University of California, Irvine and Jack work is around issues of immigration law, criminal law and procedure and constitutional law.
And I think the best research really is where she works at the intersections of these different areas of law.
And it's it's a great pleasure that border criminologists have joined with us today to present the seminar to deliver the seminar.
And it's about immigration enforcement, which is a very interesting and a very topical thing for someone to be talking about.
So welcome talks with Jennifer and we look forward to having a conversation.
Thank you. It's a pleasure to be here.
And I want to extend special thanks to Gary Bosworth for thinking of me and inviting me and also to Sarah and to
Ian and to Carolyn for all of the support that you've given to me in my effort to get here and to be here today,
I needed a lot of help. So my presentation was vaguely titled.
And that was meant to keep you guessing and ensure that you showed up,
because I couldn't provide enough detail to deter you, but I can't put you off any longer.
So now I have to tell you what I'll be talking about, and then you can make your decision about whether to stay or go.
What I want to do today is just offer an account of the state of the immigration control and immigration enforcement in the United States with some
attention to divergences and convergences between immigration enforcement and and emerging trends in the criminal justice system in the United States.
And I think the story that I'm going to tell today isn't a happy one,
but it is an effort to make sense of what appear, at least to be conflicting developments.
We are entering a time when the U.S. criminal justice system, long characterised by excessive punitive ness and heavy reliance on incarceration,
is said to be moving toward decreasing severity with a shift toward decriminalisation and decarceration.
At the same time, the immigration system, which has long been seen as sort of following the criminal justice system on the trajectory
of severity doesn't appear to be moving toward toward similar decreases in severity.
So these two systems that at one point appeared to be on parallel tracks, one might say seem to be now going on divergent tracks.
And I want to argue that these apparent divergences between criminal enforcement,
criminal criminal enforcement and immigration enforcement is a little bit less than meets the eye.
I think both systems are changing, but they're evincing new severity,
a severity of austerity that acknowledges the unacceptably high costs of incarceration.
But that also hasn't let go of the underlying punitive logic and the urge,
the kind of distinctly U.S. urge to make people pay my talk will proceed in three parts.
We're all sketched out some themes, some of which will probably require some elaboration in Q&A.
But I want to try to reserve time for Q&A at the end of the talk.
So first, I'll provide a descriptive account of the state of immigration enforcement in the United States.
And this descriptive account is not meant to be exhaustive, and some of it will be old news to you,
but I think it provides a useful starting point from which to consider the rest of the talk.
Second, I'll discuss some recent trends in criminal justice in the United States, particularly the move away from of at least a slight move away.
And I should emphasise it's not a huge move,
but a slight move away from the endless reliance on high chenal sanctions in favour of some decriminalisation and decarceration.
And then I'll talk about how these developments pretend not necessarily declining punitive ness,
but shifts in punitive ness where the state takes less active and visible roles,
where private actors are increasingly responsible for punishment and less physically accountable,
and where punishment is not just privatised but monetised, where people literally must pay for crime.
That these are new developments, not new developments,
but I think they're increasingly visible in both the criminal and immigration enforcement policies in the United States.
So I'll start by talking a little bit about immigration enforcement in the United States.
So we have this sort of foundational rhetoric about the openness of the United States to immigrants.
And I think there is, in some senses, some truth to the underlying myth about openness.
But since the late 19th century,
exclusion provisions have been just as important or more important than the rhetoric of inclusion in defining who gets to come in,
who's welcome, who's up, and who's beckoned to the shores.
And we've had restrictions on the basis of race, on the basis of class, nationality, ability, etc.
So we have and over time, particularly since 1965,
the emphasis has been on creating racially neutral admissions policies that still have racial manifestations in their implementation.
The restrictions have become, I think, more noticeable in recent decades,
in part because we have long had in the United States a large unauthorised population.
But we've taken contradictory,
conflicting and and sometimes unenthusiastic approaches to enforcing immigration law as against this unauthorised population.
So we now have sort of an entrenched and significant unauthorised population about which there is hand-wringing and concern.
And so we have policies that are increasingly designed to draw attention to the flow of unauthorised migration,
to increase the securitisation of the border and to increase interior enforcement.
And the rhetoric in the country would suggest that the nation is under a.
And that there are lots of people that are coming across the southern border.
This is particularly true in light of the most recent wave of migrants coming from the Triangle states of Central America.
This language of surge was sort of heard routinely.
The notion that there were people surging across the border,
women and children surging across the border, overwhelming border patrols, resources, etc.
What is interesting is, of course, that border apprehensions are really at historic lows in the United States.
You can look at this period from 2004 to 2013, but you can stretch it on back.
The numbers that we see today in terms of border apprehensions in the U.S. are comparable to levels that haven't been seen since the 1970s.
So we are in a period of historic lows in terms of Border Patrol interdictions at the border.
