The United States deported nearly two million illegal immigrants during the first five years of the Obama presidency—more than during any previous administration. President Obama stands accused by activists of being “deporter in chief.” Yet despite efforts to rebuild what many see as a broken system, the president has not yet been able to convince Congress to pass new immigration legislation, and his record remains rooted in a political landscape that was created long before his election. Deportation numbers have actually been on the rise since 1996, when two federal statutes sought to delegate a portion of the responsibilities for immigration enforcement to local authorities.
Policing Immigrants traces the transition of immigration enforcement from a traditionally federal power exercised primarily near the US borders to a patchwork system of local policing that extends throughout the country’s interior. Since federal authorities set local law enforcement to the task of bringing suspected illegal immigrants to the federal government’s attention, local responses have varied. While some localities have resisted the work, others have aggressively sought out unauthorized immigrants, often seeking to further their own objectives by putting their own stamp on immigration policing. Tellingly, how a community responds can best be predicted not by conditions like crime rates or the state of the local economy but rather by the level of conservatism among local voters. What has resulted, the authors argue, is a system that is neither just nor effective—one that threatens the core crime-fighting mission of policing by promoting racial profiling, creating fear in immigrant communities, and undermining the critical community-based function of local policing.
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Local Law Enforcement on the Front Lines
By Doris Marie Provine, Monica W. Varsanyi, Paul G. Lewis, Scott H. Decker
The University of Chicago PressCopyright © 2016 The University of Chicago
All rights reserved.
Introducing the Conflicted Politics of Localized Immigration Control
On April 23, 2010, after signing SB 1070, Arizona's precedent setting "show me your papers law," Governor Jan Brewer immediately shook hands with Mark Spencer, president of the Phoenix Law Enforcement Association and a vocal supporter of the new law. Spencer's boss, Phoenix Police Chief Jack Harris, had taken the opposite position on SB 1070, which includes a variety of sanctions to achieve "attrition through enforcement." Giving local police power to routinely inquire about the immigration status of people they encounter, he argued, would threaten the core crime-fighting mission of policing by promoting racial profiling, undermine community policing in neighborhoods with large numbers of immigrants, and dilute police resources at a time when budgets had been slashed and the number of officers had been reduced. Although many leaders in policing agreed with Harris, his opposition to SB 1070 may have cost him his job. He was dismissed by the Phoenix city council a few months later, ending a thirty-nine–year career of service with the department.
This local scenario surrounding a controversial Arizona law contains many of the elements of a broader drama playing out in communities across the United States. This shift represents a sharp deviation from the past. During most of the twentieth century, US immigration enforcement occurred nearly exclusively in the borderlands. Now, as Angela Stuesse and Mathew Coleman observe, initiatives focused on local police and interior enforcement "have transformed immigration enforcement from a federally managed and outward-looking power, located at the territorial margins of the U.S. into an operationally diffuse and inward-looking power focused on resident immigrant populations deep within the country's heartlands."
The contemporary context includes federal efforts to enlist local police and sheriffs as junior partners in the effort to detect and remove resident immigrants who lack, or have lost, the legal right to remain in the country. Federal authorities have sought to cast local law-enforcement officers as "force multipliers" to bring suspected unauthorized immigrants to their attention, while maintaining control of resource allocations, timing, and deportation decisions at the federal level. SB 1070 represented a challenge to this framing, demonstrating a new assertiveness by a few states determined to prioritize their own enforcement goals, essentially turning the tables on the federal government. Not surprisingly federal lawsuits were successful in blocking implementation of crucial provisions of Arizona's and similar "copycat" state laws in Alabama, Georgia, Indiana, and elsewhere.
What does immigration enforcement look like from the local level? Why, for example, do municipalities and police departments run the gamut, from eagerness to enforce federal law to active resistance, with most falling quietly in between? What are the implications of the federal executive's frequently changing initiatives — from loose supervision of local participation in immigration enforcement to near-mandatory participation and, most recently, to attempting a more nuanced approach? How are police departments and sheriffs' offices dealing with the complex political environment in which they find themselves? Is community activism having an effect on local law-enforcement policies? Can local law enforcement ever reasonably become the unproblematic "force multipliers" the federal government desires? Should it be? These questions suggest a link to more fundamental concerns about the role of law enforcement in a democratic society.
We respond to these questions with much-needed empirical data and analysis. Our research is based on three national surveys of local law-enforcement executives and in-depth case studies of seven carefully selected cities. The surveys of chiefs and sheriffs give us a basis from which to speak broadly about immigration enforcement at the local level, while the case studies add depth and richness to our analysis and allow us to hear from those who feel the impact of policies as well as those responsible for creating them.
