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Please use the two readings attached.

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Step 1. Please provide one example from each reading as to how immigrant illegality is constructed.

Step 2. We’ve talked all semester long about how deeply embedded race is to structuring different forms of policing. How do you see illegality connected to racialization? In other words, how do people gain both racial and illegal meaning through policing? Please limit your response to no more than 500 words as this post is designed to get you to summarize and analyze concepts in a short and clear fashion. Focus on trying to make sense of the concepts based on the examples the authors provide rather than giving a lengthy summary.

Sociology of Race and Ethnicity 1 –14 © American Sociological Association 2016 DOI: 10.1177/2332649216648714 sre.sagepub.com

Original Research Article

A defining feature of contemporary immigration enforcement around the world is its complexity, encompassing multiple levels of government, public and private institutions, and individual actors in any given country. Immigration enforcement is no longer limited to apprehending prospective migrants along physical borders; instead, new technologies and penal interventions manage noncitizens within national ter- ritories (Aas and Bosworth 2013). The most salient new development in immigration enforcement has been the emergence of the so-called crimmigration system, in which the immigration enforcement sys- tem is integrated with the day-to-day operations of the criminal justice system (Stumpf 2006). In the

contemporary United States, policies that prioritize deporting “criminal aliens” justify an immigration enforcement system that extends into jails and across local law enforcement agencies.

Latinos overwhelmingly bear the burden of these immigration control efforts.1 Nearly 80 percent of unauthorized immigrants in the United States are

648714 SREXXX10.1177/2332649216648714Sociology of Race and EthnicityArmenta research-article2016

1University of Pennsylvania, Philadelphia, PA, USA

Corresponding Author: Amada Armenta, University of Pennsylvania, 113 McNeil Building, 3718 Locust Walk, Philadelphia, PA 19104, USA. Email: [email protected]

Racializing Crimmigration: Structural Racism, Colorblindness, and the Institutional Production of Immigrant Criminality

Amada Armenta1

Abstract Deporting “criminal aliens” has become the highest priority in American immigration enforcement. Today, most deportations are achieved through the “crimmigration” system, a term that describes the convergence of the criminal justice and immigration enforcement systems. Emerging research argues that U.S. immigration enforcement is a “racial project” that subordinates and racializes Latino residents in the United States. This article examines the role of local law enforcement agencies in the racialization process by focusing on the techniques and logics that drive law enforcement practices across two agencies, I argue that local law enforcement agents racialize Latinos by punishing illegality through their daily, and sometimes mundane, practices. Investigatory traffic stops put Latinos at disproportionate risk of arrest and citation, and processing at the local jail subjects unauthorized immigrants to deportation. Although a variety of local actors sustain the deportation system, most do not see themselves as active participants in immigrant removal and they explain their behavior through a colorblind ideology. This colorblind ideology obscures and naturalizes how organizational practices and laws converge to systematically criminalize and punish Latinos in the United States.

Keywords crimmigration, immigration enforcement, racism, Latinos, police, criminal justice

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2 Sociology of Race and Ethnicity

Mexican or Central American, and the majority of Mexican and Central American immigrants residing in the United States are undocumented (Massey and Pren 2012). Recognizing that immigration enforce- ment has become increasingly punitive, emerging research argues that restrictive immigration policies are the primary mechanism through which Latinos are excluded and racialized in the United States (Aranda and Vaquera 2015; Golash-Boza and Hondagneu-Sotelo 2013; Massey and Pren 2012; Massey 2014a, 2014b; Provine and Doty 2011; Romero 2006).2 Much of this research emphasizes the central role of U.S. immigration policy in mak- ing Latinos “illegal,” criminalizing “illegality,” and marking Latinos as a racialized group near the bot- tom of the American stratification system (De Genova 2004; Massey and Pren 2012; Massey 2014a, 2014b; Provine and Doty 2011).

This article extends the literature on the racializa- tion of Latinos by examining the role of local law enforcement agencies in the production and punish- ment of “illegality.” My goal is to move beyond a description of broad general trends in immigration law to consider the on-the-ground processes that criminalize Latinos and channel them into the immi- gration enforcement system. I examine immigration control “from the bottom up,” arguing that the power of the state emerges through the daily practices of institutional actors that form part of the crimmigration system (Gravelle, Ellermann, and Dauvergne 2012).

