Journal of Contemporary Criminal Justice
Order ID 53563633773 Type Essay Writer Level Masters Style APA Sources/References 4 Perfect Number of Pages to Order 5-10 Pages Description/Paper Instructions
Journal of Contemporary Criminal Justice
Journal of Contemporary Criminal Justice 27(3) 261 –277 © 2011 SAGE Publications Reprints and permission: http://www. sagepub.com/journalsPermissions.nav DOI: 10.1177/1043986211412559 http://ccj.sagepub.com
CCJ412559CCJ27310.1177/1043986211412559Provine and DotyJournal of Contemporary Criminal Justice
1Arizona State University, Tempe, AZ, USA
Corresponding Author: Doris Marie Provine, Justice Studies, School of Social Transformation, PO Box 874902, Tempe, AZ 85287-4902, USA Email: Marie.Provine@asu.edu
The Criminalization of Immigrants as a Racial Project
Doris Marie Provine1 and Roxanne Lynn Doty1
Abstract
Contemporary policy responses to unauthorized immigration, we argue, reinforce racialized anxieties by (a) focusing attention on physically distinctive and economically marginalized minorities who are defined as the nation’s immigration “threat,” (b) creating new spaces of enforcement within which racial anxieties flourish and become institutionalized; and thereby (c) racializing immigrant bodies. We examine three federal enforcement policies: (a) the physical border buildup that began in the 1990s, (b) partnerships with local police, and (c) Immigration and Customs Enforcement (ICE) initiatives to enhance interior enforcement. The result has been the construction of a landscape of institutionalized racial violence embedded in our current immigration regime.
Keywords
unauthorized immigrants, criminalization, racialization, immigration enforcement, racial profiling
Race has a long and complicated relationship with the nation-state. Along with ethnicity and religion, race has historically been implicated in the formation and perpetuation of the state as a social, political, and economic entity. Violence has been an inextricable aspect of this relationship, including various institutionally sanctioned methods of excluding those considered the racial “other.” In contemporary times, while race is widely perceived to lack an empirical basis, it persists as a salient feature of individual, as well as group, identity, and as a significant, though often invisible, principle underlying the
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social and political order. The current role of race in determining boundaries of member- ship in purportedly egalitarian nations, however, is not well understood. This essay examines that role, not from the familiar vantage point of established rules for inclusion, but from less familiar locations where racialized exclusion occurs.
The essay proceeds in two parts. We first explore, at a theoretical and historical level, the role of race in contemporary policies of exclusion. These policies are both a response to popular racialized anxieties about immigrants, and, we argue, a spur to further racial- ization. In the United States, the primary focus of popular anxiety has been migrants arriving from Mexico in search of low-wage work. The proposed solution has been more law enforcement directed at this population and militarization of the southern border. Government’s acceptance of this populist framing has further marginalized and stigmatized these immigrants, reinforcing the sense that these physically distinc- tive immigrants are quasi-criminals willfully taking advantage of American hospitality and prone to further law breaking. The government’s harsh enforcement approach has, in effect, produced a racial identity that threatens vital U.S. interests and justifies harsh measures to prevent their entry and settlement. We substantiate this argument in the next section, which shows how the immigration-enforcement policies in vogue today in the United States target poor economic migrants from Mexico and Central America. We focus on three major areas of U.S. immigration policy; (a) border fortification, (b) federal partnerships with local law enforcement and, (c) federal initiatives for interior enforcement.
The enforcement of immigration laws offers an obvious site for racial formation (Sanchez, 1997; Winant, 2006). The British National Party, for example, recently won two seats in the European Parliament on a platform “committed to stemming and reversing the tide of non-White immigration and to restoring, by legal changes, nego- tiation, and consent, the overwhelmingly White makeup of the British population that existed in Britain prior to 1948” (Canseco, 2009). Neo-racism, whose dominant theme is the insurmountability of cultural differences, has also been quite prominent in various works on immigration by writers both academic and popular. Prominent examples include Peter Brimelow, who argues in Alien Nation that today’s immigrants are “from completely different and arguably incompatible cultural traditions” (Brimlow, 1995, p. 25). Another is the late Samuel Huntington who has asserted that migration poses a threat to “the cultural integrity” of European countries and that Mexican migration into the United States, “looms as a unique and disturbing challenge to our cultural integrity, our national identity, and potentially to our future as a country” (Huntington, 2000).
