Talking About "Criminal Aliens"

Liberal immigration reformers and immigrant-rights activists generally avoid talking about “criminal aliens.”

Criminal alien is what the Departments of Justice (DOJ) and Homeland Security (DHS) call a noncitizen – whether a legal or illegal immigrant – who has been convicted of a crime. Unlike immigration restrictionists, immigrant advocates stay clear of links between immigrants and crime, and instead stress that immigrants seeking legal status are law-abiding workers and community members.

There is broad public sentiment that criminal aliens should be removed from the country – reflected in the Obama administration’s repeated declarations that criminal aliens are the focus of its immigration enforcement operations. Immigrant advocates (and the media) focus on the plight of noncriminal aliens, such as DHS detention conditions – while the plight of immigrants incarcerated by the DOJ in the prisons of the U.S. Marshals Service and the Bureau of Prisons gets much less scrutiny. As might be expected, the reform proposals that include legalization measures specifically exclude immigrants with criminal records.

Immigration and crime are topics that are increasingly linked. Anti-immigrant and anti-immigration activists – who insist that immigrants who cross illegally into the country are criminals – are mainly responsible for this immigrant-criminal linkage. By prosecuting illegal entry as a federal crime punishable by federal imprisonment (rather than as a civil violation, as was previously the practice), DHS has given the immigration backlash community more ammunition in their campaign to label illegal immigrants as common criminals.

But the fact is that many noncitizens – hundreds of thousands of them – are indeed common criminals, apart from any new categorization of immigration law violations crime by DHS through such programs as Operation Streamline.

The criminal alien issue is a central challenge of immigration reform. It’s an issue that also goes to the heart of the problems with criminal justice system and our practice of mass incarceration.

Immigrants as Inmates

On any given day there are some 33,000 immigrants living in forced confinement behind two or three lines of high perimeter fencing of razor wire. Last year DHS’ Immigration and Customs Enforcement (ICE) agency channeled 392,000 into these detention centers before they were deported.  

DHS says that it removed 195,000 criminal aliens from the country last year – that’s up 52% from the first year of the Obama administration and up 70% from the last year of the Bush administration.

The dozens of ICE detention centers – most of which are operated by private prison firms – constitute, charge immigrant advocates, a hidden archipelago of immigrant prisons.

But on any given day there are many more noncitizens – all categorized as criminal aliens -- incarcerated in a network of USMS and BOP prisons than in the DHS detention centers. What is more, there are nearly 300,000 illegal immigrants in state and local jails.

The numbers of immigrants in prison are alarmingly high, raising questions about the high costs of this mass imprisonment and about the true extent of immigrant-criminal connection.

About 25% of those inmates in USMS custody are immigrants held for immigration violations. USMS bookings for immigration violations increased from 10,181 in 1995 to 88,189 in 2010. About 17,000 immigrants are in USMS jails for immigration violations on any given day. These numbers don’t include noncitizens being held for non-immigration crimes.

In BOP prisons there are some 55,000 immigrants – or 25-27% of the total prison population in recent years. That is about double the federal incarceration rate for citizens. Approximately 23,000 of these noncitizens are incarcerated in twelve special prisons for low security criminal aliens (sentenced for illegal entry and drug violations) that are operated by private prison companies.

Then there are the hundreds of thousands immigrants found in state and local jails. As part of its Criminal Alien Program and especially the new Secure Communities program, ICE is seeking to integrate local and state law enforcement into federal immigration enforcement through data and communications systems that alert the agency when an immigrant is booked and jailed.

There is no data on number of immigrants jailed at the state and local levels. But the federal government, through the State Criminal Alien Assistance Program (SCAAP), a DOJ program that partially reimburses state and local governments for the costs of jailing illegal immigrants, does not that at least 296,000 illegal immigrants were in local and state jails in 2010. Under SCAAP, localities and states aren’t reimbursed for the costs of jailing legal immigrants, making it more difficult to estimate the number of legal immigrants who have entered local and state jails or corresponding criminal justice systems.

Prosecutions of immigrants for immigration violations are overwhelming federal courts and driving the increased need for USMS and BOP prison beds.

More than one third of all criminal prosecutions in federal courts are for immigration violations. Immigration prosecutions constitute 36% of all federal prosecutions – surpassing drug and fraud prosecutions. These immigration prosecutions are distinct from cases handled administratively by DOJ and DHS in immigration courts.

