Wednesday, February 15, 2012

Immigrant Crackdown Joins Failed Wars on Drugs and Crime

(The following is an excerpt from an International Policy Report of the Center for International Policy, which is titled Immigrant Crackdown Joins Failed Crime and Drug Wars. The report, published in April 2009 and written by Tom Barry, is once again available online -- at a time when the Obama administration faces increasing questions about its immigration and drug prohibition policies, as well its practice of criminalizing immigrants, both legal and illegal ones.)
Memorial for dead immigrant next to internnational boundary marker
in Agua Prieta, Sonora/Photo by Tom Barry

Breaking the Connections, Ending the Wars

The traditional frameworks for viewing the immigration issue—from the "nation of immigrants" history to demands for "comprehensive immigration reform"—treat immigration as a distinct issue in U.S. society and politics. In public and policy discourse, we regard immigration policy as the special way we deal with outsiders—the regulations and laws we institute to determine who can come inside and remain in our society.

But as the crackdown on immigrants evolves, the old frameworks for understanding the plight of immigrants and for advancing policy solutions fall increasingly short. That's largely because the federal government, in concert with local and state governments, has stopped treating immigrants as a special case.

The way we have decided to deal with these outsiders—the 30 million illegal and legal immigrants who live among us—is how we already decided to deal with ourselves.
In the early 1970s America began a new experiment in social engineering and control. It rejected the liberal, democratic, and humanitarian impulses that had previously played such an important role in defining U.S. identity.

Instead of hope, fear increasingly defined governance in social policy. Increasing drug use and rising urban crime were met with reactionary policies rather than problem solving—the get-tough wars on crime and drugs. We began "governing through crime," as criminal justice scholar Jonathan Simon has observed.

Millions of Americans began to be imprisoned for victim- less drug-possession crimes. To enforce the social order and uphold the rule of law, the drug and crime wars filled America's expanding prison complex with petty criminals and illegal drug users.

While liberal programs—drug treatment, Head Start and other education programs, social services, etc.—persisted, the newly dominant response was to isolate our social problems rather than address them. Mass imprisonment became our prevailing risk-management strategy.

Similarly, rather than fixing a dysfunctional immigration system, government has since the mid-1990s moved to manage the immigration crisis through a strategy that stresses deterrence and exclusion. The immigration system has been shifted to the criminal justice system.

Immigration increasingly has been criminalized—a process some legal scholars have called "crimmigration." Federal courts are clogged with immigrants. Ever larger numbers of immigrants, legal and illegal, are regarded as "fugitive aliens" or "criminal aliens." Shifting immigrants to the U.S. system of crime and punishment has obligated ICE, U.S. Marshals Service, and Bureau of Prisons to greatly expand their network of prisons. Immigrant prisons operated by private prison firms have popped up all across the nation but especially in Texas and other border states.

This immigrant crime/prison complex overlaps with the citizen crime/prison complex. But there are important differences. While state and local governments in the face of budgetary and economic crises are starting to question the sustainability of the crime and punishment system as the costs of maintaining the penal system mount, DHS and DOJ are the beneficiaries of generous congressional funding increases for the immigrant crackdown. ICE alone spends $1.7 billion a year for immigrant detention.

While DHS officials routinely say that immigration law enforcement aims to uphold the "rule of law," it's a rule of law for citizens alone that is being enforced. A far inferior and ever-more degraded set of laws and regulations rules the immigrant world.

Legal or illegal, they aren't protected by the same constitutional guarantees as citizens. While immigrants have the right to counsel in immigration court, they don't have the right to a government-provided attorney if they can't afford to hire an attorney. When in the immigration system, criminal aliens are protected by the Fifth Amendment's due process clause, but they aren't protected by the criminal process rights in the Fourth, Fifth, and Sixth Amendments. As aliens, they are defined and treated as outsiders with few of the rights and guarantees of citizens.

Policy Recommendations

The economic crisis has preempted any immigration reform that expands work visa programs or regularizes the status of unauthorized immigrants. Even if the Democratic majority expands in Congress, such liberal immigration reforms will likely remain politically dead until the economy stabilizes and revives.