This sentiment appears to be widespread. In studying the academic and popular literature on Mexican immigration, Leo Chavez (2008) finds evidence of a pervasive Latino Threat Narrative that incorporates unsubstantiated beliefs about “out-of-control” Latina fertility and refusal to assimilate. Elizabeth Theiss-Morse, surveying public- opinion research, shows that stereotypes of “American” are White, Christian, and north- ern European. The tendency to think in exclusive terms is particularly evident among those with a strong sense of national identity (2009, p. 185). Such works suggest that race continues to have a complicated, but significant, connection to the identity of nations and the communities they purport to represent.
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Balibar (2004, pp. 23-24) argues that governments depend on exclusions and so produce and perpetuate ideas about difference for their own ends. Sometimes they do this indirectly. We know that criminal laws, by tolerating racial profiling and promoting targeted enforcement, can operate racially to exclude (Mauer, 2006; Peterson, Krivo, & Hagan, 2006; Provine, 2007; Walker, Spohn, & DeLone, 2004). In the immigration arena, exclusion from entry based on racism and essentialist ideas about national char- acter was once the norm (e.g., Calavita, 2006; Jacobson, 1998; Ngai, 2004). Our ques- tion is whether contemporary policies around enforcement of immigration laws serve a conscious or unconscious racial function by marking a racialized other as unworthy of membership.
The Context in Which Immigration Enforcement Occurs Contemporary debates about immigration should be understood within the broader context of insecurities about national identities in an era of ever increasing globalization. Rising levels of human mobility and settlement amid vast global inequalities in wealth have given rise to new exclusionary practices that, we suggest, involve a substantial degree of racialization. The number of immigrants around the world living and work- ing without legal authorization has grown in the past three decades to 30 to 40 million people, with about 11 million in the United States (Passel & Cohn, 2010). Immigrant- receiving nations, which have helped to create this movement with their demand for cheap labor, are attempting to close off entry routes and devoting administrative resources to rooting out persons in the interior who lack legal status (Dauvergne, 2008). Implementation of these policies typically targets economically marginal, visibly identifiable immi- grants and frequently involves ethnic or racial profiling by law-enforcement officials who enjoy broad, virtually unreviewable discretion. Such policies create new spaces in enforcement within which racial anxieties find a home, flourish, and become institu- tionalized.
In this essay, we focus on policies directed at the exclusion of unauthorized migrants from Mexico and Central America. While Muslim and Middle-Eastern immigrants have also been subject to harsh practices in the wake of the 9/11 terrorist attacks (Nguyen, 2005), the most extensive and sustained attention in recent years has been on securing the border with Mexico and interior enforcement directed at these migrants. With every increase in resources and attention devoted to enforcement, these groups are more definitively criminalized, “raced,” and rejected. Law is thus implicated in multi- ple ways in the racialization of these immigrants and in their marginalization. Critical race theorists argue that law creates and sustains race by various means. Here we empha- size the role of law enforcement in racialization. A key element in this process is the reconfiguration of law at the federal level that allows authorities at the local level to develop their own enforcement priorities and practices. Devolution of enforcement authority opens opportunities for targeted enforcement reflecting local political prefer- ences, a form of pernicious legal pluralism that applies only to immigrants. The complex bureaucratic and legal structures that constitute these systems function in ways that
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mask their racial character, making them appear on the surface to be racially neutral and consistent with the rule of law.
Race in Immigration Policy Popular misunderstanding of what racism is, and is not, contributes to a tendency to downplay or ignore the racial element in immigration enforcement. Both law and popular culture define racism in terms of intentional action by individuals. Contemporary racism, however, manifests itself most often not as overtly race-based hostility but as unease with the erosion of traditional racial hierarchies and as indifference to groups adversely affected by harsh policies of criminalization, confinement, and denial of basic services. At an institutional level, contemporary racism can occur within struc- tures that make room for differentiated enforcement and also by practices and policies that exclude or target particular groups through force of habit or by rules of thumb. The racial impact of such policies and practices is usually evident in the outcomes they produce, even if the discriminatory mechanisms that produce them remain obscure. The problem is perpetuated, however, by unwillingness to consider racial impact as evidence of racially disadvantageous practices and policies. The policies associated with the war on drugs provide an obvious example of such obliviousness to racial impact (Provine, 2007).
