Criminal Alien Funding and the Immigrant-Based Criminal Justice Complex

There is no good financial justification for the State Criminal Alien Assistance Program (SCAAP). Yet the Obama administration, which says it will no longer fund the program, is drawing heavy fire from representatives in states and communities that have benefited from the crime-control assistance program.

There is a clear and persuasive logic to the program: the federal government, which is responsible for immigration enforcement, should compensate nonfederal jurisdictions for the costs of imprisoning and jailing undocumented immigrants. However, SCAAP wasn’t created by immigration legislation but rather by a crime-control law. The Violent Crime Control and Law Enforcement Act of 1994 was the third major and the largest federal omnibus crime bill passed by Congress since the federal government began to assert its dominance over the criminal justice system in 1968.

Increasingly, the complexity of the immigration crisis in the United States—and its solutions—cannot be understood without appreciating the degree to which immigration over the past couple of decades has become an integral part of the "war on crime" and the "war on drugs." The main reason why immigration and immigrants are not commonly considered within the context of the U.S. criminal justice system is that immigrant advocates have been reluctant (understandably) to contribute to a public perception that immigrants are "illegals," criminals, lawbreakers, threats to the "rule of law"—a population that comes from the outside and erodes the law-and-order inside our country. This perception is already widespread, and one that is fanned by immigration restrictionists and nativists.

Criminal Aliens and the War on Crime

Since the late 1980s immigration reform in Congress—except for a couple of successful attempts by business lobbies to expand temporary workers programs—has been largely a series of measures to crack down on immigrants through the criminal justice system. The most serious and well-known was the Immigration Reform and Immigrant Responsibility Act of 1996, which together with two other conservative reforms related to counterterrorism and welfare assistance that same year, had the result of solidifying a new thrust of conservative immigration reform—identifying and removing "criminal aliens."

But it was the 1994 crime bill—the most expensive and extensive crime legislation in U.S. history—that signaled the new legislative and administrative tendency to address the broken immigration system through the lengthening tentacles of the criminal justice system. The bill represented the latest move to increase federal aid to ensure that federal, state, and local prosecutors and judiciaries implemented a uniformly "get tough" response to crime and social deviancy.

The immigration-related measures, while an incidental part of the crime-war legislation, did add to the developing momentum within government to respond to the immigration crisis with the same tools used to respond to crime.

The 1994 Violent Crime Bill, among other things, provided for enhanced penalties for immigrant smuggling, failure to honor a deportation order, and illegal entry after deportation. Reflecting a rising perception that unauthorized immigrant flows constituted a crime threat, the bill authorized $1.2 billion for border control. It also facilitated deportations of "criminal aliens" (immigrants, legal or illegal, who have been convicted of crimes) and established a criminal-alien tracking center.

More consistent with the overall thrust of the crime bill—increasing federal aid for the criminal justice and associated penal system—the bill set up the State Criminal Alien Assistance Program, authorizing $1.8 billion in 1996-2000 to compensate state and local jurisdictions for prison and jail costs of undocumented inmates.

The political and financial context for the SCAAP was as least as much the expanding prison-industrial complex as it was concerns about the costs of holding undocumented criminal immigrants. Since President Nixon—and especially during the Reagan and Bush Sr. administrations—the federal government and a majority in Congress favored a crackdown response to crime, particularly urban crime, by way of harsh sentencing laws (longer sentences, less or no parole, and mandatory sentences). While the effect on crime rates was, at best, negligible, the "get tough" campaign precipitated a massive expansion of the criminal justice apparatus, most evident in the unprecedented increase in the U.S. prison population.

The Crime Bill promoted the adoption of the now-notorious "truth-in-sentencing" standards that limited judges’ ability to determine sentences and stipulated that violent offenders must serve 85% of their sentences before being paroled. The $30.2 billion bill contained a "three strikes" provision requiring a sentence of life imprisonment for violent three-time federal offenders, gave the federal imprimatur to the prosecution of juveniles (13 years of age or older) as adults who committed federal crimes of violence or federal crimes (like street drug dealing) involving a firearm. Following the three-decade trend of extending the jurisdiction of federal law into what were formerly the province of state and local authorities, the bill also increased the number of federal crimes punishable by death.

At the same time, the 1994 bill provided new federal funding for states to build prisons and boot camps to ensure that space would be available to hold all the new prisoners that would result from a more extensive implementation of harsh-sentencing guidelines. Those states that were deemed most "competitive" in implementing "truth-in-sentencing" were selected to receive the most federal funding.