This gives immigration advocates a few years or more to sharpen their arguments and broaden the support for liber- al immigration reform. Not constrained by the exigencies and demands of a lobbying campaign for comprehensive reform, as they have been for the past several years, immigrant advocates and others have the opportunity to address the way immigration has become governed by crime. While the Obama administration continues to insist that immigration reform is a priority, it's unlikely that it will use its diminishing political capital to exercise the strong and visionary leadership that this issue demands.

Americans are rightfully proud that the country we have created respects the "rule of law." But, while important, respect for law and for the order that it provides never has been and never should be the animating principle of the United States. Our founders believed, as we do, that when rules or laws do not serve the interests of justice, they need to be changed.

With respect to immigration and immigrants, over the past two decades we have changed our rules and laws, but not to serve justice. Rather the new "rule of law" in immigration matters has been legislated and applied in fits of politi- cal opportunism and backlash. The criminal justice and penal systems, already weighed down and distorted by the wars on crime and drugs, have been tapped to provide order to immigration. Justice and reason are nowhere in sight.

In this political interim, Congress, President Obama, Attorney General Eric Holder, and DHS Secretary Janet Napolitano should begin to bring justice and reason back into immigration enforcement. A combination of congressional and administrative actions could go a long way toward making the rule of law in immigration matters that deserves our respect.
Both at the state and federal levels, there are new signs that the logic, rationale, and methods of the wars on crime and drugs are coming under hard review. This reconsideration of the "severity revolution" is largely a product of the economic crisis. Current patterns of law enforcement, sentencing, and imprisonment are at long last recognized as being unsustainable and counterproductive.

As lawmakers move to roll back drug laws and downsize the crime/prison complex, they would do well also to con- sider the costs of criminalizing and imprisoning immigrants. On the federal level, Congress should question whether the nation can afford the billions of dollars allocated annually for arresting and imprisoning immigrants.

The Department of Homeland Security's immigration agencies should not get a free pass in a budget review of pork- barrel and unnecessary funding. Specifically, Congress should tell the president, Napolitano, and Holder that ICE's criminal alien programs are unfocused and as such do little to improve community security and public safety, as they claim.
Secretary Napolitano has given signals that she will halt her predecessor's support for worksite raids that send hard- working immigrants to prison. She has promised to focus more on charging employers that exploit immigrant labor.

But neither she nor Attorney General Holder has thus far challenged the array of DHS and DOJ programs that as part of a "deterrence" strategy have employed the heavy hand of the law to make life in the United States increasingly unbearable for immigrants—a strategy that immigration restrictionists accurately describe as "attrition through enforcement." Law and justice operate at cross-purposes in such a criminalizing strategy, and it's the responsibility of Holder and Napolitano to recognize this and correct it.

Congress should also move to reinstall the separation of immigration and criminal law through legislative amendments that roll back the 1996 and other laws that have established the legal foundation for the current regime of governing immigration through crime. The executive branch is free to distance itself from this regime by dismantling its array of programs that unproductively categorize and treat an ever-growing number of immigrants as criminals and fugitives. Current funding for these programs can be used to target the immigrants who truly represent a threat to "national security and public safety."

Mexican children play at Zaragosa elementary school next to border fence
in Palomas, Chihuahua/ Photo by Tom Barry

Solutions Not Crackdowns

There is no doubt that the United States has the right to control who enters its borders and who becomes a citizen. It's just as clear that our immigration system is badly bro- ken and that there are valid citizen concerns about illegal immigration, immigrant crime, and border security.

But instead of dealing proactively with the complexity of the problem, the United States has reacted to the immigration issue chiefly with the "get tough" strategies employed in the crime and drug wars for so long, for so much money, with so little result, and with so much tragedy. As U.S. society begins to reconsider its prohibitive and punitive response to the immigration crisis, it also would do well to declare an end to the crime and drug wars that are now so closely linked.

It's time to start solving these problems, not just "cracking down."

Tom Barry directs the TransBorder Project at the Center for International Policy in Washington, DC. He blogs at

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