Being incarcerated is hard, but being incarcerated abroad is even harder. Foreign inmates face linguistic and cultural barriers and an unfamiliar legal system. Under such circumstances, detainees look to their government for advice and assistance, assistance that is protected by consular conventions. Completed in 1963, the Vienna Convention on Consular Relations—to which most countries, including China and the United States, are party—is considered the baseline protection for foreign nationals detained abroad. It provides that representatives of a detainee’s consulate must be notified “without delay” (24 to 72 hours) if a detainee so requests.
For more than two decades, the United States and China also have had a bilateral agreement, the US-PRC Consular Convention, which is more rigorous than the Vienna Convention. When a US citizen is detained in China, authorities are absolutely required to report the information to the US Embassy within four days regardless of the detainee’s wishes; US authorities are similarly required to report the detention of Chinese citizens. In the United States, this requirement falls to each of the over 18,000 individual US law-enforcement jurisdictions. However, reporting is not tracked centrally by the US State Department, making it extremely difficult to ascertain whether the convention is being followed, let alone how many Chinese citizens are incarcerated in the United States.
Dui Hua is often critical of the opacity of China’s prison system, where much information on the system’s population is a state secret. But while US prison statistics are not a state secret, data are held by a patchwork of different federal, state, and local institutions. The National Bureau of Justice Statistics (BJS) does aggregate some basic information from state prisons, but it does not track nationality. This problem of accounting is made worse by the fact that some states track citizenship, while others only track self-reported country of birth (for which naturalized citizens may still report China) or ethnicity or race (for which second generation US citizens may still report China). In short, there is no simple way to assess the number of Chinese citizens incarcerated in the United States.
Attempting to Pull the Numbers Together
The BJS report Prison and Jail Inmates at Midyear 2006 (PDF) states that: “[M]ore than two-thirds of the non-citizens in State or Federal prison were held by three jurisdictions: the Federal system housed 33,701 (37% of the total); California housed 15,849 (17% of the total); and Texas housed 9,227 (10% of the total).” The US federal prison system is relatively small, holding only about 200,000 of the 2.6 million prisoners incarcerated in the country. The Federal Bureau of Prisons publishes a dataset on federal prisoners that includes nationality, and it indicates that 68 federal prisoners were reported to be Chinese citizens as of the end of 2007. With this number, as well as an estimate of Chinese citizens in prison in Texas and California, an estimate of the total number of incarcerated Chinese citizens can be made.
The problem with basing an estimate on prison populations in these three jurisdictions (the federal system, Texas, and California) is that while the two states have large non-citizen prison populations, those non-citizens are not necessarily likely to be Chinese. A better approach would be to take data from states where large numbers of Chinese citizens likely reside, namely states with large Chinese-American populations. According to the 2000 US Census, 40 percent of Chinese-Americans reside in California, and 80 percent of Chinese-Americans live in just five states: California, New York, Hawaii, Texas, and New Jersey. Dui Hua requested data from the prison bureaus in all five of these states. Unfortunately, the data received was inconsistent, dating back to 2004, with some states tracking country of birth (New York, California, New Jersey), one state tracking citizenship (Texas), and one state tracking “racial or ethnic group” (Hawaii). The level of openness to Dui Hua’s inquiry also varied; some states were very forthcoming, while others required authorization to release data. (One state, Hawaii, did not respond to repeated requests for information.)
Based on available data and interviews with knowledgeable sources, Dui Hua’s best estimate is there are no more than 400 Chinese citizens currently incarcerated in state and federal prisons in the United States. More importantly, this research shows that although US prison data is open to the public, it is not always consistent, transparent, or accessible. It can easily be assumed that the main impediment to a full understanding of China’s prison system is the lack of transparency on the part of the Chinese government. But if Dui Hua’s investigation into the number of Chinese citizens in US prisons is any guide, getting solid answers about a penal system may require more than just the freedom to ask the questions.