What’s relevant about the 1994 bill to the immigration crisis today is not only the immigration provisions contained in the crime crackdown legislation, but also the fact that the increasing tough treatment of legal and illegal immigrants parallels and overlaps with the overall repressive, reactionary trends in the U.S. criminal justice system. Certainly immigrants are being harshly treated, regarded as outsiders in a society in which many are well integrated, and subjected to cruel detention. But this is not dissimilar to the patterns of prosecution and massive incarceration that have besieged society as a whole. In fact, to a large degree the immigrant crackdown has taken its cues from the "war on crime."

Criminal Justice Complex Welcomes Immigrants

SCAAP is part of the federal-state-local criminal justice complex. It’s another add-on federal-aid bureaucracy aimed at keeping local and state governments marching together with the federal government in the "war on crime." Although it targets the costs of jailing "criminal aliens," SCAAP is just one of hundreds of federal programs that bolster a criminal justice system that puts a premium on removal of certain elements of society—largely African-American, working-class, and increasingly Latino—rather than treatment, rehabilitation, or job creation, as a type of risk-management program for social order.

Reviewing the new role of the federal government in criminal justice, a 2002 report by the Congressional Research Service noted, "In the past two decades, Congress has been extending federal jurisdiction over crime control to areas once considered to be within state and local jurisdiction, and enlarging federal support of state and local efforts to combat crime."

Not only is the increasing prominence of the "criminal alien" theme linked integrally to the "get- tough" methods and ideology of the war on crime, it is also closely connected to the enduring "war on drugs." According to a year 2000 report by the Urban Institute, during the first several years of SCAAP, the most common offenses for which illegal aliens were convicted were drug offenses in all states except Florida. For states distinguishing among types of drug offenses, drug trafficking was more common than drug possession, except in Texas.

It may be that local and state governments could just as well appeal to the federal government for assistance to compensate for the high incarceration costs incurred locally because of the federally driven "war on drugs."

But what about the contention that states and local governments merit federal compensation because they are paying for services to immigrants who are really the charges or responsibility of the federal government? It is specious, disingenuous, and opportunistic.

Studies have consistently demonstrated that undocumented immigrants have lower crime rates than citizens. According, for example, to a 2005 study by Rutgers University, "Despite the widespread perception of a link between immigration and crime, immigrants have much lower institutionalization (incarceration) rates than the native born."

While it may be true that crime rates among undocumented immigrants are perceptibly increasing, especially along the border, in the last several years as the process of immigration is increasingly tied to drug flows and human smuggling and affected by tighter border control, the fact remains that undocumented immigrants have a markedly lower incidence of violent crime behavior. In other words, communities with a high percentage of unauthorized immigrants are not disproportionately subject to high-crime vectors.

It’s certainly true that the federal government has responsibility for immigration regulation and enforcement. But it is not as if illegal immigration represents a drain on community and state revenues. Illegal immigrants, like all residents, pay taxes that are used to pay for government services, including jails and prisons. The sales tax, property tax, and user-fee revenues contribute to the general funds that offset correctional services.

Without the economic activity and community vitality of immigrant communities in many of the states complaining the most about the planned SCAAP termination, these communities would be stagnant and withering. While a case may be able to be made that undocumented immigrants, because of their lower wages and large families, don’t pay their fair share of school or social services like emergency room treatment, there is no persuasive data that demonstrates that jailing undocumented immigrants for violent crimes or repeated misdemeanors (as stipulated by SCAAP criteria for reimbursement) imposes a disproportionate and unfair burden on the communities that now demand SCAAP reimbursements.

A 2007 report by the Congressional Budget Office concluded that there was likely only a modest negative impact of unauthorized immigrants on states and counties when measuring taxes paid and services received. Not assessed by this study or others measuring taxes paid and costs are the beneficial impacts of low-paid, hardworking immigrants on the local economies and consumer goods nor the development benefits of immigrants settling in abandoned or deteriorating areas of communities.

SCAAP Keeps Hanging On

The Obama administration isn’t the first to call for the scrapping of the SCAAP program. President Bush eliminated the program in recent budgets, but the Democratic Congress kept reasserting it. Although the program only compensates states and local governments for a portion of their expenses, SCAAP in 2009 constituted a $400 million federal expenditure.

It’s highly likely that the Democrats will again champion the program and defy the administration. The Office of Management and Budget included SCAAP among its recommended budget cuts, justifying the cut, at least partially, on the grounds that the program’s funding ""can be better used to enhance federal enforcement efforts."

That’s not just rhetoric or political spin. In the weeks prior to the president’s decision to accept OMB’s cost-cutting measures, both the president and Homeland Security Secretary Napolitano had announced a major "border security" and immigration enforcement initiative that Napolitano said represented the administration’s commitment to "smart and effective" enforcement. The combined funding to DHS and the Justice Department is estimated to reach $27 billion in 2010.