Closely linked to the increased federal prosecutions of immigration violations is the geographical concentration of federal criminal cases. In 2010, 41% of all federal criminal cases were handled by five judicial districts in the Southwest. 

Next: Immigrants and Drugs

Criminal Aliens from "Geopolitical Perspective"

At a time when an immigration reform that would legalize the status of the 10-million plus population of unauthorized immigrants seems like a distant prospect at best, there are virtually no immigration reformers arguing against the removal of criminal aliens. Instead, there is broad consensus – liberals and conservatives, restrictionists and pro-immigration reformers – that criminal aliens should be removed from the country.

Among liberal immigration reformers, there is common ground in the position that illegal immigrants should “get right with the law” – registering, paying fines and taxes, and learning English – and only if they don’t have a criminal record become eligible for legal status. Conservative Democrats like U.S. Rep. David Price (NC) often couch their support for immigration reform on having Immigration and Customs Enforcement (ICE) rid the nation of all criminal aliens.

Which seems reasonable – at first. Why, after all, should our country tolerate immigrants who don’t obey our laws when so many others are desperate to stay or come here?

One problem is ICE’s Criminal Alien Program, along with associated programs like Secure Communities, often net more noncriminal immigrants in their sweeps and background checks than the targeted criminal aliens. Another problem with accepting the premise that criminal aliens have not place in our country is that ICE’s definition is so broad – including all legal and immigrants convicted of a crime. This categorization extends to immigrants convicted of illegal entry or re-entry as part of an especially aggressive ICE program called Operation Streamline.

ICE reports that it is deporting an increasing number of criminal aliens every year. But many of those categorized as criminal aliens are not what most Americans would label criminals, including the tens of thousands who have been convicted of drug possession.

Support for programs and reform proposals that target criminal aliens is a slippery slope.

But what about the violent and otherwise dangerous immigrants that the Department of Homeland Security says it targets? Who could dispute that our security and our safety aren’t served by an immigrant crackdown that removes these unsavory immigrants from our midst?

While far outside accepted debate over immigration reform, a strong case can be made that we should keep our “criminal aliens” at home. Back in 1998, when criminal alien targeting had just started as the result of new anti-immigrant legislation in 1996, the Inter-American Dialogue looked at the deportation of criminal aliens from a “geopolitical perspective.”

As the drive to remove criminal aliens deepens and as we consider the criminality raging across our border in Mexico and Central America, it is refreshing to consider the findings of this provocative report. Written by Margaret H. Taylor and T. Alexander Aleinikoff, the paper, titled “The Deportation of Criminal Aliens: A Geopolitical Perspective” deserves our attention.

Although rare, there have been journalistic treatments of the boomerang effect and the transborder consequences of criminal alien deportations, but scholarly treatments such as this are especially valuable. As the authors observed:

Countries in the Western Hemisphere report a number of problems stemming from the increase in criminal alien deportations. Many deportees return as strangers to their country of origin. A lack of advance notice and the absence of any programs to monitor recently-returned offenders impedes receiving countries from assisting with their reintegration. The result, according to many foreign diplomats, is a high rate of recidivism that contributes to sharply rising crime rates. These problems implicate U.S. interests and raise concerns for the international community.

“Out of sight, out of mind" perhaps best describes the traditional U.S. response to these problems. If the presence of foreign-born offenders within the United States poses a threat, then removing them from our streets is the obvious “solution”— or at least the prevailing political rhetoric frames the issue this way. But there are

several reasons why U.S. policy makers should be concerned about foreign—born offenders even after they are deported from the United States.

As the spread of U.S. gangs to El Salvador demonstrates, the deportation of criminal offenders helps to create and reinforce international criminal syndicates. Many drug traffickers also continue their trade once they are deported, and the effectiveness is only enhanced by their ties to the U.S. In addition, an influx of deportees with criminal records exacerbates an already volatile situation along the U.S.-Mexico border, where criminals routinely prey on a vulnerable population. Cross-border criminal networks are common, and an increase in crime plagues residents of Mexico and the United States.

 Recent journalism that documents many of the consequences of U.S. deportation practices lacking a “geopolitical perspective” includes:

Norberto Santana, Jr, “Criminal deportations fuel border crime wave,” Orange County Register, Dec. 18, 2007 at: http://www.ocregister.com/article/tijuana-border-deportees-1942538-police-criminal

Tijuana's Minister of Public Security Luis Javier Algorry said crime in Tijuana keeps rising and getting more violent. He said many of the petty criminals tell the local beat cops they were deported from U.S. jails.

