Law professor César García Hernández talks about how America built a legal system that targets immigrants for profit—and how to take it down.
At a conference organized by the Institute of Justice in Journalism this week, I attended a presentation by César Cuauhtémoc García Hernández, law professor at the University of Denver and author of the book Crimmigration Law. The term crimmigration, coined by legal scholar Julie Stumpf in 2006, refers to the complex nexus of immigration policy and policing that emerged in the U.S. after 1980. In his book, García explores the rise and consequences of this phenomenon, chronicling how a series of legislations stitched together criminal and immigration law practices, creating the current Frankenstein-like system that incentivizes immigrant incarceration.
First, some Crimmigration 101: The first couple of these laws cropped up during the Reagan administration; subsequent ones were enacted with the blessings of both the Republican and Democratic presidents that followed. Some explicitly addressed drug crime, and others, immigration. But they all sort of did both, leading to more overlap in the roles of law enforcement and immigration officers and greater coordination between them. They also introduced and expanded a broad category of criminal activity called "aggravated felony,” which for non-citizens can lead to immediate deportation (even for offenses like gambling or possession of anti-anxiety pills or small amounts of marijuana). Finally, these laws authorized pre-trial and mandatory detention—and reimbursed local and county governments for imprisoning immigrants.
Prosecutions for immigration-related crimes—mainly, for entering the country without documentation or reentering illegally after having been deported—started inching up in the 1980s. Since the 1990s, convictions for such crimes have exploded. Via the Pew Research Center (emphasis added):
Between 1992 and 2012, the number of offenders sentenced in federal courts more than doubled, rising from 36,564 cases to 75,867. At the same time, the number of unlawful reentry convictions increased 28-fold, from 690 cases in 1992 to 19,463 in 2012. The increase in unlawful reentry convictions alone accounts for nearly half (48%) of the growth in the total number of offenders sentenced in federal courts over the period.
Today, immigration-related offenses already comprise around 40 percent of federal criminal cases. That share has been much higher than drug-related, violent, or white-collar crimes in recent years:
Suspects of immigration-related crimes also make up 50 percent of those arrested and booked by federal law enforcement—again, that’s a much higher share than those who have committed other types of crime, according to the latest Bureau of Justice Statistics data:
I caught up with García after his presentation to ask him a couple of questions about this phenomenon. Below are the highlights of our conversation, edited and condensed for clarity.
So, explain the idea behind “crimmigration”?
Historically, immigration and criminal law have been thought of as very separate from one another. The concept of crimmigration focuses on how and why these two traditionally separate areas of law have suddenly blurred to the point that it is hard to distinguish where one ends and the other begins.
What are the various components of crimmigration, broadly speaking?
The first is this idea that there are now an expanded number of crimes that can lead to immigration problems. The second piece is that there's an increase in the amount of migration-related activity that can, and frequently does, lead to prosecutions. The third is there are a lot more law enforcement practices that are uniquely harsh.
What was the political context behind the creation of this system?
The early- to mid-1980s was a period of time when large groups of migrants who came to the U.S. were very easily demonized, both because they were poor and because they were dark-skinned—people from Cuba, Haiti, and some other Caribbean nations, in particular. Large groups of Central Americans were [also] fleeing violence in that region, largely as a result of leftist political groups that had risen up in arms against repressive right-wing governments, many of which the U.S. supported.
Many prominent politicians in the U.S., including President Reagan, were trying to develop the law enforcement phenomenon that we now know as the War on Drugs. So they tapped into the growing concern about illicit drug activity and used it as a way of targeting migrants who were coming here. Many of these migrants were tagged with [the same rhetoric as] those within African American communities. Others were targeted as dangerous for other reasons. In one way or another, they all represented as danger to the way of life in the U.S.
But harsh actions against immigration took place prior to 1980s, too, right? I’m thinking of the mass deportation of Mexicans under President Dwight Eisenhower, for example, which Donald Trump has used as a model for his own deportation agenda.