But congressional representatives from the leading state recipients of SCAAP dollars are in a huff about the federal government’s alleged relinquishment of responsibility for immigration enforcement. Leading the pro-SCAAP rebellion is Sen. Diane Feinstein (D-CA), whose state is the top SCAAP state recipient ($118 million) and whose home city of San Francisco is one of the top SCAAP local government recipients ($837,000). The state and its counties received 40% of SCAAP funding in 2008. Feinstein says that the federal government will "deprive communities of critical funding for public safety services."

Immigration is a total federal responsibility," argued Feinstein, whose home state of California holds roughly 32% of the nation’s illegal immigrants. "By failing to reimburse states and local governments for the cost of incarcerating criminal aliens, the federal government deprives communities of critical funding for public safety services … I am committed to restoring the funding for this essential program." Feinstein sits on the Senate appropriations panel with jurisdiction over SCAAP funding, and will be a powerful advocate for the program.

Among the array of House Democrats lining up to challenge the administration are most representatives of border counties, who, like Rep. Gabrielle Giffords (D-AZ), makes the case that the "cost for incarcerating folks that are here illegally are borne directly by our counties. Some of these counties, like mine in Southern Arizona, are among the poorest in the nation."

What Democrats calling for federal reimbursement of the costs of holding undocumented immigrants accused of crimes aren’t saying is that border counties and border states have in the last eight years benefited from a multi-billion dollar infusion of federal funds in the form of fence construction (real and virtual), dramatic increases in Homeland Security (ICE and CBP) personnel and infrastructure (ports of entry, checkpoints, district headquarters), and a proliferation of new prisons, USMS agents, and federal attorneys and judges who form part of the post-Sept. 11 border security deployment. Nor, of course, does Senator Feinstein in her criticism of the federal government for its failure to take responsibility for the immigration problem acknowledge that California has historically benefited from (and depended on) the large immigrant presence.

Border Federal Feeding Frenzy

Border counties, in particular, are already recipients of special federal law-enforcement assistance programs administered by DHS and Homeland Security. Border governors and representatives are seizing the alarm about drug-related violence in Mexico (with little evidence of any cross-border spillover) to demand increased federal aid. A Republican-led effort, for example, wants to expand the Justice Department’s Operation Stonegarden, which provides $60 million in annual aid to border law-enforcement agencies, to $500 million every year—even though there is no evidence that the post-Sept. 11 program has done anything to reduce cross-border organized crime or terrorism.

Typically, border county sheriffs simply incorporate the special funding into their annual budgets, writing off overtime and equipment purchases to the federal grants, with little or no reference to program objectives. Another post-Sept. 11 initiative focusing on border counties and states is the Southwest Border Prosecution Initiative, which, like SCAAP, is funded by the Justice Department’s Bureau of Justice Assistance with an annual allocation of about $30 million. All along the border, state and local governments have seized the post-Sept. 11 fear about homeland security to underwrite their own detention centers, sheriff departments, and criminal justice complexes.

A new lobbying effort mounted by the U.S./Mexico Border Counties Coalition is illustrative of the way the criminal justice complex is self-serving and self-supporting with respect to its criminal-alien fueled expansion. Formed in the late 1990s with a Justice Department grant to recommend what the criminal justice system in the border counties needed with respect to undocumented immigrants, the coalition has recently launched—once again with a DOJ grant—a lobbying campaign for "full" funding for the Southwest Border Prosecution Initiative, SCAAP, and a new comprehensive criminal alien program it calls the Southwest Border County Law Enforcement Program.

In a report written for the coalition by the School of Public Management and Policy at the University of Arizona, the coalition demands the federal government "fully reimburse the 24 border counties for the costs of law enforcement and criminal justice services—annually for as long as undocumented immigrant criminal activities continue." Never mentioned in the 155-page University of Arizona report on the costs of law enforcement and criminal justice services is that at least half of the 24 border counties in the coalition have recently established in collaboration with private prison companies special detention centers—contracted by ICE, USMS, and the Federal Bureau of Prisons—for immigrant detainees and prisoners, whose associated per-diems have in many cases proved a boon to country budgets.

Obama—Right and Wrong

The Obama administration got it right when it decided to defund the State Criminal Alien Assistance Program. It’s a complicated and wasteful federal assistance program that is part of a larger federal imperative to expand and fortify the country’s criminal justice system—one that has asserted issues of crime and justice into most aspects of U.S. life and made this country the world’s leading jailor. SCAAP was one of the first federal initiatives to bring the immigration issue into the nation’s vast criminal justice and prison complex.

But saving $400 million federal dollars and then at the same time committing our financially-challenged nation to still more criminal-justice responses to the immigration issue is wrong, albeit politically adept. The administration’s new border security budget and buildup takes the ideologically driven "enforcement first" agenda of the immigration restrictionists and the Bush administration and is attempting to institutionalize it as an enduring national policy.