Aliens, Crime, and Drugs: Making the Connection

(The conclusion the Border Lines series: “Aliens, Crime, and Drugs: Making the Connection.")

Immigration is not a case apart.

The traditional frameworks for viewing immigration issue – from the “nation of immigrants” history to demands for “comprehensive immigration reform” – treat the immigration as a distinct issue in U.S. society and politics. In public and policy discourse, we regard immigration policy as the special way we deal with outsiders – the regulations and laws we institute to determine who can come inside and remain in our society.

But as the crackdown on immigrants evolves, the old frameworks for understanding the plight of immigrants and for advancing policy solutions fall increasingly short. That’s largely because the federal government, in concert with local and state governments, has stopped treating immigrants as a special case.

The way we have decided to deal with these outsiders – the 30 million illegal and legal immigrants who live among us – is how we already decided to deal with ourselves. In the early 1970s America began a new experiment in social engineering and control. It rejected the liberal, democratic, and humanitarian impulses that had previously played such an important role in defining who we were as Americans.

Instead of hope, fear increasingly defined governance in social policy. Increasing drug use and rising urban crime were met with reactionary policies rather than problem solving – the get-tough wars on drugs and crime. We began “governing through crime,” as criminal justice scholar Jonathan Simon has observed.

Millions of Americans began to be imprisoned for victimless drug-possession crimes. To enforce the social order and uphold the rule of law, the drug and crimes wars filled America’s expanding prison complex with petty criminals and illegal drug users.

While liberal programs – drug treatment, Head Start and other education programs, social services, etc. – persisted, the newly dominant response was to isolate our social problems rather than address them. Mass imprisonment became our prevailing risk-management strategy.

Similarly, rather than fixing a dysfunctional immigration system, government has since the mid-1990s moved to manage the immigration crisis through a strategy that stresses deterrence and forcible exclusion. The immigration system has been shifted to the criminal justice system.

Immigration law increasingly has been criminalized – a process some legal scholars have called “crimmigration.” Federal courts are clogged with immigrants. Ever larger numbers of immigrants, legal and illegal, are regarded as “fugitive aliens” or “criminal aliens.”

Shifting immigrants to the America’s system of crime and punishment has obligated ICE, U.S. Marshals Service, and Bureau of Prisons to greatly expand their network of prisons. Immigrant prisons operated by private prison firms have popped up all across the nation but especially in Texas and other border states.

Just as government latched on crime-fighting as the easiest, most popular form of governance, so too have we increasingly responded to the challenges of managing immigration. Immigrants have become identified as criminal aliens, and a multibillion-dollar enforcement and penal complex has arisen to manage this pressing social problem.

This immigrant crime/prison complex overlaps with the citizen crime/complex. Like the citizen penal system, the immigrant penal system has become largely the domain of private prison firms. The criminal justice system, already heavily burdened by the crime and drug wars, is now overwhelmed with immigrants who are charged largely with nonviolent, victimless crimes.

There are important differences, of course, between the citizen and noncitizen crime/prison complexes. While state and local governments in the face of budgetary and economic crises are starting to question the sustainability crime and punishment system as the costs of maintaining the penal system mount, DHS and DOJ are the beneficiaries of generous congressional funding increases for the immigrant crackdown. ICE alone spends $1.7 billion a year for immigrant detention.

It’s likely, though, as the federal budget deficit grows and the national fixation on immigration control as a guarantor of homeland security decreases, that the immense sums our government spends on the immigrant crime-and-punishment system will also be questioned.

While DHS officials routinely say that immigration law enforcement aims to uphold the “rule of law,” it’s a rule of law for citizens alone that is being enforced. A far inferior and ever-more degraded set of laws and regulations rules the immigrant world.

Legal or illegal, they aren’t protected by the same constitutional guarantees as citizens. While immigrants have the right to counsel in immigration court, they don’t have the right to a government-provided attorney if they can’t afford to hire an attorney. When in the immigration system, criminal aliens are protected by the Fifth Amendment’s due process clause, but they aren’t protected by the criminal process rights in the Fourth, Fifth, and Sixth Amendments. As aliens, they are defined and treated as outsiders with few of the rights and guarantees of citizens.

No doubt that America has the right to control who enters its borders and who becomes a citizen. It’s just as clear that America’s immigration system is badly broken and that there are valid citizen concerns about illegal immigration, immigrant crime, and border security.

But instead of dealing proactively with the complexity of the problem, America lately has reacted to the immigration issue chiefly with the “get tough” strategies employed in the drug and crime wars for so long, for so much money, with so little result, and with so much tragedy. As America begins to reconsider its prohibitive and punitive response to the immigration crisis, it also would do well to declare an end to the crime and drug wars that are so now so closely linked.

It’s time to start solving these problems, not just cracking down.

Photo: Criminal alien prison in Sierra Blanca, Texas.

