Excerpted From: Sarah Sherman-Stokes, Immigration Detention Abolition and the Violence of Digital Cages, 95 University of Colorado Law Review 219 (Winter, 2024) (247 Footnotes) (Full Document)


SarahShermanStokes.jpeg“Elizabeth” wore an ankle shackle that was heavy, painful, and humiliating. Elizabeth had fled to the United States following the murder of her father by gang members, who later threatened her too. Shortly after Elizabeth fled, her mother was also murdered by gang members, and she became the sole caretaker of her traumatized younger siblings, ages five and twelve. She was just twenty-two. Elizabeth was arrested and briefly detained by Immigration and Customs Enforcement (ICE) before being released and fitted with an ankle shackle. Elizabeth had to remember to charge the shackle each night, to be home when the service contractor stopped by for unannounced home visits, and to call at the scheduled time for phone check-ins. She also had to manage her younger siblings' school, therapy, and childcare, and her own work schedule, as she struggled to make ends meet. Once her shackle was removed, Elizabeth was required to download and install the SmartLINK app on her phone so that ICE could continue tracking her location. Once a week, at a predetermined time, Elizabeth was required to send a “selfie” through the SmartLINK app, so that ICE could confirm her location. She was constantly exhausted and anxious, burdened with the knowledge that ICE had full access to her phone and that if it stopped working or failed to connect to the app, she would be re-detained and separated from her brother and sister.

The surveillance to which “Robert” was subjected brought him to tears. A businessman and political activist in his home country, he was detained and tortured for his pro-democracy efforts before fleeing to the United States. Terrified that a prospective employer or new acquaintance would see the bulky shackle on his ankle, Robert wore long pants all summer long and rarely left the house. He hated being constantly monitored, and he became depressed and embarrassed, longing for the shackle to be removed. He confided in his attorneys that if he knew he would face the burden of an ankle shackle and accompanying surveillance, he would have opted to remain in detention. Though he and his attorneys pleaded with ICE to remove the shackle, the ICE officer responsible for his case always had to “check with a supervisor”--a supervisor who seemed to never exist or return phone calls. Robert recalls feeling “like I was a prisoner, inside another prison.”

Both Elizabeth and Robert lived with the constant psychological distress, fear, and anxiety that if they--intentionally or not--violated the terms of their participation in ICE's Alternatives to Detention (“ATD”) program, they could, and typically would, immediately be re-detained by ICE. That if they missed a phone check in, weren't home when required to be, or forgot to send a photo of themselves or plug in and charge their shackle, ICE might come to their home or place of work and re-detain them in front of their family, friends, or co-workers.

Centering the “situated and embodied knowledge” of impacted individuals like Elizabeth and Robert is a critical starting point if we are to begin to understand the significant impact of the violence wrought by ATD on immigrants, their families, and their communities. This article argues that there is a violence in the ordinary and habituated nature of immigrant surveillance and takes aim at describing one form of this violence--a set of practices I name here as “digital cages.”

The immigration enforcement detention and surveillance regime--which includes the interlocking systems of market and government forces making up the detention system, as well as the enforcement, policing, and surveillance systems--has expanded dramatically in recent years. Detention beds, at 18,500 in 2005, are now at 25,000 in the annual ICE budget. Roughly 1,700 immigrants were subjected to electronic ankle shackles as of 2005. As of December 2022, more than 376,000 immigrants were under constant surveillance by ICE through a panoply of electronic monitoring systems, more than quadruple the number enrolled in the program when President Biden took office. The average length of time a noncitizen spends subjected to this surveillance is 325.9 days, as of December 2022. As I describe in more depth in Section II.A, the company contracted to oversee the program has the capacity to increase that number even further--to up to 400,000 enrollees. This electronic surveillance regime includes GPS monitoring through the use of ankle shackles, facial recognition through the SmartLINK phone application, voice verification technology, home monitoring, required reporting to ICE offices, and ongoing surveillance. Alternatives to Detention suggests that, normally, individuals in these programs would be subject to ICE detention. Not only is it true that many noncitizens subjected to ATD would never have been detained in the first place, but in fact, the result of the proliferation of ATD has been the growth of both immigration surveillance and immigration detention.