You're referring to “Operation Wetback” in 1954. In its sheer ferocity and indifference to human suffering, Operation Wetback shares important characteristics with the rise of crimmigration law. There are three important differences, however. First, Operation Wetback was short-lived. It lasted through the summer of 1954. Its massive, indiscriminate roundups of people did not become the predominant feature of immigration law enforcement during the ensuing decades. Second, Operation Wetback was largely a single-agency initiative. Third, it was almost exclusively focused on removing people from the United States. Two policy axes characterize crimmigration law and policy: imprisonment and removal. With upwards of half a million people confined every year because of a suspected or confirmed immigration law violation, it is hard to say that imprisonment is anything but a core feature of the modern crimmigration law regime.
So where does Trump fit into the crimmigration story?
Donald Trump's rhetoric vacillates between deplorable and blatantly racist, but it is an extension of the rhetoric of migrant criminality that has dominated political conversations about immigration for decades. Republicans and Democrats have frequently grouped migrants into two camps: the good ones and the bad ones.
There is some disagreement about what constitutes a "good" immigrant. Is it enough to have family here, a high level of sought-after skills, or something more? But almost all mainstream Republicans and Democrats agree on what constitutes a "bad" immigrant—someone with a criminal history or gang affiliation. President Obama famously captured this sentiment when he explained that his administration's immigration enforcement tactics have been to target "felons, not families." The problem with this binary is that it’s too simplistic to capture the reality of human life.
Pinning down the substance of [Trump’s] policy proposals is anything but easy because he is short on concrete details. He says he wants to build a wall along the border with México. We currently have approximately 700 miles of wall. It might not be as beautiful as the wall that Trump promises, but it is a wall all the same. He says he wants to triple the number of ICE agents and hire an additional 5,000 Border Patrol agents. We currently have more immigration law enforcement agents than ever in the history of the United States. He says he wants to prioritize removal of criminals and gang members. So does President Obama. In effect, much of the way in which Donald Trump claims he will enforce immigration law is an extension of what the United States government has already been doing.
So crimmigration is a bipartisan thing. What are the repercussions of this system for immigrants and courtrooms?
The impact on immigrants themselves has been the hardest. It is far easier to end up in deportation proceedings. It is far more likely that once you're there, you will end up being deported. While your case is making its way through the immigration courts, you're more likely to end up behind barbed wire—maybe in the county jail, maybe in an immigration detention center run by a private company whose principal motivation is to make money.
What role do economics play in this?
The economic aspect of the widespread use of immigration imprisonment today is two-fold. First, we have the fact that most of the people who find themselves inside an immigration prison somewhere in the U.S. are from countries with which the U.S. has had a longstanding exploitative relationship.
The other component of this is the commodification of the people who are then brought within the focus of today's immigration law enforcement apparatus. People who are imprisoned for a suspected immigration law violation represent a lot of money for a lot of various interested parties. The most obvious of these is the private prison corporations that earn hundreds of millions of dollars of revenue annually in contracts that they have with government agencies.
County governments are the other major characters in this story. Many have built and owned prisons and jails that they then fill with immigration prisoners. For some of these counties, [these jails] represent extremely important sources of revenue. They tend to be fairly isolated and economically depressed, so prisons come to represent a public works and jobs program.
Do you think it’s possible to uncouple immigration and criminal law going forward—especially in the kind of divisive political climate we have today?
I think this is a trend that is certainly reversible. We have to remember that the law didn't drop down on us like manna from heaven. It was created by human beings. And we can find alternatives in the fairly recent past. If somebody engaged in criminal activity, they were investigated, prosecuted, and punished through the criminal justice system. That was true whether someone was a U.S citizen or not—there was no added penalty for people who were not U.S. citizens. That model is there and it was what we implemented for almost all of the 20th century.
And the U.S. thrived despite that. In fact, maybe the U.S. thrived because of that. We have a century's worth of studies that show that immigrants tend to commit less crimes than native-born citizens—they tend to make communities safer.
What about the argument that harsher crimes are warranted for people who are not U.S. citizens, because being a U.S. citizen is an earned privilege?
It's missing the reality that removing people from the U.S. means that you leave a gap in existing communities. That perspective also has a certain internal inconsistency, because most of us obtain our citizenship not because of anything we did, but because where we happened to be born. I obtained citizenship because I was born a few miles north of the Rio Grande River instead of a few miles south. And yet, these life-altering—and in some instances, life-ending—court decisions are not something I have to face.