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Since the late 1990s,
deportation and detention
of immigrants has been
skyrocketing, thanks in large
part to anti-immigrant
legislation enacted by Congress
in response to the upswing
in migration from Mexico
after the North American Free
Trade Agreement. Immigrant
communities have organized
to ght back as life in the
United States for them
increasingly resembles life
in a police state. Racism and
xenophobia dominate the public
and political discourse about
migration, and have given rise
to a new range of oppressive
laws, policies and practices
from the militarization of
the border and workplace
raids, to the exploding
network of immigrant
prisons across the country.
CRIMINAL
JUSTICE REFORM
FOR IMMIGRATION
REFORM
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WE ARE HUMAN,
WE DO NOT DESERVE
THIS TREATMENT.
WE HAVE DONE
NOTHING WRONG.
WE ARE NOT
CRIMINALS.
This punitive approach to immigration has not only wrought physical
violence and material sufering in immigrant communities; it also carries
a social message of shame and alienation. If you are an immigrant you
are dangerous, you are illegal, and you do not have the same rights as
your neighbors. Of course, the natural response from those who have
been brave enough to challenge this idea has been We are human, we
do not deserve this treatment, we have done nothing wrong, and nally
We are not criminals.
The problem with we are not criminals, however, is that as the criminal
justice system expands to bring more and more people of color under its
control, and the label criminal attaches to a wider and wider range of
conduct, immigrants are coming into contact with the criminal justice
system. States like Arizona are passing laws that criminalize the mere
act of being present without documentation. To make matters worse, the
federal governmenthoping to placate the growing Latino electorate
increasingly justies the detention and deportation of immigrants on
the basis of their contact with the criminal justice system. The Obama
administration, in efect taking immigrants rights advocates up on their
were not criminals message, has promised to focus its energies on
detaining and deporting criminal aliensa term that conjures images
of the bogeyman; but in reality, when U.S. Immigration and Customs
Enforcement (ICE) does deport on the basis of a criminal conviction, it
is usually for an ofense related to substance abuse or mental illness, or
a nonviolent property ofense.
The larger problem with this focus on so-called criminal aliens is the
reliance on the criminal justice system, which is itself so fraught with
unfairness, abuse and discrimination, to make and enforce decisions about
immigration cases. All recent rhetoric about shifting priorities aside, this
is not a new problem. Long before the Obama Administration adopted
criminals as an explicit target for deportation, the immigration system
was making the criminal justice system part of its infrastructure. Today,
the two systems are intertwined at every level, and at every level the harms
perpetrated against poor communities and communities of color by the
criminal justice system bleed over into the immigration system.
For decades prior to the War on Immigrants, the War on Drugs was
already decimating communities of color, sending kids to prison for years
of their lives and draining public money that could have been better spent
on helping youth achieve positive life outcomes. Now, new communities
of colorimmigrant communitiesnd themselves targets of those same
drug laws, doing time in those same prisons. The diference is that when
an immigrant youth nishes his sentence for drug possession, instead
of going back home to his family, ICE can pick him up and detain him in
immigration prison while they make the case for his deportation, and
eventually (after months locked up without the right to a lawyer) send
him to a country where he may know no one and may not even speak the
language. Laws passed in 1996 provide that conviction of any one of a
huge range of ofenses subjects any non-citizen to mandatory deportation
and (for as long as it takes the government to carry out that deportation)
mandatory detention. This means that in many cases, judges do not have
any power to look at a persons individual circumstances to decide whether
detention and deportation are fair or necessary.
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Immigrants trying to defend against criminal charges that may subject
them to deportation face all the same problems as do citizens entangled
in the justice system: abysmal indigent defense (many defense attorneys
remain oblivious about deportation as a potential consequence of a criminal
conviction), pressure to take plea bargains and race-based disparities in
sentencing, to name a few. In addition to relying on the substantive criminal
law to justify detaining and deporting people, ICE also relies on the actual
machinery of law enforcement in the criminal justice system to physically
nd and pull people into the immigration system. ICE has a whole range
of programs like Secure Communities, 287(g), and the Criminal Alien
Program which put local law enforcement personnel and resources to
work nding immigrants to deport.
Finally, ICE relies on the actual physical infrastructure of criminal
incarcerationthe prisons and jails themselvesto lock up immigrants
in its custody. Although immigration detention is technically civil
detention, ICE contracts with county jails all around the country to
house immigrants in the same facilities with those in the custody of
the criminal justice system. The horrifying conditions in U.S. prisons
and jails are well-documented and the subject of much domestic
and international advocacy; by incorporating them into its removal
operations, ICE not only causes incredible sufering to the immigrants
locked up there but also legitimizes the cruelty and inhumanity of the
prison industrial complex.
MAYBE ONE DAY WE
WILL LIVE IN A WORLD
WHERE THE CRIMINAL
JUSTICE SYSTEM
ACTUALLY CREATES
ACCOUNTABILITY FOR
SOCIAL HARM, ALLOWS
FOR RESTORATIVE
JUSTICE AND EXISTS
AS ONE SMALL PART
OF A LARGER SYSTEM
THAT SUPPORTS
TRUE SOCIAL JUSTICE.
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Emily Tucker
POLICY AND ADVOCACY
DIRECTOR, DETENTION
WATCH NETWORK
ABOUT THE AUTHOR
Maybe one day we will live in a world where the criminal justice system
actually creates accountability for social harm, allows for restorative
justice and exists as one small part of a larger system that supports true
social justice. That day is not today. Right now, what we have is a criminal
justice system that, like the immigration system, exists to enable the
control and oppression of people of color. As long as that remains the
case, there is no ghting for immigration reform without ghting for
criminal justice reform.
Emily Tucker is the Director of Policy and Advocacy
at Detention Watch Network, where she works
collaboratively with organizations and individuals
across the country to fight the incarceration of
immigrants and the criminalization of communities
of color. Emily earned her J.D. from Boston University
School of Law, and her masters in theological studies
from Harvard University. At Harvard,
she was a research associate at the
Center for Middle Eastern Studies
where her work focused on the impact
of post 9/11 policies on Muslim
Immigrant communities in the United
States. She was a contributing author and editor for
the Encyclopedia of Islam in the United States
(Greenwood Press, 2007). During law school, Emily
represented detained immigrants and refugees as a
student attorney in the Asylum and Human Rights
Clinic. She also worked or interned at the Southern
Poverty Law Center, the New England Innocence
Project, Penal Reform International in London, and
the Lowenstein Human Rights Projects 9/11 Clinic
at Yale Law School. She is also a former ballet dancer
and spent several years teaching in public schools
in New York City.
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