At the same time, we have substantially more border agents.
So the problem is not that we're detecting less, right? We're definitely detecting more.
In 1993, there were fewer than 5000 Border Patrol agents in the United States.
Now there are more than 20,000, almost all of whom were assigned to the southwestern border region.
So it's 12, 12 police, but it's a long border.
It's 2000 miles long. In the meantime, so we have declining border apprehensions, significant increased presence at the border.
In terms of a military presence.
Customs and Border Protection presence. In the meantime, we had a sort of stagnation of the unauthorised population numbers.
So estimates are that after growing by about 3 million people between 2020 13, net unauthorised migration is currently at around zero.
In fact, there's some outflow. According to the Pew Hispanic Centre,
the estimated number of authorised unauthorised migrants in the United States peaked around 2016 at about 12.2 million,
and it's since fallen a bit to, they estimate, around 11.3 million.
These numbers are obviously tricky. It's difficult to get a good head count of the unauthorised population,
but the Pew Hispanic Centre has the best methodologies for determining these things and they say the numbers are down.
Formal deportations, however, remain at historic highs,
which obviously means that people who have been in the interior for some time are feeling some of the effects of this increase,
of this increased enforcement. So if you look here, you can see that about 80% of deportations are actually taking place at the border.
So these are formal removals. And in the past,
those individuals who are being formally removed at the border probably would have been processed in a in a policy
that disparagingly was called in the 2000 period by President Bush and others the catch and release policy,
that if somebody comes and they are sort of informally turned back at the border and then live to try again to try again to return.
And President Bush made a fairly high profile attempt to end, catch and release.
And for his administration,
that meant putting individuals who would have been informally turned away at the border into formal immigration proceedings.
So we had the beginning of a huge increase in the number of people who are being formally removed at the border.
So you can see you can't really see in this graph here much of an increase because
a lot of it happened in the early Eric early days of the Bush administration.
But there are significant increases in the number of interior of Border Patrol removals.
About 80,000 a year of these come from not the border, but from the interior.
And as you can imagine, many of these involve longtime residents.
Some of them would be lawful permanent residents or people with other authorised immigration status who have committed some sort of a violation,
either criminal or technical, that renders them no longer eligible to remain.
Others would be unauthorised migrants who have been in the United States for
substantial periods of time and are being removed because they lack authorisation,
perhaps for other reasons as well. And since 1996,
the laws of the United States have expanded to require removal and permanent of bars
on return for a significant swath of individuals who have criminal convictions.
The 1996 law expanded a category of crimes called aggravated felonies to include, as some have noted, ironically,
misdemeanours that are not particularly aggravated at all, so long as that criminal penalty can run for a year or more.
And in those cases, individuals can be expelled on the basis of the aggravated felony and permanently barred from return,
on the basis of the aggravated hook ups of this. And it operates retroactively from 1996.
So individuals who have criminal convictions from 1986 that perhaps were not deportable in 1986 are deportable now under the terms of the 96 law.
So if they're caught up now, regardless of length of stay, regardless of equities,
if they lack immigration status and have an aggravated felony, there's very little discretion in the system that would prevent their removal.
So we have a lot of we have a lot of removal happening from within the country, too, including individuals who've been here for quite some time.
We also see and you can see from this chart kind of the expanded.
Of the blue line. They're the kind of thick blue line that's the expansion in the use of criminal prosecutions of immigration crimes.
So this differs from formal removal proceedings. It's not a civil proceeding with a removal order.
This is actual prosecution for illegal entry, which is a misdemeanour or felony re-entry.
And then there are a few other immigration crimes that constitute a tiny,
tiny fraction of that, including human trafficking violations, smuggling violations, etc.
Most of these crimes, though, are criminal charges are.
Almost all of them are for misdemeanour, illegal entry and for felony re-entry.
So we're using the criminal justice system as sort of an adjunct to the typical administrative system in informally removing people.
And a lot of this also happens at the border.
So the bulk of these criminal prosecutions actually happen in the southwestern border region in places like the federal courts in Arizona,
West Texas, Texas, where individuals are charged in proceedings that I'll talk a bit more about.
The bottom line is spending on enforcement seems to know no budgetary constraints in the United States.
In its 2013 report, the Migration Policy Institute said that that's kinds of spending for federal
and for the federal government's two main immigration enforcement agencies, CBP and ICE.
And it's primary enforcement technology innovation. The U.S. VISIT program surpassed $17.9 billion in fiscal year 2014.
That's 15 times the level of spending of the I.N.S., the Immigration and Naturalisation Service in 1986.
So we've had a pretty substantial expansion in that budget.
And the Migration Policy Institute finds that in the 26 years between the Immigration Reform
and Control Act and now we've spent an an adjusted $219.1 billion on immigration enforcement.