"You've left them too close to the temptation," Algorry said. "If you leave them in Tijuana, they're only going to seek quick money to get back across."

"They're mostly good, honest people who were going to seek the American dream," Tijuana’s Mayor Honald said.

But once they're dropped off in a strange city with no money or place to stay, many turn to crime.

"It's turning good people into bad ones," Algorry said.

Robert Lopez, Rich Connell, and Chris Kraul, “Gang uses deportation to its advantage to flourish in the United States,” Los Angeles Times, Oct. 30, 2005 at: http://www.latimes.com/news/local/la-me-gang30oct30,1,4477244,full.story

A deportation policy aimed in part at breaking up a Los Angeles street gang has backfired and helped spread it across Central America and back into other parts of the United States. Newly organized cells in El Salvador have returned to establish strongholds in metropolitan Washington, D.C., and other U.S. cities. Prisons in El Salvador have become nerve centers, authorities say, where deported leaders from Los Angeles communicate with gang cliques across the United States.

Matthew Quirk, “How to Grow a Gang,” Atlantic, May 2008, at: http://www.theatlantic.com/magazine/toc/2008/05/

The United States has been down this road before; the mid-1990s saw a similar wave of criminal deportations. That one helped turn a small gang from Los Angeles, Mara Salvatrucha (better known as MS-13), into an international menace and what Customs and Border Protection now calls America’s “most dangerous gang.” It’s not clear that this one will turn out much better.

The Criminal Alien Shuffle

A little more than ten years ago the Bureau of Prisons issued its first Criminal Alien Requirement (CAR) request for proposals for contracts for the imprisonment of low-security immigrants convicted and sentenced by federal courts. The B OP was searching for private and public partners willing to provide prison beds in facilities exclusively for “criminal aliens.”

The call went out in September 2009 for 7500 CAR beds in California, Arizona, New Mexico, and Oklahoma.

The CAR contracts proved a boon to private prison companies like Corrections Corporation of America (CCA) and Cornell Corrections since they contracts came at a time when the private prison firms were experiencing rough financial times. The speculative prisons they had been building during the 1990s were underoccupied or empty, as news of prison escapes and widespread abuses dampened the initial enthusiasm of state governments to outsource their inmates to the “privates.”

But the federal government came to the rescue with immigrant inmates who became among the first federal prisoners to be outsourced to private prisons. Immigrant inmates covered by the CAR contracts are particularly attractive to the privates because they are nonviolent offenders, many of whom have been convicted for immigration not criminal violations. Which means lower security costs for the private companies, and also minimal rehabilitation, drug treatment, or educational services since all the CAR inmates are slated to be deported when finishing their sentences.

CCA, the largest prison company, was the main beneficiary of the first CAR offerings in 1999.

CCA won two ten-year CAR contracts worth $760 million. One of the contracts was for 2,304 immigrants, who conveniently, for CCA, were sent from a variety of other federal prisons to an empty CCA prison in California City, California – built as a speculative prison by CCA but which it had previously been unable to fill. There was another CCA contract for 1,024 immigrant inmates at its Cibola prison in Milan, New Mexico.

Ten years later, CCA has received some bad news. BOP declined to renew its CAR contract for its California City prison, and instead granted the contract to Cornell Corrections, which owns the largest private prison in Georgia. That prison will now be converted to a CAR prison for immigrant inmates – which means that when the new contract begins in October 2010 all the inmates still serving time at the California City prison will be transferred across the country to an isolated stretch of Georgia near the Florida border.

Why did BOP award the CAR contract to Cornell, which will leave CCA with an empty prison?

In a statement, CCA President and CEO Damon Hininger said the company believes the BOP's move is based primarily on "escalating federal wage determination costs in California, and does not reflect the quality of operations our company and staff have provided to the BOP."

In a note to clients, according to the Nashville Post, Avondale Partners analyst Kevin Campbell wrote that the wage differential between California and Georgia, where Cornell will house the CAR inmates, is more than 50 percent.

As part of the CAR-10 contract, the immigrant inmates now at the CCA prison will be transferred to the largest private prison in Georgia, the D. Ray James Correctional Facility located in Folkston.

Cornell, which has two other CAR contracts for immigrants, expects to earn revenues of approximately $205 million during the initial four-year term of the contract.