I draw on two years of qualitative fieldwork in Nashville, Tennessee, to argue that local law enforcement agents racialize Latinos and punish illegality through their daily practices. I focus on the techniques and logics that drive law enforce- ment practices across two agencies and show that, acting according to the priorities of their respective institutions, street-level officers punish Latinos and reinforce their construction as “criminal aliens.” This meso-level institutional approach makes clear that Latinos’ vulnerability to deportation does not stem from federal immigration policy alone; rather, a system of state laws and local law enforcement practices converge to reinforce Latinos’ subordinate status in the racial hierarchy.

RAcISM, IMMIgRATION ENfORcEMENT, AND ThE cRIMINAL JUSTIcE SySTEM According to Goldberg (2002), all modern nation- states are “racial states” that use immigration controls, laws, bureaucracy, and government technologies to

promote racial hierarchies around citizenship and belonging. However, despite the racist origins of U.S. immigration policy and the overrepresentation of Latinos in deportation statistics, much research on immigration enforcement fails to incorporate theoret- ical perspectives on race and racialization (Garner 2015; Sáenz and Douglas 2015; Sanchez and Romero 2010; Treitler 2015). In quantitative research, for example, it is not uncommon for scholars to argue that race effects are actually citizenship effects, driven by punitiveness toward noncitizens (Light 2014; Light, Massoglia, and King 2014). This is also largely true of European scholarship, which tends to tie immigration enforcement and exclusion to a lack of formal citizenship rather than racism (Aas and Bosworth 2013). In these formulations, the burdens of immigration enforcement are linked to immigrants’ legal status, with only implicit acknowledgement that “access to citizenship, enjoying full rights, and being considered an unproblematic part of the imagined nation” are highly racialized (Garner 2015:201).

This article answers recent calls by scholars to racialize studies of immigration and immigration enforcement by prioritizing race and racism as core concerns (Douglas, Sáenz, and Murga 2015; Garner 2015; Sáenz and Douglas 2015). To do this, I situate my study in the theoretical formulations of a variety of critical race scholars who emphasize structural and systemic theories of racism (Bonilla- Silva 1997, 2015; Feagin 2013; Goldberg 2002; Omi and Winant 2014). This work rejects lay con- ceptions of racism as a problem rooted only in indi- vidual racial prejudice, instead arguing that racism is embedded in the political, economic, social, and legal structures of society (Bonilla-Silva 1997; Omi and Winant 2014). Racial inequalities are institutionalized and systemic, a result of laws and organizational practices that often appear to be race-neutral (Bonilla-Silva 1997, 2015; Feagin 2014; Goldberg 2002). Ultimately, these laws, poli- cies, and institutional practices generate and reify ideas about racial difference, contributing to pro- cesses of racialization (Bonilla-Silva 1997, 2015; Feagin 2013; Omi and Winant 2014).

A key feature of this “new” racism is that it often appears to be nonracial and is passively sustained by individuals who may lack conscious discrimina- tory intent (Bonilla-Silva 2010). Thus, individuals deploy colorblind arguments to produce, maintain, and rationalize racial inequality (Bonilla-Silva 2010). According to Bonilla-Silva (2010), people use four frames of colorblind ideology to explain racial inequality: abstract liberalism, naturalization, cultural racism, and minimization. In this paper, I

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Armenta 3

focus on the colorblind frame of naturalization, in which people explain racial inequality as the “natu- ral” result of the way things are.

My study is not the first to link immigration enforcement to structural and systemic racism. For example, both Provine and Doty (2011) and Aranda and Vaquera (2015) describe immigration enforce- ment as a “racial project,” a set of state practices and structures that create ideas about racial differ- ence, thereby sustaining racialized practices (see Omi and Winant 2014). Golash-Boza and Hondagneu-Sotelo (2013) call the modern immi- gration enforcement regime a gendered racial removal program, arguing that changes in federal immigration law and administrative enforcement priorities target working-class Latino men. Massey and Pren (2012) link the immigration enforcement regime to the creation of a new Latino underclass.