These so-called alternatives to detention have gained an enormous following in recent years. Conservative Democrats, advocacy groups, and lawmakers have increasingly pushed for alternatives to immigration detention as a set of “reforms.”

Often, advocates have pushed for these changes for, ostensibly, humanitarian reasons. Of course, they're not entirely wrong--immigration detention is dangerous, and often deadly to those subject to it. Proponents of ATD also argue that alternatives to detention have proven effective at ensuring compliance with immigration court hearing attendance, a justification consistently offered for immigration detention and surveillance. But at what cost--to Robert, Elizabeth, and those like them, as well as their families and their communities?

This Article uses the term “digital cages” to describe the set of practices associated with ATD, including surveillance and monitoring by ICE, or the private companies ICE works with. I use digital cages as a case study to theorize violence and alternatives to detention as part of the larger deportation abolition project. In so doing, I examine the interlocking systems of violence and social control in order to forward immigrant justice and liberation.

Deportation abolition, an emerging framework, is “focused on ending policing, detention and deportation in the immigration legal system.” Abolitionists argue that policing is inherently violent; rather than alleviating or ameliorating harm, the carceral state merely “reacts to it.” Whereas immigrant communities and advocates often focus on reforms to the immigration legal system, deportation abolitionists ask not “how can we make what we have better?” but, what would it look like to imagine something entirely new?

Their project--our project--is one of both deconstruction and imagination. What would it look like to create a system free from the oppressive and violent structures that have animated the immigration system until now? What if the carceral state became not a “more polite manager of inequality” but a system free of inequality, oppression, and structural violence? I suggest that if we hope to move toward such a system, we must critically evaluate changes to existing structures and systems to ensure that they move us closer to this goal, rather than exist as so-called “reformist reforms” that serve only to make a violent regime more palatable.

This Article takes as a starting point that detention and deportation are kinds of “violence,” as theorized by Angélica Cházaro and others. The legal violence framework importantly acknowledges the violence inherent in--and essential to--the functioning of the current immigration legal regime. It also underscores the role of the law in enabling and legitimizing this violence. Because violence has the power to shape “space and place,” here I argue that violence can be theorized not only across time, but across space. That this violence is not only temporal, but geographic, and this matters insofar as we hope to end it. In this Article, I strive to “illuminate the terror” of this violence, especially the “mundane and quotidian” kinds of this violence in an effort to move us closer to liberation and justice.

This Article argues that the increasing digitization of immigration enforcement and surveillance is part of an expansive, and still growing, geography of violence and control. This violence is also racialized. Black immigrants are disproportionately more likely to be detained, and if they are released on bond, their bonds are likely to be higher. Black immigrants are also more likely to be shackled through ICE's so-called “alternatives to detention” program.

This landscape of digital enforcement and surveillance creates a “violence of invisibility,” a term first used by G. Chezia Carraway in 1991, in an article about violence against women of color. Carraway writes that naming and describing “nontraditional” forms of violence can help “battle the psychological violence of invisibility.” In this Article, I build on that framing to show how the “violence of invisibility” should be theorized for immigration detention and surveillance. I also show how naming this violence can add to the growing conversation around the abolition of immigration enforcement, detention, deportation, and surveillance. I suggest that if we take that possibility seriously, then the violence of electronic monitoring and surveillance must end.

Visibility is “always a question of [who has] the power to see.” Indeed, when we talk about what violence is or is not visible, we are necessarily asking from whose perspective. Those who are subjected to the violence can see it clearly--and relentlessly. In some ways, seeing detained immigrants in cages, as depicted in popular media, makes this violence visible to the broader public. But when cages become digitized, when immigrants are effectively caged in their own homes and within their communities, their invisibility to the public grows more insidious--enabling this violence to spread while “hidden in plain sight” and simultaneously justifying it as “more humane.” This is not to suggest that when noncitizens are detained in jails, detention centers, and prisons that they, or their detention, are always particularly visible. Immigration detention is commonly carried out far from public view, in rural communities, distant from lawyers and other resources, and intentionally hidden. Rather, what I suggest here, is that the harms of release on ankle shackles and being subjected to constant electronic monitoring and surveillance still constitute violence, despite assumptions that their impact is presumed to be less. Not only that, but the shift toward increased surveillance and monitoring means that violence is rendered on a much larger scale, with hundreds of thousands more people ensnared. Moreover, noncitizens are expected to be grateful for their good fortune in not being detained in a traditional setting. Unlike their peers, family, and community members who may be stuck in immigration detention, they have the blessing of “freedom.” But what if that “freedom” comes at the cost of a less visible violence, harm, and suffering? The harms that electronic monitoring and surveillance inflict are easily camouflaged by and from those with more power and decision-making.

