Clinton’s ‘96 laws provided the legal foundation for mass detention, rapid deportations, and the evasion of due process.
By Laura Hernández ,
September 30, 2026
ICE agents outside the Delaney Hall immigration jail on June 27, 2026, in Newark, New Jersey.Andrew Lichtenstein / Corbis via Getty Images
The more the American public sees of President Donald Trump’s hardline, anti-immigrant policies in action — the deaths, military-style invasions of neighborhoods, and mass detention and deportations — the more his approval on the issue drops.
If this trend sounds familiar, it’s because a similar wave of disapproval played out in Trump’s first term. Despite that backlash, Trump returned to office embracing even more extreme measures.
We must finally confront and uproot the core of the U.S.’s anti-immigrant underbelly, which is largely reflected in the racially motivated notion of criminalization.
Trump was not the first politician to exploit the concept of criminality, and he certainly won’t be the last. Criminalizing narratives are deeply planted in the American psyche, and they have commonly acted as the vessel through which white supremacist rhetoric and policy are ingrained into our culture and laws.
In the late 1980’s, criminalization went mainstream in the form of racist dog whistles, particularly those hinging on vile anti-Blackness deployed by politicians seeking to activate white voters. In the decades since, conservative and liberal leaders alike more purposefully extended this criminality framework to immigration — so much so that it’s now perhaps the primary driver of the public immigration debate.
Consider how Americans of all political stripes are often presented with the binary choice of supporting the “right” type of immigrant. In this oversimplification, immigrants fall into categories like “good” or “bad,” “legal” or “illegal,” “deserving” or “undeserving.”
Trump did not invent these narratives. They’ve underpinned both major parties’ politics of immigration for several decades, despite their basis in fiction and fear-mongering rather than evidence and compassion, or the fact these narratives are weaponized against non-white immigrants who for centuries have disproportionately faced restrictive and punitive policies for the act of seeking relief in this country.
But Trump’s partisan opposition, despite its massive opportunities in the face of unpopular, hardline policies, has repeatedly failed to capture the public’s long-term support on immigration. Too often, Democrats repackage the same old criminalizing narratives — often in softer terms, but always in line with the oversimplified good-or-bad thinking. This lack of imagination is reflected in the nearly annual bipartisan votes to increase funding for federal enforcement agencies like Immigration and Customs Enforcement (ICE) and Customs and Border Protection, as well as Democratic leaders’ messaging and policies.
Take, for example, former President Barack Obama’s push to deport “felons, not families”; Joe Biden squandering his mandate to reverse the cruelty of Trump’s first term by continuing many Trump policies, like Title 42 and the backing of for-profit immigrant detention; or Kamala Harris, in her presidential bid, focusing much of her immigration rhetoric on “securing” the border.
It’s a toxic cycle: The public rightfully disapproves of the atrocities of anti-immigrant policies; in response, liberals roll out unimaginative plans hinged on outdated narratives; and finally, in the vacuum created by the lack of any tangible, pro-immigrant vision, the right recaptures the public’s attention with fear mongering and a sensationalist focus on crime and the border.
To break this cycle, we must imagine a pro-immigrant future in which our communities, not politicians and pundits, get to define safety.
We can start with recognizing that the modern-day legal basis for the criminalization of immigrants largely rests on a pair of anti-immigrant bills signed into law by Bill Clinton 30 years ago. Building upon the U.S. legacy of racialized immigration control, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) and the Antiterrorism and Effective Death Penalty Act (AEDPA) further entrenched mass incarceration and laid the blueprint for the detention and deportation machine we have today.
These laws drastically expanded the government’s ability to automatically detain and deport people without due process and without consideration for their current circumstances.
IIRIRA, in particular, dramatically expanded who can be deported, made detention mandatory, created fast-track deportations, and stripped immigration judges of much of their discretion.
The numbers show just how much these laws have supercharged the mass incarceration and deportation of immigrants over the past 30 years. In 1995, 50,924 people were deported and fewer than 7,500 people were held in immigration detention. By 1997, the number of people deported more than doubled to 114,432, and by 2001, 20,500 people were held in detention. Thirty years later, the devastation has only climbed higher, with nearly 330,000 people deported in 2025 and roughly 70,000 people in ICE detention today.
Once mandatory detention created the demand, private prison companies cashed in and played an integral role in building what is now the world’s largest immigration detention system. Today, approximately 90 percent of people detained in ICE custody are held in prisons owned or operated by private corporations.
The bills also provided the blueprint to turbocharge detention and deportation by further entangling the criminal legal and immigration systems. In what is known as the prison-to-ICE pipeline, immigrants are subject to double punishment; many face the loss of their freedom twice for the same conviction. Because ICE can arrest people as they’re released from prison (despite that individual serving their time and completing their sentence) many are re-incarcerated on the very day they would otherwise go home to their families.
