Immigrant Crackdown's "Severity Revolution" Roots

(Second in Restoring Integrity to Immigration System series.)

While the ongoing crackdown on unauthorized and criminal aliens was launched by DHS in the post-Sept. 11 political context, it has deeper roots in U.S. politics and society. Its law-and-order approach to immigration policy and the particular its focus on criminal aliens are an extension of the law-and-order crackdown movement that began to take hold in the 1970s as part of the wars on drugs and crime launched by President Richard Nixon. Rather than formulate proactive measures to address rising crime and illegal drug consumption, the country attempted to solve its new social problems through law-and-order measures that sent ever-rising numbers of mostly poor, urban, ethnic, and young men to prison. Criminal justice scholars have referred to this trend in criminal justice system as the “severity revolution.” It represented a retreat from the previously dominant modalities that emphasized rehabilitation and social welfare. In contrast, the “severity revolution” in criminal justice and penology placed a premium on deterrence and collective risk management.[1] Despite its immense cost ($60 billion annually) and the large number of imprisoned Americans (2.38 million), the crime-and-punishment system that has developed over the past four decades has had little impact on the levels of drug consumption and has been only marginally effective in reducing crime rates. Until recently, the severity revolution in criminal justice has enjoyed widespread public and policymaker support. But new concern about the financial costs of mass incarceration have led policymakers in several states to criticize the drug laws and harsh sentencing practices that led to mass incarceration in America, which now leads the world in per capita imprisonment.[2] The immigrant crackdown, like the wars on drug and crime, came as a response to a deeply problematic social issue that, like illegal drug consumption, eluded a proactive policy solution. A combination of business (demand for both cheap and skilled labor), social (family and ethnic lobby demands for visas), and political (immigrant voting bloc) pressures, as well as a porous southwestern border and the integrative forces of globalization, have obstructed the design of immigration policy that would effectively regulate immigration flows and ensure that they are sustainable. In the absence of a comprehensive immigration policy that would integrate the millions of unauthorized immigrants living in society’s shadows and effectively regularize future immigration flows, the federal government has applied the criminal justice system to the immigration problem. Criminality as Grounds for Expulsion Criminality has long been grounds for exclusion of would-be immigrants. Only recently, though, has the U.S. government routinely used criminality as grounds for the expulsion of immigrants. Over the past couple of decades Congress has steadily expanded the criminal grounds for mandatory detention and deportation. The most frequently used criminal grounds for detention and deportation fall into three categories: “aggravated felonies,” “controlled substances,” and “moral turpitude.” Although codified in immigration law, these three designations of criminal aliens are open to wide interpretation by the officers of the Executive Office of Immigration Review (EOIR) courts and DHS officials. The first step to criminalize immigration law occurred as part the mounting crackdown on illegal drug consumption. The Omnibus Anti-Drug Abuse Act of 1988 introduced the concept of an “aggravated felony” into immigration law by specifying that such serious crimes as murder, drug trafficking, or illegal firearms trafficking were separate grounds for deportation. Two years later the Immigration Act of 1990 substantially limited relief for aliens convicted of aggravated felonies. Then in 1994 the Nationality Technical Correction Act expanded aggravated felonies to include common, less serious crimes.[3] In the mid-1990s the “severity revolution” combined with two other forces in American politics – anti-immigrant backlash and fear of terrorism – to consolidate the criminalization of immigration. Although the restrictionist movement didn’t enjoy its current strength and influence, the emerging backlash against illegal immigration and liberal immigration policy in the mid-1990s was already turning the Republican Party into a restrictionist force in U.S. politics. The 1993 bombing of the World Trade Center by Islamist terrorists and the 1995 bombing of the federal building in Oklahoma City prompted the government to adopt a series of counterterrorism measures that foreshadowed the post-Sept.11 assault on civil liberties and immigrant rights. Two bills especially marked the onset of the beginning in 1996 of the current era of anti-immigrant reform: the Anti-Terrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).