In Part I of this Article, I describe the current and evolving landscape of immigrant enforcement, surveillance, data collection, and the larger digital cage of immigration enforcement. Part I details the ways in which this expansive enforcement and surveillance regime is (1) multimodal, (2) rapidly changing, and (3) enmeshed in the larger criminal and corporate carceral systems.

In Part II, I examine “digital cages”--the ever-expanding web of monitoring and surveillance that marks so-called “ATD”--as a case study. Here, I discuss how advocates have often pushed for an expansion of alternatives to detention, supposedly as an effort to curtail immigration detention. I show how such discourse--often deemed “progressive” as it purports to move away from the growing carceral system--in fact renders the violence of detention and enforcement less visible to many, and therefore more dangerous. Though people that are not directly impacted interact with formerly detained individuals and those subjected to digital cages who are living and working in our communities, they are often unaware of what individuals experience in ATD. When we can't see this violence, it is normalized and less likely to be challenged: the “normalized quiet of unseen power.” In this Part, I specifically highlight the significant physical and psychological harms suffered by those subjected to ankle shackles and immigration monitoring and surveillance.

In Part III, I situate this Article within a deportation abolitionist framework. Within this framework, I theorize the contours of the “violence of invisibility,” understanding electronic monitoring and digital cages as part of the larger prison industrial complex, which deportation abolitionists seek to dismantle. In the context of immigration enforcement and surveillance, the “violence of invisibility” refers to the specific, insidious violence rendered by a system of enforcement invisible to those with power. The invisibility itself is violent because it purports to provide something of value to those it regulates-- namely, freedom from physical incarceration--when in fact, the damaging tradeoffs can be as harmful as physical incarceration. Instead, this violence harms and disempowers people by making them feel like they don't know their own experience. The insidiousness of this lie exacerbates the violence--the physical and mental pain and humiliation of the ankle shackle, the unrelenting monitoring and surveillance, and the constant risk of (re)detention. I situate the “violence of invisibility” amidst other modes and methods of violence, including “spectacular violence” and “slow violence”.

Finally, in light of the “violence of invisibility” inherent in immigration enforcement reform efforts, this Article asks how the violence of these digital cages manifests in the immigration enforcement and surveillance space, and what we can do to resist, disrupt, and, ultimately, end it. Like other scholars before me, I close by calling for detention and deportation abolition end to detention, deportation, and immigrant surveillance. Increased measures for procedural justice and related reforms are popular, but they presume that detention and deportation must continue. In doing so, they often encourage more resources to be diverted to the immigration enforcement system, thereby growing state violence and reducing resources that can truly support community health and safety. Using a framework developed by scholars and movement organizers, I argue that deportation abolition is the only remedy that can sufficiently alleviate the violence of invisibility wrought on immigrant communities by alternatives to detention.

[. . .]

Noted lawyer and scholar Michelle Alexander says of digital enforcement, “[m]any of the current reform efforts contain the seeds of the next generation of racial and social control, a system of 'e-carceration’ that may prove more dangerous and more difficult to challenge than the one we hope to leave behind.” What if, instead of improving upon an inherently violent system by offering more “benign” and efficient alternatives, we sought to end it? Digital cages cannot provide a panacea when they come packaged as part of a violent and oppressive enforcement regime. The rate at which ICE has expanded its menu of digital enforcement offerings is staggering. Instead of reducing harm and violence, digital cages have expanded the breadth and depth of ICE's enforcement reach. If we are serious about abolition, we must end not only the brick-and-mortar carceral state, but the digital cages that seek to replace it.

Clinical Associate Professor of Law, Boston University School of Law.