We see contemporary immigration enforcement as a “racial project,” in Omi and Winant’s terminology, a set of practices or structures that help to form ideas about dif- ference, which are then used to justify harsh treatment (1994). The racial project involves targeting unauthorized immigrants and dispersing authority to take strong action against them. In this process, legal immigrants are subjected to increasing scrutiny, a reminder of their provisional membership status. While an overtly racist element does exist and exert influence, that voice is to some extent muted by its disrepute as a legitimate part of public discussion. Even in the absence of overt racism, the combination of increased surveillance and sanctions, agency hype, and everyday practice together produce an immigrant “other” whose continued presence is increasingly perceived to be dangerous for the security and integrity of the nation. The process tends to be self-reinforcing.
To throw these practices into sharper relief, we choose one national context, the United States, and one relatively brief time period, the 1990s to the present. This is not to argue that the United States is unique in racializing immigrants (see, for example, Calavita, 2006; Money, 1999). Nor do we wish to argue that racialization is something entirely new in the U.S. context. For nearly two centuries, the United States restricted citizenship on racial grounds, and deportation on racial grounds was also a well- established and lawful practice through the 1950s (Ngai, 2004, p. 25). Racial priori- ties were prominent until 1965, when Congress abolished national-origin quotas.
What is distinctive about the current period is the formal rejection of race as a crite- rion for exclusion at the same time that policies and practices that racialize immigrants are being created and appear to be gaining momentum.
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Punitive policies toward unauthorized immigrants and legal immigrants who com- mit criminal acts enjoy broad popular support, reflecting the nation’s historic ambiva- lence toward immigration and, we argue, the mutually reinforcing relationship between racialization and criminalization. Some of that ambivalence has long been directed toward Mexican immigration. Massey notes that Mexicans, the largest immigrant minor- ity in the United States, have historically been treated as “a subordinate stratum of people subject to widespread discrimination and systematic exclusion” (Massey, 2007, p. 117). Violence against Mexicans has peaked at various times, often corresponding to periods of perceived national crisis. Mexicans have been subjected to some of the same forms of violence as African Americans. Between 1848 and 1928, nearly six hundred Mexicans were lynched by White mobs throughout the Southwest (Gomez, 2007; Massey, 2007, pp. 123-124).
The strength of contemporary concern with Mexican immigration became evident with the passage of Proposition 187 in California in 1994, which would have deprived immigrants without legal status of virtually all social services, including schooling for their children. Although courts promptly overturned this law, it signaled a widespread sense of threat directed at low-wage Mexican immigrants (see Calavita, 1996; Sanchez, 1997; Tolbert & Hero, 1996). California’s effort drew national attention and helped to propel Congress into action. In 1996 the federal government adopted new restrictions on the regularization of legal status, reduced the eligibility of many legal immigrants for federal welfare benefits, offered partnerships with states and localities to enforce federal immigration laws, and increased the grounds for deportation of legal residents while reducing judicial oversight of this process. This legislation created spaces that did not previously exist for grassroots anti-immigrant activism, for unreviewable police and administrative discretion, and for political opportunism at both local and national levels. The incorporation of the Immigration and Naturalization Service (later Immigration and Customs Enforcement, or ICE) into the new Department of Homeland Security sig- naled the change in tone that occurred in the wake of the attacks on the World Trade Center and Pentagon.
States and municipalities, undeterred by California’s still-born initiative, have also become actively involved in the effort to deflect and discourage unauthorized immi- grants. The National Center for State Courts has tracked an upsurge in immigrant-related state laws that began to take shape in 2005 and has continued to increase, reaching 208 laws and 138 resolutions in 2010, with 46 states and the District of Columbia participat- ing (National Conference of State Legislators [NCSL], 2011). Most are hostile to unau- thorized immigrants and their families. This broad-based legislative trend has been inspired in part by changes in the pattern of Mexican immigration that began in the mid- 1990s when both legal and unauthorized immigrants began to seek out new destina- tions and to settle more permanently than in the past, frequently with family members (Massey, 2008; Singer, Hardwic, & Brettell, 2008; Zúñiga & Hernández-León, 2005). The local reception has often been hostile, with local service providers and even quasi- private and private agencies, like hospitals, trailer parks, and foster-care agencies,
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becoming involved in enforcement efforts, sometimes at the behest of legislators (Varsanyi, 2010).
Arizona has become a leader in this effort, most recently with the adoption of SB 1070, a law requiring local police to question the immigration status of anyone they stop who, they suspect, lacks legal status. The law prohibits racial profiling but does not specify how that suspicion might be aroused without reference to physical appearance. The law has been challenged in the courts, but has nevertheless attracted the interest of other states. Currently Arizona is considering legislation that would criminalize failure to report civil violations of federal immigration law by local housing authorities, fur- ther blending the relationship between civil and criminal offenses.