So that's a lot of money on enforcement. And I should add, because I think it's sometimes invisible.
It's a lot of middle class jobs in the southwestern border region, which may explain some of the appeal.
Note that we're only talking about federal spending here.
These are federal dollars and we're only talking about the Department of Homeland Security spending here.
So Department of Homeland Security spending doesn't include the spending that's done on magistrates
prosecutors in the southwest border region for criminal prosecutions or for criminal sentences.
And it doesn't include the increasing money that states are spending, particularly restriction of states like Arizona on law enforcement.
That is a sort of indirect form of immigration enforcement.
So we are doing a lot of enforcement and there's no real sign of abatement.
Congress continues to fund enforcement at levels that exceed the president's request, unlike every other area of the budget.
The president asked for money for enforcement. He gets more than he wants for border enforcement every year.
Reform proposals that we've seen which seem to be sort of stagnating at this point in time,
focus the majority of resources not onto legalisation, judicial process or integration of strategies, but on enforcement.
So then one question we might ask is, is it working if that $219 billion well spent?
And I think that's hard to say, in part because it's really hard to know what the goal is.
If you listen to some on the right, the goal appears to be zero illegal immigration, in which case we're not there yet.
And we need to spend several billion dollars more, presumably. And and others would say that this has achieved some goal in terms of deterrence.
Many scholars, including Douglas Massey at Princeton and Wayne Cornelius at UCSD, have these longitudinal,
longitudinal surveys of migrants to conclude that migrants are little impacted by these policies,
that this is not sort of what drives their migration decisions.
Instead, what drives their decisions to migrate or not migrate is work.
And we have here migrants in the California Strawberry Fields, which my kids and I will see,
you know, almost every time that we're driving down the California freeways near our home.
But a huge percentage of California farmworkers are undocumented.
This is a known fact and an accepted fact.
So so people continue to come for work and continue to live here for work.
On the other hand, the massive show of force, the militarised border,
the high profile raids of homes and workplaces, the anti-immigrant bravado of certain state and local actors,
and the resulting churn of migrants through criminal courts, prisons, detention centres and deportation proceedings clearly has some effects.
Scholars are already beginning to document the visible effects on families and
children within the country that have been destabilised by the new severity turn.
But what of deterrence? Undoubtedly, this strategy deters some would be migrants.
Those. Perhaps on the margins. Peter Andreas has noted that it certainly drives up the cost of migration for those who do count,
rendering incoming migrants more indebted and more vulnerable to exploitation and
manipulation by criminal organisations in crossing and black employers when they arrive.
It's also largely ended the circular patterns of migration to the United States.
So prior to the border build up to the mid-nineties and the heavy enforcement movement that we've seen more recently, people came in seasons.
They worked in places like farms and farms in California, ranches in Texas, and they generally returned home at the end of the season.
You don't do that when your presence is harshly sanctioned, when the border is heavily militarised.
And so what we've seen is kind of an end to this pattern of Second Life, a circular migration.
When people come, people stay. And this means that they look for different kinds of work,
work that will support them year round as opposed to work that will support them seasonally.
So it's moving into service sector jobs, hotels, restaurants, etc., moving into meatpacking.
And it's also why you see the sort of geographic dispersal of migration patterns looking for work that's more permanent.
Moving away from these kind of traditional patterns. It also means you see more death in the process of migration.
One of the results of border enforcement and the policies of strategically militarising
the border in certain places has been that the traditional points of entry.
El Paso, Texas and San Diego are now virtual no go places.
This has funnelled migrants to among other places, Arizona, which is why I think you see such backlash in Arizona.
So people are coming to different places and coming through Arizona is much more dangerous than crossing that San Diego or El Paso,
which means we've also seen it.
I've seen it completely anticipate a full and completely unsurprising increase in the number of border deaths in recent years.
So hundreds of people die crossing each year through the Arizona desert.
So we've also and one of the other kind of consequences of the of the strategy has been that we see more women and more children coming.
In part, again, because we have patterns of permanent settlement as opposed to temporary settlements.
So enforcement has had some effect, surely perhaps some deterrent and some unintentional effects that have reshaped migrant flows and populations.
But it's certainly not eliminated the unauthorised population in the United States.
I think there was, particularly in the late 2000,
a heavy emphasis by some restrictionists on the notion of immigration or about attrition by enforcement,
by attrition, the notion that if you just enforce the law harshly enough, people would leave.
And that's turned out to be largely a pipe dream, even in states that really attempted very,
very harsh policies of enforcement don't necessarily see the mass exodus that they would have predicted.
And perhaps it's because so many unauthorised migrants have lived in the United States for years.
The notion that you would just up and leave is not something that that that would be kind of the automatic assumption.
And indeed, in fact, you see pushes the other way.
So this is a picture of one of the buses that was taken by undocumented students, youth,
high school and college age youth who were advocating for some form of legalisation for themselves and their families.
