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Wednesday, May 27, 2009

Enforcement-First Immigration Reform Stuck in First Step


Since its creation in the wake of the Sept. 11 attacks, the Department of Homeland Security has assiduously responded to the clamor of anti-immigrant forces demanding that the federal government take more seriously its responsibility to enforce immigration policy.

By the beginning of President Bush’s second term, the rising demands for strict and nationwide enforcement of immigration laws coalesced around a new political framing of tougher border control and immigration enforcement. The new “enforcement-first” agenda was also a direct response by conservatives and restrictionists to the congressional proposals for comprehensive immigration reform. Conservatives increasingly argued that there could be no comprehensive immigration reform that included legalization without first securing the borders and enforcing immigration law in the country’s interior.

One of the first and clearest expressions of the “enforcement-first” agenda that the Bush administration enthusiastically adopted came in a Jan. 19, 2006 letter to President Bush from prominent conservatives, including the Republican leaders of the Senate and House. The public letter, titled “First Things First on Immigration,” asserted that “border and interior enforcement must be funded, operational, implemented, and proven successful — and only then can we debate the status of current illegal immigrants, or the need for new guest worker programs.”

Pointing the strengthening anti-immigrant voices in Congress, the letter noted that “the No. 3 Republican in the Senate, Senator Rick Santorum said, ‘We need a border-security bill first’” and that “Senator Vitter, Senator Santorum, the majority of Senate Republicans, and the majority of House Republicans are right in their position that “we need proven enforcement before we do anything else.”

Among those signing this enforcement-first letter were such national figures as William Bennett, Robert Bork, William F Buckley, Newt Gingrich, David Horowitz, David Keene, Rich Lowry, David Frum, Heather MacDonald, Michael Ledeen, Mark Krikorian, Daniel Pipes, Phyllis Schlafly, and Thomas Sowell. The letter, which was organized by the conservative Hudson Institute, signaled the rising Republican political consensus around the enforcement-first position, bringing together traditional conservatives, immigration restrictionists, social conservatives, neoconservatives, and leading Republican politicians.

 The inclusion of neoconservates in the burgeoning anti-immigrant coalition was most surprising. Empowered by the Bush administration, especially in foreign affairs, the neoconservative political klatch had traditionally been a reliably pro-immigrant voice before Sept. 11. As a group, dominated by Jewish conservatives with recent immigrant roots, neoconservatives had long resisted the conservative trend toward restrictionism.

But with the new national security focus on immigration and the rising conservative backlash against immigrants, neonconservatives increasingly joined the anti-immigrant chorus.

Over the past few years support for the “enforcement first” agenda has spread throughout the Republican Party. Sen. John McCain, formerly a strong CIR supporter, switched to a “border enforcement first” position at the start of his presidential campaign in 2007. In early 2008 Republican senators, led by its most anti-immigrant members, formed the Border Security and Enforcement First Caucus as the Senate counterpart to the Immigration Reform Caucus in the House.

In large part, the enforcement-first position has been more a tactical response to CIR than an indicator of any real commitment to immigration reform as a second step. The Senate leaders of the Enforcement First Caucus, including Saxby Chambliss (R-Georgia) and Jeff Sessions (R-Alabama), are, for example, advocates of the “attrition through enforcement” position held by the leading restrictionist organizations. In other words, enforcement was the first and only step. Conservative immigration reform means increased enforcement measures and greater commitments to border security.

Enforcement-first is a more politically palatable policy response than their true “attrition through enforcement” agenda. The political opportunism of “enforcement first” increasingly crossed party lines, as conservative, moderate, and even liberal Democrats began reframing their own stance on immigration as an enforcement-first position.
DHS has conveniently embraced enforcement-first immigration reform.

As Chertoff did before her, Secretary Janet Napolitano has stated her commitment to a liberal immigration reform that would include legalization and new legal pathways for foreign workers, athough always noting that DHS has the responsibility to enforce the law not to change it. Beefed-up immigration enforcement and border control were only part of the solution, as Secretary Chertoff routinely said, pointing out in June 2008 that the immigration problem “is going to persist until Congress grabs the nettle and decides that we're going to put together a comprehensive immigration reform program that everybody can live with.”

In the meantime, DHS, with generous and ever-increasing financial support from Congress, has mounted an array of programs and operations designed to demonstrate its serious resolve to securing the borders and tracking down immigration violators in the country’s interior. Collectively these post-Sept. 11 initiatives – which accelerated when Michael Chertoff became DHS chief in 2005 – are now commonly referred to as the “crackdown” on immigrants. As the DHS steps up its commitment to border security and immigration enforcement at the start of the Obama administration, there are rising concerns that the enforcement-first has become the “attrition through enforcement” policy that its authors really wanted.

The administration’s lavish funding for border security and the unleashing of new enforcement programs like Secure Communities represent continuity with the enforcement emphasis of the Bush administration, with as yet little evidence that either the administration or the Democratic congressional leadership have the political will to take the promised next step.

Tuesday, May 26, 2009

ICE's Expanding Mission: From Homeland Security to Community Security

The Department of Homeland Security has a bad case of mission creep. Created in the wake of Sept. 11 to better protect the country against attacks by foreign terrorists, DHS now also believes it is responsible for community security. DHS, through its immigration and border control agencies, has in the last eight years mounted an array of initiatives – including Operation Community Shield, the 287(g) program, National Fugitive Operations, and Secure Communities, which promise to increase public safety by joining with local police to target immigrants. The latest and most recent of these programs, Secure Communities: A Comprehensive Plan to Identify and Remove Criminal Aliens, is also the most ambitious and alarming. It plans to make the DHS database available to all local police by 2012 – already in 48 communities – and it will subject legal immigrants, as well as illegal ones, to detention and deportation if they enter the criminal justice system (even if not convicted). Immigration and Customs Enforcement (ICE), describing Secure Communities, states: “Through improved technology, continual data analysis, and timely information sharing with a broad range of law enforcement agency partners, we are helping to protect communities across the country.” The program allows local law enforcement agencies to simultaneously check the immigration database of DHS for biometric and other matches with the FBI’s criminal database. Secure Communities represents another step toward closer collaboration between federal immigration enforcement and local law enforcement. In all its interior enforcement operations, ICE is making the case that by cooperating in immigration operations local communities will improve public safety. Through the Secure Communities program, 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."
In his April 2 presentation to the Homeland Security Subcommittee of the House Appropriations Committee, program executive director David Venturella described the program's joint national security/community security mission: "Secure Communities is a comprehensive effort to increase national security and community safety by identifying, processing, and removing deportable criminal aliens, beginning with those who pose the greatest known risk to public safety." The public safety argument has persuaded many communities to join with ICE in identifying and detaining immigrants. But many critics, including local and state police, have opposed ICE’s goal for regular and systemic local/federal cooperation in immigration enforcement, charging that the merger actually threatens community safety by undermining community trust in local police. A new report from the Police Foundation concludes that “immigration enforcement by local police undermines their core public safety mission, diverts scarce resources, increases their exposure to liability and litigation, and exacerbates fear in communities already distrustful of police.” The report, The Role of Local Police: Striking a Balance Between Immigration Enforcement and Civil Liberties, is critical of the ICE’s failure to prioritize dangerous criminals and says that comprehensive immigration reform would “optimize community safety.” Numerous other recent reports, including ones by the nongovernmental Justice Strategies and the Government Accountability Office, have raised similar concerns. Nonetheless, DHS, buoyed by enthusiastic congressional support, is forging ahead with its “community security” mission. It’s all part of an “enforcement-first” response to the immigration crisis.

