Immigrants have reenergized the flagging "war on crime." Charges against immigrants are clogging federal courts, and new prisons and detention centers are opening to accommodate immigrants. The Obama administration is asking for more money to expand the dragnet for "criminal aliens" and to crack down on drugs and crime along the border.

Violent crime has been declining since the early 1990s, but rising fears about foreign terrorism and new immigrant flows have recharged the political pressures to ramp up the flagging "war on crime" since the mid-1990s. Republican-led legislative measures in 1996 that targeted immigrants and terrorists and the post-Sept. 11 measures linking immigration and homeland security issues have combined to put immigrants in the center of the battle against crime in America.

"Severity Revolution" of the War on Crime

The focus of the immigrant crackdown is increasingly turning to "criminal aliens." The first directive of Janet Napolitano, the new Homeland Security secretary, asked department officials how the criminal alien program launched by her predecessor could be accelerated. The proposed 2010 Obama administration budget calls for $1.4 billion for Department of Homeland Security (DHS) and Department of Justice (DOJ) criminal alien operations—a 40% increase over the Bush administration budget.

Immigration restrictionists have long raised alarm and fear about the "illegals" in our midst. But the new focus on the "criminality" of immigrants issues less from the ideology of immigration restrictionism than from the imperatives and structures of this country’s four-decade long "war on crime."

Initially, the "war on crime" was a criminal-justice adjunct to the "war on poverty" of the Johnson administration in the 1960s. It was less a call to crackdown on crime than to address its causes, rehabilitate delinquent youth, control gun sales, and treat drug users by increasing federal aid to local police and social service providers. By the late 1960s, however, as crime and drug use continued to rise, the "war on crime" began to assume a more punitive posture.

Starting with President Richard Nixon, the "war on crime" began to shed the rehabilitative and treatment responses to crime and drug use. Instead, it advocated a harder line, including harsh sentencing guidelines, a greater prosecutorial role in the criminal justice system, and lengthy imprisonment as a way to contain and manage risk. This is what some scholars call the "severity revolution" in criminal justice, replacing the "humanity revolution" that prioritized the rehabilitation of criminals and their reintegration in the community.

The "severity revolution" deepened its hold on the criminal justice system during the Ronald Reagan and George HW Bush administrations. On the local and state levels, it was complemented and heightened by governors and prosecutors who advocated ever-harsher sentencing rules and other crackdown measures in their electoral campaigns.

For the most part, immigrants were not subject to the fear-mongering that fueled the "war on crime." Low immigrant crime rates kept immigrants out of the sights of the crime warriors. With its mainly urban focus, the war on crime bypassed the traditionally rural communities of immigrant farm-workers.

"Criminal Aliens" Legislation

But the crime war and its "severity revolution" began to catch up with immigrants. Rising immigration flows in the early and mid-1990s drew increasing attention from politicians in Washington and immigration restrictionist organizations like the Federation for American Immigration Reform. While the traditional cross-border flows of farm-workers continued, more immigrants were finding work in cities and the stretches of suburbia. This new, higher profile presence of immigrants highlighted the failure of the immigration system to regulate immigrant flows.

Essentially, this conservative backlash movement that successfully promoted "tough on crime" judges, harsh sentencing rules, and drug-user imprisonment didn’t affect the immigration issue until the mid-1990s. The first sign that the "severity revolution" was also overtaking the prevailing liberal cast of immigration policy occurred in 1988 when, as part of the Omnibus Anti-Drug Act, Congress required mandatory detention and deportation for immigrants convicted of "aggravated felonies," which were then defined as drug trafficking, murder, and trafficking in firearms.

Pursuant to the 1988 act, the Immigration and Naturalization Service (INS) established the Institutional Removal Program, which began to review the immigration status of federal prisoners and represented the beginning of what is currently called the Criminal Alien Program. The DHS defines criminal aliens as "noncitizens who are residing in the United States legally or illegally and convicted of a crime."

At that time immigration restrictionist groups were steadily increasing their influence in immigration policymaking, but their central message that immigration was fueling unsustainable population growth never gained traction in Washington. The first major strikes against the liberal immigration ethos that prevailed in both political parties occurred in 1996, when the new Republican majority in Congress, along with substantial Democratic Party support, passed three bills that established the policy groundwork for the current immigrant crackdown.

Conservative congressional leaders merged anti-immigrant measures with new anti-terrorist, anti-crime, and anti-welfare legislation. These were the Anti-Terrorism and Effective Death Penalty Act (AEDPA), Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).

In its newly restrictive grounds for political asylum and wider grounds for the indefinite detention of immigrants, AEDPA paved the way for the USA Patriot Act of 2001. Sparked by an anti-immigrant sentiment following the World Trade Center bombing of 1993 and the Oklahoma City federal building bombing in 1995 (for which foreign terrorists were initially but incorrectly blamed), AEDPA aimed to improve public safety and national security by vastly expanding the criminal grounds for the removal of immigrants.