Marijuana Fuels Drug War

(The 10th article in the 12-part BorderLines series "Aliens, Crime, and Drugs: Makiing the Connection.") On both sides of the border, marijuana is the dangerous good that has the most prominent place in the drug war. During its nearly year-long deployment in the border state of Chihuahua, the Mexican army points to the tonnage of marijuana seizures as the best evidence of its success in its campaign against the drug organizations. The army regularly stages photo-ops not of captured drug lords and lieutenants but of bundles of seized marijuana going up in flames. Forty years after President Nixon’s Operation Intercept, the Border Patrol is still hailing the quantity of marijuana it seizes as evidence that it is winning the drug war. The Tucson Sector Border Patrol recently announced that it had seized more than 500,000 pounds of marijuana since October 1 – a 22% increase over the same period last year. In the same period the Border Patrol reported having seized only 53.13 ounces of heroin, 65.25 pounds of cocaine, and 6.39 pounds of meth. Marijuana, which ignited the drug war four decades ago, remains central to the drug war as it plays out in Mexico and along the border. According to the DEA, the smuggling of marijuana into the United States from Mexico has increased over the past two years to meet a new surge in U.S. demand. Customs and Border Protection (CBP), the DHS agency that includes the Border Patrol, explains its drug war mission this way:

“Drug interdiction is a priority undertaking encapsulated by CBP’s overall mission to secure the nation’s borders and prevent unlawful entry of dangerous people and goods while facilitating the legitimate flow of travel and trade. CBP’s border and border nexus drug interdiction activities contribute to the National Drug Control Strategy by disrupting the flow of drugs into the United States.”

CBP has “performance metrics” to measure its contribution to the drug war. Although it doesn’t set target goals, it does measure the quantity of drugs seized annually. Its “performance objective” is “using a risk-based approach, [to] deploy and employ the most effective inspection and scanning technology available at designated land border ports, airports, seaports, permanent Border Patrol traffic checkpoints, and international areas…” Its “risk-based approach” consistently results in marijuana as being the top dangerous good seized. In 2008 CBP seized 2,471,931 pounds of marijuana. That’s up from the 1,339,492 pounds seized in 2005 but down 11% from 2007 seizures. It also reports cocaine and heroin seizures in its annual performance reports. In 2008 CBP seized 178,770 pounds of cocaine and 2,178 pounds of heroin.

Outdoing even the DEA in announcements of drug-war victories, the Border Patrol issues a flood of press releases about its drug seizures. The Border Patrol has announced a string of seizures in 24-hour drug-seizure “busts.” Over a 24-hour period in the Hidalgo County in Texas, the Border Patrol boasted that it had seized more than $3.6 million worth of marijuana.

About the same time, on the northern border Border Patrol agents at the Sweet Water port of entry in Montana seized $284,000 worth of “drug paraphernalia” in the form of 5,380 assorted pipes and bongs. “I've never seen so many shipments at a time," said Sandy Owens, chief of the Sweet Grass Port of Entry for 16 years.

One of the hot spots for marijuana interdiction is in the Border Patrol’s Yuma, Arizona sector. As elsewhere along the border, Border Patrol agents aren’t arresting many illegal border crossers lately. On some days, the immigrant arrest count is in the single digits. But all along the border BP agents are still focused on their drug war mission, especially at the dozens of permanent and temporary checkpoints that are mounted along roads within the 100-mile wide swath of borderlands in which they operate. Checkpoint Madness

The merger of the drug war and the immigrant crackdown is on vivid display throughout the borderlands at an increasing number of CBP highway checkpoints. These checkpoints – 33 permanent and numerous “tactical” or temporary ones - are raising the ire of borderlands residents who are being repeatedly stopped, interrogated, and having their vehicles searched.

Borderlands residents complain that the permanent and tactical checkpoints are violating their constitutional rights and victimizing legal U.S. residents, while smugglers avoid the permanent checkpoints and deploy scouts to notify them of the tactical ones.

Last year, Sen. Patrick Leahy (D-VT) in a March 4, 2008 statement to the Homeland Security Subcommittee questioned the need and purpose of the new Border Patrol checkpoints along the northern border and told a story about when he was stopped at a Border Patrol checkpoint:

“It was about 125 miles from the border. In a car with license plate one on it from Vermont. With little letters underneath it that said US Senate. We were stopped and ordered to get out of the car and prove my citizenship. And I said “what authority are you acting under?” and one of your agents pointed to his gun and said ‘that’s all the authority I need.’ Encouraging way to enter our country!”

An investigative report in the Phoenix New Times (March 13) found that a permanent Border Patrol checkpoint in the Yuma Sector was reaping thousands of recreational drug users. While vehicles passing the checkpoint on Interstate 8 are not routinely searched by Border Patrol agents, K9 dogs go up and down the line of stopped traffic sniffing for traces of illegal drugs.

Over the past year, the Border Patrol has mounted a joint operation, called Operation Citation, in conjunction with the Yuma County Sheriffs Department to issue local-jurisdiction fines for drug possession. In a twist of the “interoperability” promoted by DHS’ Criminal Alien and Secure Communities programs, instead of having local police certified as immigration enforcement officers, immigration and border control agents are certified to enforce local drug laws.

In the past 11 months, the two Border Patrol checkpoints along the Arizona-Sonora border – “the biggest weed traps in the country” -- have nabbed more than 1,200 people for marijuana possession.

Before Operation Citation, Border Patrol agents confiscated drug paraphernalia and small quantities of personal-use drugs and then sent the subject’s information to the county attorney’s office for prosecution. Now, BP agents are cross-certified by the sheriff’s department to issue citations and fines, which has netted the county hundreds of thousands of dollars in the past year.

It’s a zero-tolerance policy, as Border Patrol spokesman Jeremy Schappell told the New Times: "If we get just a pipe, they are getting written up. If it's a seed, they are getting written up."

