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University of California, Irvine and Jack work is around issues of immigration law, criminal law and procedure and constitutional law.

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And I think the best research really is where she works at the intersections of these different areas of law.

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And it's it's a great pleasure that border criminologists have joined with us today to present the seminar to deliver the seminar.

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And it's about immigration enforcement, which is a very interesting and a very topical thing for someone to be talking about.

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So welcome talks with Jennifer and we look forward to having a conversation.

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Thank you. It's a pleasure to be here.

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And I want to extend special thanks to Gary Bosworth for thinking of me and inviting me and also to Sarah and to

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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,

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I needed a lot of help. So my presentation was vaguely titled.

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And that was meant to keep you guessing and ensure that you showed up,

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because I couldn't provide enough detail to deter you, but I can't put you off any longer.

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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.

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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

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attention to divergences and convergences between immigration enforcement and and emerging trends in the criminal justice system in the United States.

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And I think the story that I'm going to tell today isn't a happy one,

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but it is an effort to make sense of what appear, at least to be conflicting developments.

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We are entering a time when the U.S. criminal justice system, long characterised by excessive punitive ness and heavy reliance on incarceration,

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is said to be moving toward decreasing severity with a shift toward decriminalisation and decarceration.

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At the same time, the immigration system, which has long been seen as sort of following the criminal justice system on the trajectory

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of severity doesn't appear to be moving toward toward similar decreases in severity.

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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.

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And I want to argue that these apparent divergences between criminal enforcement,

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criminal criminal enforcement and immigration enforcement is a little bit less than meets the eye.

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I think both systems are changing, but they're evincing new severity,

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a severity of austerity that acknowledges the unacceptably high costs of incarceration.

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But that also hasn't let go of the underlying punitive logic and the urge,

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the kind of distinctly U.S. urge to make people pay my talk will proceed in three parts.

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We're all sketched out some themes, some of which will probably require some elaboration in Q&A.

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But I want to try to reserve time for Q&A at the end of the talk.

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So first, I'll provide a descriptive account of the state of immigration enforcement in the United States.

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And this descriptive account is not meant to be exhaustive, and some of it will be old news to you,

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but I think it provides a useful starting point from which to consider the rest of the talk.

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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.

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And I should emphasise it's not a huge move,

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but a slight move away from the endless reliance on high chenal sanctions in favour of some decriminalisation and decarceration.

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And then I'll talk about how these developments pretend not necessarily declining punitive ness,

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but shifts in punitive ness where the state takes less active and visible roles,

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where private actors are increasingly responsible for punishment and less physically accountable,

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and where punishment is not just privatised but monetised, where people literally must pay for crime.

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That these are new developments, not new developments,

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but I think they're increasingly visible in both the criminal and immigration enforcement policies in the United States.

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So I'll start by talking a little bit about immigration enforcement in the United States.

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So we have this sort of foundational rhetoric about the openness of the United States to immigrants.

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And I think there is, in some senses, some truth to the underlying myth about openness.

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But since the late 19th century,

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exclusion provisions have been just as important or more important than the rhetoric of inclusion in defining who gets to come in,

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who's welcome, who's up, and who's beckoned to the shores.

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And we've had restrictions on the basis of race, on the basis of class, nationality, ability, etc.

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So we have and over time, particularly since 1965,

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the emphasis has been on creating racially neutral admissions policies that still have racial manifestations in their implementation.

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The restrictions have become, I think, more noticeable in recent decades,

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in part because we have long had in the United States a large unauthorised population.

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But we've taken contradictory,

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conflicting and and sometimes unenthusiastic approaches to enforcing immigration law as against this unauthorised population.

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So we now have sort of an entrenched and significant unauthorised population about which there is hand-wringing and concern.

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And so we have policies that are increasingly designed to draw attention to the flow of unauthorised migration,

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to increase the securitisation of the border and to increase interior enforcement.

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And the rhetoric in the country would suggest that the nation is under a.

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And that there are lots of people that are coming across the southern border.

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This is particularly true in light of the most recent wave of migrants coming from the Triangle states of Central America.

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This language of surge was sort of heard routinely.

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The notion that there were people surging across the border,

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women and children surging across the border, overwhelming border patrols, resources, etc.

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What is interesting is, of course, that border apprehensions are really at historic lows in the United States.

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You can look at this period from 2004 to 2013, but you can stretch it on back.

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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.

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So we are in a period of historic lows in terms of Border Patrol interdictions at the border.

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At the same time, we have substantially more border agents.

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So the problem is not that we're detecting less, right? We're definitely detecting more.

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In 1993, there were fewer than 5000 Border Patrol agents in the United States.

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Now there are more than 20,000, almost all of whom were assigned to the southwestern border region.

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So it's 12, 12 police, but it's a long border.

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It's 2000 miles long. In the meantime, so we have declining border apprehensions, significant increased presence at the border.

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In terms of a military presence.

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Customs and Border Protection presence. In the meantime, we had a sort of stagnation of the unauthorised population numbers.

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So estimates are that after growing by about 3 million people between 2020 13, net unauthorised migration is currently at around zero.

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In fact, there's some outflow. According to the Pew Hispanic Centre,

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the estimated number of authorised unauthorised migrants in the United States peaked around 2016 at about 12.2 million,

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and it's since fallen a bit to, they estimate, around 11.3 million.