It’s all about service, so says Cornell.

James E. Hyman, Cornell's chairman, president and chief executive officer, said, "Our company has served the Federal Bureau of Prisons for 28 years. This will be our third facility meeting the BOP's criminal alien requirements, and we look forward to demonstrating our commitment to safety, security and service with a total of approximately 7,500 federal inmates."

The denial of the CCA contract for the California City raises the question if BOP is prepared to terminate or not renew contracts based on any criteria besides cost savings – such as patterns of abuse, mismanagement, lack of oversight, and incompetence seen so clearly at BOP’s largest immigrant prison in Pecos, Texas.

See related:

Tom Barry, “Death in Texas: Profits, Prisons, and Immigration Converge.” Boston Review, November 2009.

Judith Greene, “Bailing Out Private Jails,” American Prospect, September 2001.

Photo: Reeves County Detention Center, Pecos, NM

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

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.

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

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

http://americas.irc-online.org/pdf/reports/0904crackdown-CIP.pdf

Fast-Tracking Secure Communities

"Secure Communities" is coming your way.

Immigration and Customs Enforcement (ICE) says that it plans to have the new “criminal alien” program working in most communities in the next four years. Unlike the controversial 287(g) Program, which cross-designates local police as immigration agents, Secure Communities is fostering “inter-operability” between ICE and all federal, state, and local law enforcement agencies. The program works by making checks by law enforcement offices of criminal (FBI) and immigration (ICE) databases automatic. Like the 287(g) Program, Secure Communities is “risk-based,” prioritizing the most dangerous criminal aliens – but also like the 287(g) agreements with local police there are no regulations to ensure that this prioritization based on risk is more than a paper promise. It’s another part of ICE’s expanding dragnet that will as likely result in the imprisonment and removal of immigration violator as of violent criminals. It’s hard keeping track of all the various programs, operations, and initiatives of ICE and its brother agency Customs and Border Protection (CBP), both agencies of the Department of Homeland Security. Since Sept. 11 and particularly since 2005 when Michael Chertoff became DHS chief, DHS has let loose with a flood of new programs as part of the immigrant crackdown. One of the more recent initiatives is “Secure Communities: A Comprehensive Plan to Identify and Remove Criminal Aliens.” Placed in more than fifty communities since October 2008, Secure Communities is ICE’s most ambitious attempt to insert immigration law enforcement into community law enforcement. It represents the new long hand of immigration law. ICE says the program “will change immigration enforcement by using technology to share information between law enforcement agencies and by applying risk-based methodologies to focus resources on assisting communities remove high-risk criminal aliens.” The new technology that DHS and the Justice Department is making available to all state, local, and tribal law enforcement agencies will enable police to simultaneously check criminal and immigration digital databases for matches upon booking of all those arrested. Program director David Venturella explained the vast scope of this “comprehensive plan” in April 2 testimony to the Homeland Security Subcommittee of the House Appropriations Committee. Venturella thanked subcommittee chairman David Price (D-NC) for the resources the committee has provided ICE for its “criminal alien” programs, telling Price that the committee’s generous support – higher than President Bush’s requested budget – in 2008 had permitted ICE to “improve and modernize efforts to identify aliens convicted of a crime, sentenced to imprisonment, and who may be deportable, and remove them from the United States once they are judged deportable.” He assured the committee that “we deploy this technology based on risk, including the amount of criminal activity.” DHS Secretary Janet Napolitano has made the Secure Communities program a “top priority,” according to Venturella, noting that in her Jan. 30 directive she asked ICE “to examine how it might accelerate” its deployment. Venturella tells the Homeland Security Subcommittee that 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.” In all its programs, ICE lays out its priorities, beginning with the most violent criminal aliens and ending with immigration violators, but it has never established the internal regulations to ensure that these “risk-based” priorities are followed. Nor does it insist that its local partners abide by the stated risk levels when collaborating in immigration enforcement. Indeed, in his testimony, Officer Venturella promised that Secure Communities would “build upon the success that ICE has already seen in its other interactions with these law enforcement agencies such as ICE’s effort to identify incarcerated criminal aliens by its physical presence at federal, state, and local institutions, the Criminal Alien Program (CAP), and the 287(g) program, where ICE delegates the authority to enforce immigration law to trained state and local law enforcement.” There was no mention of the recent studies by the Government Accountability Office, Justice Strategies, and the Law School of the University of North Carolina that have found that ICE’s stated “risk-based” criteria in federal/local immigration enforcement programs are ignored in favor of a wide-net approach. Although Secure Communities states that the “inter-operability” will take force when someone is booked by local police, Venturella told the committee that police can use the crosschecking capabilities of the joint DOJ/DHS databases for subjects not in their direct custody. “We will also deploy biometric identification in other phases of the enforcement process and with other existing ICE programs to identify dangerous criminal aliens currently incarcerated or at large,” he said. Police, he said, can access “automatic database checks and can take action quickly even if the dangerous criminal alien is no longer in custody.” He noted, too, that the Secure Communities can and will be used to hunt down “those at-large in our communities.” In Florida, Secure Communities is launching a program with local police “where ICE will review the records of all individuals on parole or probation and run their fingerprints against the immigration biometric database.” Which means, for example, that a legal immigrant who is on parole for a drug possession charge would, under this program, come to the attention of ICE and may be placed in mandatory detention as a “criminal alien.” The broad definition of who constitutes a “criminal alien” was also evident in Venturella’s testimony. These include immigrants who have been deported but illegally return. Adopting the language of the criminal justice system, Secure Communities describes two or more illegal entries as “recidivism.” One of the program’s “strategic goals” is to “maximize cost effectiveness and long-term success through deterrence and reduced recidivism.” An offshoot program is Operation Repeat Offender, which is a joint DHS/Justice Department program “to ensure federal prosecution of aliens who return illegally after removal.” These repeat offenders are criminal aliens. “If convicted of these immigration charges, these criminal aliens serve their sentence in federal custody,” said Venturella.