Next: Breaking the Connections

Photo: New Times at Yuma checkpoint

Fighting the Drug War at Homeland Security

(Ninth in a 12-part BorderLines series "Aliens, Crime, and Drugs: Making the Connection.") The drug war, declared by President Richard Nixon in 1971, is a prohibition movement that began in the United States and has since spread around the globe, often with U.S. assistance and under U.S. direction. It started more as a backlash movement against the spread of recreational drugs by America’s youth in the 1960s, when the use of marijuana and hallucinogens became associated with the protest movement against the Vietnam War and against the dominant culture, hence the “counterculture” movement. At first, the drug war – likely derived from President Johnson’s “War on Poverty” -- was largely regarded as a war on the home front, although what may be regarded as one of the opening forays of the soon to-be-declared war was Operation Intercept, a short-lived initiative to search all northbound traffic from Mexico to intercept the inflow of marijuana. Over the past four decades the drug war has become a global war fought by the United States to eradicate drug production and to interdict narcotics shipments. The initial primary focus on treatment, especially for heroin addiction, quickly gave way to the prevailing focus on suppression and imprisonment. As the U.S.-supported drug war in Mexico rages, rising concern that the related violence may spill over the border has led to new calls to reinforce border security. Although expressing concerns about militarizing the border, the Obama administration is responding by beefing up the presence of ICE, CBP, Drug Enforcement Administration (DEA), and other federal agents along the embattled southwestern border. At the same time, though, the Obama administration has restated its strong support for Mexican President Felipe Calderon’s decision to deploy the army to fight the drug war and for the Merida Initiative, which provides U.S. military support for that “war.” Along the border the drug war and the immigrant crackdown are already one and the same. When the CBP says it is protecting the homeland against “dangerous people and goods,” it in effect is talking about illegal immigrants and illegal drugs. The Border Patrol is as much a drug enforcement agency as an immigration control force. At the CBP ports of entry and at their proliferating highway checkpoints, drug-sniffing dogs, car searches, and billboards announcing the quantities of drugs seized at each location sends the clear message that illegal drugs are regarded as a serious threat to homeland security. Next: Marijuana Fuels the Drug War

Secure Communities -- Latest Immigrant Crackdown Initiative

(An article in the BorderLines series: "Aliens, Crime, and Drugs: Making the Connection.") The Department of Homeland Security already has a “comprehensive” plan in operation for immigration. It deals with both illegal and legal immigrants, not through some complicated political reform that tests the political will of our politicians but through the simplicity of database integration. Despite many concerns about its accuracy expressed by civil libertarians and worker advocates and despite the fact that in the short or medium term there is little hope for an immigration reform that will enable the vast population of illegal immigrants to regularize their status, the E-Verify identification system is quickly moving forward. Fewer concerns have been expressed about another ID system that is quickly gaining hold among police departments around the country. That lack of opposition is in due in part to the fact that the “Secure Communities” is quite new and in part because that, while targeting both illegal and legal immigrants, the focus is on criminals. Striving to build a broad coalition in support of comprehensive immigration reform (CIR), immigrant-rights advocates are understandably reluctant to oppose the intensifying drive to remove criminal aliens from America. With both Homeland Security and CIR advocates rallying behind a “rule of law immigration stance, the political will to stand behind criminal aliens is hard to find. There’s been no congressional opposition to successive DHS initiatives over the past several years that simultaneous have clamped down on criminal aliens while widening the definition of what a criminal alien is. Its latest criminal alien initiative, "Secure Communities: A Comprehensive Plan to Identify and Remove Criminal Aliens," shows more potential for involving localities in immigration enforcement. ICE explains that Secure Communities, which it introduced in mid-2008, will “change immigration enforcement by using technology to share information between law enforcement agencies and by applying risk-based methodologies to focus resources on assisting communities remove high-risk criminal aliens.” Instead of training local law enforcement officials in immigration law enforcement, ICE equips police, sheriff departments, and local jails with “integration technology that links law enforcement agencies to both FBI and DHS biometric databases.” Whereas police now routinely submit data on suspects to the FBI, they will now be able to simultaneously check immigration and criminal databases. In the program’s first eight months, ICE has entered into agreements with fifty localities to use this integrated technology when booking prisoners. ICE says that “in collaboration with DOJ and other DHS components, ICE plans to expand this capability to all state and local law enforcement agencies throughout the nation.” Announcing its latest agreement with Fairfax County, Virginia on March 9, Executive Director for ICE Secure Communities David Venturella said, “Secure Communities is a new effort to identify and ultimately remove dangerous criminal aliens from our communities. Our goal with this ICE program is to use technology to prevent criminal aliens from being released back into the community, with little or no additional burden on our local law enforcement partners.” “This is a win-win situation both for the community and law enforcement,” said Fairfax County Sheriff Stan Barry. “We will be able to identify illegal immigrants who commit crimes in Fairfax County and get them in the process for deportation, and it does not require additional funds or manpower from us.” "We view our participation in Secure Communities as an additional tool to enhance what is already a very effective partnership with Immigration Customs Enforcement," said Larry Boyd, chief of police in Irving, Texas, which joined up in February. At its heart, Secure Communities is a technological identification program developed jointly by the Justice and Homeland Security departments. It integrates DHS’ new US VISIT Automated Biometric Identification System (IDENT), which holds biometrics-based immigration records, with the FBI’s Integrated Automated Fingerprint Identification System (IAFIS), which contains biometric-based criminal records. Other components to DHS’ new focus on computerized identification programs and expanded immigration databases are its Law Enforcement Support Center (LESC) and its new Video Teleconferencing project (VTC). Through its widening net, ICE is catching a rapidly rising number of criminal aliens. In 2008 it identified 221,000 aliens in local, state, and federal prisons, who will be remanded to ICE for removal. That’s up from 164,000 incarcerated criminal aliens in 2007 and 67,000 in 2006. With the acceleration of Secure Communities, ICE expects these annual metrics of success to skyrocket. ICE claims that it is “transforming community safety by transforming the way the federal government cooperates with state and local law enforcement agencies to identify, detain, and remove all criminal aliens held in custody.” When situated within the War on Crime, the immigrant crackdown counts on more support. While other DHS initiatives, such as its worksite raids and border fence, have come under widespread criticism, DHS has found broad support for its focus on criminal aliens – which is one reason why the Obama administration is insisting that such programs will be a priority. Next: Fightng the Drug War at Homeland Security