We locate this study within the broader context of justice policy in a federal system. The division of powers between the national level and the states has always been a source of tension in the United States and a space where contradictions and controversy play out. Disagreements over the substance of American public policy often quickly turn into battles over jurisdiction between the national government, the states, and sometimes, local governments. This is inevitable because the interests, resources, and vision at each level are not necessarily aligned, as generations of scholars have pointed out. While the bloody Civil War is an extreme example of cross-level conflict, contemporary examples are plentiful and include major controversies over civil rights, education, labor, and crime policy. The potential for conflict among levels of government is clear in immigration policy, which, though claimed by the national level as its own exclusive domain, nevertheless has profound local and state-level effects. It should not be surprising that the federal government's failure to enforce its own law against people who have bypassed its requirements has opened this issue to hot political debate and to a variety of responses among states, municipalities, and law-enforcement organizations.
Complicating this situation is the narrow and somewhat ambiguous basis for the federal government's claim of exclusive power to make and enforce immigration policy. Although the courts have consistently upheld the national government's claim of sole or plenary power, immigration enforcement has always involved power sharing with locals and sensitivity to regional differences. This is particularly true in recent years, as the federal government has reached out directly to law-enforcement agencies in cities and counties to assist in its enforcement mission. The national-to-local focus of our research distinguishes it from most of the available literature on immigration federalism, and federalism generally, which tends to focus on the state/federal relationship. We have nevertheless benefited from scholarly discussion of the potential for conflict and cooperation that exists across levels of government in a robust federal system.
In highlighting the central role that city and county governments and their law-enforcement units are playing in this emerging landscape, we find it helpful to describe the overall pattern as a multijurisdictional patchwork of enforcement policies and practices. Localities play a key role in immigration enforcement, both through formal devolution of responsibilities, and, more generally, through their discretion and power to affect implementation. State-level policies give the appearance of uniformity, but the reality is submerged variety. In effect, despite claims to the contrary, the United States has no consistent, uniform ability to enforce its immigration laws within the nation's interior.
The patchwork that is immigration enforcement presents serious challenges to transparency and consistency in law enforcement. As we discuss in chapter 2, two cities that share a jurisdictional border can have diametrically opposed immigration-enforcement policies. The street dividing EastHaven and New Haven, Connecticut, became ground zero for enforcement by East Haven police (which locals refer to as "border patrol"), while on the other side of the street in New Haven immigrants were welcomed with a municipal identification card to facilitate their integration. In the city of Mesa, Arizona, the county sheriff thwarted the city's effort to focus its enforcement efforts on criminal activity rather than immigration enforcement. Not long after this standoff, the state legislature backed the sheriff with SB 1070, which preempted all local policy on immigration policing throughout the state.
Attempts to maintain welcoming approaches toward unauthorized immigrants tend to be threatened from every direction. Aggressive local law-enforcement efforts tend to "bleed" across jurisdictional lines, creating fear of police even where there are efforts to build or maintain trust. The result is an enforcement-oriented race to the bottom, with restrictive localities tending to undermine the approaches of more receptive localities, and thus frustrating the long-held right of communities to chart their own course on public safety and policing matters.
Helping to maintain a variety of approaches, however, is the tension between enforcement of immigration laws against law-abiding, but undocumented, residents and the principle of community policing based on trusting relationships with all residents in a community. Local perspectives, relatively insulated from federal controls, tend to resolve this tension in ways that suit local needs. As Sally Falk Moore argued in a seminal article, groups develop their own norms, practices, and routines that filter policies from above, creating what are, in effect, "semi-sovereign fields" of law and policy that may not be consistent with prescriptions from outside authorities.
We also suggest that in immigration enforcement there is a significant "gap" between the supposedly uniform federal law and local action. Such "gaps" have intrigued scholars since the legal realist movement began over a century ago. Our study focuses on how local action has come to deviate so greatly from any single national mandate. We consider, in some detail, the law "in between," where local bureaucrats and professions make important decisions about how and when enforcement will take place. Valerie Jenness and Ryken Grattet introduced this term in the context of a police department's implementation of a state hate-crime law, but its utility is much broader and applies helpfully to the informal and formal devolution of federal immigration enforcement authority to municipalities and counties and their law enforcement agencies.
The attempt to engage local police and sheriffs in immigration enforcement is part of a broader trend toward harsher policies regarding unauthorized immigrants and legal permanent residents who have committed crimes, and the "punitive turn" in American society. Relevant changes include a growing number of grounds for deportation, lessened due-process protections, long terms of imprisonment for border crossers, fewer exceptions to removal decisions, and weakened judicial discretion to offer relief from removal. More active involvement of federal immigration authorities with law-enforcement agencies, jails, and courts in the nation's interior is an important part of this trend, which legal scholars have dubbed "crimmigration." Crimmigration appears to be a worldwide trend in immigrant-receiving nations, reflecting deeper changes in social and economic relationships at a global level.
In the American context, the merging of traditional crime-fighting responsibilities with immigration enforcement has proven to be a game changer in the public mind. Being found in the country without authorization is not currently a crime, but it is increasingly regarded as such because of the merging of law-enforcement responsibilities with immigration enforcement. Policies beget attitudes, as Suzanne Mettler and Joe Soss have cogently observed. In this case the result of current policies is greater fear of immigrants and a general hardening of attitudes toward them.