Charging immigration violators with federal crimes has been a practice of ICE for the past several years, and it has been accepted by Congress as an acceptable part of the hunt for criminal aliens for which it authorized $1 billion in 2009. Neither Congress nor ICE finds this practice in violation of the stated commitment to employ a “risk-based” strategy in this new campaign to secure communities. In a plea for more funding, Venturella said, “While officers, beds, and transportation are the core resources of criminal alien enforcement, we recognize that technology and comprehensive system planning are crucial to using these core resources more effectively to remove dangerous criminal aliens in greater numbers.” Venturella’s testimony (and the strong support of the House committee) make clear that the future of immigration enforcement -- while relying on detention beds and ever-increasing numbers of Border Patrol and immigration agents -- is in widespread technological identification systems. These are being sold now as programs to rid America of dangerous criminal aliens. But ICE’s other criminal alien programs are already characterized by aggressive mission creep. Without controls, it’s likely that these identification programs will be routinely available not only to booking officers in local jails but also to patrol officers, and perhaps even to non-law enforcement civil servants.

This fast-tracking of the criminal alien program and widely available technological identification programs should stop. Certainly there are threats to community safety and national security – and these should be the clear focus of our Department of Homeland Security.

The "Criminal Alien" Crusader

What are we getting for our investment in more aggressive immigration enforcement? That’s what Rep. David Price (D-NC) wanted to know when he chaired the April 2 hearing of the Homeland Security Subcommittee. The hearing’s topic: “Priorities Enforcing Immigration Law.”

Despite the record-breaking arrests, detentions, and deportations by ICE in 2008, Rep. Price is not pleased. He says that the subcommittee has “made billions of dollars available for ICE” since 2003.

But the “questions we must all ask are: have these huge investments produced what our country needs and expects from the agencies enforcing our immigration laws? Is DHS prioritizing these resources appropriately?” ICE officials assure him that they are aggressively hunting down criminal aliens, but Price is not pleased with the progress.

The North Carolina congressman points to figures that show noncriminal removals having increased 400% since 2002 but the removal of criminal aliens has increased only 60%. Over the past couple of years Price has been leading the anti-criminal alien bandwagon in the House. It’s not that, like many congressional colleagues from the South, Price is an ardent immigration restrictionist. In fact, he is a firm supporter of comprehensive immigration reform.

That’s why the liberal Center for American Progress invited Price to deliver a major speech on immigration reform and homeland security last June. In the June 23 speech at the Center for American Progress (the source of several high officials of the Obama administration including at Immigration and Customs Enforcement), Price voiced his strong support for a comprehensive immigration reform bill that would put the country’s undocumented population on the path to citizenship.