Photo: USMS immigrant prison in Sierra Blanca, Texas

Consolidating ICE's Criminal Alien Program

The 2007 creation by ICE of the Criminal Alien Program (CAP) represented the agency’s determination to consolidate its criminal alien operations as a central focus of its immigration enforcement duties. CAP brought together its Institutional Removal Program and Alien Criminal Apprehension Program under one roof. Unlike the Return to Sender raids or its deputizing local officials in immigration law enforcement, CAP’s aim is to ensure through expanding criminal and immigration databases that all criminal aliens in federal, state, and local custody are remanded to ICE upon their release. ICE had been able to establish methods to track all aliens in federal prisons but had been less successful in ensuring that aliens entering state and local jails were turned over to ICE processing. Its new Detention Enforcement and Processing Offenders by Remote Technology Center (DEPORT) in Chicago was established to monitor all aliens in Federal Bureau of Prisons (BOP) facilities. DEPORT ensures that the roughly 50,000 aliens in BOP prisons – more than one in four federal prisoners – are transferred to ICE once they complete their sentences. Over the past several years, BOP has facilitated this task by setting up five criminal alien prisons run by two private prison companies (Corrections Corporation of America and GEO Group) to hold 10,000-plus low-security “criminal alien residents, most of whom have been convicted for drug possession and immigration violations. To secure custody of the criminal aliens in state and local custody, ICE has proceeded on two fronts: training local officials to search for the immigration status of those suspected immigrants it cites or charges through 287 (g) agreements, and encouraging local officials to use the integrated criminal/immigration databases it has established. No one knows how many immigrants are in local and state custody. One measure of this population is the federal program that reimburses state and local governments for holding criminal aliens. According to a GAO report, in 2003 the State Criminal Alien Assistance Program (SCAAP) of the Justice Department partially reimbursed the submitted expenses of state and county governments for the incarceration, respectively, of 74,000 and 147,000 criminal aliens. Although a helpful guide to the number of criminal aliens in state and local custody, the SCAAP figures don’t provide a full accounting of the number of immigrants who could potentially be shifted to ICE custody since many government entities don’t keep track of the immigration status of their prisoners or don’t submit reports to the Justice Department because they are only partially compensated for their expenses. ICE is well aware that 287(g) agreements have limited reach since they appeal mostly to rural communities where there is substantial anti-immigrant sentiment. Larger, metropolitan communities are critical of the agreements for many of the problems cited in the GAO and Justice Strategies reports. ICE says it recognizes that “there is no ‘one size fits all’ solution that will apply to every community in the country, so area Special Agents in Charge (SACs) and Field Office Directors (FODs) work closely with their local counterparts to find solutions that will meet their needs.” Next: ICE's Comprehensive Immigration Enforcement

Increasing Federal/Local "Interoperability"

(Sixth in the 12-part BorderLines series "Aliens, Crime, and Drugs: Making the Connection." Since 2006 ICE has assiduously also sought to involve local law enforcement directly in the enforcement of immigration law. It has instituted this cooperation mostly through 287 (g) agreements, although increasingly it is relying on integrated immigration and criminal databases to extend immigration enforcement to the town and county level. ICE’s 287(g) program, like most current criminal alien initiatives, can be traced back to the 1996 criminalization of immigration law. A 1996 amendment to section 287(g) of the Immigration and Naturalization Act allows federal immigration agents to train local police and jailors in the enforcement of immigration law. Although authorized in 1996, in 2002 there were only two 287 (g) agreements. Today, there are 67 of these agreements between ICE and local police, with dozens of other police and sheriff departments waiting for training. Almost all these agreements have been signed in the past few years with the consolidation of ICE’s conceptual and operational focus on criminal aliens. Through 287(g) and other criminal alien programs, ICE says that it’s facilitating the “interoperability” of federal and local agencies and the “cross-designation” of local police as immigration agents. The 287(g) programs have led to widespread concerns about racial profiling, reduced community trust, inadequate prioritization of dangerous criminals, and misplaced law enforcement resources. These problems were highlighted in a January 2009 report by the U.S. Government Accountability Office titled Immigration Enforcement: Better Controls Needed over Program Authorizing State and Local Enforcement of Federal Immigration Laws. A March 2008 report by Justice Strategies, Local Democracy on ICE, also pointed to the broader problem of mixing immigration law and criminal law. In their report, Aarti Shahani and Judith Greene warned:

“287(g) represents the fusion of two separate systems of law enforcement power. Once in place, it can lead to further entanglement of these powers as state and local politicians jump into the campaign to “crackdown” on immigrants. But civil immigration and criminal law are fundamentally incompatible. The grey area between civil and criminal law creates a situation ripe for abuse. The Constitution’s protections against arrest without probable cause, indefinite detention, trial without counsel, double jeopardy, and self-incrimination, as well as the statute of limitations, do not apply equally (or in some cases at all) in the civil immigration context.”