Although each of these studies identifies local law enforcement agencies as important actors in the immigration enforcement system, their analyses do not center around understanding law enforcement practices. For that reason, the mechanisms through which local agencies encounter and punish Latinos is not clear. For example, Aranda and Vaquera (2015) rely on reports from immigrant young adults who describe how family members’ contact with the police resulted in their family members’ depor- tations to argue that the police racially profile Latinos. Although this assertion suggests that immi- gration enforcement is sustained through deliber- ately racist officers who choose to stop and arrest Latinos to trigger their deportation, I argue instead that these practices are a result of institutionalized policies (see Epp, Maynard-Moody, and Haider- Markel 2014). This perspective is critical, because uncovering the “behaviors, styles, cultural affecta- tions, traditions, and organizational procedures” that reproduce racial domination is key to under- standing racism (Bonilla-Silva 2015:75).

METhODS This study goes “inside the state” by documenting how local law enforcement agencies contribute to the practice of immigration enforcement. Anthropologist Laura Nader (1972) argued that ethnographers should “study up” to understand how bureaucracies and organizations function. One method of studying up is institutional ethnography, which provides insight into the processes and rationales by which institutional actors exercise power (Smith 1987). I draw from these approaches to examine the Metropolitan Nashville Police Department (MNPD)

and the Davidson County Sheriff’s Office (DCSO), because both institutions play crucial roles in Nashville’s crimmigration system. Nashville is an appropriate site for this study given the dramatic growth of its Latino immigrant population and its early adoption of the 287(g) program, a federal initia- tive to devolve immigration enforcement authority to nonfederal police. Although Davidson County’s 287(g) program has since been replaced by new fed- eral initiatives, federal immigration enforcement strategies continue to prioritize local jails as sites of immigration control.

Between January 2009 and September 2010, I lived in Nashville to conduct fieldwork. I con- ducted ethnographic observations at Latino com- munity events sponsored by or attended by law enforcement. This included events hosted by the Mexican consulate, community health fairs, com- munity policing fairs, cultural festivals, and com- munity policing meetings. I also conducted more than 120 hours of police ride-alongs with officers in Nashville’s South Precinct, where the majority of Latino residents in Nashville have settled. Ride- alongs began in the precinct roll call room, where a lieutenant (whoever was on duty) would assign me to a police officer and instruct officers about how to direct their enforcement priorities. Ride-alongs ended when officers returned their cars at the end of the shift. I rode with one officer at a time but interacted with numerous officers during each shift through participation in roll call, answering calls for service, and taking meal breaks. I used these opportunities to conduct field interviews with offi- cers about their experiences. After each ride-along, which spanned between 6 and 11 hours, I recorded my observations as field notes.

It would be naïve to suggest that I ever achieved insider status or that my presence did not affect offi- cer behavior. The overwhelming majority of patrol officers in the South Precinct are white men in their twenties, and I am a Mexican-American woman, also in my twenties at the time that this research was conducted. Rather than consider officer reactivity an obstacle, however, I draw from Herbert (2010), who argues that officers’ responses to fieldworkers should be treated as data. Most patrol officers assumed I was studying to work in the 911 call cen- ter. Twice I was confused for a Hispanic detective who works in another precinct. Occasionally offi- cers thought I was married to one of the three Latino officers who worked in the South Precinct. I told officers that I was a graduate student interested in understanding how they did their jobs in a diverse area like the South Precinct. This garnered

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4 Sociology of Race and Ethnicity

sympathy, and some officers volunteered to answer questions and promised to “get into things” so that I would have more to write about. When officers realized I spoke Spanish, they responded enthusias- tically about the possibility of using me to translate. Although a few officers were guarded in my pres- ence, others felt comfortable enough to voice their political beliefs, insult their superiors, use deroga- tory and scatological humor, and insult civilians who called them for help. Thus, while I cannot iden- tify exactly how my presence might have affected officers’ behaviors, like Monahan and Fisher (2010) I believe that informants’ performances, however affected, offer crucial insights into how they see themselves and how they want to be seen. Therefore, I consider these observations alongside other data to make sense of urban policing in Nashville.

