Doubling down on racial discrimination: the racially disparate impacts of crime-based removals.

• Author: Johnson, Kevin R.
• Position: Whren at Twenty: Systemic Racial Bias and the Criminal Justice System

CONTENTS INTRODUCTION I. RACIAL PROFILING AND CONTEMPORARY DEVELOPMENTS IN CRIME-BASED REMOVALS A. The Supreme Court's Authorization of Racial Profiling in Law Enforcement 1. Whren v. United States 2. United States v. Brignoni-Ponce B. Increased State and Local Involvement in Immigration Enforcement 1. Section 287(g) Agreements 2. Secure Communities, the Rise of "Sanctuary Cities," and the Priority Enforcement Program 3. State and Local Immigration Enforcement Laws 4. The Modern Criminal Removal System II. DOUBLING DOWN ON RACE-BASED LAW ENFORCEMENT: THE MODERN CRIMINAL REMOVAL STATE III. HOW TO REDUCE THE RACIAL DISPARITIES IN REMOVALS A. The Potential of Political Activism B. Possible Reforms CONCLUSION INTRODUCTION

Deadly encounters of people of color with law enforcement regularly make the national news. Just in recent memory, the string of deaths of young African American men at the hands of police officers, which led to civil unrest in cities across the United States, has attracted the attention of the nation. (1) Although perhaps less well-known among the general public, (2) police officers at various times also have stood accused of using excessive deadly force against Latina/os. (3)

Immigrants of color also have been subject to abuse by local law enforcement officers. For example, in 1999, New York City Police Department officers shot and killed Amadou Diallo, an unarmed immigrant from Guinea, in a hail of bullets; two years earlier, officers literally tortured Abner Louirna, an immigrant from Haiti, in a Brooklyn police station. (4) Both Diallo and Louirna were black. Their race undoubtedly contributed to the circumstances culminating in their brutal interactions with police. Federal immigration enforcement officers also regularly find themselves accused of physically abusing Latina/o immigrant--at times with deadly consequences. (5)

In less spectacular fashion, police departments across the United States engage, on a daily basis, in racial profiling in traffic stops. (6) African Americans, Latina/os, and other minority groups are profiled by law enforcement. (7) As these descriptions of law enforcement abuse suggest, the racially disparate consequences of law enforcement are widely considered to be a most serious national criminal justice problem.

Many Americans support heightened immigration controls. Such support is reflected in the popularity of high removal numbers and symbolized in physical form by the steady lengthening of the wall along the U.S./Mexico border. (8) Mass deportations of "criminal aliens," who President Obama has referred to with the racially-charged phrase "gang bangers, (9) have served as the cornerstone of the current administration's immigration enforcement strategy. (10) For a variety of reasons, the targeting of criminal noncitizens for removal has proven to be popular with the general public. Most notably, public safety concerns arguably weigh in favor of allocating limited federal immigration enforcement resources toward efforts to remove noncitizens convicted of crimes from the United States.

The political process often punishes noncitizens with criminal problems. Noncitizens are a particularly vulnerable group in the political process. (11) First off, they lack the right to vote and thus do not possess formal political power through the ballot box to protect themselves from punitive measures. As a consequence, immigrants in general have been subject to discrimination at various times in U.S. history. (12)

Moreover, immigrants with criminal problems are among the most disfavored of the generally disfavored group of noncitizens in the political process. Relatively few contemporary immigrant rights advocates expend much political capital seeking to defend immigrants convicted of crimes in immigration law and policy debates. (13) Consequently, the law and its enforcement over the years has increasingly targeted--some critics might contend consciously punished--noncitizens who have had virtually any brushes with the criminal justice system. (14)

The Obama administration has strived to prove to the public and policy-makers its firm commitment to vigorous enforcement of the immigration laws. (15) Well-publicized increases in the number of immigrant removals have been the centerpiece of nothing less than a sustained political campaign to convince Congress to enact comprehensive immigration reform, (16) for which the President has repeatedly expressed support. (17) The conventional wisdom has been that a firm commitment to aggressive border enforcement will ultimately help to persuade Congress that the time has come to enact immigration reform. The Obama administration's dedication to enforcement can be seen in the much criticized mass detention and removal of thousands of women and children fleeing widespread violence in Central America in 2014. (18)