The Widening Net

(Fifth in the 12-part BorderLines series "Aliens, Crime, and Drugs: Making the Connection.") The hunt for criminal aliens dates back to the late 1980s, but it has only been in the past few years that it has begun in earnest. The 1996 set of anti-immigrant acts went a long way toward establishing the legislative and policy foundations for this expanding manhunt, although it wasn’t until after Sept. 11 that Congress and the executive branch began pumping major resources into criminal alien programs. In the wake of Sept. 11, INS and DHS slowly started to put a new criminal alien infrastructure in place. The National Fugitive Operations Program, which targeted immigrants who hadn’t responded to immigration court orders known as “fugitive aliens” as well as criminal aliens, was established. INS/DHS also began to explore ways to engage local law enforcement in immigration enforcement through “287 (g) agreements.” Referring to a 1996 change in the Immigration and Naturalization Act, these agreements essentially deputize sheriff deputies, county jailors, and police as immigration agents. By 2002 only two such agreements were in place, but currently there are 67 ICE agreements with local police and sheriff departments – most of which were signed after 2006. In the first several years after the Sept. 11 attacks, DHS was overwhelmed with the reorganization of immigration enforcement and border control within this new department and with managing the infusion of new funding for agents, detention beds, and border security infrastructure. However, under the new leadership of DHS Secretary Michael Chertoff, DHS starting in 2005 began to hone its focus on criminal aliens. While terrorists remained central, at least rhetorically, to the mission of protecting the nation against “dangerous goods and people,” when ICE and CBP officials talked of “dangerous people” they were increasingly referring to criminal aliens, who represented a much larger and definable target than terrorists. As the national fear of an imminent terrorist attack diminished, DHS found broad and steadfast support among the public and in Congress for programs that targeted criminal aliens. “Operation Return to Sender” in 2006 was one of a flurry of new programs and operations that hunted down criminal aliens. National security and homeland security justifications for new immigration enforcement programs gave way to pronouncements about public safety and community security. On the occasion of a joint federal-local dragnet for criminal aliens in the Boston area on June 14, 2006, Secretary Chertoff said:

“Operation Return to Sender is another example of a new and tough interior enforcement strategy that seeks to catch and deport criminal aliens, increase worksite enforcement, and crack down hard on the criminal infrastructure that perpetuates illegal immigration. The fugitives captured in this operation threatened public safety in hundreds of neighborhoods and communities around the country. This department has no tolerance for their criminal behavior and we are using every authority at our disposal to bring focus to fugitive operations and rid communities of this criminality."

Other associated programs that target criminal aliens together with local law enforcement agencies are Operation Community Shield and Operation Stonegarden. In Operation Community Shield, ICE joins with local police to arrest suspected gang members not necessarily for any suspected crimes but for immigration violations. As part of DHS’ Border Security Initiative, Operation Stonegarden provides DHS grants to “support closer coordination of state and federal law enforcement agencies at our borders.” Through its national deployment of Fugitive Operations Teams and other interior enforcement operations such as Return to Sender, ICE has involved local law enforcement officials in joint raids. Local police and sheriff deputies join, in theory, not to enforce immigration law but to enforce criminal law since the priority targets are criminal aliens. Although ICE clearly defines its priorities as dangerous criminal aliens, in practice more than a third and oftentimes more than a half of those immigrants arrested by such raids are what ICE calls “collateral” arrests – not criminals, not fugitives, but simply immigration violators. Next: Increasing Federal/State/Local "Interoperability"

Criminal Aliens Without End

(Fourth in a 12-part BorderLines series "Aliens, Crime, and Drugs: Making the Connection.") There is no good estimate of the number of criminal aliens because it’s a constantly expanding population, as the number of new immigrants grows and as the number of immigrant residents who are convicted of crimes grows. It’s also a rising number because the federal government’s definition of deportable crimes keeps expanding, and because new border control and interior enforcement programs at DHS have been increasingly turning immigration violations into criminal violations. There are roughly 20 million legal noncitizen residents and 11 million illegal residents in the United States. ICE estimates that there are 300,000 to 450,000 criminal aliens detained at federal, state, and local prisons and jails. Once it gets data systems fully operating and with sufficient budgeting ($2-3 billion), ICE can remove all these aliens, most of whom are legal residents. An unknown number, presumably much larger than those currently detained, of legal residents who have at any time during their residence been convicted of a “removable offense” are also criminal aliens. They are “removable” but will likely remain outside ICE’s custody until they are identified by a cross-check of the government’s increasingly integrated immigration/criminal databases – as when they reenter the country after a foreign visit, apply for citizenship, booked in a local jail, stopped by a law enforcement official. In other words, if a legal resident has ever been convicted of a crime, even if the sentence was waived, they can at any point in their life be arrested and deported as a criminal alien. To this expanding pool of criminal aliens, any noncitizen who in the future commits a removable offense will be added. All 11 million immigrants are removable, in addition to the 300,000 – 500,000 additional immigrants who each year enter illegally or overstay their visas. If any of these are convicted of a crime or charged with a criminal violation of immigration law, they are considered criminal aliens, and will likely serve a prison sentence before being turned back to ICE for detention and removal. Next: The Widening Net