This paper also draws from 21 in-depth inter- views with law enforcement personnel, including those with police administrators (n = 6) and employ- ees of the DCSO (n = 15). Interviews with police administrators addressed the department’s policing strategies, bureaucratic priorities, and policies and practices with respect to driver’s license violations. Interviews with sheriff’s deputies addressed 287(g) processing and asked deputies to reflect on their experiences participating in the program. All inter- views, which ranged in length between 45 minutes and 2½ hours, were audio-recorded and subsequently transcribed. In what follows, quotation marks indi- cate when subjects’ words are quoted verbatim; oth- erwise, data are paraphrased. All names in this paper are pseudonyms.

My ethnographic field notes and interview tran- scripts yielded hundreds of pages of data, which I manually coded for analytic themes. Drawing from techniques in the grounded theory tradition, I con- ducted open coding, grouped data according to ana- lytic themes, and wrote and rewrote memos to sort and clarify the conceptual categories I identified (Glaser and Strauss 1999). Recurrent themes in the policing data included proactive policing, investiga- tive vehicle stops, “good stats,” driver’s licenses and identification documents, misdemeanor state citations, and an insistence that police do not par- ticipate in immigration enforcement. Themes in the sheriff’s data included the 287(g) program, the police, the classification of risk, and deputies’ views of themselves as objective and compassionate implementers of immigration law.

I supplemented qualitative data with public records such as state and county documents detailing policy changes, as well as newspaper articles about policing, the 287(g) program, and unauthorized

immigration in Nashville. These additional data sources allowed me to triangulate data from my eth- nographic observations and interviews and provided additional local context.

fORMAL LAW AND POLIcy: ORgANIzINg IMMIgRANT ILLEgALITIES IN NAShvILLE In the late 1990s, Latino immigration to the southern United States exploded, as immigrants arrived to cit- ies and towns across the region (Marrow 2011; Massey 2008; Winders 2013; Zúñiga and Hernández- Leon 2005). At first, this migration was largely domestic, consisting of Mexican men already resid- ing in the United States who were pulled to the South by promises of employment in growing con- struction, manufacturing, and service industries (Johnson-Webb 2003; Smith and Winders 2008; Zúñiga and Hernández-Leon 2005). These domestic arrivals were quickly joined by an international flow consisting of men, women, and children from Mexico and, later, Central America (Winders 2006).

Between 1990 and 2000, Nashville’s Latino popu- lation grew by 446 percent, with Mexicans compris- ing the majority of the growth (U.S. Census Bureau 2011). In 2000, about 27,000 (5 percent) of Nashville’s 570,000 residents were Latino (U.S. Census Bureau 2001). White residents comprised 67 percent of the population, and black residents made up about 26 per- cent of the population (U.S. Census Bureau 2001). By 2010, the city had grown to 601,000 residents, of whom 10 percent were Latino, 62 percent were white, and 28 percent were black (U.S. Census Bureau 2011). Mexicans and Central Americans comprise almost 80 percent of the city’s Latino population, while Puerto Ricans and Cubans comprise 5 percent and 3 percent, respectively. More specifically, 60 per- cent of Nashville’s Latino population is Mexican and 18 percent is Central American (among Central Americans, 28 percent are Guatemalan, 27 percent are Honduran, and 37 percent are Salvadoran) (U.S. Census Bureau 2011). Thus, in Nashville, the term Hispanic or Latino conjures images of Mexican and Central American immigrants. As in the rest of the United States, local preoccupation with immigration focuses predominantly on these groups.

As numerous scholars have pointed out, a patchwork of federal, state, and county laws com- bine to produce locally contingent forms of immi- grant enforcement (Coleman 2012; Varsanyi et al. 2012). Rather than review the many changes in federal immigration law and administration that

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created the current system of mass deportation, I focus instead on the state laws and institutional policies that produce everyday illegalities in Nashville.3 By “everyday illegalities,” I refer spe- cifically to the routine ways that laws and institu- tional policies make it impossible for unauthorized immigrants to act within the law. In the paragraphs that follow, I review the formal changes to law and policy that comprise the crimmigration system in Nashville. Although none of these laws and poli- cies explicitly mention race, they are an example of a racist crimmigration system because they work together to criminalize unauthorized Latino immi- grants and produce their deportation.