Partnering with local law enforcement cedes most control over enforcement to the local level and in a nontransparent way. While public debate has focused on the failure of federal lawmakers to reform immigration law, life-changing decisions are occurring daily at the local level at the hands of local law-enforcement officers. The majority of encounters between the government and potentially deportable individuals begin on the street in these exchanges. In immigration law, as law professor Hiroshi Motomura observes, "the discretion to arrest has been the discretion that matters." Post arrest, a case can easily move toward deportation. Yet the federal level has little to say about when such arrests will occur and under what conditions.
Individual discretion is a basic characteristic of law-enforcement work, making it difficult to establish realistic, transparent policies for local-level immigration enforcement. The emphasis that has been placed on detecting unauthorized immigrants has led observers to note the inevitability of racial bias based on vague, potentially ad hoc standards. The impact of this law-enforcement approach falls particularly on Latinos, for in the United States the face of an illegal immigrant is, in many minds, poor and Mexican or Central American. Frequent changes in policy and emphasis at the federal level also complicate the situation.
Every day, police and sheriffs face challenges created by this shifting terrain. The uncertainty and lack of controls in this highly dispersed system place immigrants with problematic or nonexistent legal status in a permanent condition of deportability, attempting to avoid any contact with legal authorities. The economic impact of a population consigned to living largely outside the legal system is significant, with its consequence of exploitation by employers, unscrupulous businesses, and individuals. Also significant is the impact on public security of a policy that puts part of its resident population at risk of deportation for any contact, voluntary or not, with law-enforcement authorities.
The stakes are high. Nearly 41 million immigrants reside in the United States, about 13 percent of the total population, and that number is rising. About 11.3 million of those immigrants lack legal status. In addition there are unknown numbers of legal permanent residents who may be subject to deportation because of past or pending criminal convictions. When a police officer or sheriff encounters a person that the officer suspects might be unauthorized, there is a range of options. Will the officer look for opportunities to stop and question individuals who "look" undocumented? What form of identification will be accepted as sufficient, once an officer's suspicions have been aroused? Will an officer ignore legal status in minor cases, either to avoid the burdensome paperwork or for more principled reasons? Such street-level decisions, with their potentially disastrous consequences for the immigrants involved, must be made by officers in the field with limited guidance from law-enforcement agencies. Written policies and training programs for officers regarding encounters with immigrants are relatively rare, perhaps because such explicit direction could go viral in the tense political atmosphere over unauthorized immigration.
The federal government has avoided critically examining how local law-enforcement agencies identify and process the suspected unauthorized immigrants they turn over to federal immigration agents. Generally, only the most extreme and notorious cases draw their attention. By its passivity, federal authorities have insulated themselves from charges of racial profiling and other forms of overzealous enforcement at the intake point in the process. Federal concern has focused, not on the means by which suspected unauthorized immigrants are brought into the system, but on the deportation outcomes the government achieves. Since the mid-1990s the goal appears to have been to increase, by any means possible, the number of deportations that the Department of Homeland Security and Immigration and Customs Enforcement (ICE) can report. Initiatives during President Obama's second term in office appeared to change that trajectory in small ways, but even these changes provoked loud complaints, lawsuits, and a series of bills in Congress designed to reduce executive discretion to prevent deportations.
How We Investigate Local Immigration Policing
We surveyed police chiefs from large and medium-sized cities in 2007–8, and in 2009–10 we completed two similar surveys of county sheriffs and of police chiefs in smaller municipalities. The large-city survey was sent to 452 police chiefs in cities that were listed in the American Community Survey of 2005 as falling into the category of municipalities that had sixty-five thousand or more residents. These 452 represented the universe of chiefs in cities of this size that employ their own police departments. We received 237 survey responses, a response rate of 52 percent.
For our sample of county sheriffs, considerations of cost and relevance meant we needed to narrow our sample well below the roughly three thousand counties in the United States. Many counties have tiny populations and few immigrants. Rather than trying to survey them all, we chose to limit our contact to sheriffs in counties that met two criteria: (a) a foreign-born percentage of the population of at least 6 percent, as of the 2000 census; and (b) at least twenty thousand total residents. To this set we added seven additional counties that were slightly below the 6 percent threshold but that had at least twenty-five thousand foreign-born residents as of 2000. Of the 449 counties thus selected (roughly the same number as of big-city chiefs), 252 provided usable responses, a response rate of 56 percent.
Excerpted from Policing Immigrants by Doris Marie Provine, Monica W. Varsanyi, Paul G. Lewis, Scott H. Decker. Copyright © 2016 The University of Chicago. Excerpted by permission of The University of Chicago Press.
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Table of ContentsAcknowledgments
1. Introducing the Conflicted Politics of Localized Immigration Control
2. The Evolution of Devolution
3. The Problematic Patchwork of Immigration Federalism
4. Going Their Own Way: Community Context and Its Influences on the Patchwork
5. Discretion on the Front Lines: Immigrant Policing in Action
6. Negotiated Understandings between Law Enforcement and Local Communities
7. Conclusions and Recommendations: Finding the Way Forward
Appendix: Multivariate Analyses of Policing Practices and Local Government Policies