes, ignoring the fact that many of them have already served their punishment (assuming they were, in fact, guilty) and, often, those crimes were years and years ago. DHS’s actions undercut the sensible claims of pundits (like David French himself) who insist that incarceration serves to “rehabilitate” or “deter” or even “incapacitate.” It does none of those things; it is simply the first entry into a web of punishment for which there is no mercy.

Because these officials make no qualms about turning everyone into a criminal, we should not do the same. Even when people, as people do, injure one another often grievously, horribly, they do not become not-us. We should instead embrace our humanity, our shared struggle, the infinite possibilities we all hold inside of us. Grace is not given to the deserving, otherwise none of us would receive it.