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These numbers are obviously tricky. It's difficult to get a good head count of the unauthorised population,

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but the Pew Hispanic Centre has the best methodologies for determining these things and they say the numbers are down.

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Formal deportations, however, remain at historic highs,

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which obviously means that people who have been in the interior for some time are feeling some of the effects of this increase,

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of this increased enforcement. So if you look here, you can see that about 80% of deportations are actually taking place at the border.

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So these are formal removals. And in the past,

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those individuals who are being formally removed at the border probably would have been processed in a in a policy

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that disparagingly was called in the 2000 period by President Bush and others the catch and release policy,

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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.

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And President Bush made a fairly high profile attempt to end, catch and release.

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And for his administration,

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that meant putting individuals who would have been informally turned away at the border into formal immigration proceedings.

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So we had the beginning of a huge increase in the number of people who are being formally removed at the border.

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So you can see you can't really see in this graph here much of an increase because

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a lot of it happened in the early Eric early days of the Bush administration.

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But there are significant increases in the number of interior of Border Patrol removals.

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About 80,000 a year of these come from not the border, but from the interior.

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And as you can imagine, many of these involve longtime residents.

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Some of them would be lawful permanent residents or people with other authorised immigration status who have committed some sort of a violation,

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either criminal or technical, that renders them no longer eligible to remain.

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Others would be unauthorised migrants who have been in the United States for

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substantial periods of time and are being removed because they lack authorisation,

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perhaps for other reasons as well. And since 1996,

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the laws of the United States have expanded to require removal and permanent of bars

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on return for a significant swath of individuals who have criminal convictions.

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The 1996 law expanded a category of crimes called aggravated felonies to include, as some have noted, ironically,

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misdemeanours that are not particularly aggravated at all, so long as that criminal penalty can run for a year or more.

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And in those cases, individuals can be expelled on the basis of the aggravated felony and permanently barred from return,

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on the basis of the aggravated hook ups of this. And it operates retroactively from 1996.

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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.

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So if they're caught up now, regardless of length of stay, regardless of equities,

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if they lack immigration status and have an aggravated felony, there's very little discretion in the system that would prevent their removal.

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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.

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We also see and you can see from this chart kind of the expanded.

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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.

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So this differs from formal removal proceedings. It's not a civil proceeding with a removal order.

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This is actual prosecution for illegal entry, which is a misdemeanour or felony re-entry.

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And then there are a few other immigration crimes that constitute a tiny,

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tiny fraction of that, including human trafficking violations, smuggling violations, etc.

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Most of these crimes, though, are criminal charges are.

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Almost all of them are for misdemeanour, illegal entry and for felony re-entry.

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So we're using the criminal justice system as sort of an adjunct to the typical administrative system in informally removing people.

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And a lot of this also happens at the border.

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So the bulk of these criminal prosecutions actually happen in the southwestern border region in places like the federal courts in Arizona,

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West Texas, Texas, where individuals are charged in proceedings that I'll talk a bit more about.

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The bottom line is spending on enforcement seems to know no budgetary constraints in the United States.

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In its 2013 report, the Migration Policy Institute said that that's kinds of spending for federal

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and for the federal government's two main immigration enforcement agencies, CBP and ICE.

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And it's primary enforcement technology innovation. The U.S. VISIT program surpassed $17.9 billion in fiscal year 2014.

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That's 15 times the level of spending of the I.N.S., the Immigration and Naturalisation Service in 1986.

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So we've had a pretty substantial expansion in that budget.

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And the Migration Policy Institute finds that in the 26 years between the Immigration Reform

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and Control Act and now we've spent an an adjusted $219.1 billion on immigration enforcement.

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So that's a lot of money on enforcement. And I should add, because I think it's sometimes invisible.

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It's a lot of middle class jobs in the southwestern border region, which may explain some of the appeal.

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Note that we're only talking about federal spending here.

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These are federal dollars and we're only talking about the Department of Homeland Security spending here.

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So Department of Homeland Security spending doesn't include the spending that's done on magistrates

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prosecutors in the southwest border region for criminal prosecutions or for criminal sentences.

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And it doesn't include the increasing money that states are spending, particularly restriction of states like Arizona on law enforcement.

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That is a sort of indirect form of immigration enforcement.

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So we are doing a lot of enforcement and there's no real sign of abatement.

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Congress continues to fund enforcement at levels that exceed the president's request, unlike every other area of the budget.

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The president asked for money for enforcement. He gets more than he wants for border enforcement every year.

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Reform proposals that we've seen which seem to be sort of stagnating at this point in time,

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focus the majority of resources not onto legalisation, judicial process or integration of strategies, but on enforcement.

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So then one question we might ask is, is it working if that $219 billion well spent?

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And I think that's hard to say, in part because it's really hard to know what the goal is.

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If you listen to some on the right, the goal appears to be zero illegal immigration, in which case we're not there yet.

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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.

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Many scholars, including Douglas Massey at Princeton and Wayne Cornelius at UCSD, have these longitudinal,

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longitudinal surveys of migrants to conclude that migrants are little impacted by these policies,

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that this is not sort of what drives their migration decisions.

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Instead, what drives their decisions to migrate or not migrate is work.

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And we have here migrants in the California Strawberry Fields, which my kids and I will see,

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you know, almost every time that we're driving down the California freeways near our home.