Monday, May 25, 2009

Path Forward to Integrity in Immigration System

(Conclusion of Restoring Integrity in Immigration System series.) The increasing emphasis on immigration enforcement has shifted the immigration system from a regulatory system to a punitive one. This shift to enforcement and punishment has been accompanied by an increasing merger of criminal and immigration law and an increasing emphasis on criminal alien apprehension. Together, the new enforcement practices have resulted in the mass incarceration of immigrants. Although the immigrant crackdown raises its own special concerns, the government’s harsh response to the country’s immigration problem is not a case apart. Certainly issues of race, ethnicity, citizenship status, and underground presence in our society and economy distinguish the immigration problem and the governmental response. But it’s also a response that mirrors and merges with the broader wars on drugs and crime, which the country has been fighting ineffectually for more than three decades. Just as the country has responded to crime and drug use with deterrence and incarceration strategies, we are now responding to the immigrant problem. Isolation and exclusion in an expansive penal system have been the dominant responses to these tough social problems. Similarly, the government is largely relying on the strategies of deterrence and imprisonment to address the immigration crisis. There’s no doubt that exclusion is central to any viable immigration policy in America. The problem here is not that the government is implementing its sovereign right to restrict foreigners from make their permanent home in the United States. Rather the government is relying disproportionately on exclusionary strategies – arrest, detention, and imprisonment – for immigrants living and working in the interior of the country. Rectifying this imbalance in the exclusionary and integrative functions of immigration policy must be the guiding principle of the Obama administration and Congress as they seek to restore integrity to the immigration system. Many of the new enforcement and exclusion measures undertaken by DHS – such as the E-Verify employment verification program and initiatives to deport violent criminal aliens who truly represent a threat to public safety – have a rightful place in immigration enforcement. To achieve the balance and integrity so needed in our immigration system, Congress and the administration should move to integrate the current immigrant populace into our society and to guarantee their civil and constitutional rights. At the same time, an immigration policy with integrity must include clear guidelines and mechanisms to integrate new immigrant flows. Special interests, particularly business lobbies, shouldn’t be allowed to set the level of new immigration. These new immigration flows must be legal and they must be economically sustainable, meaning that they don’t undermine wage or working conditions of U.S. workers. An immigration policy with integrity must also be responsible internationally in that it honors our values and international commitments to provide safe harbor for refugees and asylum seekers. Congress and the administration would also help restore the integrity of the immigration system it moved to pass legislation and institute administrative reforms that rolled back the “crimmigration” process. The current practice of sentencing and imprisoning illegal immigrants for immigration violations should end, as should the practice of using lengthy immigrant detention as a tool to persuade immigrants to ask for deportation rather than spend more time locked up while seeking legal relief. ICE should terminate the current practice of arbitrarily transferring immigrants under custody to remote facilities far away from their families, friends, and support communities, including lawyers. While not unlawful, this practice is surely unjust and inhumane. The federal government should end controversial and ineffective programs that involve local law enforcement in immigration enforcement. Not only does such collaboration blur the distinction between federal immigration and local public-safety responsibilities, but it also erodes the trust between local communities and police forces. Ending the new programs that promote federal/local cooperation in immigration issues does not preclude close cooperation between ICE and local law enforcement when such cooperation is critical in apprehending truly dangerous criminals. With regard to detention, the Obama administration should end the current practice of mass immigrant incarceration. Detention of immigrants for immigration violations should not be routine, except for dangerous aliens. DHS should greatly expand its “alternatives to detention” program, which uses electronic bracelets, reporting requirements, and community supervision to guard against flight. All immigrants, including criminal aliens with nonviolent records, should be eligible for these less costly methods of maintaining custody. DHS and DOJ should promulgate binding minimum standards for immigrant detention facilities, and immediately ensure that detention centers comply with the existing and nonbinding standards. The federal government should also move quickly to take back full and direct responsibility for immigrant imprisonment. Imprisoned and detained immigrants are distributed throughout a vast public/private complex of prisons and detention centers over which the government has relinquished direct responsibility and oversight. DHS and DOJ should end its contracts with private prison firms and county governments for the operation of privately operated, for-profit prisons. By outsourcing immigrant prisoners, the federal government has played a leading role in creating a shadow prison system that is not transparent or accountable and is ridden with abuse. Immigrant detention should not be, as it is now, the most prominent feature of our immigration policy. Rather it should be used only as a last resort. Senator’s Webb proposal for a Criminal Justice Commission should receive broad public and policymaker support. In the mission to reshape the criminal justice system and America’s penal system from “top to bottom,” the commission and Congress should include the immigration system in their purview. Immigrants are, as should now be readily recognized, the fastest growing sector of both our criminal courts and our prisons. To restore integrity in the immigration system, the Obama administration needs to act decisively to restore its function as a regulatory system and remove it from the country’s overcharged system of crime and punishment.

Sunday, May 24, 2009

Mass Incarceration of Immigrants




(Fifth in Restoring Integrity to Immigration Series.)

The immigrant crackdown and the accompanying “crimmigration” of immigration law have led to the mass incarceration of immigrants. 


Throughout the country, private prison firms are hurriedly constructing new immigrant prisons for the immigrant detainees and prisoners of ICE, USMS, and the Federal Bureau of Prisons (BOP).


At a time when the U.S. criminal justice system is coming under new public and congressional scrutiny because of its high costs and high rates of incarceration, the federal government -- in close collaboration with local governments and the private prison industry -- is imprisoning unprecedented numbers of illegal and legal immigrants. 


 Indicative of the growing alarm at the failure of the country’s decades-long “get tough” stance on crime, on March 26, 2009 Sen. James Webb (D-VA) introduced the National Criminal Justice Act, which would establish a blue-ribbon commission to “look at every aspect of our criminal justice system with an eye toward reshaping the process from top to bottom.” 


According to Webb, “America's criminal justice system has deteriorated to the point that it is a national disgrace. Its irregularities and inequities cut against the notion that we are a society founded on fundamental fairness. Our failure to address this problem has caused the nation's prisons to burst their seams with massive overcrowding, even as our neighborhoods have become more dangerous. We are wasting billions of dollars and diminishing millions of lives.”[1] 


 The mass incarceration of immigrants mirrors the greater incarceration trends in the United States. The U.S. prison population has skyrocketed, rising from about 500,000 in 1980 to 2.38 million today – nearly a fivefold increase in three decades and five times the world’s average incarceration rate. 


