The Politics of Punishment and Protection: A Comparative Historical Analysis of American Immigration Control, 1990–2017

• Date: 01 April 2020
• DOI: http://doi.org/10.1111/lapo.12146
• Published date: 01 April 2020
• Author: Jize Jiang

The Politics of Punishment and Protection: A

Comparative Historical Analysis of American

Immigration Control, 1990–2017

JIZE JIANG

This article examines the construction of immigration control in two US states with contrasting

approaches to immigration: the rise of crimmigration and governing through crime in Arizona,

and the development of immigrant protection and governing through support in Illinois. Analysis

of state-levelimmigration control practices reveals that three interrelated processes play a critical

role in formulating these divergent approaches to managing immigrants: the state’s cultural ori-

entation, structural relations, and institutional dynamics. These factors interact with each other

in complex, multidirectional ways that condition and shape the respective states’ political choices

and administrative decisions. I highlight the significance of coalitions of local organizations who

work in collaboration with state actors and mobilize state institutionsin order to shape state legal

regimes of immigration control. In illuminating the variegated trajectories of the construction of

immigration control fields, and their use (or nonuse) of penal power as a response, this article

provides a more nuanced understanding of the hybrid, dynamic, and contingent nature of immi-

gration controlin contemporary America.

I. INTRODUCTION

The recent wave of immigrants (mostly from Latin American and Asia) into the United

States has elicited a new round of political debates on immigration governance. Conten-

tion over the immigration issue and its policy solutions has recently escalated and achieved

national prominence. Changes in laws and policies have been enacted in response to the

recent wave of immigration to the United States, and American immigration governance

has been remarkably reconfigured as a result of long-term political contestations and insti-

tutional changes since the 1990s. One of the most significant changes to the American

immigration control regime was the devolution of select immigration powers from the fed-

eral government to state and local governments (Varsanyi 2008). As a result, state and

I would like to express enormous thanks to my dissertation committee members—Edna Erez (chair), Peter

Ibarra, Lisa Frohmann, Paul Schewe, and Jonathan Maskaly—who provided helpful comments and advice to

complete the current article. I am especially grateful to N. A. Weihe and the anonymous referees for their care-

ful reading and feedback. Finally, I am indebted to immigrant rights activists in Illinois and Arizona, museum

administrators in Chicago, and immigrant community leaders in Illinois who shared their experience, time, and

resources. This research was also partially supported by a grant for young scholars from the School of Law of

Shanghai University of Finance and Economics.

Address correspondence to: Jize Jiang, Shanghai University of Finance and Economics, School of Law, 777

Guoding Road, Yangpu District, Shanghai, China, 200433. Telephone: (+86) 15096182206; Email: jiang.

jize@mail.shufe.edu.cn.

LAW & POLICY, Vol. 42, No. 2, April 2020

©2020 The Author.

Law & Policy ©2020 University of Denver and Wiley Periodicals LLC.

doi: 10.1111/lapo.12146

ISSN 0265-8240

local governments have increasingly taken ownership of the immigration “problem”—a

realm of authority that has traditionally been the prerogative of the federal government.

In response to the federal government’s deadlock on comprehensive immigration reform

during the mid-2000s, a proliferation of state and local governments proactively engaged

in immigration policy making that enabled “a multilayered jurisdictional patchwork” of

immigration control (Newton and Adams 2009; Furuseth and Smith 2010; Provine et al.

2016). Policy shifts, legislative enactments, and new control technologies have burgeoned

in the field of immigration governance, consequently introducing a new legal order in the

United States with respect to immigration. However, state and local governments are

divided in the ways they respond to undocumented immigrants and immigration.

On the one hand, some jurisdictions (e.g., Washington State and Illinois) have deliv-

ered protective and integrative services to immigrants, including allowing undocumented

immigrants to get driver’s licenses, obtain work permits, and enjoy tuition benefits at

public colleges and universities (including financial aid), as well as providing undocu-

mented immigrants protections from deportation (Marrow 2012). This set of immigra-

tion control policies and programs have facilitated what I call a pro-immigration legal

regime that emphasizes the protection of undocumented immigrants from aggressive

federal immigration enforcement and the integration of immigrants into local

communities.

Conversely, in recent years, many jurisdictions across the United States have

embarked on an increasingly punitive and exclusive approach to governing immigration

(Bacon 2008; Aas and Bosworth 2013). This includes a heightened level of border patrol

and monitoring, an increased involvement of the criminal justice system in immigration

enforcement, the fast proliferation of detention and deportation for undocumented

immigrants and other immigrant offenders, and recent federal executive orders limiting

refugee resettlement and barring travel from certain Muslim-majority countries (Men-

jı

´var, Go

´mez Cervantes, and Alvord 2018). As a result, these tactics have led to an

increase in the number of immigrant offenders in federal criminal courts, with immigra-

tion offenses accounting for 56 percent of the increase in federal prison admissions

(Mallik-Kane, Parthasarathy, and Adams 2012). Further, the tendency to criminalize

immigration has spawned a crimmigration complex, which enmeshes immigration

enforcement and criminal justice systems (Stumpf 2006). Its establishment and operation

represent a deployment of state penal power

1

on immigrant governance and an infusion

of crime control logics into the immigration policy domain.

