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