State Driver’s License Laws When Latino immigrants began arriving in Tennessee in the 1990s, all state residents were eligible for state driver’s licenses and identification cards (IDs). This changed between 1997 and 2001, when eligibility for driver’s licenses and IDs became contingent on pro- viding one’s social security number.4 As a result, many noncitizens (including unauthorized immi- grants, foreign students, and nonimmigrant aliens) became ineligible for state identity documents and driving privileges. In 2001, lawmakers loosened eli- gibility standards by specifying that only applicants who had social security numbers were required to supply them. In the first two months of expanded eli- gibility, the Tennessee Department of Safety issued nearly 30,000 licenses to noncitizens, the vast major- ity of whom were unauthorized Latino residents (Pulle 2004). In 2004, the Tennessee state legislature passed Public Chapter 778, which required driver’s license and ID applicants to verify their legal pres- ence. Unauthorized immigrants who had obtained driver’s licenses between 2001 and 2004 could keep them until the documents expired (five years), but they would not be able to renew them. Without driv- er’s licenses, unauthorized immigrants lost their driv- ing privileges as well as legally sanctioned proof of their identities.

Police Department Policy The Metropolitan Nashville Police Department is the primary law enforcement agency in Nashville, with jurisdiction throughout the county’s 567 square miles. As state legislators battled over driver’s license eligibility in the mid-2000s, changes were also underfoot in the MNPD. In 2004, the newly installed MNPD police chief changed the department’s policing priorities by implementing an

order-maintenance policing strategy. This approach to policing, which originated in New York City, stems from the theory that cracking down on minor forms of disorder deters more serious crimes (Wilson and Kelling 1982). This logic propelled the New York City Police Department to increase its contact with civilians through the pervasive use of “stop- and-frisk” tactics, in which officers stop, question, and search pedestrians to check them for warrants, weapons, and drug possession (Gelman, Fagan, and Kiss 2007). In sprawling, car-based areas like Nashville, however, police-citizen contact occurs through the deployment of investigative vehicle stops, where police identify minor violations in order to stop cars on the chance that a motorist may be doing something wrong (Epp et al. 2014).

As a result of these new bureaucratic priorities, the number of traffic stops in Nashville dramati- cally increased beginning in 2004, rising steadily through the mid-2000s. Table 1 illustrates the num- ber of MNPD traffic stops between 2003 and 2009.

The data show that traffic stops doubled between 2003 and 2005, from 126,083 stops in 2003 to 269,813 in 2005. To put this rapid escalation in per- spective, in 2007, police averaged about 5,000 traffic stops a week, more than twice the average number of stops in similar-size cities (Howard 2008). As I show in the next section, Latinos are particularly vulnera- ble to traffic enforcement. In 2007, about 8 percent of all traffic stops resulted in arrests; however, stops made on Latino drivers led to arrests 29 percent of the time (Howard 2008).

Adopting the 287(g) Program in the County Jail Unlike the MNPD, the DCSO does not patrol, answer calls, conduct traffic stops, or make arrests. The agency’s primary responsibility is the security and administration of the county jail. In 2007, after a notorious drunk driving case involving an unau- thorized Latino immigrant assailant, the sheriff announced that the DCSO would seek authoriza- tion to participate in an immigration enforcement program called 287(g). The program allows jail employees to screen immigrant arrestees for immi- gration violations and process them for deporta- tion. Between 2007 and 2011, the DCSO identified 8,400 immigrants for removal. Almost 80 percent of those identified for removal were arrested for misdemeanors, and 60 percent were arrested for traffic violations (Capps et al. 2011). Although the Sheriff’s Office emphasized that deportable immi- grants hailed from 61 different countries of origin,

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6 Sociology of Race and Ethnicity

more than 98 percent were from Mexico and Central American countries (DCSO 2009). More specifically, 71 percent were Mexican, 11.6 percent were Guatemalan, 10 percent were Honduran, and 5 percent were Salvadoran (DCSO 2009).