[4] Although only indirectly related to immigration issues, a third bill – the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996, commonly referred to as the Welfare Reform Bill – also marked the beginning of a more restrictive policy environment for immigrants.[5] This latter bill prohibited legal permanent residents (LPRs) from receiving public benefits for their first five years in the country and ineligible for Medicare and Social Security for ten years after getting their green cards. PRWORA also established new limits on social services for unauthorized immigrants. The Illegal Immigration Reform and Immigrant Responsibility Act dramatically expanded the criminal grounds for mandatory detention and deportation of legal immigrants. The Antiterrorism and Effective Death Penalty Act was the legislative predecessor to the USA Patriot Act enacted shortly after the Sept. 11 attacks.[6] All three of the 1996 laws -- AEDPA, PRWDRA, and IIRIRA – marked a shift away from the previously prevailing paradigm of liberal immigration policy toward an increasingly restrictive and vindictive policy. The three acts established the policy groundwork for the “enforcement first” and “attrition through enforcement” practices promoted by immigration restrictionists and embraced by DHS during the Bush administration. Congress with IIRIRA set forth ever-broader categories of criminal offenses that result in mandatory detention and (if judged correct by either the immigration court or by DHS) subsequent removal. By broadening the definition of “aggravated felony” to include many felonies and violations that would otherwise be considered misdemeanors, IIRIRA had the effect of consolidating the criminalization shift begun in 1988. “Criminal aliens” became an expansive category of automatically “removable” immigrants. Under this expansive criminalization of immigration law, immigrants are subject to removable despite their immigration status, length of legal residence, existence of immediate family members who are U.S. citizens, or strength of their ties to U.S. community and economy.[7] Over time the working definition of what constitutes an aggravated felony has lost any meaningful connection to either of its two component parts: “aggravated” or “felony.” In most cases, immigrants mandated for automatic detention removal aren’t guilty of either an aggravated offense or a felony. Notwithstanding the felony designation, immigrants are commonly detained and removed from the country for misdemeanors (which generally mean less serious and less dangerous acts than those traditionally labeled felonies). [1] For a discussion of the “severity revolution” see: Jonathan Simon, “Sanctioning Government: Explaining America's Severity Revolution." University of Miami Law Review 56, 2001, and Teresa A. Miller, Citizenship & Severity: Recent Immigration Reforms and the New Penology, 17 Geo. Immigr. L.J. 611 (2003). According to Miller, Citizenship & Severity, (FN 5), “The severity revolution is a term coined by law professor Joseph Kennedy to describe a dramatic break in the mid-1970s with a relatively stable set of values and objectives that had endured within the field of criminal punishment for two centuries. In contrast to the values of the ‘humanity revolution,’ the continuing severity revolution ‘openly espouse[s] severity of punishment as an overarching good’ and ‘abandon[s] the long tradition of minimizing pain and cruelty in the penal process’ it has produced incarceration rates ‘roughly five times their norm for the first three quarters of the twentieth century, and more than three times the next closest level among advanced liberal societies.’” [2] Sen. Jim Webb, Speech to Introduce “National Criminal Justice Commission Act of 2009,” March 26, 2009, online at: http://webb.senate.gov/email/incardocs/SlidesCriminalJusticeBill.pdf [3] Omnibus Anti-Drug Act of 1988, Public Law 100-690; Immigration Act of 1990, Public Law 101-649; Nationality Technical Correction Act of 1994, Public Law 103-416. [4] Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Public Law No. 104-208, Div. C., 110 Stat. 3009-546. Also see H.R. 4437, 109th Cong. (2006) (proposal to amend INA to increase criminal violations that result in removal); Antiterrorism and Effective Death Penalty Act of 1996, Public Law No. 104-132, 110, Stat. 1214. [5] Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Public Law 104-193, Statute 2105. [6] USA Patriot Act, acronym for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56. [7] Transactional Records Access Clearinghouse (TRAC), University of Syracuse, “Aggravated Felonies and Deportation,” 2006, online at: http://trac.syr.edu/immigration/reports/155/

Next in Restoring Integrity to Immigration System series: The "Crimmigration" Crisis

Photo: Border Fence Under Construction New El Paso/Tom Barry