In the 1994-2007 period, the number of immigrants detained on a daily average by ICE rose nearly fivefold, rising from an average daily population of 6,785 in 1994 (under INS) to 30,295 in 2007. In 2007 ICE detained a total of 311,213 immigrants – up from 231,500 in 2004, an increase of more than 80,000 in fours years. Like the country’s larger prison system tag, the immigrant detention system is enormously costly. 


ICE alone spends $1.7 billion annually to detain immigrants. ICE detainees constitute the largest sector of the imprisoned immigrant population. But the number of immigrants held by USMS and BOP is also increasing rapidly. The number of immigrants held by USMS has increased more than six fold since 1994. More than a third of the more than 180,000 USMS detainees in 2008 were immigrants. 


The upsurge in federal prosecutions of immigrants has led BOP to open five new privately operated prisons to hold 10,000 plus “criminal alien residents.” The rise of the immigrant population in USMS and BOP detention centers and prisons reflects a dramatic increase in immigrants being charged in federal courts. According to a study by the Transactional Records Access Clea


ringhouse (TRAC) at the University of Syracuse, prosecutions in 2008 were 70% higher than in 2003. In December 2008 the prosecution of immigrants for immigration violations accounted for 55%, while drug cases accounted for 16% of the caseload that month.[2] Most immigrant prisoners and detainees are held not in government prisons and detention centers but ones that are operated by private prison firms. Rather than build and operate immigrant prisons themselves, ICE, USMS, and BOP outsource its immigrant charges to an expanding network of contractors and subcontractors. 


In most cases, the federal agency enters into inter-governmental service agreements (IGSAs) with city or county governments in economically deprived, rural areas that are eager for a new revenue stream and a source of jobs. Only 13% of ICE detainees are held in ICE-owned detention centers, and ICE has no plans to build new federally owned and operated detention centers. Through the IGSAs the federal government transfers to the contracting local government the operational responsibility to hold the immigrant detainees and prisoners. 


But then the local government usually subtracts private prison firms to meet its contractual obligations with ICE, USMS, or BOP. The world’s two largest private prison corporations, Corrections Corporation of America and GEO Corp, got their start in the prison business with INS detainees in the 1980s and remain the firms with the most immigrant prisoner business. 


The trail of accountability in immigrant detention is further complicated by other subcontracts for medical and transportation services. The contracting and subcontracting of immigrant detention responsibilities would in theory not lead to systemic problems. In practice, however, immigrant detention, which is now largely in the hands of contractors and subcontractors, is the part of the immigration system that is the most badly broken.


One indicator of the severity of the crisis in immigrant detention is the mounting death count of immigrants in detention. At least 90 immigrants have died in ICE custody since 2003, most of them in contracted and subcontracted facilities. The March 2009 death of a detainee at the Stewart Detention Center in rural southwest Georgia spurred the Georgia ACLU to issue a report condemning conditions at the detention center.


“As illustrated by the report, conditions at the CCA-run facility are grossly inadequate, even compared with ICE’s own nonbinding standards,” said Azadeh Shahshahani, National Security/Immigrants’ Rights Project Director with the ACLU of Georgia. “It is high time for Congress and the new administration to create enforceable standards binding ICE and corporations such as CCA to humane standards of care for the detainees and to ensure an effective and independent oversight mechanism,” said Shahshahani.


Judith Greene, director of Justice Strategies, addressed some of the detention problems resulting from the immigrant crackdown in “Immigrant Goldrush: The Profit Motive Behind Immigrant Detention,” a report written for the UN Special Rapporteur on the Rights of Migrants. She wrote:
“This fragmented immigrant detention system has long been a troubled operation, rife with human rights abuses. The recent crackdown campaigns have added strain to this poorly-managed crazy-quilt of detention beds. Immigrant rights advocates have criticized the lack of accountability of this system for many years…. “Detention-for-dollars puts perverse financial incentives in play….This insidious incentive cuts directly across concerns about compliance with detention standards that were created to foster a decent, humane custodial environment for the rapidly-growing number of people who are subjected to detention.”[3]
[1] National Criminal Justice Act of 2009, online at: http://webb.senate.gov/email/criminaljusticereform.html [2] “Federal Prosecution Data for December 2008,” TRAC, January 2009, online at: http://trac.syr.edu/whatsnew/email.090318.html [3] Judy Greene, “The Immigrant Gold Rush: The Profit Motive Behind Immigrant Detention,” Submitted to the U.N. Special Rapporteur on the Rights of Migrants, n.d., online at: http://209.85.173.132/search?q=cache:a6SoiESoRYoJ:www.immigrantjustice.org/component/option,com_docman/Itemid,0/task,doc_download/gid,44/+Immigrant+Goldrush+Greene&cd=1&hl=en&ct=clnk&gl=us


Next in Restoring Integrity Series: Path Forward to Integrity in Immigration System
Photo: West Texas Detention Facility/Tom Barry