Together with IIRIRA, AEDPA unhinged the term "aggravated felony" from its original meaning. Many misdemeanor convictions like drug possession and shoplifting, even in the cases of suspended sentences, are now considered aggravated felonies that require mandatory detention and removal. The immigration courts and immigration enforcement agencies also began to expansively interpret crimes of "moral turpitude" and "controlled substances" in their categorization of criminal aliens.

New Criminal Alien Infrastructure

In the wake of Sept. 11, INS and DHS slowly started to put a new criminal alien infrastructure in place. Several programs that INS started developing as a result of the 1996 legislation received greater attention after Sept. 11 and especially after the creation of the Department of Homeland Security in March 2003. However, under the new leadership of DHS Secretary Michael Chertoff, DHS, starting in 2005, began to hone its focus on criminal aliens.

Terrorists remained central, at least rhetorically, to the mission of protecting the nation against "dangerous goods and people." But when officials of Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP), both DHS agencies, talked of "dangerous people" they were increasingly referring to criminal aliens, who represented a much larger and more definable target than terrorists.

As the national fear of an imminent terrorist attack diminished, DHS found broad and steadfast support among the public and in Congress for programs that targeted criminal aliens. But in the hunt for criminal aliens DHS has not only increasingly stretched the definition of crime but has also mounted operations and raids that arrest more "collateral" immigrants than those categorized as fugitives or criminals.

"Operation Return to Sender," which was launched in 2006 under Chertoff’s direction, was one of a flurry of new programs and operations that hunted down criminal aliens. National security and homeland security justifications for new immigration enforcement programs gave way to pronouncements about public safety and community security.

On the occasion of a joint federal-local dragnet for criminal aliens in the Boston area on June 14, 2006, Secretary Chertoff said:

"Operation Return to Sender is another example of a new and tough interior enforcement strategy that seeks to catch and deport criminal aliens, increase worksite enforcement, and crack down hard on the criminal infrastructure that perpetuates illegal immigration. The fugitives captured in this operation threatened public safety in hundreds of neighborhoods and communities around the country. This department has no tolerance for their criminal behavior and we are using every authority at our disposal to bring focus to fugitive operations and rid communities of this criminality."

Other associated programs that target criminal aliens together with local law enforcement agencies are Operation Community Shield, Operation Stonegarden, the 287(g) Program, and the new Secure Communities Program. In Operation Community Shield, ICE joins with local police to arrest suspected gang members not necessarily for any suspected crimes but for immigration violations. As part of DHS’ Border Security Initiative, Operation Stonegarden provides DHS grants to "support closer coordination of state and federal law enforcement agencies at our borders."

Whereas the 1996 acts and other legislation have stipulated immigration consequences (detention and removal) for crimes, DHS, acting in concert with the Justice Department, has moved to create criminal consequences for immigration violations. Previously, an illegal entry or reentry or the use of fake credentials were regarded as administrative violations that generally resulted in deportation or voluntary departure.

Borrowing a phrase from the law-and-order playbook, DHS launched a "zero tolerance" program called Operation Streamline. Under this pilot program, illegal border-crossers picked up by the Border Patrol (BP) are criminally charged and turned over to the U.S. Marshals Service (USMS) for pre-trial custody. Instead of simply being "illegal aliens," these immigrants become "criminal aliens" under the new "zero tolerance" regimen.

Immigrants crossing illegally are now routinely being sentenced to jail terms of 12 days, while those who reenter after having been deported now face 10-20 years in prison. DHS hasn’t limited its criminalization of immigrants to the border. As part of the expansion of its "interior enforcement," ICE in 2007 also began treating falsely documented or undocumented workers as criminal aliens.

Following Sept. 11, INS/DHS began to explore ways to engage local law enforcement in immigration enforcement through "287(g) agreements." Referring to a 1996 change in the Immigration and Naturalization Act (INA), these agreements essentially deputize sheriff deputies, county jailors, and police as immigration agents. By 2002 only two such agreements were in place (in Florida), but currently there are 67 ICE 287(g) agreements with local police and sheriff departments—most of which were signed after 2006.

For the most part, the 287(g) program has appealed to nonmetropolitan counties, often in areas of the South where there is a new immigrant presence and a rising anti-immigrant sentiment among the largely white political establishment. North Carolina and Virginia are the states with the most 287(g) programs. In contrast, cities and areas with a longtime immigrant presence have generally opposed the cross-designation of law enforcement officers as immigration agents.

A March 2008 report by Justice Strategies, Local Democracy on ICE, also pointed to the broader problem of mixing immigration law and criminal law. In their report, Aarti Shahani and Judith Greene warned:

"287(g) represents the fusion of two separate systems of law enforcement power. Once in place, it can lead to further entanglement of these powers as state and local politicians jump into the campaign to ‘crack down’ on immigrants. But civil immigration and criminal law are fundamentally incompatible. The grey area between civil and criminal law creates a situation ripe for abuse. The Constitution’s protections against arrest without probable cause, indefinite detention, trial without counsel, double jeopardy, and self-incrimination, as well as the statute of limitations, do not apply equally (or in some cases at all) in the civil immigration context."