IMMIgRATION cONTROL fROM ThE BOTTOM In the previous section, I highlighted the local laws and policies that are crucial for understanding how Latino immigrants are identified for deportation in Nashville. In this section, I move from a description of the law “on the books” to consider the law “in action” (Pound 1910). I focus specifically on how local law enforcement agents—both on the street and in the jail—participate in the local crimmigra- tion system. On the street, Latinos risk getting stopped by local police who have been instructed to aggressively enforce minor violations. Once in jail, Latinos are “criminal aliens” who are punished par- ticularly harshly. In both examples, local law enforcement agents contribute to immigrants’ pre- carious status, enhancing the state’s power to detain and punish Latinos. The actors who engage in these racializing practices, however, insist that they are colorblind. They describe their behavior as the natu- ral result of laws and policies that they must implement.

Criminalizing Latinos on the Street: The Metropolitan Nashville Police Department To understand what motivates police activity in Nashville, one must understand the pressures that patrol officers experience. Officers must do more than answer calls, take reports, clear accidents, tes- tify in court, and fill out paperwork. They must also

be “proactive,” a buzzword synonymous with a vari- ety of order-maintenance policing tactics through which they are expected to produce contact with civilians. This is what Lieutenant Lewis reminds officers as he strides into the precinct roll call room, speaking from the podium. In a stern voice, the lieu- tenant announces that the group needs to “get their stats up” because their vehicle stop numbers are down. “Stats matter,” he tells them. These kinds of admonitions are constant. According to Officer Williams, a white patrol officer in his early twenties, “To the lieutenants there’s no such thing as too many stops. The stats make them look good because they can say, ‘Look at all the work my guys are doing.’”

Under pressure to meet the department’s expec- tations, officers are always on the lookout to make vehicle stops. Some violations, such as speeding or erratically changing lanes, clearly represent safety issues. For example, when Officer Jones, a white officer in his early twenties, pulled over a sedan after the car swerved unexpectedly into an adjacent lane, he did so because he thought the driver might be impaired, not because he was looking to make a stop. In contrast, when Officer Phillips pulled over a car for cutting through a parking lot to make a right turn, we had been idling nearby, waiting to stop the first motorist who did something wrong. These stops are investigative, and officers make them because the tactic is supposed to help the offi- cers identify guns, weapons, and “criminals.”

In practice, however, officers report that the most common violations they encounter are driv- er’s license violations. For example, after pulling over a car for cutting through a parking lot instead of waiting at the intersection to make a right turn, Officer Phillips, a white officer in his early twen- ties, asked the driver for his license. The driver, a young Latino in his early twenties, handed Phillips a Mexican driver’s license. “Passport?” Phillips asked. The man shook his head, saying in accented

Table 1. Metropolitan Nashville Police Department (MNPD) Traffic Stops per year.

year Traffic Stops

2003 126,083 2004 218,029 2005 269,813 2006 273,560 2007 260,989 2008 298,989 2009 283,581

Note: Data provided by the MNPD.

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Armenta 7

English that he did not have one. Phillips asked the driver how long he had lived in Nashville (two years) and returned to the squad car. In the car, Phillips inspected the Mexican driver’s license, twirling it between his fingers and holding it up in the sunlight. “It’s real, isn’t it? It has holograms,” said Phillips, handing me the card. He wondered if he should give the young man a warning, but tech- nically, his Mexican driver’s license was not suffi- cient. Foreign driver’s licenses are supposed to be accompanied by a valid passport, which the driver could not produce. Moreover, since the motorist was a state resident and not a tourist, he needed a license from Tennessee. Phillips pulled out a thick pad of unissued state citations and began to fill one out for the young man. As we drove away, Phillips wondered again whether he should have issued a warning. He shrugged off the idea quickly. The citation was good for his stats.

After three hours of answering calls, Officer Williams, a white officer in his mid-twenties, lamented the fact that he had not made any stops. Noticing that the navy truck in front of us had an inoperable left brake light, Williams decided this was a perfect opportunity for a quick stop. “License, registration, proof of insurance,” said Williams, after approaching the driver. “Good afternoon, sir,” responded the driver, as he leafed through his wallet. The man, who had dark brown hair, dark brown eyes, and an olive complexion, handed Officer Williams the car’s registration and an ID card, issued in Indiana. His ID card indicated his last name was Sanchez. He spoke English with the ease of a native speaker, although I detected an almost imperceptible accent that suggested to me he had learned Spanish before he learned English. He did not have a license or insurance, and he explained he had just moved to Nashville and bought the truck. “Ok, but you need to be insured since day one,” Officer Williams told him. “Yes, sir,” responded Mr. Sanchez, explaining that he could not get insurance without a driver’s license, but that he could not get a driver’s license until his wife mailed him his birth certificate.