Saturday, May 23, 2009

The Expanding Immigration Enforcement Apparatus

The 1996 laws – IIRIRA, AEDPA, and PRWORA – established the legal groundwork for the criminal alien focus of the current immigrant crackdown. But it was not until after the Sept. 11 attacks that the government began the programs designed to enforce the criminal alien provisions of the 1996 laws. Post- Sept. 11 legislation that led to the expansion of the government’s border control and immigration enforcement apparatus included the USA Patriot Act, the Homeland Security Act, and the Enhanced Border Security and Visa Entry Reform Act. Supplementing these measures were a flurry of presidential directives, regulations, and policy initiatives aimed at strengthening homeland security through a more consistent enforcement for immigration laws and greater governmental coordination. These new measures included the Absconder Apprehensive Initiative, the widespread arrest and detention members of the Arab and Muslim communities under the cover of immigration enforcement investigations, and the practice under the now-defunct Operation Liberty Shield of automatically detaining and interrogating asylum seekers from 34 countries designed as terrorist host countries. As legal scholar Teresa A. Miller observed in “Immigration Enforcement and Crime Control after September 11th,” these and other post-Sept. 11 initiatives drew upon “the objectives, techniques, and discourses of a harshly punitive system of criminal justice to deal with noncitizens and the terrorist threat” and are evidence of “an evolving symbiosis between criminal law enforcement and immigration regulation.”[1] The National Fugitive Operations Program was launched by the legacy INS in 2002. Congress had appropriated funds for INS “absconder removal teams” in 1996 and again in 1998, but it wasn’t until after Sept. 11 that INS launched the initiative to track down immigrants (“absconders”) whose deportation had been ordered but who remained in the country. ICE rapidly expanded the program saying that it “brings integrity to the immigration process.” Reflecting the government’s harder line on immigration violations, the terminology changed from absconders to fugitives, implying that the targets were criminal outlaws. While immigrants deemed threats to the national security and community safety were set as the top priorities for the new teams, ICE has used a wide net in its manhunt for “fugitive aliens.” Collateral Damage: An Examination of ICE’s Fugitive Operations Program, a February 2009 report by the Immigration Policy Institute, found that 73 percent of the 97,000 people arrested by the teams the program’s first five years were unauthorized immigrants without criminal records. The institute concluded that the fugitive operations teams – which had increased from eight in 2003 to 104 in early 2009 – had experienced mission creep as part of the program’s generous congressional funding, which had increased from $9 million in 2003 to $218 million in 2008. Arrests of fugitive aliens with criminal records have represented a declining share of total arrests by the teams, accounting for just 9% of total arrests in 2007, down from 32% in 2003. Fully 40% of those arrested in team raids were what ICE calls “collateral” or arrests of immigrants who had no outstanding removal order (also known as ordinary status violators). Muzaffar Chishti, director of the institute’s Office at New York University School of Law, said: “It is troubling that a program billed as having an explicit national security focus instead appears to be aimed mainly at arresting non-criminal unauthorized immigrants through the use of SWAT-like operations – typically in residential settings – that increase the risks to law enforcement personnel and civilians alike, alienate communities and misdirect scarce personnel resources.”[2] Criminal Alien Program and Its Operations Through its umbrella Criminal Alien Program, DHS directs Operation Community Shield, which targets immigrants judged to be members of street gangs. Describing the program, ICE states that it uses its “broad law enforcement powers, including the unique and powerful authority to remove criminal aliens, including illegal aliens and legal permanent resident aliens.”[3] Under this program ICE and local police pick up alleged gang members for immigration violations as a preemptive strike against assumed criminal activity. Another ICE program that is casting a wide net is the 287(g) Program, under which ICE signs intergovernmental agreements that permit ICE to train local and state law enforcement personnel in immigration law enforcement. Although authorized by a 1996 amendment to section 287(g) of the Immigration and Naturalization Act, it wasn’t until 2002 that the first training agreement was signed under which local police and sheriff deputies are “cross-designated” as immigration agents. Most of the 67 existing agreements have been signed since 2007, when ICE launched its Criminal Alien Program and made criminal alien apprehension a top priority. The 287(g) program has led to widespread concerns about racial profiling, reduced community trust, inadequate prioritization of dangerous criminals, and misplaced law enforcement resources. A study of the operation of the program in North Carolina titled Policies and Politics of Local Immigration Enforcement found that it has been used to “purge town and cities of ‘unwelcome’ immigrants.’”[4] 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 noted that while “the main objective of the 287(g) program is to enhance the safety and security of communities by addressing serious criminal activity committed by removable aliens, they have not documented this objective in program-related materials consistent with internal control standards. As a result, some participating agencies are using their 287(g) authority to process for removal aliens who have committed minor offenses, such as speeding, carrying an open container of alcohol, and urinating in public.”[5] 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.”6]
[1] Teresa A. Miller, “Blurring the Boundaries Between Immigration and Crime Control After September 11th,” Third World LJ, 2005, online at: http://www.bc.edu/schools/law/lawreviews/meta-elements/journals/bctwj/25_1/04_FMS.htm [2] “Report: ICE Fugitive Operations Program Billed as Having Explicit National Security Focus Is Missing its Enforcement Mark,” Press Release, Migration Policy Institute, Feb. 4, 2009, online at: http://www.migrationpolicy.org/news/2009_2_04.php [3] “Operation Community Shield,” ICE, March 25, 2009, online at: http://www.ice.gov/pi/investigations/comshield/index.htm [4] Policies and Politics of Local Immigration Enforcement, University of North Carolina School of Law, February 18, 2009, online at: http://www.law.unc.edu/documents/clinicalprograms/287gpolicyreview.pdf [5] Immigration Enforcement: Better Controls Needed Over Program Authorizing State and Local Enforcement of Federal Immigration Laws, Government Accountability Office, January 2009, online at: http://www.gao.gov/products/GAO-09-109 [6] Aarti Shahani and Judith Greene, Local Democracy on ICE: Why State and Local Government Have No Business in Immigration Law Enforcement, Justice Strategies, February 2009, online at: http://www.justicestrategies.org/sites/default/files/JS-Democracy-On-Ice.pdf
Next in Restoring Integrity Series: Mass Incarceration for Immigrants