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But a huge percentage of California farmworkers are undocumented.

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This is a known fact and an accepted fact.

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So so people continue to come for work and continue to live here for work.

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On the other hand, the massive show of force, the militarised border,

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the high profile raids of homes and workplaces, the anti-immigrant bravado of certain state and local actors,

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and the resulting churn of migrants through criminal courts, prisons, detention centres and deportation proceedings clearly has some effects.

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Scholars are already beginning to document the visible effects on families and

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children within the country that have been destabilised by the new severity turn.

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But what of deterrence? Undoubtedly, this strategy deters some would be migrants.

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Those. Perhaps on the margins. Peter Andreas has noted that it certainly drives up the cost of migration for those who do count,

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rendering incoming migrants more indebted and more vulnerable to exploitation and

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manipulation by criminal organisations in crossing and black employers when they arrive.

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It's also largely ended the circular patterns of migration to the United States.

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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.

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They worked in places like farms and farms in California, ranches in Texas, and they generally returned home at the end of the season.

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You don't do that when your presence is harshly sanctioned, when the border is heavily militarised.

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And so what we've seen is kind of an end to this pattern of Second Life, a circular migration.

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When people come, people stay. And this means that they look for different kinds of work,

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work that will support them year round as opposed to work that will support them seasonally.

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So it's moving into service sector jobs, hotels, restaurants, etc., moving into meatpacking.

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And it's also why you see the sort of geographic dispersal of migration patterns looking for work that's more permanent.

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Moving away from these kind of traditional patterns. It also means you see more death in the process of migration.

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One of the results of border enforcement and the policies of strategically militarising

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the border in certain places has been that the traditional points of entry.

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El Paso, Texas and San Diego are now virtual no go places.

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This has funnelled migrants to among other places, Arizona, which is why I think you see such backlash in Arizona.

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So people are coming to different places and coming through Arizona is much more dangerous than crossing that San Diego or El Paso,

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which means we've also seen it.

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I've seen it completely anticipate a full and completely unsurprising increase in the number of border deaths in recent years.

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So hundreds of people die crossing each year through the Arizona desert.

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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.

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In part, again, because we have patterns of permanent settlement as opposed to temporary settlements.

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So enforcement has had some effect, surely perhaps some deterrent and some unintentional effects that have reshaped migrant flows and populations.

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But it's certainly not eliminated the unauthorised population in the United States.

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I think there was, particularly in the late 2000,

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a heavy emphasis by some restrictionists on the notion of immigration or about attrition by enforcement,

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by attrition, the notion that if you just enforce the law harshly enough, people would leave.

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And that's turned out to be largely a pipe dream, even in states that really attempted very,

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very harsh policies of enforcement don't necessarily see the mass exodus that they would have predicted.

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And perhaps it's because so many unauthorised migrants have lived in the United States for years.

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The notion that you would just up and leave is not something that that that would be kind of the automatic assumption.

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And indeed, in fact, you see pushes the other way.

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So this is a picture of one of the buses that was taken by undocumented students, youth,

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high school and college age youth who were advocating for some form of legalisation for themselves and their families.

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You see that sign on the sides. In fact, last year, without papers and unafraid of advocating for for some kind of permanent status.

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Right. So they were prompted to in response to this sort of wave of harsh policies to say we have nothing to lose.

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So we're sort of coming out of the shadows and we're going to ask that we be given something.

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And the result was that they got something not legalisation through congressional action, which appears appears difficult.

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I'll talk more about that in a minute. But they did get executive action that that gave them lawful status of sorts.

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It's a kind of a liminal status. Another status. It's a status that says you will not be deported.

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We have your information. We know who you are. If you are picked up, you will not be deported.

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Your station is deferred. You can apply for and receive federal work authorisation, which allows you to work legally.

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You can apply for Social Security number, and in most states you can get driver's license,

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which has phenomenal effects on decreasing risks of exposure to law enforcement.

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So so that's the package that they got.

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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.

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Right. It's it's it's not a legalisation not a political discussion that leaves them very

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vulnerable to disparate forms of policing to kind of falling outside of DOCA status.

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DOCA is Deferred Action for Childhood Arrivals, the short end of the saga, but they're vulnerable and they're monitored.

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So they applied for this status two years ago. They're having to reapply for the status.

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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.

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So it's a decriminalisation, not a legalisation. That's not to say it's not been transformative.

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If you talk to youth, the perceived deferred action status, it is transformative.

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The ability to work, the ability to drive, the ability to go to school, the ability to get in.

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Some states, financial aid and in-state tuition has been absolutely transformative, but it doesn't have an end game in citizenship.

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The president doesn't have any power to bestow a lawful permanent resident status on them.

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Only Congress can do that, and it hasn't, and it likely won't.

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So those of you who are watching U.S. midterm elections saw that the Senate moved from the Democratic column to the Republican column.

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The Republicans now control both houses of Congress.

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I don't think this has significantly, significantly impacted the possibility of sensible congressional immigration reform in the United States.

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But that's only because there was absolutely no chance of sensible immigration reform in the United States before the election.

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And the election only sort of makes that seem even more so.

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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.?

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And I think the answer, if past experiences is any indication, is no.

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What we'll see is continued ramping up of enforcement against a backdrop of

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incredibly harsh laws with very little room for discretion by federal actors.

