Don’t Shred the Evidence

The Bureau of Immigration and Customs Enforcement (ICE) has sought permission from the National Archives to destroy certain records regarding detainees held in ICE custody, including those related to detainee deaths and sexual assault. Some of the records ICE hopes to destroy may contain invaluable information that cannot be recreated by any other means. According to ICE, the investigative file created after a detainee dies in custody includes, but is not limited to, “investigative reports, correspondence, witness statements, extracts of pertinent information, immigration records, medical records, photographs, video and voice recordings, death certificates, and autopsy reports.”

In all, ICE has requested permission to destroy eleven categories of documents. Some could be destroyed after 20 years; others, including those regarding the placement of detainees in solitary confinement, which ICE calls “segregated housing,” after only three years. For each category, ICE justified the request, in whole or in part, with the claim that the records had “little or no research value.” The National Archives and Records Administration (NARA), which rules on these matters, has preliminarily approved the request in its entirety. The original request is here; the preliminary approval by NARA is here; some of the commentary on the dispute is here and here.

So far, the dispute has largely flown beneath the radar. A few journalists, along with a couple websites dedicated to open government, have criticized ICE and encouraged NARA to reverse itself. Predictably, most of the criticism has focused on the need for a constitutional democracy to maintain official transparency. I share this concern, and strongly oppose the destruction of these documents. But my objection also derives from a different aim—viz., the dismantling of the carceral state.

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As I have written many times before, when something goes wrong in this country—as for instance, when an immigration detainee dies in custody—the first impulse is to look for someone to blame. And not just blame, but prosecute. For many people, the wrong supplies conclusive proof that a crime has been committed, for which the only satisfactory remedy is a good old fashioned criminal conviction followed by a lengthy prison term. The language of criminal blame is ubiquitous but is especially common after certain events, like police shootings. It was also widespread during the Bush administration torture scandal; to this day, many people want to prosecute the people who designed and implemented the post-9/11 “enhanced interrogations.”

As a rule, I am opposed to these prosecutions. And not because there has been no crime, but because a prosecution is exceedingly unlikely to make anything better. Like any rule, there are exceptions, and when the evidence of criminal wrongdoing is clear, as when North Charleston Police Officer Michael Slager killed Walter Scott by shooting him in the back as Scott ran away from a traffic stop, a prosecution was absolutely correct. In May of this year, Slager pled guilty in federal court to willfully using excessive force to deprive Mr. Scott of his civil rights. He awaits sentencing.

But in most cases, evidence of the crime—and especially of criminal intent—is ambiguous at best, which means the investigation will likely end without charges being filed—as it did after the death of Tamir Rice in Cleveland—or in an acquittal—as it did after the death of Philando Castille in Minnesota or Freddie Gray in Baltimore. When either of these outcomes occur, some people feel cheated, as though justice required a criminal conviction and nothing less. And because people pinned all their hope on a prosecution, a broader inquiry never gets underway. Because alternative reactions to the wrong were never on the table, non-confrontational discussions aimed at a shared understanding and institutional reform simply never occur. And the conditions that led to an officer killing a 10-year-0ld child in a department store go unchanged.

My opposition to prosecutions is admittedly the minority view. The logic of the carceral state is so deeply embedded in popular thought that many people cannot imagine alternatives. I have described some of the alternatives in other articles and do not want to belabor them here. For now, it is sufficient to note that there are other, vastly better ways for a community to register its moral judgment, learn from tragedy, and identify improvements than by undertaking yet another criminal prosecution. Especially when the wrong takes place along the explosive fault lines of race, class, and political partisanship, I believe the country is almost always better served by proceedings that seek to understand rather than condemn.

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But what does this have to do with ICE’s request to destroy its records? Dismantling the carceral state requires that we take seriously our obligation to provide an alternative. If we hope to discourage the reflexive recourse to punitive solutions whenever something goes awry, we have to be willing to put as much as possible before a skeptical public and engage in an open dialogue aimed at improving performance. To put it simply, we have to air our dirty laundry. And that in turn commands us to preserve and make public the records that could teach us important lessons.

From this perspective, ICE clearly should not be allowed to destroy these records. Consider just the matter of detainee deaths. According to researchers at NYU, 150 detainees died in ICE custody between 2003 and 2015; ICE has reported another 12 deaths in fiscal year 2016, and at least nine so far this year. I make no claim that any of these deaths involved a crime of any sort. But it is only by examining the records in detail that we can identify potentially important information, including patterns or anomalies that demand closer examination. If, for instance, a disproportionate number of deaths occurred at a particular facility, we would certainly be justified in taking a closer look at the conditions, staffing, supervision, and practices prevailing at that location.

And what is true for deaths is no less true for sexual assaults or the use of solitary confinement. Is sexual assault a more serious problem in certain facilities than others? Given the well documented mental health consequences of isolation, are some facilities over-using or misusing solitary confinement? And how do these records overlap? Is there a relationship between the overuse of solitary confinement in a particular facility and detainee suicide? As importantly, if we find a facility that consistently has low rates of solitary confinement, suicide, and sexual assault, don’t we want to know what they’re doing right? The list of possible questions is practically endless, and the thought that ICE could say this information has “little or no research value” is mindboggling.

Of course, it is true that some but not all of these records will be preserved for 20 years before they are destroyed. Younger readers will be forgiven for thinking 20 years is an exceptionally long period. It frequently takes far longer for patterns to emerge and become clear. In any case, we will soon be two decades past the turn of the century, and no historian thinks nearly the whole of the 20^th century is so far behind us as to be of “little or no research value.”

If people believe prosecution is the only way to achieve accountability, they will cling to it as the first and last option, and rightly so. If we want to challenge the hegemony of carceral thinking, we cannot shred the evidence of our blunders.