Friday, May 22, 2009

The "Crimmigration" Crisis

(Third in Restoring Integrity to Immigration System series.) In its study of the application of the “aggravated felony” provision in immigration law, the Transactional Records Clearinghouse (TRAC) at the University of Syracuse found that from 1992 to 2006 more than 300,000 immigrants were removed using this provision and that the numbers steadily increased annually over this period.[1] Perhaps most striking about TRAC’s findings was that 55% of the aggravated felony removals were by an ICE/INS administrative order rather than a court order. In these administrative removals – amounting to nearly 23,000 in 2006 -- the deported immigrants did not have the benefit of any hearing or adjudication of their removal orders. ICE agents alone were responsible, as the TRAC study noted, for all steps in the process – from apprehension and detention to issuing the order and deporting the individual. Administrative orders for removal for immigrants charged with aggravated felonies have steadily increased as a percentage of all such mandated deportations. Criminal aliens that have been detained and removed under the aggravated felony statutes are oftentimes longtime U.S. residents who have been in the country since their childhood and don’t even know the language of their birth countries. On the average, immigrants processed by EOIR from 1997 to 20006 for aggravated felonies were in the U.S. for fifteen years before they were deported. For 25%, the average time between their original date of entry to this country and when deportation proceedings were started in immigration court was 20 years or longer, and for 10 percent it was more than 27 years.[2] TRAC cited the case of Carlos Pacheco who entered the US with a green card as a 6-year old child. He was judged an aggravated felon based on his misdemeanor conviction for stealing some Tylenol and cigarettes. An appeals court that heard the case agreed that he was an aggravated felon and removable but expressed its “misgivings” that Congress equated misdemeanors with felonies in its zeal to deport criminal aliens. Pacheco’s case is now one of tens of thousands in which the immigration consequences were much more severe than the criminal consequences. Jailed Without Justice: Immigration Detention in the United States, a March 2009 report by Amnesty International USA, observed: “Lawful permanent residents can be placed in "mandatory detention" with no right to a bond hearing before an immigration judge or judicial body. It is believed that thousands of individuals are subject to mandatory detention every year. The categories of crimes that trigger mandatory detention include minor, non-violent crimes (such as receiving stolen property) committed years ago, and are broad and difficult to define.”[3] Of those immigrants, legal and illegal, removed because of a prior criminal charge other than “aggravated felony,” the most frequent of the charges cited are those involving "moral turpitude" and use of "controlled substance violations." The new criminal context for immigration law means that there are major “immigration consequences” of a criminal plea. Most criminal defense lawyers advise their clients to enter pleas that result in minimal or no jail time with little concern for the nature of the crime for which they plead guilty. As immigration law expert Ira Kurzban points out: “A plea to a wrong charge could mean a long-term lawful permanent resident was subject to mandatory detention and was deported without relief.”[4] In other words, a legal immigrant might plead guilty to a crime for which he spends no jail time but years later finds that he or she is detained by ICE agents, spends months or years in an immigrant prison, and then is deported and banished permanently from the United States. Zero Tolerance in Immigration Enforcement Beginning in 2007 DHS embarked upon another paradigm shift in immigration law. Not only would it continue to target noncitizens that it categorized as “criminal aliens,” DHS also decided that it was also necessary to criminalize the conduct of immigrants who previously would not have been criminally charged. Borrowing a phrase from law-and-order theory, 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. Reflecting on the shifting paradigm in immigration law toward “criminalizing civil conduct,” Kurzban observed that “immigration lawyers must be educated in issues concerning traditional criminal law questions, such as unlawful search and seizure, rights against self-incrimination, plea bargaining, and statutory and constitutional defenses for certain federal crimes.”[5] Crime and Immigration Juliet Stumpf of Lewis and Clark Law School points out in “The Crimmigration Crisis: Immigration, Crime, and Sovereign Power” that both criminal and immigration law primarily regulate the relationship between the state and individual, the line separating criminal and immigration law has blurred. Not only does the substance of immigration and criminal law increasingly overlap, but immigration enforcement by DHS and DOJ also increasingly resembles criminal law enforcement as seen perhaps most clearly in massive imprisonment of immigrants. “The rapid importation of criminal grounds into immigration law,” notes Stumpf, “is consistent with a shift in criminal penology from rehabilitation to retribution, deterrence, incapacitation, and expressive powers of the state.” [6] Stumpf makes the argument that the merger of the immigration and criminal systems is, at least partly, the result of a newly restrictive sense of the social contract in America. Like criminals, immigrants are increasingly being treated as if they have few rights and have no claim to government protection because they aren’t members of our society. Not only has society since the 1970s adopted an increasingly punitive rather than rehabilitative criminal system that physically excludes them from society but in many cases also denies them benefits such as social services and rights such as the right to vote, serve in public office or serve on a jury. Similarly, recent trends in immigration law and policy build on the assumption that immigrants have little claim to membership in society and can therefore can be excluded and denied basic rights. “When membership theory is at play,” she writes, “whole categories of constitutional rights depend on the decisionmaker’s vision of who belongs.” Aside from the resulting increase in the imprisonment and deportation of noncitizens, a little considered result of this so-called “crimmigration” is that criminal aliens in the immigration system lack the constitutional protection of anyone in the criminal justice system. Although treated as criminals they don’t enjoy the protections of the Eighth Amendment against cruel and unusual punishment. 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.[7] [1] TRAC, “New Data on Processing of Aggravated Felons,” 2007, online at: http://trac.syr.edu/immigration/reports/175/ [2] TRAC, “How Often is the Aggravated Felony Statute Used?” 2006, online at: http://trac.syr.edu/immigration/reports/158/ [3] Jailed Without Justice: Immigration Detention in the United States, Amnesty International USA, March 26, 2009, online at: http://www.amnestyusa.org/uploads/JailedWithoutJustice.pdf [4] Ira J. Kurzban, “Criminalizing Immigration Law,” Presented at 2008 Immigration Law Conference, San Antonio, Texas, Oct. 23-24, 2008, p. 2, online at: http://www.utcle.org/eLibrary/preview.php?asset_file_id=17604 [5] Kurzban, “Criminalizing Immigration Law,” p. 3. [6] Juliet Stumpf, “The Crimmigration Crisis: Immigration, Crime, and Sovereign Power,” Bepress Legal Series, Paper 1635, 2006, p. 31., online at: http://law.bepress.com/cgi/viewcontent.cgi?article=7625&context=expresso [7] Stumpf, “The Crimmigration Crisis,” p. 21. (Next in Restoring Integrity Series: Expanding Immigration Enforcement Appartus) Photo: Border Port of Entry at El Paso/Juarez

Thursday, May 21, 2009

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

Wednesday, May 20, 2009

Restoring Integrity to Immigration System

(This is the first in a series on the distortion of immigration law and policy.) There is broad agreement that the immigration system is broken. But reaching a political consensus on how to fix the system has in recent years proved impossible. In the absence of a comprehensive immigration reform, the government has adopted a “get-tough” posture on immigration designed to “restore integrity to the immigration system” and “uphold the rule of law.” Immigrants are being arrested, imprisoned, and deported in record numbers. Acknowledging the short-term inability to remove all estimated 11-12 million unauthorized immigrants, the federal government has prioritized the imprisonment and removal of “criminal aliens – legal and unauthorized immigrants who have run afoul of the law. However, in the search for “criminal aliens” and “fugitive aliens,” the government has cast an alarmingly wide and tightly woven net. The focus on criminal aliens reflects the increasing merger of immigration and criminal law – a process scholars call “crimmigration.” Not only has immigration law incorporated components of criminal law, but the federal government has also mounted enforcement initiatives in which violators of immigration law are criminally charged and sentenced. Concerns about the wisdom, lawfulness, and constitutionality of the immigrant crackdown, are mounting as immigrant arrests increase, the detained immigrant population expands, and immigrant cases dominate federal criminal prosecutions. Over the past several years the immigrant crackdown has done little to repair the broken immigration system. Instead, the crackdown appears to have further damaged the system, creating an array of new problems and challenges that must be resolved if the integrity of the immigration system is to be restored. Crimmigration and Immigrant Criminalization Soon after Sept. 11, 20001 the newly created Department of Homeland Security assumed responsibility for immigration and border control. Two new DHS agencies – Immigration and Customs Enforcement (ICE) and Customs and Border Enforcement (CBP) – took over the operations of the disbanded Immigration and Naturalization Services (INS), which had been a Department of Justice agency. The post-Sept. 11 linking of immigration and homeland security is readily evident in the ICE and CBP mission statements.” CBP, whose main component is the Border Patrol, states: "We are the guardian of our Nation's borders. We are America's frontline. We safeguard the American homeland at and beyond our borders. We protect the American public against terrorists and the instruments of terror." As time has passed since Sept. 11 DHS and its immigration agencies have deemphasized the initial immigrant/terrorist linkage and have instead stressed that tough and comprehensive immigration enforcement is essential to the “rule of law” in the United States and the integrity of the immigration system. At her confirmation hearing, DHS Secretary-Designate Janet Napolitano promised to “wisely enforce the rule of law at our borders,” and two weeks later issued a departmental directive stating that “upholding the rule of law” was a primary objective of immigration enforcement.[1]
The “rule of law” framing for immigration enforcement became common in DHS after Michael Chertoff was appointed director in 2005. With respect to the DHS mission of protecting the country against what DHS Secretary Chertoff called “dangerous people,” he told Congress: “[W]e are also a nation of laws, and illegal immigration threatens our national security, challenges our sovereignty, and undermines the rule of law.” [2] Tough immigration enforcement aims to reinstate respect for the rule of law and help repair the broken immigration system. ICE news releases about immigration raids commonly state that the operations help “restore integrity to the immigration system.” Explaining ICE’s program to hunt down criminal aliens and other immigration fugitives in a Feb. 4, 2009 release, John Torres, acting assistant ICE secretary, said that this program was part of ICE’s commitment to meet the post-Sept. 11 challenge to meet “its mandate to restore integrity to America’s immigration system.” [3]
[1] Testimony of Secretary-Designate Janet Napolitano, Department of Homeland Security, Jan. 15, 2009, online at: http://www.dhs.gov/ynews/testimony/testimony_1232547062602.shtm ; “Immigration and Border Security Action Directive,” DHS, Jan. 30, 2009, online at: http://www.dhs.gov/ynews/releases/pr_1233353528835.shtm [2] Testimony of DHS Secretary Michael Chertoff, Senate Committee on the Judiciary, April 2, 2008, online at: http://www.dhs.gov/xnews/testimony/testimony_1207231284950.shtm
[3] John Torres, “ICE Focus on Immigration Fugitives Getting Results,” Feb. 4, 2009, online at: http://www.dhs.gov/journal/leadership/labels/immigration%20enforcement.html