You see that sign on the sides. In fact, last year, without papers and unafraid of advocating for for some kind of permanent status.
Right. So they were prompted to in response to this sort of wave of harsh policies to say we have nothing to lose.
So we're sort of coming out of the shadows and we're going to ask that we be given something.
And the result was that they got something not legalisation through congressional action, which appears appears difficult.
I'll talk more about that in a minute. But they did get executive action that that gave them lawful status of sorts.
It's a kind of a liminal status. Another status. It's a status that says you will not be deported.
We have your information. We know who you are. If you are picked up, you will not be deported.
Your station is deferred. You can apply for and receive federal work authorisation, which allows you to work legally.
You can apply for Social Security number, and in most states you can get driver's license,
which has phenomenal effects on decreasing risks of exposure to law enforcement.
So so that's the package that they got.
And I'll argue that this is a sort of a decriminalisation of it is of the kind that we're seeing in the in the criminal sector.
Right. It's it's it's not a legalisation not a political discussion that leaves them very
vulnerable to disparate forms of policing to kind of falling outside of DOCA status.
DOCA is Deferred Action for Childhood Arrivals, the short end of the saga, but they're vulnerable and they're monitored.
So they applied for this status two years ago. They're having to reapply for the status.
Again, it's a two year status. So they have to go back so that they continue to be eligible and and and register again.
So it's a decriminalisation, not a legalisation. That's not to say it's not been transformative.
If you talk to youth, the perceived deferred action status, it is transformative.
The ability to work, the ability to drive, the ability to go to school, the ability to get in.
Some states, financial aid and in-state tuition has been absolutely transformative, but it doesn't have an end game in citizenship.
The president doesn't have any power to bestow a lawful permanent resident status on them.
Only Congress can do that, and it hasn't, and it likely won't.
So those of you who are watching U.S. midterm elections saw that the Senate moved from the Democratic column to the Republican column.
The Republicans now control both houses of Congress.
I don't think this has significantly, significantly impacted the possibility of sensible congressional immigration reform in the United States.
But that's only because there was absolutely no chance of sensible immigration reform in the United States before the election.
And the election only sort of makes that seem even more so.
So we can sort of I guess the question we could ask is, does this mean we can expect to see a continuation of the status quo in the U.S.?
And I think the answer, if past experiences is any indication, is no.
What we'll see is continued ramping up of enforcement against a backdrop of
incredibly harsh laws with very little room for discretion by federal actors.
So we'll see more people pushed into the pipeline because Congress can continue to fund enforcement,
even if it does nothing on the legalisation front. And I assume that they will.
States and localities will also shape the way these policies play out,
because they sometimes aid and sometimes resist in these federal enforcement practices,
and sometimes they aid even more than the federal government wants.
But what that means is you have sort of a patchwork of enforcement that in some ways is dictated by local conditions, not by federal law.
And that will persist. And I'll talk more about that in a bit.
And I think the third kind of wild card factor is that additional executive action might be possible.
And I think it's possible.
I think it's probable that President Obama will expand on the deferred action program, expand the category of people who are eligible for it.
It's not quite clear to me exactly who things that have been bandied about include the family members of individuals who have received that.
For example, some notion of expanding this package of people who will be,
at least for the moment, immune from deportation, if not if not granted legal status.
So there are still going to be changes of law. And then, of course,
Congress has made it very clear at least some members of that presidential action will
will engender congressional intransigence and possibly lawsuits against the president,
perhaps ultimately culminating in impeachment, if you listen to some.
So we'll see. We'll see what happens there. But that's the law on this problem, not mine.
So now I want to kind of shift from immigration, the immigration side to what's happening in criminal justice and here,
all with much broader strokes, I'll assume a pretty high level of familiarity with a lot of what's going on.
And I'll probably make some generalisations that may be challengeable.
So so here I go.
So after 40 years of incredible penal expansion in the US, we've been told at least that we may be seeing an end to the severity revolution,
the unprecedented locking up of U.S. citizens,
a process that made us the world leader in incarceration appears to be running out of steam, or at least money.
And although the federal government can print money to enforce its laws,
states have budgets and these groaning budgets have them doing things that would have been unheard of 15 years ago,
namely reducing the severity of some offences and decriminalising others.
It's often not a payoff. In a recent piece meticulously detailed this trend in an article entitled Decriminalisation.
I really like it. She notes that numerous jurisdictions have moved to decriminalise marijuana possession.
If you were following election coverage, you could see that that was on the ballot in several jurisdictions, including Washington, D.C.
On this most recent turn. And although marijuana decriminalisation has been a particularly popular focus for decriminalisation efforts,
and that, of course, also notes that states are experimenting with the decriminalisation of other crimes,
including driving with a suspended license, disturbing the peace,
petty theft and other regulatory offences that can carry jail time at the federal level,
although there are no significant changes, nor would we expect any anytime soon.