But he also wants tough and quick immigration enforcement, prioritizing the removal of criminal aliens. “There can be no credible argument,” said Price, “that deporting illegal workers should take precedence over efforts to combat smuggling, prevent terrorism, and deport criminal aliens.” That’s an argument that many progressive supporters of CIR could agree with and most have.

 Price’s CIR position is also appealing to CIR advocates because he believes that DHS shouldn’t be using scarce resources – the resources his committee supplies – raiding worksites and arresting noncriminal workers. He makes this point repeatedly – to the media, at congressional hearings, and in speeches including the one he gave at the Democratic Party think-tank Center for American Progress:

“While we have been using scarce resources to detain and deport laborers at meatpacking plants, we have allowed tens of thousands of dangerous criminal aliens to be released back into our communities after serving their sentences, with no awareness on our part of their immigration status.

“No matter what one’s opinion about the broader illegal immigration problem and how to address it, we should all be able to agree that ICE’s highest priority should be to identify and deport unlawfully present aliens who have already shown themselves to be a danger to our communities and have been convicted of serious crimes. “Such reform will strengthen our economy, reaffirm the rule of law, and enhance homeland security, allowing DHS to focus more effectively on that small percentage of illegal immigrants that has the capacity and the intent to commit crimes and do us harm.”

With the immigration issue, consensus is hard to find, and Price expects to find it around his “criminal alien” crusade. After all, who could be against removing “criminal aliens” from our communities and then removing them from our country? Price believes that Janet Napolitano also agrees, and is firmly aboard the anti-criminal bandwagon. In his opening statement to the committee hearing, Price stated:

"Last year, we directed ICE to use $1 billion of its resources to identify and remove aliens convicted of crimes, whether in custody or at large, and mandated that this be ICE’s number one mission. I continue to believe in the wisdom of this course and want to know how ICE plans to make more progress identifying criminal aliens and deporting them once their sentences are complete. Since her confirmation, I have been encouraged by Secretary Napolitano’s public statements that she shares this perspective. We must make sure the Department is setting the right priorities for immigration enforcement.”

Indeed, it certainly appears the DHS chief agrees with Price’s assessment. She has repeatedly vowed to make the dragnet for criminal aliens a top priority of immigration enforcement, declaring that she wants these alien criminals off America’s streets.

In the initial presentation of the requested 2010 budget, the White House “provides over $1.4 billion for Immigration and Customs Enforcement programs to ensure that illegal aliens who commit crimes are expeditiously identified and removed from the United States.”

 Nonetheless, Price is concerned. He points out that “of the nearly 370,000 deported by ICE, less than a third, or 114,358, had ever been convicted of a criminal offense. This, despite the fact that up to 450,000 criminals eligible for deportation are in penal custody in any given year.” (That’s an extremely high ICE estimate, and almost all ICE’s estimated number of criminal aliens are serving time and thus not eligible for removal until their sentence is served.)

 It also bothers the congressman that less than one-quarter of those captured by ICE’s Fugitive Operations Teams in 2008 had been convicted of criminal offenses and that “over three-quarters of those arrested in ICE worksite enforcement raids last year were not charged with any crime.”

 Price’s crusade against criminal aliens and the administration’s apparent accession to this campaign raise some timely concerns about the future of immigration enforcement and the future of comprehensive immigration reform. There are good reasons to believe that ICE is yielding to the congressional demands (echoed by fellow Democratic Sen. Robert Byrd in the Senate) for more mandatory detentions and removals based on criminal alien status. In both the House and the Senate, Democrat-led committees are increasing the ICE budget if they promise to mount new programs to remove criminal aliens from our communities.

The Secure Communities Program is the latest in an array of ICE Criminal Alien Program initiatives. One problem is that the criminal aliens being removed are not the dangerous criminals that Price conjures up in his sales pitch for the crusade but mostly nonviolent offenders (largely drug-possession convictions) and increasingly legal immigrants.

 Another problem is that any new push for comprehensive immigration reform may be sold to the public alongside this criminal alien crusade. In other words, the developing Democratic Party version of the “enforcement first” agenda of the Republicans and immigration restrictionists appears to be a guarantee that they will rid the country of all criminal aliens. Slowly the new pejorative for immigrants is shifting from “illegal aliens” to “criminal aliens.” Little noticed in this shift is that the increasingly expansive term “criminal alien” makes no distinction whether an immigrant is legal or illegal and makes little distinction in the severity of crime.