Next in Restoring Integrity Series: Roots in the Severity Revolution

Thursday, May 14, 2009

Federal-Feeding Frenzy on Border

Border counties, in particular, are already recipients of special federal law-enforcement assistance programs administered by DOJ and Homeland Security. Border governors and representatives are seizing the alarm about drug-related violence in Mexico (with little evidence of any cross-border spillover) to demand increased federal aid.
A Republican-led effort, for example, wants to expand the Justice Department’s Operation Stonegarden, which provides $60 million in annual aid to border law-enforcement agencies, to $500 million every year – even though there is no evidence that the post-Sept. 11 program has done anything to reduce cross-border organized crime or terrorism.
Typically, border county sheriffs simply incorporate the special funding into their annual budgets, writing off overtime and equipment purchases to the federal grants, with little or no reference to program objectives. Another post-Sept. 11 initiative focusing on border counties and states is the Southwest Border Prosecution Initiative, which, like SCAAP, is funded by the Justice Department’s Bureau of Justice Assistance with an annual allocation of about $30 million.
All along the border, state and local governments have seized the post-Sept 11 fear about homeland security to underwrite their own detention centers, sheriff departments, and criminal justice complexes.
A new lobbying effort mounted by the U.S./Mexico Border Counties Coalition is illustrative of the way the criminal justice complex is self-serving and self-supporting with respect to its criminal-alien fueled expansion. Formed in the late 1990s with a Justice Department grant to recommend what the criminal justice system in the border counties needed with respect to undocumented immigrants, the coalition has recently launched – once again with a DOJ grant – a lobbying campaign for “full” funding for the Southwest Border Prosecution Initiative, SCAAP, and new comprehensive criminal alien program it calls the Southwest Border County Law Enforcement Program.
In a report written for the coalition by the School of Public Administration and Policy at the University of Arizona, the coalition demands the federal government “fully reimburse the 24 border counties for the costs of law enforcement and criminal justice services—annually for as long as undocumented immigrant criminal activities continue.” Never mentioned in the 155-page University of Arizona report on the costs of law enforcement and criminal justice services is that at least half of the 24 border counties in the coalition have recently established in collaboration with private prison companies special detention centers – contracted by ICE, USMS, and the Federal Bureau of Prisons -- for immigrant detainees and prisoners, whose associated per-diems have in many cases proved a boon to country budgets.
See New CIP Policy Report: Immigrant Crackdown Joins Failed Crime and Drug Wars http://americas.irc-online.org/pdf/reports/0904crackdown-CIP.pdf

Wednesday, May 13, 2009

The SCAAP Lobby, Part One

The Obama administration isn’t the first to call for the scrapping of the State Criminal Alien Assistance Program. President Bush eliminated the program in recent budgets, but the Democratic Congress kept reasserting it. Although the program only compensates states and local governments for a portion of their expenses, SCAAP in 2009 constituted a $400 million federal expenditure.
It’s high likely that the Democrats will again champion the program and defy the administration. The Office of Management and Budget included SCAAP among its recommended budget cuts, justifying the cut, at least partially, on the grounds that the program’s funding “"can be better used to enhance Federal enforcement efforts."
That’s not just rhetoric or political spin. In the weeks prior to the president’s decision to accept OMB’s cost-cutting measures, both the president and Homeland Security Secretary Napolitano had announced a major “border security” and immigration enforcement initiative that Napolitano said represented the administration’s commitment to “smart and effective” enforcement. The combined funding to DHS and the Justice Department is estimated to reach $27 billion in 2010.
But congressional representatives from the leading state recipients of SCAAP dollars are in a huff about the federal government alleged relinquishment of responsibility for immigration enforcement. Leading the pro-SCAAP rebellion is Sen. Diane Feinstein (D-CA), whose state is the top SCAAP state recipient ($118 million) and whose home city of San Francisco is one to the top SCAAP local government recipients ($837,000). The state and its counties received 40% of SCAAP funding in 2008. Feinstein says that the federal government will “deprive communities of critical funding for public safety services.”
Immigration is a total federal responsibility," argued Feinstein, whose home state of California holds roughly 32 percent of the nation’s illegal immigrants. "By failing to reimburse states and local governments for the cost of incarcerating criminal aliens, the federal government deprives communities of critical funding for public safety services... I am committed to restoring the funding for this essential program." Feinstein sits on the Senate appropriations panel with jurisdiction over SCAAP funding, and will be a powerful advocate for the program.
Among the array of House Democrats lining up to challenge the administration are most representatives of border counties, who, like Rep. Gabrielle Giffords (D-AZ), makes the case that the “cost for incarcerating folks that are here illegally are borne directly by our counties. Some of these counties, like mine in southern Arizona, are among the poorest in the nation.”
What Democrats calling for federal reimbursement of the costs of holding undocumented immigrants accused of crimes aren’t saying is that border counties and border states have in the last eight years benefited from a multi-billion infusion of federal dollars in the form of fence construction (real and virtual), dramatic increases in Homeland Security (ICE and CBP) personnel and infrastructure (ports of entry, checkpoints, district headquarters), and a proliferation of new prisons, USMS agents, and federal attorneys and judges who form part of the post-Sept 11 border security deployment.
Nor, of course, does Senator Feinstein in her criticism of the federal government for its failure to take responsibility for the immigration problem acknowledge that California has historically benefited (and depended on) from the large immigrant presence.
Obama – Right and Wrong
The Obama administration got it right when it decided to defund the State Criminal Alien Assistance Program. It’s a complicated and wasteful federal assistance program that is part of a larger federal imperative to expand and fortify the country’s criminal justice system – one that has asserted issues of crime and justice into most aspects of U.S. life and made this country the world’s leading jailor. SCAAP was one of the first federal initiatives to bring the immigration issue into the nation’s vast criminal justice and prison complex.
But saving $400 million federal dollars and then at the same time committing our financially-challenged nation to still more criminal-justice responses to the immigration issue is wrong, albeit politically adept. The administration’s new border security budget and buildup takes the ideologically driven “enforcement first” agenda of the immigration restrictionists and the Bush administration and is attempting to institutionalize it as an enduring national policy.