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So we'll see more people pushed into the pipeline because Congress can continue to fund enforcement,

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even if it does nothing on the legalisation front. And I assume that they will.

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States and localities will also shape the way these policies play out,

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because they sometimes aid and sometimes resist in these federal enforcement practices,

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and sometimes they aid even more than the federal government wants.

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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.

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And that will persist. And I'll talk more about that in a bit.

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And I think the third kind of wild card factor is that additional executive action might be possible.

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And I think it's possible.

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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.

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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.

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For example, some notion of expanding this package of people who will be,

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at least for the moment, immune from deportation, if not if not granted legal status.

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So there are still going to be changes of law. And then, of course,

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Congress has made it very clear at least some members of that presidential action will

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will engender congressional intransigence and possibly lawsuits against the president,

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perhaps ultimately culminating in impeachment, if you listen to some.

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So we'll see. We'll see what happens there. But that's the law on this problem, not mine.

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So now I want to kind of shift from immigration, the immigration side to what's happening in criminal justice and here,

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all with much broader strokes, I'll assume a pretty high level of familiarity with a lot of what's going on.

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And I'll probably make some generalisations that may be challengeable.

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So so here I go.

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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,

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the unprecedented locking up of U.S. citizens,

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a process that made us the world leader in incarceration appears to be running out of steam, or at least money.

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And although the federal government can print money to enforce its laws,

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states have budgets and these groaning budgets have them doing things that would have been unheard of 15 years ago,

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namely reducing the severity of some offences and decriminalising others.

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It's often not a payoff. In a recent piece meticulously detailed this trend in an article entitled Decriminalisation.

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I really like it. She notes that numerous jurisdictions have moved to decriminalise marijuana possession.

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If you were following election coverage, you could see that that was on the ballot in several jurisdictions, including Washington, D.C.

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On this most recent turn. And although marijuana decriminalisation has been a particularly popular focus for decriminalisation efforts,

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and that, of course, also notes that states are experimenting with the decriminalisation of other crimes,

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including driving with a suspended license, disturbing the peace,

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petty theft and other regulatory offences that can carry jail time at the federal level,

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although there are no significant changes, nor would we expect any anytime soon.

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The attorney general, Attorney General Holder, the outgoing attorney general,

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made clear that the U.S. attorney should be exercising discretion against when they're prosecuting low level drug crimes and the

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ridiculous and arbitrary disparities in sentencing that punish crack cocaine at 100 times the rates of those four for powder cocaine,

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a disparity that had tremendous racial significance has been reduced to the slightly less pricey, although still arbitrary and unjust.

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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.,

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prison populations have shrunk for four years in a row. Some states have closed prison facilities.

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It's unheard of for us now to call price.

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Scholars and commentators say hopeful things like there seem to be good reason to

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hope the war on crime may soon wind down or mass incarceration has come to an end,

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or the war on drugs is over and the U.S. has become, quote, a more benevolent nation.

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But now to pop also cautions that decriminalisation is not legalisation,

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which is something that I expressed in the in the immigration context as well.

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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.

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She notes that while all this decriminalisation and downsizing is happening, the penal apparatus is actually expanding.

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State prison populations are down, but jail populations are up.

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Supervisory programs like Diversion privatise probation, community supervision, GPS monitoring are all growth industries in the United States.

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Defendants are now on the hook, she writes, for an array of fines and fees that can require years to pay.

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So one kind of implication of decriminalisation is that rather than being sentenced to jail time,

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you are instead find a process in which you have no lawyer because there isn't a real time on the line.

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In many cases you accept the fine, and then if you can't pay the fine, the consequence ultimately can be jail time.

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So the and then there are a range of collateral consequences from employment restrictions to housing to education to,

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of course, immigration that have become, she writes, a new and burdensome form of restraint and stigma.

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And then, of course, there's the surveillance that I mentioned before.

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So criminal laws everywhere, controlling access to public spaces,

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pressuring individuals away from contact with private actors that engage in or screen using

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using personal data and generating a net of negative consequences in the private sphere.

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Private actors are engaged by the government to monitor offenders to get off with monitoring sanctions.

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Private actors provide the drug treatment and anger management and other diversionary programs that are the hallmark of decriminalisation.

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And they are responsible for collecting payment.

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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.

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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.

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And that is not race or class neutral.

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It falls heaviest on the poorest and the most disenfranchised.

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Not a cop notes that it's African-Americans who are most likely to, quote unquote, fail drug diversionary programs.

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They're seen as non-compliant, much higher rates than whites and therefore wind up being referred back to prison.

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The poor are those who can't pay fines and wind up being referred back to prison.

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So wealthy and middle class white folk will simply pay the fines of decriminalisation.

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It's a Colorado legalisation. I think it's been a boon for middle class white kids everywhere.

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Right. But the poor that is franchised can't play this game in the same way.

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And the failure to pay generates criminal consequences of its own, even for those who can pay.

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The process offers, exercises and continuous social control and monitoring and is a colour housemaids account.

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And her analysis of misdemeanour arrest in New York is particularly instructive on this fact.

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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.

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And then they don't have to deal with the harassments of multiple appearances

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that it will take to actually contest the misdemeanour charge in New York.

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Multiple appearances require missed time at work, problems with child care, etc.

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So instead, take the plea.

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But once the plea is entered, the individual faces a range of perhaps unanticipated collateral consequences, often privately imposed.