Comprehensive Reform and Criminal Aliens

The crusade is heating up to remove “criminal aliens” from our midst. At a time when the Obama administration is sending signals that it might send some signals that it might encourage debate about a new immigration reform bill, the administration, Congress, and DHS are saying they are serious about removing criminal aliens and making sure there is the money to do the job. We will, of course, have to wait until what President Obama says about his plans to advance a new comprehensive immigration reform (CIR). While encouraging, the report in this week’s New York Times about the administration’s plans for CIR this year leave much room for skepticism. Cecilia Muñoz, deputy assistant to the president, told the Times’ reporters that “he intends to start the debate this year.” But more debate is not what the issue needs. If Obama is to meet his commitment to pass an immigration reform bill that guides the 11-million plus undocumented population “out of the shadows” and that leads to the orderly immigration system he envisions, he will need not only to lay out a clear vision of what that orderly system is but also put his political weight behind it. Policymakers and the electorate don’t need more debate on this contentious issue. They need a new vision that makes good common sense – and that’s something lacking on both sides of the debate. On the pro-immigrant side, advocates are still reluctant to stand behind an employment verification system that would dissuade new illegal immigrant flows and still reluctant to acknowledge that strict limits on family reunification visas need to be part of any CIR compromise. In the meantime, though, the “enforcement first” policy agenda continues to advance. Yes, DHS Secretary Napolitano has publicly expressed her misgivings about work-site raids that target workers more than the employers of undocumented labor. And she has complained about overly aggressive raids by the more than one-hundred fugitive operations teams that routinely net as “collateral” as many or more simple immigration violators as “fugitive aliens” and “criminal aliens.” But she is burnishing her hard-line credentials as DHS chief with her declarations in support of accelerated campaign to target criminal aliens wherever they may be found and whether they are illegal or legal. The April 2 hearing on “Priorities for Enforcing Immigration Law” before the Homeland Security Subcommittee of the House Appropriations Committee underscored that the push to remove criminal aliens will be heating up under Napolitano’s tenure.

Photo: Cecilia Muñoz

Comprehensive Immigration Enforcement in Irving, Texas

The federal government’s focus on arresting and deporting “criminal aliens” has left immigrant advocates and other proponents of comprehensive immigration reform (CIR) struggling for an adequate response. This new thrust in immigration enforcement by the Department of Homeland Security and its Immigration and Customs Enforcement (ICE) agency is occurring in cooperation with local law enforcement agencies. The goal of hunting down “criminal aliens” has gained broad policymaker support, as seen in the large annual budget increases for ICE criminal alien programs authorized by Congress. DHS Secretary Janet Napolitano has declared that removing criminal aliens from America’s street will be a central priority. Who is against removing noncitizen criminals from our communities? Understandably few national CIR advocates are willing to take a stand on behalf of criminal aliens. Indeed, the major immigrant advocacy organizations support a CIR that would legalize immigrants only if they had a “crime-free” history. Irving’s Criminal Alien Problem The New York Times front-page story (April 5) on the criminal alien debate in Irving, Texas illustrates the conceptual and practical challenges of formulating an adequate response to ICE’s criminal alien offensive. NYT profiles the conundrum of the mayor of this large Dallas suburb. Rather than accede to resident demands in 2007 that Irving sign a 287(g) agreement with ICE, Mayor Herbert Gears opted for what he NYT described as a “middle way on immigration,” namely a pilot criminal alien program promoted by ICE. Generally, only the most avid anti-immigrant communities have signed these training agreements with ICE that effectively cross-designate local police and sheriff deputies as immigration agents. Other counties and cities have rejected 287(g) proposals because ICE pays only for the training and not for the additional costs of implementing the program. Others oppose the cross-designation program because of fears that it would lead to decreased trust in local law enforcement by immigrant and Latino communities. Recent studies by the Government Accountability Office, Justice Strategies, and the University of North Carolina Law School have demonstrated the validity of these concerns. Pressed by anti-immigrant forces and more widespread concerns about immigrant crime, the city of Irving, led by Mayor Gears, opted for what was thought to be a middle way. That was the 24/7 Criminal Alien Program promoted in 2006 by ICE as a pilot program that stressed “interoperability” rather than “cross-designation.” Irving police and jailors wouldn’t serve as immigration agents but would merely report to ICE when they came into custody of a “criminal alien.” This was made possible by joint DHS/Justice Department initiative that made DHS and DOJ databases “interoperable.” In other words, every time Irving police checked DOJ’s extensive criminal database they would also check DHS’ rapidly expanding database. From Pilot Program to Comprehensive Plan in One Year DHS deemed its pilot program successful, and late last year began signing new CAP agreements with local governments as part of its highly ambitious program called “Secure Communities: A Comprehensive Plan to Identify and Remove Criminal Aliens.” What Irving’s Mayor Gears and other in Irving who supported this middle-ground solution was that so many of the town residents were “criminal aliens.” Under the expanding definition of “criminal aliens,” all legal and illegal immigrants are vulnerable to detention and removal. Undocumented immigrants are most vulnerable because use of false documentation to get a job or to drive is increasingly being judged an “aggravated felony” subject to automatic arrest, detention, and removal. Being a legal permanent resident doesn’t exempt a noncitizen immigrant from the long reach of the law in Irving and any of the other 50 local communities that have signed Secure Communities agreements. If an immigrant’s name appears in the DOJ database as having ever been convicted for a deportable crime, including crimes of moral turpitude controlled substances, as well as the expansive category of aggravated felonies, then ICE can assume custody and begin deportation proceedings.