Officer Williams told him to “sit tight” and we returned to the patrol car, where Williams quickly began filling out a misdemeanor state citation. He left two items on the citation blank, returning to the truck to ask Mr. Sanchez his address and his place of birth. “In what country were you born?” Williams asked, absentmindedly starting to write down the answer before Mr. Sanchez responded. I watched as he scrawled: M-E-X. I had noticed immediately that Officer Williams asked Mr. Sanchez in what country he was born, rather than

where he was born. In fact, Officer Williams was so convinced he knew the answer (Mexico) that he began to write it down automatically.

“I was born in Orange County, sir,” said Mr. Sanchez, having understood the question as a request for his county of birth, rather than his country of birth. Williams quickly scratched out what he had written and asked for the name of the city. “Santa Ana, California,” said Mr. Sanchez. Officer Williams wrote this down and handed Mr. Sanchez the state citation, saying, “Make sure you go to court. If you get your license and insurance before the court date, it’ll probably get dismissed.” “Oh yes, sir,” responded Mr. Sanchez, “I don’t want no problems. I just want to work and provide for my family.”

Officially, police officers do not consider race or immigration when they do their jobs. In practice, however, it is impossible for officers not to see that the majority of unlicensed drivers they encounter have brown bodies and Latino surnames and speak Spanish. As this example demonstrates, Officer Williams assumed that Mr. Sanchez was foreign- born because he did not have a driver’s license. Indeed, any diversity within the Latino population is largely invisible to police officers, who come to associate not having a license with being Latino and foreign-born (Donato and Rodriguez 2014).

As Latino motorists await their fate, they sit idly on the side of the road, on display for all passing motorists to see. These stops are a spectacle, a visual representation of Latinos’ social marginality in the city. At community meetings in South Nashville, attendees mentioned the overzealous enforcement of traffic laws as a problem in their neighborhoods. For example, one evening, at a meeting for Hispanic business owners, the precinct commander invited attendees to speak. A petite Asian woman raised her hand and stood:

The reason why I’m here is because I have a store, a Latino grocery store on Murfreesboro Road and everyday there’s police on the streets stopping cars. It’s too much. Too many police officers. Too many. It hurts our business. Everybody’s walking now because they’re afraid. Then, lots of times they (police) park in our parking lot and block the entrance. When the police are stopped outside, everyone freezes. And I think, what’s going on? No one’s going in or out. And it’s not just one. It’s more than one. It’s like a party.

Later, at the same meeting, a business owner named Ricardo announced that he was going to tell us about Adela’s run-in with the police, because she

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was too shy to speak about it herself. According to Ricardo, a police officer began following Adela’s car when she left work late one night and eventually pulled her over, claiming that she had not used her turn signal. “But how could that be? If the police were following her, how could she make that mis- take?” Ricardo asked incredulously. Adela, who was standing next to Ricardo gazing at the floor, nodded. Ricardo continued. Within minutes of pull- ing her over, multiple police cars arrived. Officers searched Adela’s car and her purse, commenting on the large sum of cash she had in her wallet. Ricardo seemed particularly disgusted by this intrusion, stat- ing that he had $400 in his pocket at this very moment and asking, rhetorically, whether that made him a criminal. Ricardo wanted answers: Why did the police officer tail Adela? Why would they ask to search her car, and why did so many officers appear on the scene of a simple traffic stop?

The commander responded, saying that he could not comment about the traffic stop without more spe- cific details but promising that the department would vigorously investigate allegations of wrongdoing. I knew from my time with patrol officers, however, that this would be considered a “good stop.” Having identified an alleged violation, the officer was free to pull Adela over and ask to search her car. The com- mander explained that he instructed officers to patrol crime-ridden areas. For example, just that weekend, one street had seen four personal robberies, and offi- cers would direct additional enforcement to that area. Ricardo shook his head. “I understand, but there’s a difference between what you’re saying, Commander, and what the officer was doing following this woman . . . make them understand that they’ve got to stop profiling.”