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So employers will screen and see on their record this mark that will be there for the year while the monitoring continues.

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They're marked as misdemeanours, at least temporarily. And it does have a host of consequences.

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So we see the criminal justice system moving to perform to fill its for function,

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at least with regard to low level offences by monetising and privatising criminal punishment.

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And this happens both directly through the collection of fines and through the use of private diversion programs,

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and indirectly through the resulting and ubiquitous private business, housing, credit, jobs and other benefits.

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So we've normalised the use of private justice mechanisms in the administration of criminal justice for many,

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many people, because after all, 90% of criminal offences in the U.S. are misdemeanour offences.

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They're not the felony defences that we often focus on when we talk about things like mass incarceration.

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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,

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to impose fines, to fund their own system.

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And it may mean less punishment for those with means and those who inspire the sympathy of police and judges.

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But not a cop argues that it does not necessarily translate into less punishment for the poor and the marginalised.

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What it does mean is more diffuse, less visible and perhaps less accountable punishment.

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Without some of the procedural protections like counsel that criminal process generally provides.

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So that's the that's the story on the criminal side,

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a decriminalisation which may not have quite the effect that a legal is like kind of mass legalisation might.

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So I think that that means that the trends that we're seeing in immigration enforcement and

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the trends that we're seeing in criminal justice might have more in common than we think.

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And I want to illustrate this point, sort of in a roundabout way.

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I want to start by thinking about the question if we are decriminalising minor offences or converting it to fines.

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We are having people go to diversionary programs. Won't that have the salutary effect of bringing less non-citizens into the criminal

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process and therefore kind of being funnelled out through the removal proceedings?

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And I want to explain why I don't think this is the case.

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And then I want to talk more generally about kind of what this tells us about these developments.

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So let's start by thinking about how it is that the criminal justice system and the immigration system interact in the United States.

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So there are lots of ways, but I'm going to focus on four examples.

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One is the Secure Communities program. The second is the role of state criminal process in shaping immigration consequences.

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The third is the use of federal detainer requests to state and local jails in immigration enforcement.

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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.

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All of these are ways in which the criminal justice system manages migration and and interacts with immigration enforcement in the U.S.

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So, first, Secure Communities.

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This is a relatively new program that rolled out between 2011 approximately and 2013, and it now is extended to the entire United States.

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It requires that whenever there's an arrest made anywhere by a state or local officer,

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that the individual's fingerprints that are taken during the arrest process be submitted

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to the Department of Homeland Security to be checked against an immigration database.

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This is supposed to be neutral and is supposed to assist in effective crime.

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On the latter point, Cox and Miles released an empirical study.

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Just a couple of weeks ago in which they conclude that it doesn't really have any impact on crime control.

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So by looking at jurisdictions, first care communities was rolled out versus those where it had not yet been rolled out.

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They see no effect on crime rates at all. And they also see that the individuals who are being removed in areas where secure

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communities are being rolled out are not those who are committing serious crimes.

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The federal data backs this up.

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You can see that they're not deporting serious criminals at high rates in places where they're rolling out their communities.

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Instead, what is happening is that unauthorised migrants with either no criminal record

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or minor minor crimes are being funnelled into removal through this process.

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They come to the attention of the federal government by arrest, and then they're deported.

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This makes state and local governments the key entry point for federal immigration processing.

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And it means the state and local arrest authority is sort of the discrete for immigration processing.

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One important justification of the Secure Communities program is that it eliminates local discretion.

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So officers who want to target non-citizens and then funnel them into deportation proceedings are stopped by.

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This is now. It's all neutral and it's all done by the database and it's all done by the fingerprints.

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But that's really not how it works at all. And you see this, I think we can turn to my second example.

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State criminal processes in shaping immigration consequences of state criminal

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processes either mitigate or aggravate the consequences of immigration status.

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And one of the best kind of pieces of work to show us how that works is Ingrid

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English's article on how non-citizens are processed through criminal justice systems.

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And she compares three different counties to see how they take or don't take immigration status into account as they process.

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And she notes that some places like Harris County, Texas, which encompasses Houston,

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take an alien, alienate a purportedly alienated, neutral approach to law enforcement.

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So everybody's treated the same, you're arrested the same, you're processed the same,

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and then let the chips fall where they may in terms of the consequences.

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So that means that non-citizens are arrested and processed in the same way as citizens,

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and they may wind up with criminal convictions that benefit them for life.

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That's a consequence that the Harris County officials don't have any interaction with.

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They view themselves as acting in an alienated, neutral way,

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which effectively means that non-citizens wind up with harsher punishments than citizens because their pleas have significant collateral consequences.

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Some jurisdictions take an alien into protective approach.

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L.A. County is an example of this.

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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.

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They do that. They take immigration status into account in structuring bail determinations, etc.

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So it's immigration protective. And the notion is to try to equalise the outputs of the criminal justice process

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by taking into account the ways in which alien status might affect those outputs.

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And some are expressly punitive alien in status. Maricopa County in Arizona creates crimes to target non-citizens for policing,

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prosecutes for immigration related conduct like self smuggling or identity theft.

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And then it tends to funnel people into the criminal justice system on the basis of their non-citizen status.

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So it's not just at the level of prosecution where where states are shaping immigration,

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but it's all through the process from the kind of initial arrest decision, through the final outputs that they're structuring federal outcomes.