The attorney general, Attorney General Holder, the outgoing attorney general,
made clear that the U.S. attorney should be exercising discretion against when they're prosecuting low level drug crimes and the
ridiculous and arbitrary disparities in sentencing that punish crack cocaine at 100 times the rates of those four for powder cocaine,
a disparity that had tremendous racial significance has been reduced to the slightly less pricey, although still arbitrary and unjust.
A fireball rate of 17 to 1. So in the face of these changes, we actually do see decreases in prison populations in the U.S. in the U.S.,
prison populations have shrunk for four years in a row. Some states have closed prison facilities.
It's unheard of for us now to call price.
Scholars and commentators say hopeful things like there seem to be good reason to
hope the war on crime may soon wind down or mass incarceration has come to an end,
or the war on drugs is over and the U.S. has become, quote, a more benevolent nation.
But now to pop also cautions that decriminalisation is not legalisation,
which is something that I expressed in the in the immigration context as well.
The shift from more severe to less severe sanctions is not the same as a shift from a less free to a more free society necessarily.
She notes that while all this decriminalisation and downsizing is happening, the penal apparatus is actually expanding.
State prison populations are down, but jail populations are up.
Supervisory programs like Diversion privatise probation, community supervision, GPS monitoring are all growth industries in the United States.
Defendants are now on the hook, she writes, for an array of fines and fees that can require years to pay.
So one kind of implication of decriminalisation is that rather than being sentenced to jail time,
you are instead find a process in which you have no lawyer because there isn't a real time on the line.
In many cases you accept the fine, and then if you can't pay the fine, the consequence ultimately can be jail time.
So the and then there are a range of collateral consequences from employment restrictions to housing to education to,
of course, immigration that have become, she writes, a new and burdensome form of restraint and stigma.
And then, of course, there's the surveillance that I mentioned before.
So criminal laws everywhere, controlling access to public spaces,
pressuring individuals away from contact with private actors that engage in or screen using
using personal data and generating a net of negative consequences in the private sphere.
Private actors are engaged by the government to monitor offenders to get off with monitoring sanctions.
Private actors provide the drug treatment and anger management and other diversionary programs that are the hallmark of decriminalisation.
And they are responsible for collecting payment.
But ultimately, it's private action backed by the state because the sanctions for failing to comply and failing to pay is, of course, prison time.
So the shift from a straight to prison system to a fines and monitoring with the possibility of prison system is sort of what we're seeing.
And that is not race or class neutral.
It falls heaviest on the poorest and the most disenfranchised.
Not a cop notes that it's African-Americans who are most likely to, quote unquote, fail drug diversionary programs.
They're seen as non-compliant, much higher rates than whites and therefore wind up being referred back to prison.
The poor are those who can't pay fines and wind up being referred back to prison.
So wealthy and middle class white folk will simply pay the fines of decriminalisation.
It's a Colorado legalisation. I think it's been a boon for middle class white kids everywhere.
Right. But the poor that is franchised can't play this game in the same way.
And the failure to pay generates criminal consequences of its own, even for those who can pay.
The process offers, exercises and continuous social control and monitoring and is a colour housemaids account.
And her analysis of misdemeanour arrest in New York is particularly instructive on this fact.
So she notes that the stakes are low. People take people take pleas because they are told that within a year this disappears from their record.
And then they don't have to deal with the harassments of multiple appearances
that it will take to actually contest the misdemeanour charge in New York.
Multiple appearances require missed time at work, problems with child care, etc.
So instead, take the plea.
But once the plea is entered, the individual faces a range of perhaps unanticipated collateral consequences, often privately imposed.
So employers will screen and see on their record this mark that will be there for the year while the monitoring continues.
They're marked as misdemeanours, at least temporarily. And it does have a host of consequences.
So we see the criminal justice system moving to perform to fill its for function,
at least with regard to low level offences by monetising and privatising criminal punishment.
And this happens both directly through the collection of fines and through the use of private diversion programs,
and indirectly through the resulting and ubiquitous private business, housing, credit, jobs and other benefits.
So we've normalised the use of private justice mechanisms in the administration of criminal justice for many,
many people, because after all, 90% of criminal offences in the U.S. are misdemeanour offences.
They're not the felony defences that we often focus on when we talk about things like mass incarceration.
So this move has been going on for decades, but it's accelerated with a growing pressure on the states and localities to cut criminal justice costs,
to impose fines, to fund their own system.
And it may mean less punishment for those with means and those who inspire the sympathy of police and judges.
But not a cop argues that it does not necessarily translate into less punishment for the poor and the marginalised.
What it does mean is more diffuse, less visible and perhaps less accountable punishment.
Without some of the procedural protections like counsel that criminal process generally provides.