Criminal Aliens Everywhere

(Third in the 12-part BorderLines series: "Aliens, Crime, and Drugs: Making the Connection.") The immigrant crackdown counts on widespread public and policymaker support for an array of DHS and DHS programs that round up and remove criminal aliens. When President Bush sent his 2009 budget request to Congress, Democrat-led Senate and the House committees competed to add hundreds of millions of dollars more for the various initiatives of DHS’ Criminal Alien Program. This year’s criminal alien budget stands at $1 billion -- $200 million more than the president had requested. Next year that budget may rise to $1.4 billion, unless Congress adds more to the President Obama’s request. The prosecution and imprisonment of criminal aliens is overtaking the country’s criminal justice system. Overall, federal criminal prosecutions are rising spectacularly, overwhelming judges and burdening federal prosecutors with unprecedented caseloads. According to new statistics released by the Transactional Records Access Clearinghouse (TRAC), prosecutions in 2008 were 70% higher than in 2003. The arrest and prosecution of immigrants for immigration violations accounted for 55% of the new cases in December 2008, while drug cases accounted for 16% of the caseload that month. Five years ago drug abuse cases accounted for the most prosecutions but today immigration violations far outnumber drug abuse prosecutions. While charges for illegal entry and reentry have increased steadily over the past five years, the charge that showed the greatest increase in prosecutions – up 120% over 2007 – was document fraud, a charge filed mostly against illegal immigrants living and working in the country. Even as illegal immigration and apprehension rates have been falling over the past three years, the number of immigrants detained and deported by ICE has been rising. Between 2003 and 2007, the total number of immigrants detained by ICE rose from 231,500 to 311, 213. Although apprehensions along the border fell by 17% in 2008, deportations increased, rising from 319,382 in 2007 to 349,041 in 2008. One major reason for increased detention and removals is the increasing number of legal immigrants who are being removed because they have been identified as criminal aliens. In 2007, 99,924 of the 319, 041 immigrants deported were criminal aliens. Roughly one in five of these criminal aliens had been charged with criminal immigration violations such as illegal entry and aggravated identity fraud. The leading criminal violation – one in three – was a drug abuse conviction. In 2008 ICE deported 110,000 criminal aliens. The proportion of criminal aliens to the total number of deported immigrants will likely rise at a much greater rate in coming years as ICE implements its plans to identify and charge with deportation all the immigrants, legal and illegal, who are in federal, state, or local detention. In the past, immigrants, legal or illegal, who were convicted and sentenced to prison were generally released following the completion of their sentence. Once fully implemented, ICE’s Criminal Alien Program will ensure that all criminal aliens will be transferred to ICE custody after being released. Having met the criminal consequences of their violations, they will then face the immigration consequences – imprisonment at an ICE facility (mostly privately run) until removal from the country. This new ICE initiative under its Criminal Alien Program is called “Secure Communities: A Comprehensive Plan to Identity and Remove Criminal Aliens.” ICE says Secure Communities aims to “reach the goal of identifying and removing all aliens convicted of a crime.” This goal is a subset of DHS’ overriding goal, as defined by its 2003 Operation Endgame strategy, to “remove all removable aliens.” Next: Criminal Aliens Without End

The Rise of Criminal Aliens

(The second in the BorderLines series "Aliens, Crimel, and Drugs: Making the Connection") Immigrants have become the main target of the government’s long-running wars on crime and drugs. When President Nixon announced the wars on crime and drugs, he tapped into an incipient backlash movement of largely working and middle-class white Americans who wanted law-and-order solutions to urban crime and increasing illegal drug use. This was the beginning of what has been called the “severity revolution” and what criminal justice scholar Jonathan Simon calls “governing through crime” in a new book. Rather than seek social solutions that address root causes or that prioritize treatment and rehabilitation, America embarked on an era of mass incarceration. The idea, promoted by conservatives, was that criminals and drug users should be removed from society, thereby effectively removing the risk society faced from this deviant minority. As a result, the prison population today is seven times higher than it was four decades ago. With 2.3 million people in prison, America has the highest per capita incarceration rate in the world. For the most part, this conservative backlash movement that successfully promoted “tough on crime” judges, harsh sentencing rules, and the drug user imprisonment didn’t affect the immigration issue until the mid-1990s. The first sign that the “severity revolution” was also overtaking the prevailing liberal cast of immigration policy occurred in 1988 when, as part of the Omnibus Ant-Drug Act, Congress required mandatory detention and deportation for immigrants convicted of “aggravated felonies,” which were then defined as drug trafficking, murder, and trafficking in firearms. Pursuant to the 1988 act, the Immigration and Naturalization Service (INS) established the Institutional Removal Program, which began to review the immigration status of federal prisoners and represented the beginning of what is now called the Criminal Alien Program. DHS defines criminal aliens as “noncitizens who are residing in the United States legally or illegally and convicted of a crime.” Immigration restrictionist groups, notably the Federation for American Immigration Reform (FAIR), were steadily increasing their influence in immigration policymaking, but their central message that immigration was fueling unsustainable population growth never gained traction in Washington. The first major strikes against the liberal immigration ethos that prevailed in both political parties occurred in 1996, when the new Republican majority in Congress, with substantial Democratic Party support, passed three bills that established the policy groundwork for the current immigrant crackdown. Conservative congressional leaders merged anti-immigrant measures with new anti-terrorist, anti-crime, and anti-welfare legislation. These were the Anti-Terrorism and Effective Death Penalty Act (AEDPA), Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). In its newly restrictive grounds for political asylum and wider grounds for the indefinite detention of immigrants, AEDPA broke ground for the USA Patriot Act of 2001. Sparked by an anti-immigrant sentiment following the World Trade Center bombing of 1993 and the Oklahoma City federal building bombing in 1995 (for which foreign terrorists were initially but incorrectly blamed), AEDPA aimed to improve public safety and national security by vastly expanding the criminal grounds for the removal of immigrants. Together with IIRRA, AEDPA unhinged the term “aggravated felony” from its original meaning. Many misdemeanor convictions like shoplifting, even in the cases of suspended sentences, are now considered aggravated felonies that require mandatory detention and removal. In the wake of these acts, immigration courts and immigration enforcement agencies also expansively interpret crimes of “moral turpitude” and “controlled substances” in their categorization of criminal aliens. As part of the immigrant crackdown launched by Homeland Security Secretary Michael Chertoff, immigration law has also been criminalized. Whereas the 1996 acts and other legislation have stipulated immigration consequences (detention and removal) for crimes, DHS, acting in concert with the Department of Justice, has moved to create criminal consequences for immigration violations. Previously, an illegal entry or reentry or the use of fake credentials were regarded as administrative violations that generally resulted in deportation or voluntary departure. Borrowing a phrase from the law-and-order playbook, DHS launched a “zero tolerance” program called Operation Streamline. Under this pilot program, which has since been expanded, illegal border crossers picked up by the Border Patrol are not as traditionally been the case turned over to ICE for detention but rather to the U.S. Marshals Service (USMS) for pre-trial custody. Instead of being simply “illegal aliens” these immigrants become “criminal aliens” under the new “zero tolerance” regimen. Immigrants crossing illegally are now routinely being sentenced to jail terms of fifteen days, while those who reenter after having been deported now face ten to twenty years in prison. DHS hasn’t limited its criminalization of immigrants to the border. As part of the expansion of its “interior enforcement,” ICE in 2007 also began treating falsely documented or undocumented workers as criminal aliens. The mass arrest of mainly Guatemalan workers at the Agriprocessors slaughterhouse and meatpacking plant in Postville, Iowa on May 12, 2008 marked in tragic fashion the extent to which DHS was willing to go to demonstrate its commitment to enforce the rule of law – as DHS interpreted it. Of the 389 immigrants detained, 307 were criminally charged with using false Social Security numbers and aggravated identity theft (which carries a minimum two-year sentence). Offered a plea deal, most pled guilty to the false social security charge and received a five-month sentence. Next: Criminal Aliens Everywhere