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And it's also kind of pulling back to point one noticeable that the arrest decision which happens for.

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Before we start taking into account the formal process, is what kicks off the Secure Communities Program,

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meaning that individual police determinations about whom to arrest and police department policies

397
00:37:49,380 --> 00:37:55,350
about where to target their resources has a huge impact on who goes into federal removal proceedings.

398
00:37:55,590 --> 00:37:59,610
So we say in the United States that immigration is a congressional responsibility.

399
00:37:59,910 --> 00:38:08,430
That immigration is a federal charge. That states have no power to to structure immigration consequences or to deport.

400
00:38:08,760 --> 00:38:14,909
But effectively, the system that we've set up really means that states and localities structure the

401
00:38:14,910 --> 00:38:21,390
degree to which their own locality is is feeding into deportation or is resisting it.

402
00:38:23,250 --> 00:38:32,820
So Hiroshima Nomura has concluded that that that it is these localities that really have the discretion that matters in federal immigration policy.

403
00:38:33,090 --> 00:38:38,730
Federal discretion is so limited. Once people are in the pipeline that the initial decision is the decision that matters.

404
00:38:40,410 --> 00:38:44,460
The third example of the ways in which cases in there and just briefly,

405
00:38:44,910 --> 00:38:49,290
is that when states and localities do arrest individuals and the federal government is alerted,

406
00:38:49,560 --> 00:38:57,360
sometimes the federal government makes a decision that they want to remove people and they've been following the practice of issuing detainers.

407
00:38:58,470 --> 00:39:03,870
And it turned out Chris Lash was kind of a leader in this, that there is no legal basis for these detainers.

408
00:39:04,230 --> 00:39:06,120
There's no authorisation in the statute.

409
00:39:06,750 --> 00:39:16,050
And so it turns out that these were just requests all along, which is fine, except that when individuals sued states and localities saying,

410
00:39:16,230 --> 00:39:22,709
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.

411
00:39:22,710 --> 00:39:31,110
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.

412
00:39:31,350 --> 00:39:31,590
Right.

413
00:39:31,890 --> 00:39:38,190
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.

414
00:39:38,220 --> 00:39:42,270
So you're seeing a sort of a slide away from it. But for a time,

415
00:39:42,270 --> 00:39:47,339
you had this sort of informal arrangement where states and localities were extending their

416
00:39:47,340 --> 00:39:52,380
arrest power at the kind of nonexistent power of the federal government to ask them to do so,

417
00:39:52,950 --> 00:39:57,840
and thereby kind of strengthening the linkage between people coming in and going out through removal.

418
00:39:58,110 --> 00:40:04,650
And that example is interesting just because it shows that when people started to focus on the informal ways that these systems interact,

419
00:40:05,010 --> 00:40:11,790
they're sometimes using a legal basis for the way that they've been practising the law for long periods of time.

420
00:40:12,840 --> 00:40:19,200
And the final example of the interaction is, of course, federal criminal prosecutions, which is which I talked about already.

421
00:40:20,460 --> 00:40:26,250
So using criminal prosecutions to manage migration and we've done so in a couple of ways.

422
00:40:26,970 --> 00:40:33,510
One is through the mass processing of criminal charges at the border, through operations like Operation Streamline.

423
00:40:33,960 --> 00:40:39,120
In these proceedings, immigrants are detained at the border, arrested at the border.

424
00:40:39,990 --> 00:40:46,170
They're sometimes held in jails for two or three days or whatever is necessary for processing.

425
00:40:46,440 --> 00:40:51,839
They're then brought before a judge and given a federal defender who hasn't got them all at once makes

426
00:40:51,840 --> 00:40:56,400
a quick determination about whether anybody's got an argument in defence to the misdemeanour plea.

427
00:40:56,700 --> 00:41:04,530
Otherwise they proceed en masse in small groups where the judge says, Do you understand that you're pleading guilty to a criminal charge?

428
00:41:04,590 --> 00:41:07,780
And they all still wearing their clothes from the desert, right?

429
00:41:08,520 --> 00:41:13,139
They all know speaking English. For the most part, they do have translation,

430
00:41:13,140 --> 00:41:17,549
but they all agree that they understand the consequences of these criminal charges and these en masse plea agreements,

431
00:41:17,550 --> 00:41:23,970
and they take them and then they're sentenced to time served. And this happens kind of routinely at the border.

432
00:41:23,970 --> 00:41:30,510
So we have this churn of people who are given a criminal sentence, the time served and then released with a criminal sentence.

433
00:41:30,810 --> 00:41:43,320
And that criminal sentence has the effect of making more kind of any further crossing attempts, much more problematic from a legal perspective.

434
00:41:43,410 --> 00:41:49,350
So the next time they return, they're guilty, not of misdemeanour illegal entry, but a felony re-entry.

435
00:41:50,070 --> 00:41:50,969
And a couple of years ago,

436
00:41:50,970 --> 00:41:59,510
we finally saw the lines crossed where the number of felony re-entry charges exceeded the number of felony misdemeanour and injury charges.

437
00:41:59,510 --> 00:42:04,170
So you can see that kind of the result of having that initial mark and then people returning

438
00:42:04,470 --> 00:42:09,420
and the felony re-entry folk really are the people that have a strong reason to return.

