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