The Dallas Morning News reported that Irving police turned over 1600 residents to ICE in 2007. As a result, “Many Hispanics are afraid to leave their homes or send their children to schools in a suburb where one-third of the population is foreign-born. They feel racially profiled by police and unwanted by white neighbors.”

ICE’s Criminal Alien Program and its various initiatives have a clear list of priorities – Level One through Level Three targets. Level One are individuals convicted of “major drug offenses and violent offenses,” while Level Two priorities are “individuals who have been convicted of minor drug offenses and mainly property offenses.” Level Three priorities are “individuals who have been convicted of other offenses.” As the GAO and other recent reports on the implementation of the 287(g) program have found, one major problem is that ICE doesn’t insist that local law enforcement agencies abide by these priorities. Another problem is that those immigrants, legal and illegal, caught in ICE’s widening net for criminal aliens catches immigrants who haven’t even been convicted of crimes but simply arrested or even just stopped by local police officers. But the central problem is that ICE’s Criminal Alien Program is “comprehensive,” as ICE itself states. In its presentations to Congress, ICE pledges to rid U.S. communities of threats to national security and public safety, but little noticed is its commitment to wield a comprehensive dragnet, as in the Secure Communities program. This comprehensiveness includes all offenders of criminal and immigration law. In practice, its program is not netting the U.S. captains of the transnational drug and human smuggling organizations but largely immigrants who are being categorized as “criminal aliens” because of violations of immigration law or of minor, nonviolent offenses. When Irving enlisted for the 24/7 Criminal Alien Program, Mayor Gears said, “Protecting our community from sex offenders, burglars, drunk drivers and other law breakers is a local issue. The 24/7 CAP is helping to bridge that gap and accomplish an important goal.” In its first year, however, 60% of the immigrants caught in ICE’s dragnet for criminal aliens were level three violators, mostly driving violations. One solution is to insist that ICE not only prioritizes level-one criminal aliens but also tells cooperating law enforcement agencies that the “interoperability” agreement extends only to the most dangerous criminals. But working against such a real prioritization are laws and statutes that since the mid-1990s have increasingly expanded the category of crimes by immigrants that leads to mandatory detention. Immigrants in Irving and other communities are right to be alarmed by new ICE initiatives targeting criminal aliens. Experience has shown that these initiatives divide communities and increase distrust of local law enforcement agencies while doing little to make communities more secure. Interoperability needs more review before moving forward as a “comprehensive” plan. That review didn’t occur with the pilot 24/7 Criminal Alien Program. Instead ICE, apparently pleased with the high number of immigrant arrests, in Irving, moved quickly to launch the Secure Communities program.

Now, “in collaboration with DOJ and other DHS components,” ICE says that it “plans to expand this capability to all state and local law enforcement agencies throughout the nation.” DHS Secretary Janet Napolitano needs to tamp down her enthusiasm for DHS criminal alien programs and halt the Secure Communities program before it extends to a national level the kind of damage it is doing to families and community cohesion and in Irving.

As DHS secretary, we expect her to protect the homeland and make our communities more secure not to divide the nation and terrorize communities with unfocused criminal alien programs.

AP Photo of Anti-Criminal Alien Protest in Irving