Not surprisingly, focusing deportation efforts on noncitizens who encounter a criminal justice system well-known for racial bias has had racially disparate impacts on the removal of noncitizens from the United States. Specifically, racial profiling in criminal law enforcement--including but not limited to that widely employed by law enforcement in the "war on drugs," combined with removal efforts increasingly directed at noncitizens who have had encounters with the criminal justice system--has had devastating effects on immigrants of color across the United States. (19) These systems, operating in a coordinated fashion, have contributed to the fact that today more than 95 percent of the noncitizens removed annually from the United States are from Mexico and Central America. (20) That incredibly high percentage represents a much larger percentage than the Latina/o composition of the nation's overall immigrant--both legal and unauthorized--population. (21)

Unfortunately, racially discriminatory immigration laws and their enforcement have a long tradition in the United States. The U.S. government has targeted Latina/o immigrants for presumptive removal from the country for most of the twentieth century. (22) Before that, the law expressly made immigrants from Asia the primary focus of exclusion and discriminatory enforcement. (23) Other immigrant groups at various times in U.S. history have been subject to scorn and harsh treatment through restrictive immigration laws and their enforcement. (24)

Today's racially disparate removals of Latina/os are entirely consistent with the widespread popular belief that Mexican immigrants as a group are predisposed to criminal activity. Well-known public figures, such as 2016 candidate for the Republican nomination for president Donald Trump and flamboyant conservative political pundit Ann Coulter, forcefully express these views. (25) Such incendiary charges feed into the widespread presumption that all persons of Mexican ancestry, U.S. citizens and noncitizens alike, are subject to deportation from the United States. In contrast to the exaggerated claims that the nation is being overrun by criminals from foreign lands, social science research has found time and time again that immigrants--including those from Mexico and the rest of Latin America--are on average more, not less, law-abiding than U.S. citizens. (26)

The growing confluence of criminal law and immigration law has garnered considerable scholarly attention. The last few years have seen the emergence of a vibrant body of what has been dubbed "crimmigration" law scholarship. Generally speaking, this "scholarship describes and critiques the way that immigration and criminal law interact." (27) It specifically questions the ever-tightening relationship between immigration law and criminal law, which results in harsh consequences for immigrants, their families, and the greater community. (28)

This Article agrees with the fairness critique of crimmigration scholars of the growing link between the criminal justice system and immigration removals. It contends, however, that the criticism has failed to sufficiently scrutinize the glaringly disparate impacts of tying removals to alleged criminal activity on immigrants of color. Specifically, the emerging crimmigration scholarship generally fails to analyze in depth the systematic and institutionalized role of race in modern criminal law enforcement. Moreover, for the most part the scholarship ignores how those racial impacts are magnified by the operation of a federal immigration removal process that through a variety of programs targets "criminal aliens." (29)

The general public enthusiastically embraces mass removals of noncitizens with criminal entanglements. (30) The truth of the matter is that the removal of thousands of noncitizens of color who have encountered the criminal justice system is unlikely to generate significant public controversy, much less meaningful political resistance. Indeed, the public appears for the most part ready and willing to support the removal of large numbers of Latina/o immigrants from the United States. The fact that the group of people most directly affected by the removals are a discrete and insular political minority--noncitizens of color who cannot vote--thus far has tended to dampen political opposition to the removals. (31)

Part I of this Article considers parallel developments in the law that contribute to what can be characterized as the emergence of nothing less than a Latina/o removal system. It first considers the Supreme Court's implicit sanctioning of race-conscious law enforcement in the United States, with the centerpiece of this symposium, Whren v. United States, (32) perhaps the most well-known example. Second, it summarizes the trend over the last twenty years toward greatly increased cooperation between state and local law enforcement agencies and federal immigration enforcement authorities. Part I proceeds to analyze how and why an increasing number of state and local governments through what are popularly known as...