So that's the that's the story on the criminal side,
a decriminalisation which may not have quite the effect that a legal is like kind of mass legalisation might.
So I think that that means that the trends that we're seeing in immigration enforcement and
the trends that we're seeing in criminal justice might have more in common than we think.
And I want to illustrate this point, sort of in a roundabout way.
I want to start by thinking about the question if we are decriminalising minor offences or converting it to fines.
We are having people go to diversionary programs. Won't that have the salutary effect of bringing less non-citizens into the criminal
process and therefore kind of being funnelled out through the removal proceedings?
And I want to explain why I don't think this is the case.
And then I want to talk more generally about kind of what this tells us about these developments.
So let's start by thinking about how it is that the criminal justice system and the immigration system interact in the United States.
So there are lots of ways, but I'm going to focus on four examples.
One is the Secure Communities program. The second is the role of state criminal process in shaping immigration consequences.
The third is the use of federal detainer requests to state and local jails in immigration enforcement.
And the fourth is one that I talk about, but I'll talk about again, a new which is the use of federal criminal prosecutions.
All of these are ways in which the criminal justice system manages migration and and interacts with immigration enforcement in the U.S.
So, first, Secure Communities.
This is a relatively new program that rolled out between 2011 approximately and 2013, and it now is extended to the entire United States.
It requires that whenever there's an arrest made anywhere by a state or local officer,
that the individual's fingerprints that are taken during the arrest process be submitted
to the Department of Homeland Security to be checked against an immigration database.
This is supposed to be neutral and is supposed to assist in effective crime.
On the latter point, Cox and Miles released an empirical study.
Just a couple of weeks ago in which they conclude that it doesn't really have any impact on crime control.
So by looking at jurisdictions, first care communities was rolled out versus those where it had not yet been rolled out.
They see no effect on crime rates at all. And they also see that the individuals who are being removed in areas where secure
communities are being rolled out are not those who are committing serious crimes.
The federal data backs this up.
You can see that they're not deporting serious criminals at high rates in places where they're rolling out their communities.
Instead, what is happening is that unauthorised migrants with either no criminal record
or minor minor crimes are being funnelled into removal through this process.
They come to the attention of the federal government by arrest, and then they're deported.
This makes state and local governments the key entry point for federal immigration processing.
And it means the state and local arrest authority is sort of the discrete for immigration processing.
One important justification of the Secure Communities program is that it eliminates local discretion.
So officers who want to target non-citizens and then funnel them into deportation proceedings are stopped by.
This is now. It's all neutral and it's all done by the database and it's all done by the fingerprints.
But that's really not how it works at all. And you see this, I think we can turn to my second example.
State criminal processes in shaping immigration consequences of state criminal
processes either mitigate or aggravate the consequences of immigration status.
And one of the best kind of pieces of work to show us how that works is Ingrid
English's article on how non-citizens are processed through criminal justice systems.
And she compares three different counties to see how they take or don't take immigration status into account as they process.
And she notes that some places like Harris County, Texas, which encompasses Houston,
take an alien, alienate a purportedly alienated, neutral approach to law enforcement.
So everybody's treated the same, you're arrested the same, you're processed the same,
and then let the chips fall where they may in terms of the consequences.
So that means that non-citizens are arrested and processed in the same way as citizens,
and they may wind up with criminal convictions that benefit them for life.
That's a consequence that the Harris County officials don't have any interaction with.
They view themselves as acting in an alienated, neutral way,
which effectively means that non-citizens wind up with harsher punishments than citizens because their pleas have significant collateral consequences.
Some jurisdictions take an alien into protective approach.
L.A. County is an example of this.
So they try to screen by by immigration status if they can structure plea agreements in a way that can avoid overly harsh immigration consequences.
They do that. They take immigration status into account in structuring bail determinations, etc.
So it's immigration protective. And the notion is to try to equalise the outputs of the criminal justice process
by taking into account the ways in which alien status might affect those outputs.
And some are expressly punitive alien in status. Maricopa County in Arizona creates crimes to target non-citizens for policing,
prosecutes for immigration related conduct like self smuggling or identity theft.
And then it tends to funnel people into the criminal justice system on the basis of their non-citizen status.
So it's not just at the level of prosecution where where states are shaping immigration,
but it's all through the process from the kind of initial arrest decision, through the final outputs that they're structuring federal outcomes.
And it's also kind of pulling back to point one noticeable that the arrest decision which happens for.
Before we start taking into account the formal process, is what kicks off the Secure Communities Program,
meaning that individual police determinations about whom to arrest and police department policies
about where to target their resources has a huge impact on who goes into federal removal proceedings.
So we say in the United States that immigration is a congressional responsibility.
That immigration is a federal charge. That states have no power to to structure immigration consequences or to deport.
