Birth of the Immigrant-Criminal

I’m back from the Law and Society Association annual meeting in Chicago. The conference itself was fascinating and fun, and offered, among other things, a panel on special criminal court proceedings. The papers examined various aspects of this issue: the promise of a new problem-solving court model, the delicate power dynamics between courts and women who are victims of domestic violence seeking restriction orders, the criteria used by caseworkers to assess who is “sick enough” to neatly fit in a mental health court program, and the thoughts and actions of parents to juvenile delinquents while their children are in the system. Another fun experience, the panel about David Simon’s The Wire, featured David Simon himself on Skype and was absolutely fascinating. Simon’s take on his own creation consists of two main strands: rampant capitalism and the loss of mutual responsibility and care, and a process he calls “shit to gold”, by which failing strategies are not corrected, but rather misrepresented to give the illusion of progress. As he was talking, I had sobering thoughts about how this principle manifested itself in mass incarceration.

I wanted to expand a bit, however, about a strand of conversation we had in the context of a book panel about Mona Lynch’s Sunbelt Justice, which we reviewed here a while ago. Since the book involves the penal history of Arizona, discussion inevitably turned to the recent developments there, including SB1070, the anti-immigrant measure that received so much coverage and critique in California among other places. The interesting thing about the California critique is that we are struggling with similar issues ourselves, and our readers will remember that Governor Schwarzenegger’s plan for decrowding prisons devoted special attention to undocumented immigrant inmates, and some of his ideas on the matter boarded on the grotesque. San Francisco’s experimentation with sanctuary status for juvenile offenders who are undocumented immigrants is yet another signal of our obsession with this particular group. So, it is rather sanctimonious of Californians to perceive the Arizonian law as unique or peculiar in any way. We are just as busy as our neighboring state in addressing illegal immigration through the lens of crime. As Jonathan Simon deftly observed on our panel, “Arizona is California’s id.”

Immigrants are the source of all evil. As per some of the political speeches we hear these days from Steve Poizner and others, “illegals” are the source of our problems. They are to be blamed for the faltering economy, our sense of security, and everything else.

Immigrants are criminals per se, and illegal immigration is a mala per se. This is what criminal law professors refer to as “status offenses”: one is an offender not because of what one does, but because of what one is. Moreover, undocumented immigration is perceived not as a documentation problem, but one of moral failing: Public discourse draws a difference between people who arrive to the United States from Mexico legally to participate in, say, the highly exploitative market of strawberry picking, to those who do the same thing illegally. The latter are making a morally depraved choice. This construct completely misunderstands the reasons why U.S-Mexico relationship and economic interdependence not only encourages illegal immigration, but generates it. If you want to know more about it, I strongly recommend the last chapter of Eric Schlosser’s Reefer Madness.

On top of that, immigrants are more likely to commit crime. The correlation between illegal immigration and crime is not a new thing, as we know. After 9/11, visa requirements tightened, under the assumption that threats to U.S. security come from these undocumented immigrants, leading to many difficulties entering the country. Recall, by the way, that most of the perpetrators of the 9/11 atrocity were in the States on legitimate visas.

The technologies for battling crime are reapplied to battle illegal immigration. Note how the new proposal shifts the usage of searches and profiling from street crime to immigration, including an allocation of police resources for this matter. This is not a new slice of the police expenditure pie; it is a legitimate use of crime-fighting resources. Moreover, as we said elsewhere, the public gets to have a say when not enough money is allocated to the new crusade.

Immigrants are expensive villains; ousting them is cheap. Governing many of our technologies vis-a-vis the immigrants is the anti-humonetarian misperception that they eat up public resources, and that criminalizing them is a wise move, wallet-wise. It is supposedly cheaper to arrest them in the streets than to provide them with social services; it is supposedly cheaper to house them in federal deportation camps than in state institutions. This is a false savings measure, which might or might not displace the costs of illegal immigration, rather than diminishing them. I don’t know whether that would be the case, savings-wise, but neither do those proposing these measures for savings-related reasons.

Underlying all these features is a deep and basic misunderstanding of the problem: Whether or not American society, and particularly the economies of Sunbelt states like California and Arizona, is endangered by undocumented immigrants, it needs them, and its political and economic realities has created them, for better or for worse. As with our complicity in the picture of crime, we cannot ignore our complicity in the creation of illegal immigration.