New Alarm Over Border Security

(This is the first in the 12-part Borderlines series titled "Aliens, Drugs, and Crime: Making the Connection.")

President Bush’s “war on terror” established the ideological rationale for the immigrant crackdown. But the campaign to detain and deport immigrants got its policy legs from two previous (and continuing) wars: the “war on crime” and the “war on drugs,” both launched by President Richard Nixon in the early 1970s. The new emphasis by the Obama administration on tracking down and removing “criminal aliens” indicates that the ongoing immigrant crackdown will be driven more by the imperatives of the crime and drug wars then by the ideological fears and fervor of the war on terror. Removing “criminal aliens” from America’s streets will be a new priority for the Department of Homeland Security, says DHS Secretary Janet Napolitano. President Obama’s requested 2010 budget includes $1.4 billion for collaborative programs to deport “criminal aliens” – a 40% increase from the current DHS budget. The recent alarm about the possibility that horrific violence associated with the U.S.-supported drug war in Mexico will spill over the border has been met by administration assurances that DHS and the Justice Department will deploy more law enforcement personnel to the region. Secretary Napolitano has promised to put more “boots on the ground” to secure the border against the compound threat of illegal immigrants and drug trafficking. Immigration restrictionists have jumped on the issue of drug-related violence in Mexico to renew their demands for more border security in the form of an extended border fence, more Border Patrol agents, and the deployment of the National Guard. On March 9 thirty anti-immigration Republican congressional representatives signed a letter to President Obama requesting more border fencing. “Contiguous fencing is an effective and proven enforcement mechanism that will serve to directly reduce cross-border traffic and drug violence by closing the smuggling corridors exploited by drug cartels,” stated the letter. Cong. Brian Bilbray (R-CA), chairman of the Immigration Reform Caucus, and Cong. Duncan Hunter (R-CA), were the lead signatories of the letter.

Next: The Rise of Criminal Aliens Photo: Mexican Army Displays Marijuana Seizures in Chihuahua

The National Imperative to Imprison Immigrants for Profit

There is a codependent relationship between the private prison industry and the federal government’s immigration enforcement apparatus. Immigrant detention jumpstarted the two largest prison companies – Corrections Corporation of America (CCA) and GEO Group – in the prison industry. The Immigration & Naturalization Service (INS) contracted CCA in 1983 and GEO (then Wackenhut Services Inc.) in 1987 to provide prison beds for detained immigrants. These INS immigrant detentions centers were among the first private prisons in the United States. Although the federal government initiated the privatization of prisons, state governments quickly followed the INS lead. Throughout the late 1980s and the1990s state outsourcing of prisoners drove the expansion of the prison industry. Harsh sentencing laws, ever-increasing drug-related convictions, and the deepening taxpayer reluctance to approve tax increases to pay for prison construction created a favorable climate for the private prison boom. While INS had led the way, other Justice Department agencies soon followed. The U.S. Marshals Service (USMS) and the Federal Bureau of Prisons (BOP) began privatizing their imprisonment responsibilities in the early 1990s. BOP’s first private prison contract was in 1991 with Wackenhut Corrections. By the year 2000, however, a spate of private prison deaths and escapes leading to some states to cancel contracts and the inability of CCA and others to find enough inmates to fill the "speculative" prisons it was building caused the industry’s profits and the stock to tumble. But after a brief scare, the industry saw its fortunes soar again as INS and USMS began letting new contracts for immigrant detention. In 2000 the INS contract with CCA to house 1,000 detainees at the company’s San Diego Correctional Facility. The contract, in which INS agreed to pay a $89.50 per diem for each occupied prison bed, was hailed by CCA as "one of the largest contracts ever awarded to the private corrections industry." BOP also came to CCA’s rescue when in 2000 it entered into an agreement with CCA to send "criminal aliens" to the speculative prison that CCA had built in California to house state prisoners that never arrived.