But effectively, the system that we've set up really means that states and localities structure the
degree to which their own locality is is feeding into deportation or is resisting it.
So Hiroshima Nomura has concluded that that that it is these localities that really have the discretion that matters in federal immigration policy.
Federal discretion is so limited. Once people are in the pipeline that the initial decision is the decision that matters.
The third example of the ways in which cases in there and just briefly,
is that when states and localities do arrest individuals and the federal government is alerted,
sometimes the federal government makes a decision that they want to remove people and they've been following the practice of issuing detainers.
And it turned out Chris Lash was kind of a leader in this, that there is no legal basis for these detainers.
There's no authorisation in the statute.
And so it turns out that these were just requests all along, which is fine, except that when individuals sued states and localities saying,
you've held me beyond the period for which you had probable cause to hold me, the states localities said, Oh, well, ICE requested that we held you.
And judges said, Well, I have no attorney to do so. So you state or locally are on the hook for paying for these illegal, essentially illegal results.
Right.
And once that started, many states and localities decided that they were no longer going to honour these requests that apparently had no legal basis.
So you're seeing a sort of a slide away from it. But for a time,
you had this sort of informal arrangement where states and localities were extending their
arrest power at the kind of nonexistent power of the federal government to ask them to do so,
and thereby kind of strengthening the linkage between people coming in and going out through removal.
And that example is interesting just because it shows that when people started to focus on the informal ways that these systems interact,
they're sometimes using a legal basis for the way that they've been practising the law for long periods of time.
And the final example of the interaction is, of course, federal criminal prosecutions, which is which I talked about already.
So using criminal prosecutions to manage migration and we've done so in a couple of ways.
One is through the mass processing of criminal charges at the border, through operations like Operation Streamline.
In these proceedings, immigrants are detained at the border, arrested at the border.
They're sometimes held in jails for two or three days or whatever is necessary for processing.
They're then brought before a judge and given a federal defender who hasn't got them all at once makes
a quick determination about whether anybody's got an argument in defence to the misdemeanour plea.
Otherwise they proceed en masse in small groups where the judge says, Do you understand that you're pleading guilty to a criminal charge?
And they all still wearing their clothes from the desert, right?
They all know speaking English. For the most part, they do have translation,
but they all agree that they understand the consequences of these criminal charges and these en masse plea agreements,
and they take them and then they're sentenced to time served. And this happens kind of routinely at the border.
So we have this churn of people who are given a criminal sentence, the time served and then released with a criminal sentence.
And that criminal sentence has the effect of making more kind of any further crossing attempts, much more problematic from a legal perspective.
So the next time they return, they're guilty, not of misdemeanour illegal entry, but a felony re-entry.
And a couple of years ago,
we finally saw the lines crossed where the number of felony re-entry charges exceeded the number of felony misdemeanour and injury charges.
So you can see that kind of the result of having that initial mark and then people returning
and the felony re-entry folk really are the people that have a strong reason to return.
So one of the sort of ironies of the federal re-entry prosecutions is that
equities that would generally lead to a lower sentence in criminal proceedings,
like having a loving family member supporting oneself,
wind up working against defendants because they are portrayed as magnets that
are likely to cause non-citizens to re-enter and thus violate the law again.
And so there's sort of a perverse logic to the felony re-entry charge.
So the criminal justice system is now sort of playing an active border role in structuring immigration enforcement in the United States.
How much? How long have I been going on and how much you've been doing?
45 minutes. So you can go for another 15 minutes. Okay.
All right, I'll. I'll. I'll try to wrap it up sooner than that. We have some time to discuss.
I think I painted a picture here of kind of heavy interaction between these systems.
One thing that I want to stress, and I think my examples make it clear is that this is all very unsystematic.
Aside from the federal prosecutions and even that I'll talk about in a minute,
there is just ad hoc sort of day guys and sort of ad hoc instrumental with them.
You don't really know how and when these systems are going to interact. Some criminal justice actors are more active in using them than others.
There's a bit of more than a bit of arbitrariness even in federal charging.
There's been a great deal of arbitrariness.
It depends on where you enter, whether you're in a streamline jurisdiction and therefore likely to get a criminal charge.
Federal defenders tell me that the decisions of whether or not to prosecute individuals interdicted at the border turns
heavily on things like whether the individual officer engaged in some sort of physical brutality in the course of arrest,
in which case they're likely not to be prosecuted because the bond with a Border
Patrol officer is likely to come to the fore or whether they were properly arrested,
in which case prosecution is more likely. There may also be gender disparities, although research still remains to be done there.
So women less likely to get the criminal prosecutions than men.
And in felony re-entry for years, sentences were wildly disparate, depending on where you were actually where you were actually charged.
So if you were charged in a desert in a designated fast track area, your sentence was generally 1 to 3 years.