Tuesday, May 12, 2009

Criminal Justice System Expands for Immigrants

SCAAP is part of the federal-state-local criminal justice complex. It’s another add-on federal-aid bureaucracy aimed at keeping local and state governments marching together with the federal government in the “war on crime.” Although it targets the costs of jailing “criminal aliens,” SCAAP is just one of hundreds of federal programs that bolster a criminal justice system that puts a premium on removal of certain elements of society – largely African-American, working-class, and increasingly Latino – rather than treatment, rehabilitation, or job creation, as a type of risk-management program for social order. Reviewing the new role of the federal government in criminal justice, a 2002 report by the Congressional Research Service noted, “In the past two decades, Congress has been extending federal jurisdiction over crime control to areas once considered to be within state and local jurisdiction, and enlarging federal support of state and local efforts to combat crime.” Not only is the increasing prominence of the “criminal alien” theme linked integrally to the “get- tough” methods and ideology of the war on crime, it is also closely connected to the enduring “war on drugs.” According to a year 2000 report by the Urban Institute, during the first several years of SCAAP, the most common offenses for which illegal aliens were convicted were drug offenses in all states except Florida. For states distinguishing among types of drug offenses, drug trafficking was more common than drug possession, except in Texas. It may be that local and state governments could just as well appeal to the federal government for assistance to compensate for the high incarceration costs incurred locally because of the federally driven “war on drugs.” But what about the contention that states and local governments merit federal compensation because they are paying for services to immigrants who are really the charges or responsibility of the federal government? It is specious, disingenuous, and opportunistic. Studies have consistently demonstrated that undocumented immigrants have lower crime rates than citizens. According, for example, to a 2005 study by Rutgers University, “Despite the widespread perception of a link between immigration and crime, immigrants have much lower institutionalization (incarceration) rates than the native born.” While it may be true that crime rates among undocumented immigrants are perceptibly increasing, especially along the border, in the last several years as the process of immigration is increasingly tied to drug flows and human smuggling and affected by tighter border control, the fact remains that undocumented immigrants have a markedly lower incidence of violent crime behavior. In other words, communities with a high percentage of unauthorized immigrants are not disproportionately subject to high-crime vectors. It’s certainly true that the federal government has responsibility for immigration regulation and enforcement. But it is not as if illegal immigration represents a drain on community and state revenues. Illegal immigrants, like all residents, pay taxes that are used to pay for government services, including jails and prisons. The sales tax, property tax, and user-fee revenues contribute to the general funds that offset correctional services. Without the economic activity and community vitality of immigrant communities in many of the states complaining the most about the planned SCAAP termination, these communities would be stagnant and withering. While a case may be able to be made that undocumented immigrants, because of their lower wages and large families, don’t pay their fair share of school or social services like emergency room treatment, there is no persuasive data that demonstrates that jailing undocumented immigrants for violent crimes or repeated misdemeanors (as stipulated by SCAAP criteria for reimbursement) imposes a disproportionate and unfair burden on the communities that now demand SCAAP reimbursements. A 2007 report by the Congressional Budget Office concluded that there was likely only a modest negative impact of unauthorized immigrants on states and counties when measuring taxes paid and services received. Not assessed by this study or others measuring taxes paid and costs are the beneficial impacts of low-paid, hardworking immigrants on the local economies and consumer goods nor the development benefits of immigrants settling in abandoned or deteriorating areas of communities.

Photo: West Texas Detention Center, Sierra Blanca, Texas (run by Emerald Correctional)

Next: SCAAP Hangs On

Monday, May 11, 2009

Scrap SCAAP

There is no good financial justification for the State Criminal Alien Assistance Program (SCAAP). Yet the Obama administration, which says it will no longer fund the program, is drawing heavy fire from representatives from states and communities that have benefited from the crime-control assistance program.
There is a clear and persuasive logic to the program: the federal government, which is responsible for immigration enforcement, should compensate nonfederal jurisdictions for the costs of imprisoning and jailing undocumented immigrants.

But SCAAP wasn’t created by immigration legislation but by a crime-control law. The Violent Crime Control and Law Enforcement Act of 1994 was the third major and the largest federal omnibus crime bill passed by Congress since the federal government began to assert its dominance over the criminal justice system in 1968.
Increasingly, the complexity of the immigration crisis in the United States – and its solutions -- cannot be understood without appreciating the degree to which immigration over the past couple of decades become an integral part of the “war on crime” and the “war on drugs.” The main reason why immigration and immigrants are not commonly considered within the context of the U.S. criminal justice system is that immigrant advocates have been reluctant (understandably) to contribute to a public perception that immigrants are “illegals,” criminals, lawbreakers, threats to the “rule of law”—a population that comes from the outside and erodes the law-and-order inside our country. This perception is already widespread, and one that is fanned by immigration restrictionists and nativists.
Criminal Aliens and the War on Crime
Since the late-1980s immigration reform in Congress – except for a couple of successful attempts by business lobbies to expand temporary workers programs – has been largely a series of measures to crack down on immigrants through the criminal justice system. The most serious and well-known was the Immigration Reform and Immigrant Responsibility Act of 1996, which together with two other conservative reforms related to counterterrorism and welfare assistance the same year, had the result of solidifying a new thrust of conservative immigration reform – identifying and removing “criminal aliens.”
But it was the 1994 crime bill – the most expensive and extensive crime legislation in U.S. history – that signaled the new legislative and administrative tendency to address the broken immigration system through the lengthening tentacles of the criminal justice system. The bill represented the latest move to increase federal aid to ensure that federal, state, and local prosecutors and judiciaries implemented a uniformly “get tough” response to crime and social deviancy.
The immigration-related measures, while an incidental part of the crime-war legislation, did add to the developing momentum within government to respond to the immigration crisis with the same tools used to respond to crime.
The 1994 Violent Crime Bill, among other things, provided for enhanced penalties for immigrant smuggling, failure to honor a deportation order, and illegal entry after deportation. Reflecting a rising perception that unauthorized immigrant flows constituted a crime threat, the bill authorized $1.2 billion for border control. It also facilitated deportations of “criminal aliens” (immigrants, legal or illegal, who have been convicted of crimes, even misdemeanors) and established a criminal-alien tracking center.
More consistent with the overall thrust of the crime bill – increasing federal aid for the criminal justice and associated penal system – the bill set up the State Criminal Alien Assistance Program, authorizing $1.8 billion in 1995-2000 to compensate state and local jurisdictions for prison and jail costs of undocumented inmates.
The political and financial context for the SCAAP was as least as much the expanding prison-industrial complex as it was concerns about the costs of holding undocumented criminal immigrants. Since President Nixon – and especially during the Reagan and Bush Sr. administrations – the federal government and a majority in Congress favored a crackdown response to crime, particularly urban crime, by way of harsh sentencing laws (longer sentences, less or no parole, and mandatory sentences).
While the effect on crime rates was, at best, negligible, the “get tough” campaign precipitated a massive expansion of the criminal-justice apparatus, most evident in the unprecedented increase in the U.S. prison population.
The Crime Bill promoted the adoption of the now-notorious “truth-in-sentencing” standards that limited judges’ ability to determine sentences and stipulated that violent offenders must serve 85% of their sentences before being paroled. The $30.2 billion bill contained a "three strikes" provision requiring a sentence of life imprisonment for violent three-time federal offenders, gave the federal imprimatur to the prosecution of juveniles (13 years of age or older) as adults who committed federal crimes of violence or federal crimes (like street drug dealing) involving a firearm. Following the three-decade trend of extending the jurisdiction of federal law into what were formerly the province of state and local authorities, the bill also increased the number of federal crimes punishable by death.
At the same time, the 1994 bill provided new federal funding for states to build prisons and boot camps to ensure that space would be available to hold all the new prisoners that would result from a more extensive implementation of harsh-sentencing guidelines. Those states that were deemed most “competitive” in implementing “truth-in-sentencing” were selected to receive the most federal funding.
What’s relevant about the 1994 bill to the immigration crisis today is not only the immigration provisions contained in the crime crackdown legislation, but also the fact that the increasing tough treatment of legal and illegal immigrants parallels and overlaps with the overall repressive, reactionary trends in the U.S. criminal justice system.

