Crimmigration at the Local Level: Criminal Justice Processes in the Shadow of Deportation

• Date: 01 March 2015
• DOI: http://doi.org/10.1111/lasr.12120
• Published date: 01 March 2015

Crimmigration at the Local Level: Criminal Justice

Processes in the Shadow of Deportation

Katherine Beckett Heather Evans

In recent decades, authorities have adopted a number of programs that tether

the criminal and immigration enforcement apparatuses in novel ways. This

mixed methods case study assesses the impact of such programs on local crim-

inal justice processes and outcomes in King County, Washington. Although

the empirical research on the effects of such programs is scant, the emerging

literature on legal hybridity suggests that the enmeshment of the criminal and

immigration systems is likely to enhance the state’s power to detain and pun-

ish. The quantitative results support this hypothesis: non-citizens flagged by

immigration authorities stay in jail significantly longer than their similarly sit-

uated counterparts. Qualitative focus group interviews with prosecuting and

defense attorneys identify four key mechanisms by which Immigration Cus-

toms and Enforcement detainers alter the incentive structure, impact deci-

sionmaking, and extend jail stays for non-citizens. Together, these findings

suggest that immigration law and the threat of deportation now cast a long

shadow over local as well as federal criminal proceedings, and enhance penal

pain for non-citizens. Implications of these findings for the “crimmigration”

literature and research on the effect of citizenship status on criminal justice

outcomes are discussed.

Over the past decade, immigration policy has prioritized the

removal of “criminal aliens,” that is, non-citizens who have been

convicted of a crime.

1

Toward this end, federal immigration

authorities have adopted a number of new programs that mobilize

state and local criminal justice resources. For example, the Crimi-

nal Alien Program (CAP) and Secure Communities enable immi-

gration authorities to identify non-citizens in local jails so that they

Special thanks to Mike West, Program Manager in the King County Department of

Adult and Juvenile Detention, for providing the administrative jail data and answering our

questions about their construction. Thanks also to Lucie Bernheim and Eileen Farley for

their assistance in compiling criminal history information, and to Matt Baretto at the Uni-

versity of Washington for providing the Hispanic Surname Analysis database. Thanks also

to members of the Law, Societies & Justice workgroup (especially George Lovell, Rachel

Cichowski, Carolyn Pinedo-Turnovsky, Angelina Godoy and Steve Herbert) for useful feed-

back and suggestions. Thanks also to several anonymous reviewers for their useful

suggestions.

Please direct all correspondence to Katherine Beckett, Department of Sociology, Box

353340, University of Washington, Seattle, WA98195. E-mail: kbeckett@uw.edu.

1

See http://www.ice.gov/secure_communities/ (accessed 3 December 2014)

Law & Society Review, Volume 49, Number 1 (2015)

V

C2015 Law and Society Association. All rights reserved.

241

may be transferred to federal immigration custody on their

release from jail. These programs were implemented in the con-

text of heightened immigration enforcement, and coexist with

policies that dramatically expand the number of criminal offenses

that disqualify people seeking to obtain or retain legal permanent

status (Chac

on 2012; Kanstroom 2007; Menj

ıvar 2012)—as well as

policies and practices that have led the United States to host the

world’s largest prison population (Western 2006). Together, these

developments have expanded immigration enforcement’s scope,

and tethered federal immigration enforcement and local criminal

justice systems in novel ways.

This study analyzes how these developments affect local

criminal justice processes and outcomes. The empirical findings

fill an important lacuna: as Eagly notes, “the existing scholarship

has not adequately e xplored how immig ration operates in t he

criminal sphere—namely, how the rights, procedures and sys-

tems traditionally associated with the criminal justice system have

themselves been affected by interaction with the civil system of

immigration” (2010: 1284). Although a large and growing litera-

ture explores the consequences of “crimmigration”—especially

the intermingling of the federal criminal and civil immigration

systems—little is known about how the institutional enmeshment

of federal immigration enforcement and state/local justice institu-

tions affects practices and outcomes in the latter (but see Eagly

2013).

Although prior research on the impact of current immigration

enforcement practices on local justice outcomes is scant, the

emerging literature on legal hybridity provides reason to suspect

that programs that tether federal immigration enforcement to

local justice institutions will enhance the state’s power to punish

and exclude. For example, in recent years, bureaucratic and legal

actors at the local level created a variety of legally hybrid control

tools after the courts invalidated the vagrancy and loitering laws

that had historically enabled local authorities to regulate the

movement of the socially marginal (Beckett and Herbert 2010a,

2010b; Beckett and Murakawa 2012). Examples include of new,

legally hybrid control tools include gang injunctions, no contact

orders, and various applications of trespass law that enable offi-

cials to regulate the movement of individuals perceived as disor-

derly from urban spaces for extended periods of time. These

legally hybrid techniques blend elements of civil and criminal law;

they also shift the burden of proof and restrict rights in ways that

enhance the power of the state to control and banish the socially

marginal. Similarly, legislation that authorized the transfer of

some juveniles to the adult criminal system notably enhanced the

power of prosecutors in juvenile courts (Harris 2007).

242 Criminal Justice Processes in the Shadow of Deportation

In these cases, then, the fusion of civil and criminal law

worked to enhance state power. Studies suggest that a similar pro-

cess has occurred in the federal immigration context, where

authorities have incorporated many of the enhanced enforcement

powers—but not the rights protections—associated with criminal

law into the civil immigration system (Chac

on 2012; Eagly 2010).

As Legomsky explains, “immigration law has been absorbing the

theories, methods, perceptions, and priorities associated with crimi-

nal enforcement while explicitly rejecting the procedural ingre-

dients of criminal adjudication” (2007: 472). For example, in the

federal system, non-citizen defendants are often held for extended

periods of time on civil charges, only to be criminally charged

weeks after their arrest; by holding these defendants on civil

charges, authorities circumnavigate the right to criminal bond

(Eagly 2010: 1306). Conversely, a majority of federal immigration

criminal defendants are arrested by (civil) DHS enforcement offi-

cers, who typically interview arrestees without providing Miranda

warnings before transferring arrestees to federal criminal author-

ities. In this context, then, the blurring of civil and criminal proc-

esses effectively denies federal non-citizen defendants the rights

that are at least theoretically protected in the criminal system

(Eagly 2010: 1309).

In short, recent studies of the development and application of

legally hybrid control mechanisms provide reason to suspect that

the tethering of federal immigration enforcement practices to

local justice institutions is likely to enhance the state’s capacity to

detain and punish. Evidence that this is the case would have a

number of important implications. Before describing these, we

first provide some background regarding the programs that truss

the federal immigration enforcement apparatus to local justice

systems across the country.

Debating Secure Communities

Programs such as CAP and Secure Communities involve

Immigration Customs and Enforcement (ICE) detainers: adminis-

trative requests from federal immigration authorities that jail

administrators hold non-citizens whose release from jail has been

ordered by a criminal court judge for up to 48 additional hours

(plus weekends and holidays) so that immigration authorities may

transfer non-citizen detainees to federal immigration custody.

2

Detainers, then, are both a proxy for non-citizen status and,

2

In the CAP program, ICE agents use jail registries and interviews with jail inmates to

identify non-citizens. Secure Communities uses biometric data to accomplish this task. As of

2012, Secure Communities had replaced CAP in all jurisdictions.

Beckett and Evans 243