This double standard disproportionately punishes Black people and reinforces systemic racism by propagating existing racial disparities — like those found in conviction rates and policing practices like profiling — into the immigration system.
Today, the ’96 laws continue to be key tools the Trump administration uses to carry out its immigration agenda. As the administration’s enforcement net widens to target and arrest political dissidents, families, and even U.S. citizens, we must recognize the role criminalizing narratives have played in leading us to our present slide into authoritarianism. Criminalization is the primary justification used to make these cruel policies all the more entrenched and widespread.
Here lies the danger of not fighting the root of the problem: When we concede fundamental rights like due process for some, we begin to concede those rights for all. When we fight only for those immigrants who have not yet been labeled “criminal,” we’ll find ourselves unprepared when authoritarians inevitably stamp that label on more and more of us.
Enough with the exclusions.
All people are worthy of human dignity, due process, and the right to live in safety, no matter where we were born. Those who have been previously ensnared in the U.S. carceral system — including those who have committed harm in their past — are not disposable. They’re people, often with full lives established in the U.S., who are worthy of redemption and second chances like anyone else.
To build toward this vision, we must rally around bold proposals that affirm these values. We must reject the toxic “good immigrant/bad immigrant” narrative once and for all and champion a vision in which freedom, human rights, and basic human dignity are the floor for our demands, not merely concessions or carveouts for some.
Legislatively, we must repeal laws like the IIRIRA and AEDPA bills of 1996, and their modern-day counterparts like the Laken Riley Act, which expands mandatory detention. The New Way Forward Act offers a concrete start to fixing much of the damage of the ‘96 laws. And at the border, it won’t be enough to restore the U.S. asylum system to its pre-Trump state. Instead, we must decriminalize the act of seeking safety or economic security.
At the state and local level, communities can chip away at the interconnected carceral and deportation dragnet by fighting for legislation that blocks local law enforcement’s collaboration with ICE, including the transfer of people from local jails and prisons to the agency.
Ultimately, to turn the tide, it’s going to take all of us. In each of our lives, we must resist the urge — at work, the dinner table, online, and in our opposition to Trumpism — to tie one’s worth and humanity to however they’ve been labeled. In fighting for everyone, we’ll advance our struggle for fairness, justice, and family unity. And we’ll just so happen to build a winning coalition along the way.
This article is licensed under Creative Commons (CC BY-NC-ND 4.0), and you are free to share and republish under the terms of the license.
Laura Hernández
Laura Hernández is the executive director of Freedom for Immigrants, an abolitionist, immigrant-led nonprofit organization devoted to ending immigration incarceration and winning a future in which all people can move freely and thrive.
The more the American public sees of President Donald Trump’s hardline, anti-immigrant policies in action — the deaths, military-style invasions of neighborhoods, and mass detention and deportations — the more his approval on the issue drops.
If this trend sounds familiar, it’s because a similar wave of disapproval played out in Trump’s first term. Despite that backlash, Trump returned to office embracing even more extreme measures.
We must finally confront and uproot the core of the U.S.’s anti-immigrant underbelly, which is largely reflected in the racially motivated notion of criminalization.
Trump was not the first politician to exploit the concept of criminality, and he certainly won’t be the last. Criminalizing narratives are deeply planted in the American psyche, and they have commonly acted as the vessel through which white supremacist rhetoric and policy are ingrained into our culture and laws.
In the late 1980’s, criminalization went mainstream in the form of racist dog whistles, particularly those hinging on vile anti-Blackness deployed by politicians seeking to activate white voters. In the decades since, conservative and liberal leaders alike more purposefully extended this criminality framework to immigration — so much so that it’s now perhaps the primary driver of the public immigration debate.
Consider how Americans of all political stripes are often presented with the binary choice of supporting the “right” type of immigrant. In this oversimplification, immigrants fall into categories like “good” or “bad,” “legal” or “illegal,” “deserving” or “undeserving.”
Trump did not invent these narratives. They’ve underpinned both major parties’ politics of immigration for several decades, despite their basis in fiction and fear-mongering rather than evidence and compassion, or the fact these narratives are weaponized against non-white immigrants who for centuries have disproportionately faced restrictive and punitive policies for the act of seeking relief in this country.
But Trump’s partisan opposition, despite its massive opportunities in the face of unpopular, hardline policies, has repeatedly failed to capture the public’s long-term support on immigration. Too often, Democrats repackage the same old criminalizing narratives — often in softer terms, but always in line with the oversimplified good-or-bad thinking. This lack of imagination is reflected in the nearly annual bipartisan votes to increase funding for federal enforcement agencies like Immigration and Customs Enforcement (ICE) and Customs and Border Protection, as well as Democratic leaders’ messaging and policies.
Take, for example, former President Barack Obama’s push to deport “felons, not families”; Joe Biden squandering his mandate to reverse the cruelty of Trump’s first term by continuing many Trump policies, like Title 42 and the backing of for-profit immigrant detention; or Kamala Harris, in her presidential bid, focusing much of her immigration rhetoric on “securing” the border.
