(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.