“The private prison industry was on the verge of bankruptcy in the late 1990s, until the feds bailed them out with the immigration-detention contracts,” said Michele Deitch, an expert on prison privatization with the Lyndon B. Johnson School of Public Affairs at the University of Texas in Austin.

A San Diego Union-Tribune special report (May 4, 2008) on the prison industry summed up the conjuncture: “Fortunately for the industry, the federal government began seeing a surge in demand around this time, fueled by federal drug-sentencing laws that had created more Today, federal government contracts to detain a thousand or more detained immigrants are common, and have sparked a new wave of private prisons, particularly in the Southwest. Immigration and Customs Enforcement (ICE), the INS legacy agency that forms part of the Department of Homeland Security, now contracts all new detainee growth, as does USMS. Through its Privatization Management Branch, BOP has over the past several years entered into five contracts with private prison operations to hold more than 10,000 “criminal alien residents.” When it published its request for contract bids, BOP noted that the "offerors" would be required to "house felony offenders, predominantly criminal aliens." BOP cites “flexibility” as the main attraction of prison privatization. The BOP contract notice for the criminal alien prisons noted that privatization “provides the BOP with flexibility to meet population capacity needs in a timely fashion." Commenting on BOP’s decision to privatize criminal alien detention, BOP spokeswoman Felicia Ponce said that contracts with GEO Group and CCA give BOP the "flexibility to manage a rapidly growing inmate population and to help control overcrowding."

The BOP currently has five contracts to house 10,243 "criminal alien residents." The contracts are with GEO and CCA, and four of the five prisons are in remote areas of western Texas – the largest of which was a $187 million contract in 2007 for "contract beds" at the GEO-run 3,700-bed Reeves County Detention Center, where immigrant inmates have recently rioted to protest deficient medical care. Commenting on the 2007 contract, GEO president George Zoley, said, "This new long term contract is indicative of a continuing trend of lengthy contracts being awarded by the Federal Bureau of Prisons, U.S. Immigration and Customs Enforcement, and the U.S. Marshals Service providing for increased revenue certainty for our Company and a continuity of services for our Federal clients. Approximately 40 percent of our present revenues are generated through similar lengthy contracts involving the three Federal detention agencies and GEO Care clients."

Zoley boasted that “the Reeves County Detention Complex (the 'Complex') is the largest detention/correctional facility under private management in the world."

Two years later, when GEO Group announced its fourth-quarter earnings on Feb. 12, 2009, Zoley told representatives of investment companies vested in the private prison industry that he "was very pleased" with 2008 results. When most economic sectors are suffering and shuttering stores, GEO, CCA, and other private prison firms reported record revenues and earnings. Net income rose at GEO from $41.8 million in 2007 to $58.9 million in 2008 -- an increase of more than 20%. Zoley noted that federal contracts with ICE, USMS, and BOP accounted for 37% of 2008 revenues but 50% of earnings. GEO has more than 10,000 immigrants in its prisons, two-thirds of whom are classified as "criminal aliens." He assured investors that there was “solid bipartisan support to identify and deport criminal aliens." Zoley pointed out that in 2008 Congress added $200 million to President Bush’s $800 million request for ICE’s criminal alien program. In President Obama’s 2010 DHS budget, $1.4 billion is scheduled for programs to hunt down criminal aliens. In its 2007 Security and Exchange Commission filing, CCA stated: "We are dependent on government appropriations." Then CCA Chairman William Andrews warned investors that the company’s high returns could be threatened by a change in the policy environment: "The demand for our facilities and services could be adversely affected by the relaxation of enforcement efforts…or through the decriminalization of certain activities that are currently proscribed by our criminal laws." Although booming largely because of the surge in immigrant inmates, the private prison industry is also facing a barrage of criticism from immigrant advocates and civil libertarians. Emblematic of the legal backlash against the private prison industry’s role in immigration imprisonment, a lawsuit filed in 2007 (and settled in June 2008) by the American Civil Liberties Union against ICE and CCA charged that the San Diego Correctional Facility – the same detention center that had help revive CCA in 2000 – was grossly overcrowded and its unsafe conditions violated inmate civil rights. At the time immigrant inmates were obligated, among other things, to sleep on the floor near toilets and had little access to mental health care. Jody Kent, public-policy coordinator for the ACLU's National Prison Project, told the Wall Street Journal: “We have serious concerns about for-profit prison companies because they are notorious for cutting essential costs that need to be provided to maintain a safe and constitutional environment for prisoners." The lawsuit was settled in June 2008. But neither lawsuits nor inmate protests seem to worry the private prison industry. Backed by hefty liability insurance policies – which are usually paid for by the county governments that actually own the immigrant prisons – private prison companies routinely offer investors rosy forecasts of future profits. Both GEO Group and CCA say that the deepening economic downturn has several silver linings for their business, including new incentives for government to privatize given increasing difficulty of securing tax income for prison construction and an increased supply of cheap labor. As GEO’s Zoley sees it, the prison industry will benefit from a new “national imperative” in these difficult economic times “to protect American workers by detaining and deporting immigrants.” AP Photo of Reeves County Detention Century during inmate uprising.