The multilevel, patchwork campaign to reduce the numbers of unauthorized immi- grants has been directed almost entirely at migrants from Mexico and Central America who come seeking low-wage jobs. People who have overstayed work or visitor visas, about 40% of the unauthorized population, have not been a particular source of con- cern. Economic status, Kitty Calavita argues, is an essential part of the racialization equation: “The sine qua non of immigrant racialization may be their status as members of the third world, their poverty, and their need” (Calavita, 2005, p. 155). As Tahar Ben Jelloun (1997, pp. xiv-xv) observes,
Poverty has never been well received. At most, difference is accepted under con- dition that the person be rich, under condition that he has the means to disguise it and pass unobserved. Be different, but be rich! . . . Whoever has no other riches other than their ethnic and cultural difference are consigned to humiliation and every form of racism.
Their economic vulnerability makes poor migrants from the global South an easy target for policy makers who want to be “tough” on immigration. Skin-color prejudice and xenophobia reinforce the sense of threat as numbers increase. It is evident that the old racial order is changing, with new languages and customs taking their place in the public sphere. The association of these developments with a massive global restructur- ing of economic opportunity adds to the pressure to act.
The principal policy initiatives that are relevant for this discussion include (a) The hardening of the border between the United States and Mexico that began in the 1990s; (b) Federal devolution of enforcement authority to local levels without effective over- sight; (c) ICE initiatives to enhance interior and border enforcement. These policies reinforce each other, helping to transform migrants from Mexico and its neighbors from the unthreatening reserve labor force they were once perceived to be, to a dangerous quasi-criminal element embedded in American society.
In this transformation, unauthorized immigrants have been swept into a racial caste system that goes back to the nation’s founding as a slave-holding nation. In much of the Southwest, Mexican-origin people were considered a distinctive race requiring separa- tion from Anglos via restrictive covenants and segregation of public facilities (Gomez, 2007). Legal discrimination began to yield only after the U.S. Supreme Court declared such policies unconstitutional in 1954 Hernandez v. Texas (347 U.S. 475, and see
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Olivas, 2006). Sidanius, Levin, Van Laer, and Sears (2008) report that Latinos remain the largest racially stigmatized group in the United States. Contemporary enforcement trends rest on and build on this unattractive foundation. It should not be surprising that the appetite appears insatiable in many segments of the American population for harder borders, for still more active efforts to ferret out unauthorized immigrants, for work- place raids, and for criminal penalties. Race and crime have always been a potent mix, particularly in times of public distress. In their efforts to satisfy public anxieties with toughened enforcement, the American government has created a monster that will not quietly retire.
Evolving Trends in Immigration Enforcement Crime, race, and immigration control have become conflated in the details of policy implementation as well as in policy design and resourcing. Consider, for example, the recent policy of requiring every migrant returning to Mexico from the United States to be fingerprinted and photographed, with personal information entered into a national data base. The ostensible goal is to discover possible criminal smuggling of arms or currency, but the likely result will be criminalization of immigrants who have entered without inspection, with a potential prison term if reentry is attempted after formal removal. In the sections that follow, we consider the major actions taken by Congress and federal personnel to tighten immigration restrictions, examining how policy framing targets Mexican immigrants and creates spaces for racialized enforcement.
Fortification of the Border With Mexico Beginning in the early 1990s, the U.S. Border Patrol undertook a new strategy that it labeled “prevention through deterrence” in a major departure from its previous practice of pursuing and apprehending migrants shortly after they had crossed the border into the United States. Launched in El Paso, Texas, the idea was to use a show of force at easier crossing points to deflect migrants to more inhospitable routes, perhaps discouraging them from making the trip (Dunn, 2009; Nevins, 2002, pp. 90-91). “Prevention through deterrence” continues to be the philosophy underlying more recent border buildups, including physical fencing as well as high-tech surveillance or “virtual” fencing. It is important to note that this strategy focuses on the Southwest border of the United States, not its northern border with Canada. More than 85% of U.S. Border Patrol agents are deployed along its southern border (Haddal, 2010).
Rather than deterring migrants from Mexico, “prevention through deterrence” has funneled them into more and more remote areas, creating a dramatic increase in border- crossing deaths. Estimates from the U.S. Department of Homeland Security Border Safety Initiative (BSI) put the total at 3,861 while Mexico’s Secretariat of Foreign Relations (SRE) has calculated a total of 5,607 (Jimenez, 2009, p. 17). While estimates of the precise number of deaths differ due to different methodologies used for counting, there is near uniform agreement that all of these figures are undercounts, as many bodies go unrecovered.