Latest Crackdown Initiative

ICE’s most recent criminal alien initiative, "Secure Communities: A Comprehensive Plan to Identify and Remove Criminal Aliens," shows more potential for involving local communities in immigration enforcement. ICE explains that Secure Communities, which was introduced in March 2008 and began implementation in October 2008, will "change immigration enforcement by using technology to share information between law enforcement agencies and by applying risk-based methodologies to focus resources on assisting communities [in] removing high-risk criminal aliens."

Instead of training local law enforcement officials in immigration law enforcement, ICE equips police, sheriff departments, and local jails with "integration technology that links law enforcement agencies to both Federal Bureau of Investigation (FBI) and DHS biometric databases." Whereas police currently submit data on suspects to the FBI on a routine basis, they will now be able to simultaneously check immigration and criminal databases.

In the program’s first eight months, ICE has entered into agreements with 50 localities to use this integrated technology when booking prisoners. ICE says that "in collaboration with DOJ and other DHS components, ICE plans to expand this capability to all state and local law enforcement agencies throughout the nation."

ICE says it is going after "high-risk criminals" with its Secure Communities program. It makes similar assurances with its other criminal alien programs, but in practice there is no prioritizing and ICE’s wide-net approach has led to indiscriminate enforcement that captures many more simple immigration violators and nonviolent offenders than the "dangerous people" it says that it targets.

Like its 287(g) program, the Secure Communities program doesn’t have any internal regulations that ensure that the stated priorities are followed on the ground. As Joan Friedland of the National Immigration Law Center observes: "Secure Communities has a deceptively benign appearance because of its name and purported focus on criminals. But the program applies to immigrants regardless of guilt or innocence, how or why they were arrested, and whether or not their arrests were based on racial or ethnic profiling or were just a pretext for checking immigration status."

The new DHS budget requests $200 million in additional funding for the Secure Communities program—a 30% increase.

Crime War Solutions

For the past three decades the U.S. public and policy community have been grappling with the immigration issue. Unable to forge immigration policy reforms that would sustainably regulate immigration flows and regularize immigration status for the millions of unauthorized immigrants, the federal government, working closely with local governments, has resorted to crime war tactics.

Legislation and new programs have increasingly inserted immigration into the criminal justice system. Immigration law has been criminalized—a process that legal scholars have referred to as "crimmigration."

Immigration violations are being treated as criminal violations, and heavily shackled immigrants increasingly appear in federal courts to be charged and sentenced. Legal immigrants who have been convicted of crimes, often minor or nonviolent violations, are now categorized as "criminal aliens" subject to mandatory deportation.

Prior to the creation of Homeland Security in 2003, there was little intersection between immigration enforcement and criminal law enforcement. The 1996 laws did establish the legal framework for the increased merger of criminal and immigration law enforcement. But it wasn’t until the Bush administration, especially after Sept. 11, that the collaboration between immigration authorities with local law enforcement and federal law enforcement agencies became common. As a result, law enforcement agencies are enforcing immigration law, and immigration agencies are enforcing criminal law.

The "war on crime" over the past four decades has given rise to a vast prison complex that holds over 2.3 million inmates—making the United States the world largest jailor. Paralleling and overlapping this citizen prison complex is a rapidly expanding noncitizen prison complex. Immigrants have become the latest victims of the country’s "severity revolution."

The Federal Bureau of Prisons has created five privately run prisons dedicated to "criminal alien residents," and the U.S. Marshals Service is busily contracting with county governments and private prison firms to accommodate the precipitous rise in pre-trial "criminal aliens" transferred from ICE and Border Patrol custody.

Even though border apprehensions drop as the immigrant flows decrease because of a slowing economy and increased border security, ICE is still scrambling to increase its prison bed space in new privately run detention centers. Since the mid-1990s ICE has quintupled its prison bed capacity and now annually holds more than 300,000 immigrants, mostly in private prisons.

Clearly, solutions are needed to the immigration crisis. But these should be primarily immigration solutions rising from immigration policy reforms. Instead of dealing proactively with the complexity of the problem, the U.S. government has reacted to the immigration issue chiefly with the "get tough" strategies the government has employed by the war on crime for so long, for so much money, with so few results, and with so much tragedy.

The Obama administration’s decision to ramp up the "criminal alien" and "enforcement first" programs of the Bush administration are not part of a sustainable solution to the immigration crisis.

By tying the immigration crisis response to crime war tactics—still more federal immigration agents slated for law enforcement roles, hundreds of millions of more dollars for criminal alien programs, and increased federal/local collaboration in immigration/criminal law enforcement—we can expect more failure, more human tragedy, more prisons, and more waste of taxpayer revenues.