And if you were outside of a fast track area, so away from the southern border of Chicago and a few other areas,
then you could be in there for a good long haul in sentences, look closer to 7 to 10.
So a lot of arbitrariness in the system, even at the federal level,
compounded by the arbitrariness of the way different localities either attempt to protect or to expose non-citizens to the criminal process.
So, as the classic says, ad hoc instrumental wisdom, he says, what we see is not a merger of two systems, but, quote,
a manner of thinking about law and legal institutions that downplays concerns about consistency and places little stock in formal legal categories,
and instead sees legal rules and legal procedures simply as a set of interchangeable tools.
In any given situation faced with any given problem,
officials are encouraged to use whichever tools are most effective against the person or persons causing the problem.
This way of thinking about the law is instrumental rather than formalistic and ad hoc as opposed to systematic.
And he says this is not something that's limited to the criminal and immigration law,
but is particularly troubling here because remedies are so hard to come by.
So this is ad hoc instrumental ism with ad hoc interactions.
It's not a merger of systems, although there's a degree of interdependence.
Criminal law doesn't swallow immigration law or or vice versa, both theoretically and practically.
They retain distinctive logics and domains.
But different federal, state and local government actors can leverage one system when the other doesn't seem likely to give them the result they want.
And in this way, the interplay between the systems can be potent.
And even if they're not merging or becoming one, they do seem to be driven by complementary rationale.
So I want to think again about sort of decriminalisation in the in the in the criminal context and decriminalisation in the immigration context.
When we think about decriminalisation, it's important to stress, as I did before, that decriminalisation is not legalisation.
Right? So things remain forbidden. This is for those who have not been to the southern border region, particularly Southern California.
These are fairly common signs that are seen supposedly to warn cars about the possible presence of crossing families.
But really, I think also to do what they do, these are the kinds of signs you usually see for crossing animals.
And there is a dehumanising quality to the signage.
And that's that that's kind of the legalisation or the sort of the marking that we see continuing with regard to non-citizens in the US,
the basis for criminalisation and people remain there just as they remain in the criminal justice system.
We have found ways to decriminalise in the immigration of context.
DOCA is one deferred action. We say you're here, you're fine, you can stay, but you don't have any status and you're constantly under surveillance.
The immigration reform bills that we've seen that do have legalisation provisions also kind of have this decriminalisation aspect to them,
because the road to citizenship is usually 15 years long with multiple checkpoints along the way.
So you're not legalised instantly. What you are is in a liminal status that requires you to constantly touch back, touch base, check in.
In the same way that misdemeanour conditions in the U.S. require that touch back touch base check in process,
even for individuals that have lived in the country for a long time, have a long record of lawful existence.
So we see this kind of increasing use of of liminal statuses in immigration law that sort of
mirror the liminal spaces the criminalisation creates in the context of the criminal law.
These policies, policy innovations, create more opportunities for people to stay out of the system,
but they also keep more people under a watchful eye and longer with harsh consequences if they fail.
And they also increase the public acceptance of the punishment of those who remain outside of the legalisation possibilities.
But wait, I guess you could say, could one still argue that the move toward the increasing criminalisation of migration that I talked about before,
where we're punishing through the criminal law,
suggests a sort of counter logic in immigration running counter to what we see in the criminal law domain.
So if you look at federal criminal prosecutions, there were about 63,000 in 2012 and 40% of those were immigration violations.
So the number of federal criminal prosecutions overall has been declining for years.
The number of immigration prosecutions has gone up,
and immigration prosecutions constitute the single largest set of offences in federal criminal law more than far more than drugs,
far more than violent crimes, far more than white collar crimes. The federal government is churning out immigration convictions.
So you could say we're decriminalising and prosecuting less generally, but we're doing more in immigration law.
We're being harsher in immigration law. And I do think that's right to a certain extent.
But I also want to posit that criminalising migrants often migration offences
along the border sort of aligns with what we're seeing in decriminalisation.
It's cheap. You can impose a criminal sentence and then sort of outsource the costs of that criminal sentence for private actors to other countries.
In the case of migration, you've maintained the sort of numeric application of the criminal law,
but you do so in a way that costs less because of the unique characterisation characteristics of the population subject to immigration enforcement.
This is a population that's been the subject of unprecedented rises in criminal prosecutions,
but they're not criminal prosecutions that are filling the jails are filling the prisons of the nation.
So in that way, the trends in immigration enforcement operate not in contravention to the recent decriminalisation trend, but in the same direction.
Criminal process is the starting point for what ultimately turns out to be a meting out of civil penalties.
Outsourcing of punishments. And there's a large role for private actors to benefit from and control this process.
While the sanctions fall the heaviest on the poorest and the most marginalised.
So on that note, I'll stop and take questions.
Thank you, Jennifer. That was an excellent reputation and a very good example of how to use PowerPoint.
I want you guys to be glad.