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Border-crossing deaths are often characterized as “unintended consequences” but the Border Patrol’s own blueprint for one of its “prevention programs, (Operation Gatekeeper), predicted that it would channel migrants to locations, where “the days are blazing hot and nights freezing cold” (Doty, 2001, p. 533; Johnson, 2007, p. 112). One of the more blatant and well-publicized results of prevention through deterrence was the May 23, 2001 discovery of 14 dead migrants in the harsh deserts around Yuma, Arizona. Two months prior, the humanitarian group, Humane Borders, had asked for permits to build seven new water stations in the area, but U.S. Department of Fish and Wildlife had turned them down (Treat, 2001).
“Prevention through deterrence” continues to be a key, and arguably foundational, element in U.S. border-enforcement policy. The deaths also continue to climb, despite the fact that overall apprehensions at the border are declining (Billeaud, 2009). In fis- cal year 2005, a record year for border crossing deaths, 138 of the 282 recorded deaths were from Mexico, 2 were from Guatemala and the rest were unknown (AZ Recovered Bodies Project, 2007). Nevins (2003) suggests that the current U.S. boundary enforce- ment regime is an example of structural violence, where there is no immediate, direct perpetrator, but rather new spaces for dying for an identifiable, racialized group.
Partnerships With Local Police With the federal government’s encouragement, states and municipalities are joining the effort to locate and deport unauthorized immigrants at a level not seen in the past. Before 1996 the role of local police had been ad hoc and occasional, often based on a perception of mutual benefit to resolve specific problems (McDonald, 1997). This began to change in 1996 with the adoption of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) and the Antiterrorism and Effective Death Penalty Act (AEDPA). AEDPA gives local police the authority to arrest previously deported noncitizens who become felons on their return, while IIRIRA authorizes training of local and state police to enforce federal immigration laws through a “287g” program and the development of memoranda of understanding between federal immigration authorities and cooperating local police agencies. The members of Congress who proposed or supported this pro- gram ignored concerns expressed by their colleagues and by police agencies that these new powers would encourage racial profiling and would harm relationships with immi- grants developed through implementation of community-policing principles.
In April 2002, U.S. Attorney General John Ashcroft took an additional step, issuing a classified memo arguing that state and local police have inherent authority to make arrests for violations of civil immigration laws. This memo, released only after a Freedom of Information Act request by the ACLU, overturned earlier interpretations of federal law that had denied local police such authority. At about the same time, the Justice Department began to enter immigration-related data, such as outstanding depor- tation orders, into the database routinely employed by local police in pursuing criminal suspects across state lines, the National Criminal Information Center (NCIC; Gladstein, Lai, Wagner, & Wishnie, 2005). This made much information concerning civil viola- tions of immigration law part of a nationwide criminal-justice database.
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Local/federal partnerships and greater degrees of agency interpenetration have been promoted as a way of gaining more control over serious crime, but the primary concern of the communities that are seeking these partnerships appears to be immigration rates, not crime rates. The communities that have signed 287g agreements do not have out-of- the-ordinary crime rates, but they do tend to have high rates of recent immigration (Shahani & Greene, 2009, p. 16). And there is evidence that immigration control is often the real objective in these alliances. In a 2008 study, for example, the General Accounting Office found that some police departments were routinely using their 287g authority to process individuals for deportation after arresting them for minor traffic infractions, such as excessive speed (GAO, 2009). A 2011 report by the Migration Policy Institute finds that about half of the cases resulting in deportation involve low-level misdemeanor or traffic cases. The federal government has made this possible by failing to impose standards that would prevent racial profiling and pretextual arrests (Shahani & Green, 2009; Weissman, Parker, & Headen, 2009).
Disregard of program objectives to deport unauthorized immigrants can occur even without a 287g agreement. In New Jersey, for example, the state attorney general ordered police only to report individuals to federal immigration authorities if they had been arrested for a serious crime. A study of 68 individuals referred to federal authori- ties found that 65 of the 68 were Latino; 49 were turned over for traffic stops for minor infractions or for no identifiable reason at all; 19 were pedestrians stopped on the street, mostly for no reason (Farbenblum & Jansyn, 2009). The Pew Research Center reports that 1 in 10 Hispanics have been questioned about their immigration status by police or other authorities in the past year. The amount of additional surveillance to which “Hispanic-looking” residents have been subjected is, of course unknown, as is their increased vulnerability to arrest resulting from this scrutiny.