The shifting landscape of contemporary immigration governance raises explanatory

questions, especially regarding the diverse (often contrasting) forms, processes, and ori-

entations of immigration control that state and local jurisdictions have adopted and

practiced. How did the current structure of immigrant governance in the United States

come into being? Why did state and local jurisdictions diverge in their approaches to

immigration control? How do we understand the dramatic, expansive mobilization and

exercise of penal power in contemporary American immigration control?

To answer these questions, this study examines the social, political, and institutional

mechanisms and processes driving divergent approaches to immigration control in dif-

ferent American states, focusing on immigration policy development and field-level con-

struction in context. Specifically, I engaged in a comparative historical analysis of

American immigration control in select jurisdictions from the 1990s through the present,

seeking to explain why responses and policy solutions to the “problem” of immigration

vary across states. Building on theoretical insights from the social constructionist per-

spective on social problems, as well as the concept of the penal field, I traced the con-

struction processes through which state jurisdictions developed their approaches to

©2020 The Author.

Law & Policy ©2020 University of Denver and Wiley Periodicals LLC.

126 LAW & POLICY April 2020

immigration control, focusing on why some have (or have not) harnessed penal power in

response to undocumented immigrants and “governed immigration through crime”

(Dowling and Inda 2013, 2).

Drawing on qualitative historical data and secondary sources regarding two select

states’ immigration policy developments, my analysis demonstrates that broad socioeco-

nomic changes associated with immigration and subsequent political dynamics shape

how states understand and respond to the immigration “problem.” To understand the

different trajectories and outcomes of immigration control in various states, I developed

an explanatory framework that emphasizes sociopolitical processes and institutional

logics, building on historical institutionalism and field theory. Specifically, I contend that

three interrelated processes explain the rise of crimmigration in Arizona and the con-

struction of a pro-immigrant regime in Illinois: cultural orientations, structural relations,

and institutional dynamics. These processes interact with each other in complex, mul-

tidirectional ways, thus rendering the field of immigration control hybrid, dynamic, and

contingent. Accordingly, this empirical study emphasizes how the sociopolitical ecology

of states conditions and mediates national pressures and opportunities as they make

immigration policy and choose whether or not to criminalize undocumented immigrants.

This article proceeds as follows. It begins by pointing out several limitations in the

extant literature on American immigrant governance that the present study seeks to

address. Following a section on the methodology that will be employed in the study,

findings drawn from two critical case studies are presented. The article concludes with

an analysis, using the explanatory framework that this study develops, of the two states’

disparate approaches to immigration governance. Theory and implications for future

research on immigration governance and punishment in particular, and on social change

and social control in general, are also discussed.

II. LIMITS OF EXTANT RESEARCH ON CRIMMIGRATION

First, a great deal of literature has documented contemporary crimmigration’s “unantic-

ipated and multilayered” adverse consequences on immigrants, their families, communi-

ties, and law enforcement (Kubrin, Zatz, and Martinez 2012); however, crimmigration’s

causal story has garnered relatively less attention. The whole picture of its rise and

expansion remains elusive. Specifically, despite the recognition of crimmigration’s

“patchwork structure” (Varsanyi et al. 2012) and “variegated landscape” (Walker and

Leitner 2011), the literature has not adequately examined (with respect to why and how)

the diverse approaches to addressing immigration over the last two decades. Punitive

and exclusive measures against immigrants are historically documented (e.g., Congress’s

enactment of the 1882 Chinese Exclusion Act; see Calavita 2006), but the contemporary

governance structure of immigration, particularly the construction of the crimmigration

apparatus across the country, is unprecedented. I argue that the growth of the

crimmigration machinery is not the product of a single plan, decision, or set of delibera-

tions; instead, multiple dynamic processes, dispersed across different points in time and

place, gave rise to a differentiated conglomeration of policies, institutions, and practices

addressing the immigration issue (Campbell 2018). Hence, accounts of immigration pol-

icy outcomes that are derived from a single timepoint or jurisdiction may not capture

the multilevel, dynamic characteristics of the crimmigration system.

Second, current explanatory accounts tend to focus closely, but separately, on cul-

tural, demographic, economic, and political theses, or what I call “macrosocial ana-

lyses,” such as globalization and neoliberalism, xenophobia and anti-immigrant

©2020 The Author.

Law & Policy ©2020 University of Denver and Wiley Periodicals LLC.

Jiang COMPARATIVE POLITICS OF IMMIGRATION CONTROL IN US 127