439
00:42:10,230 --> 00:42:14,250
So one of the sort of ironies of the federal re-entry prosecutions is that

440
00:42:14,250 --> 00:42:17,370
equities that would generally lead to a lower sentence in criminal proceedings,

441
00:42:17,370 --> 00:42:21,330
like having a loving family member supporting oneself,

442
00:42:21,540 --> 00:42:25,379
wind up working against defendants because they are portrayed as magnets that

443
00:42:25,380 --> 00:42:28,510
are likely to cause non-citizens to re-enter and thus violate the law again.

444
00:42:28,510 --> 00:42:31,920
And so there's sort of a perverse logic to the felony re-entry charge.

445
00:42:32,190 --> 00:42:38,130
So the criminal justice system is now sort of playing an active border role in structuring immigration enforcement in the United States.

446
00:42:40,500 --> 00:42:43,710
How much? How long have I been going on and how much you've been doing?

447
00:42:43,740 --> 00:42:46,920
45 minutes. So you can go for another 15 minutes. Okay.

448
00:42:47,100 --> 00:42:51,330
All right, I'll. I'll. I'll try to wrap it up sooner than that. We have some time to discuss.

449
00:42:52,770 --> 00:42:57,900
I think I painted a picture here of kind of heavy interaction between these systems.

450
00:42:58,140 --> 00:43:03,330
One thing that I want to stress, and I think my examples make it clear is that this is all very unsystematic.

451
00:43:03,600 --> 00:43:06,990
Aside from the federal prosecutions and even that I'll talk about in a minute,

452
00:43:07,680 --> 00:43:13,940
there is just ad hoc sort of day guys and sort of ad hoc instrumental with them.

453
00:43:13,950 --> 00:43:20,670
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.

454
00:43:21,240 --> 00:43:25,620
There's a bit of more than a bit of arbitrariness even in federal charging.

455
00:43:25,890 --> 00:43:28,260
There's been a great deal of arbitrariness.

456
00:43:28,890 --> 00:43:33,420
It depends on where you enter, whether you're in a streamline jurisdiction and therefore likely to get a criminal charge.

457
00:43:33,810 --> 00:43:38,760
Federal defenders tell me that the decisions of whether or not to prosecute individuals interdicted at the border turns

458
00:43:38,760 --> 00:43:46,139
heavily on things like whether the individual officer engaged in some sort of physical brutality in the course of arrest,

459
00:43:46,140 --> 00:43:50,040
in which case they're likely not to be prosecuted because the bond with a Border

460
00:43:50,040 --> 00:43:54,299
Patrol officer is likely to come to the fore or whether they were properly arrested,

461
00:43:54,300 --> 00:44:00,030
in which case prosecution is more likely. There may also be gender disparities, although research still remains to be done there.

462
00:44:00,030 --> 00:44:03,120
So women less likely to get the criminal prosecutions than men.

463
00:44:03,480 --> 00:44:12,090
And in felony re-entry for years, sentences were wildly disparate, depending on where you were actually where you were actually charged.

464
00:44:12,570 --> 00:44:18,719
So if you were charged in a desert in a designated fast track area, your sentence was generally 1 to 3 years.

465
00:44:18,720 --> 00:44:24,480
And if you were outside of a fast track area, so away from the southern border of Chicago and a few other areas,

466
00:44:25,020 --> 00:44:29,220
then you could be in there for a good long haul in sentences, look closer to 7 to 10.

467
00:44:29,820 --> 00:44:33,210
So a lot of arbitrariness in the system, even at the federal level,

468
00:44:33,480 --> 00:44:40,800
compounded by the arbitrariness of the way different localities either attempt to protect or to expose non-citizens to the criminal process.

469
00:44:41,550 --> 00:44:48,030
So, as the classic says, ad hoc instrumental wisdom, he says, what we see is not a merger of two systems, but, quote,

470
00:44:48,030 --> 00:44:55,770
a manner of thinking about law and legal institutions that downplays concerns about consistency and places little stock in formal legal categories,

471
00:44:56,100 --> 00:45:00,630
and instead sees legal rules and legal procedures simply as a set of interchangeable tools.

472
00:45:01,230 --> 00:45:03,850
In any given situation faced with any given problem,

473
00:45:03,870 --> 00:45:08,910
officials are encouraged to use whichever tools are most effective against the person or persons causing the problem.

474
00:45:09,570 --> 00:45:14,580
This way of thinking about the law is instrumental rather than formalistic and ad hoc as opposed to systematic.

475
00:45:15,390 --> 00:45:18,900
And he says this is not something that's limited to the criminal and immigration law,

476
00:45:18,900 --> 00:45:22,830
but is particularly troubling here because remedies are so hard to come by.

477
00:45:23,700 --> 00:45:28,860
So this is ad hoc instrumental ism with ad hoc interactions.

478
00:45:29,070 --> 00:45:32,610
It's not a merger of systems, although there's a degree of interdependence.

479
00:45:32,610 --> 00:45:38,400
Criminal law doesn't swallow immigration law or or vice versa, both theoretically and practically.

480
00:45:38,410 --> 00:45:40,830
They retain distinctive logics and domains.

481
00:45:41,220 --> 00:45:48,480
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.

482
00:45:48,930 --> 00:45:51,690
And in this way, the interplay between the systems can be potent.

483
00:45:53,640 --> 00:45:59,580
And even if they're not merging or becoming one, they do seem to be driven by complementary rationale.