Certainly immigrants are being harshly treated, regarded as outsiders in a society in which many are well integrated, and subjected to cruel detention. But this is not dissimilar to the patterns of prosecution and massive incarceration that have besieged society as a whole. In fact, to a large degree the immigrant crackdown has taken its cues from the “war on crime.”
Next: Criminal Justice System Expands for Immigrants

See New CIP Policy Report:
Immigrant Crackdown Joins Failed Crime and Drug Wars

Saturday, May 9, 2009

More of the Same from Obama Administration

Crime rates have been falling since the early 1990s. Penal systems are a burden that states say they can’t afford. There is national rising sentiment that it’s time to end the era of drug prohibition along with the international, national, and local enforcement apparatus driven by federal funding.
Four decades ago the federal government committed the nation to two new wars – crime and drugs – but it has never since evaluated strategy or progress of these seemingly unending wars. Although the Obama administration represents a new era in U.S. politics and its top officials are a different breed from the hardliners of the Nixon administration that launched the crime and drug wars, there are few signs that the new administration is willing to examine let alone overall U.S. crime and drug policy.
With respect to the border and immigration, the proposed 2010 budget underscores the federal government’s continuing commitment to the “get tough” approach that over the past four decades has put crime and drug prosecution into the center of governance in the United States. Criminal scholar Jonathan Simon calls this social and political phenomenon “governing through crime.”
Rather than change, the administration's new border security initiatives represent continuity. It continues the failed formulas of the crime and drug wars -- more police, more interdiction, more prosecutions, and more federal involvement in law enforcement -- rather than addresssing the fatal flaw in U.S. drug policy, namely its focus on prohibition. And Obama's commitment to border security represents continuity with the Bush administration's "enforcement first" and border security first practices.
The Obama administration is proposing $27 billion for border and transportation security programs at the Department of Homeland Security and the Justice Department – a largely “get tough” approach to new concerns about how drug-related violence in Mexico will spill over the border. The administration has also noted that the new focus on border security is aimed to increase its credibility when the time comes to sell immigration reform.
While linking part of the new border security thrust to the drug violence in Mexico, the administration has not showed any indication that it is willing to consider drug policy reform as part of the solution – both for Mexico’s problems as a drug exporter and for this country’s own consumption and criminal justice problems.
The increased funding for efforts to block southbound flows of weapons to Mexico does demonstrate new government sensibility to the U.S. role as supplier of the instruments of drug violence. Over the past month, the Border Patrol is doubling up with CBP agents to monitor southbound traffic at ports of entry.
But this new presence, rather than demonstrating a real U.S. commitment to halt arms flows, highlights instead the weak-kneed response of the Obama administration. Unwilling to take on the powerful gun lobby, the Obama administration seems content to allow the weapons industry to thrive while consigning the Border Patrol to yet another unfocused mission.
The administration, however, has taken one swipe at the “war on crime” with its controversial decision not to fund the State Criminal Alien Assistance Program (SCAAP). The program emerged in 1994 as part of the largest crime bill in history – the Violent Crime Control and Law Enforcement Act. The act included a package of anti-immigrant measures that drew local law enforcement into immigration enforcement and set off a series of laws and regulations aimed at “criminal aliens.”

Friday, May 8, 2009

Mission Focus on the Border

Since Sept. 11 the White House and the Congress have routinely approved proposals for increased numbers of Border Patrol agents. In the last three years, 6,000 additional agents have been added, bringing the total Border Patrol contingent to more than 18,000 – making it by far the largest federal enforcement agency. President Obama has requested funding for an additional 100 Border Patrol and Customs and Border Protection (CBP) agents as part of his “border security” budget proposal. It’s unclear if such a large force is needed to patrol the borders to, as CBP says, protect the homeland “against dangerous people and goods.” As immigration flows have diminished, Border Patrol agents on both the northern and southern borders are spending less of its time and resources on arresting the immigrants it categorizes as “dangerous people” and more on drug interdiction. In implementing its “drug war” mission, CBP says it is “risk-based.” But neither the its record of its seizures nor the operational deployment of Border Patrol agents indicate that, in practice, CBP and its Border Patrol have a “risk-based” focus. Rather, like its role in immigration enforcement, CBP and the Border Patrol have what is in effect a zero-tolerance policy, and the record of its drug interdictions demonstrate its unfocused, wide-net interpretation of its mission. The vast majority of the drugs that it seizes and the people it arrests are hardly “dangerous” people or goods. They are mostly illegal immigrants looking for work and marijuana. Clearly, there are “dangerous people and goods” that enter our country, and we need government agencies like CBP and the Border Patrol to obstruct this dangerous traffic. But we need to be certain that there is a clear mission focus at CBP and the Border Patrol if we are continue to pour billions of increasingly scarce taxpayer dollars into border security. CBP’s annual budget has more than doubled since 2002, rising to $10.9 billion in 2009. Before President Obama and Congress rush to approve yet more funding for border security, hard questions need to be asked about the lack of mission focus at Homeland Security. Since the “war of drugs” was launched, the federal government has drafted into the questionable war the Drug Enforcement Administration (DEA), established in 1973 with the Department of Justice as the sole federal agency responsible for drug control. Since then the drug-war bureaucracy has extended deep into the State Department, Defense Department, and into other parts of the Justice Department. In 1988 President Reagan established yet another front in the drug-war offensive with the creation of the Office of National Drug Control Policy. While the Border Patrol and immigration agents have always had bit parts in the drug war, the integration of border patrol and immigration enforcement into the Department of Homeland Security in 2003 not only drafted them into the “war on terrorism” but into becoming major players in the “war on drugs.”
At the start of a new administration and a new Congress, it’s time to start asking if the Border Patrol is really focused on protecting the nation against dangerous people and goods or if it, like other law enforcement agencies, have become distracted from the public safety and national security missions by an ill-conceived and long-failing drug war.