It’s a toxic cycle: The public rightfully disapproves of the atrocities of anti-immigrant policies; in response, liberals roll out unimaginative plans hinged on outdated narratives; and finally, in the vacuum created by the lack of any tangible, pro-immigrant vision, the right recaptures the public’s attention with fear mongering and a sensationalist focus on crime and the border.
To break this cycle, we must imagine a pro-immigrant future in which our communities, not politicians and pundits, get to define safety.
We can start with recognizing that the modern-day legal basis for the criminalization of immigrants largely rests on a pair of anti-immigrant bills signed into law by Bill Clinton 30 years ago. Building upon the U.S. legacy of racialized immigration control, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) and the Antiterrorism and Effective Death Penalty Act (AEDPA) further entrenched mass incarceration and laid the blueprint for the detention and deportation machine we have today.
These laws drastically expanded the government’s ability to automatically detain and deport people without due process and without consideration for their current circumstances.
IIRIRA, in particular, dramatically expanded who can be deported, made detention mandatory, created fast-track deportations, and stripped immigration judges of much of their discretion.
The numbers show just how much these laws have supercharged the mass incarceration and deportation of immigrants over the past 30 years. In 1995, 50,924 people were deported and fewer than 7,500 people were held in immigration detention. By 1997, the number of people deported more than doubled to 114,432, and by 2001, 20,500 people were held in detention. Thirty years later, the devastation has only climbed higher, with nearly 330,000 people deported in 2025 and roughly 70,000 people in ICE detention today.
Once mandatory detention created the demand, private prison companies cashed in and played an integral role in building what is now the world’s largest immigration detention system. Today, approximately 90 percent of people detained in ICE custody are held in prisons owned or operated by private corporations.
The bills also provided the blueprint to turbocharge detention and deportation by further entangling the criminal legal and immigration systems. In what is known as the prison-to-ICE pipeline, immigrants are subject to double punishment; many face the loss of their freedom twice for the same conviction. Because ICE can arrest people as they’re released from prison (despite that individual serving their time and completing their sentence) many are re-incarcerated on the very day they would otherwise go home to their families.
This double standard disproportionately punishes Black people and reinforces systemic racism by propagating existing racial disparities — like those found in conviction rates and policing practices like profiling — into the immigration system.
Today, the ’96 laws continue to be key tools the Trump administration uses to carry out its immigration agenda. As the administration’s enforcement net widens to target and arrest political dissidents, families, and even U.S. citizens, we must recognize the role criminalizing narratives have played in leading us to our present slide into authoritarianism. Criminalization is the primary justification used to make these cruel policies all the more entrenched and widespread.
Here lies the danger of not fighting the root of the problem: When we concede fundamental rights like due process for some, we begin to concede those rights for all. When we fight only for those immigrants who have not yet been labeled “criminal,” we’ll find ourselves unprepared when authoritarians inevitably stamp that label on more and more of us.
Enough with the exclusions.
All people are worthy of human dignity, due process, and the right to live in safety, no matter where we were born. Those who have been previously ensnared in the U.S. carceral system — including those who have committed harm in their past — are not disposable. They’re people, often with full lives established in the U.S., who are worthy of redemption and second chances like anyone else.
To build toward this vision, we must rally around bold proposals that affirm these values. We must reject the toxic “good immigrant/bad immigrant” narrative once and for all and champion a vision in which freedom, human rights, and basic human dignity are the floor for our demands, not merely concessions or carveouts for some.
Legislatively, we must repeal laws like the IIRIRA and AEDPA bills of 1996, and their modern-day counterparts like the Laken Riley Act, which expands mandatory detention. The New Way Forward Act offers a concrete start to fixing much of the damage of the ‘96 laws. And at the border, it won’t be enough to restore the U.S. asylum system to its pre-Trump state. Instead, we must decriminalize the act of seeking safety or economic security.
At the state and local level, communities can chip away at the interconnected carceral and deportation dragnet by fighting for legislation that blocks local law enforcement’s collaboration with ICE, including the transfer of people from local jails and prisons to the agency.
Ultimately, to turn the tide, it’s going to take all of us. In each of our lives, we must resist the urge — at work, the dinner table, online, and in our opposition to Trumpism — to tie one’s worth and humanity to however they’ve been labeled. In fighting for everyone, we’ll advance our struggle for fairness, justice, and family unity. And we’ll just so happen to build a winning coalition along the way.
This article is licensed under Creative Commons (CC BY-NC-ND 4.0), and you are free to share and republish under the terms of the license.
Laura Hernández
Laura Hernández is the executive director of Freedom for Immigrants, an abolitionist, immigrant-led nonprofit organization devoted to ending immigration incarceration and winning a future in which all people can move freely and thrive.