484
00:46:00,580 --> 00:46:10,560
So I want to think again about sort of decriminalisation in the in the in the criminal context and decriminalisation in the immigration context.

485
00:46:15,540 --> 00:46:22,559
When we think about decriminalisation, it's important to stress, as I did before, that decriminalisation is not legalisation.

486
00:46:22,560 --> 00:46:30,660
Right? So things remain forbidden. This is for those who have not been to the southern border region, particularly Southern California.

487
00:46:30,660 --> 00:46:38,040
These are fairly common signs that are seen supposedly to warn cars about the possible presence of crossing families.

488
00:46:38,340 --> 00:46:45,030
But really, I think also to do what they do, these are the kinds of signs you usually see for crossing animals.

489
00:46:45,840 --> 00:46:49,590
And there is a dehumanising quality to the signage.

490
00:46:51,330 --> 00:47:02,760
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,

491
00:47:03,570 --> 00:47:10,650
the basis for criminalisation and people remain there just as they remain in the criminal justice system.

492
00:47:11,040 --> 00:47:15,450
We have found ways to decriminalise in the immigration of context.

493
00:47:16,020 --> 00:47:25,440
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.

494
00:47:25,860 --> 00:47:32,940
The immigration reform bills that we've seen that do have legalisation provisions also kind of have this decriminalisation aspect to them,

495
00:47:33,180 --> 00:47:38,010
because the road to citizenship is usually 15 years long with multiple checkpoints along the way.

496
00:47:38,390 --> 00:47:46,520
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.

497
00:47:46,730 --> 00:47:52,630
In the same way that misdemeanour conditions in the U.S. require that touch back touch base check in process,

498
00:47:52,640 --> 00:47:57,140
even for individuals that have lived in the country for a long time, have a long record of lawful existence.

499
00:47:57,440 --> 00:48:03,829
So we see this kind of increasing use of of liminal statuses in immigration law that sort of

500
00:48:03,830 --> 00:48:09,650
mirror the liminal spaces the criminalisation creates in the context of the criminal law.

501
00:48:09,830 --> 00:48:14,930
These policies, policy innovations, create more opportunities for people to stay out of the system,

502
00:48:15,110 --> 00:48:21,770
but they also keep more people under a watchful eye and longer with harsh consequences if they fail.

503
00:48:22,370 --> 00:48:31,550
And they also increase the public acceptance of the punishment of those who remain outside of the legalisation possibilities.

504
00:48:33,470 --> 00:48:40,520
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,

505
00:48:40,940 --> 00:48:43,460
where we're punishing through the criminal law,

506
00:48:44,120 --> 00:48:49,070
suggests a sort of counter logic in immigration running counter to what we see in the criminal law domain.

507
00:48:49,820 --> 00:48:58,580
So if you look at federal criminal prosecutions, there were about 63,000 in 2012 and 40% of those were immigration violations.

508
00:48:59,390 --> 00:49:04,580
So the number of federal criminal prosecutions overall has been declining for years.

509
00:49:05,090 --> 00:49:07,400
The number of immigration prosecutions has gone up,

510
00:49:07,700 --> 00:49:15,170
and immigration prosecutions constitute the single largest set of offences in federal criminal law more than far more than drugs,

511
00:49:15,740 --> 00:49:20,930
far more than violent crimes, far more than white collar crimes. The federal government is churning out immigration convictions.

512
00:49:21,200 --> 00:49:28,430
So you could say we're decriminalising and prosecuting less generally, but we're doing more in immigration law.

513
00:49:29,060 --> 00:49:33,980
We're being harsher in immigration law. And I do think that's right to a certain extent.

514
00:49:34,310 --> 00:49:38,719
But I also want to posit that criminalising migrants often migration offences

515
00:49:38,720 --> 00:49:41,720
along the border sort of aligns with what we're seeing in decriminalisation.

516
00:49:42,140 --> 00:49:49,340
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.

517
00:49:49,610 --> 00:49:55,760
In the case of migration, you've maintained the sort of numeric application of the criminal law,

518
00:49:56,450 --> 00:50:03,950
but you do so in a way that costs less because of the unique characterisation characteristics of the population subject to immigration enforcement.

519
00:50:04,730 --> 00:50:10,700
This is a population that's been the subject of unprecedented rises in criminal prosecutions,

520
00:50:10,880 --> 00:50:15,830
but they're not criminal prosecutions that are filling the jails are filling the prisons of the nation.

521
00:50:16,370 --> 00:50:22,670
So in that way, the trends in immigration enforcement operate not in contravention to the recent decriminalisation trend, but in the same direction.

522
00:50:23,210 --> 00:50:28,370
Criminal process is the starting point for what ultimately turns out to be a meting out of civil penalties.

523
00:50:29,330 --> 00:50:36,620
Outsourcing of punishments. And there's a large role for private actors to benefit from and control this process.

524
00:50:37,010 --> 00:50:41,180
While the sanctions fall the heaviest on the poorest and the most marginalised.

525
00:50:42,020 --> 00:50:45,890
So on that note, I'll stop and take questions.

526
00:50:52,610 --> 00:50:57,440
Thank you, Jennifer. That was an excellent reputation and a very good example of how to use PowerPoint.

527
00:50:57,580 --> 00:50:59,530
I want you guys to be glad.