At this, Officer Moreno, a Dominican officer who jokingly referred to himself as “el negro,” defended the department’s tactics. He started by describing a number of minor violations that war- ranted traffic stops, explaining that any punishment Latinos received as a result of these stops was not the officer’s fault:

Tennessee state law says that when a person drives and their taillight is broken, that’s a traffic stop. If they don’t have their seatbelt on, it’s a traffic stop. If your headlights aren’t on and it’s raining and you’re running your (windshield) wipers, that’s a traffic stop. One day I stopped six Latinos, and I’m Latino! I’m not looking for these people; I’ll stop anyone! But that day they were all Latino. I asked the first guy I stopped, “Why did I stop you?” He said, “I don’t know, because I’m Latino?” And I said, “No! Look, you didn’t

have your seatbelt on.” Then I asked, “Where’s your driver’s license? Your ID? Your passport?” Nothing. [He holds up his hands in exasperation.] And that’s why we take people downtown! I don’t know who this person is! He could be whoever. He could have committed a crime in California and come over here. I don’t know who he is, so I have to take him downtown. I go to the consulate and I always tell people to have their ID, so that officers can know exactly who you are. Show your matrícula. Show your passport. Show whatever documents. Show this one and that one and that one, and that’s how an officer will know. They’ll just give you a fine, but you have to go and pay it. What happened to you? [He looked at Adela pointedly.] They gave you a fine and you left, right? Did immigration take you? No? Ok. What happened? You paid a fine! You paid a fine and immigration wasn’t there!

Officer’s Moreno account makes clear that while Latino residents interpret police behavior as racial profiling, police interpret their practices through col- orblind lenses. A Latino officer himself, Officer Moreno insists he is not “looking” to punish Latinos but that he stops them because they happen to com- mit violations. He goes on to explain that sometimes he “has to” arrest Latinos (take them downtown) because they do not have sufficient identification.

Officer Moreno also pointed out forcefully that immigration agents had not been part of Adela’s traf- fic stop. He suggested that the stop had amounted to no more than a minor inconvenience because Adela had not been arrested and had been able to pay a fine and leave. I always found it odd when police officers talked about state citations and paying fines posi- tively, as if the officers should be recognized for their compassion (see Armenta 2016). True, arrests are more punitive (particularly because arrests lead more directly to deportation), but a citation is no favor. A citation requires misdemeanants to miss a day of work, travel to the downtown county court- house, wait to be processed (in English), and pay steep fines. Citations can result in misdemeanor con- victions, which can have adverse effects on immi- grants’ ability to regularize their immigration status in the future and can make immigrants priorities for deportation because the conviction makes them “criminals.” If misdemeanants do not go to court, a judge will issue a warrant for their arrest. At that point, the fact that the first violation was a minor infraction becomes irrelevant; once the criminal jus- tice system has decreed that the misdemeanant belongs in criminal custody, the misdemeanant turns into someone who is “wanted.”

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The precarity that Latinos experience as a result of local policing is institutionally created. Institutional policies empower officers to aggressively address trivial infractions through traffic enforcement. Faced with this mandate, officers make large numbers of stops for minor technical infractions and regard unli- censed drivers with suspicion because establishing a person’s identity is integral to order-maintenance policing. In fact, the “inability to establish identity” is officers’ principal justification for choosing to arrest unlicensed motorists rather than cite them. Ultimately, however, officers’ inability to establish identity is also institutionally created. State laws dictate that unauthorized immigrants cannot get Tennessee driv- er’s licenses and IDs. Department policy dictates that satisfactory identification is required to avoid a phys- ical arrest. For Latino immigrants, the identification cards they cannot get are the only ones that will pro- tect them from arrest. Officers may choose to accept passports, consular identification cards, or foreign driver’s licenses as “satisfactory” identification, but department policy does not require them to do so. Unlicensed Latino drivers have no protection from punishment. Aggressive enforcement of driving offenses creates a pipeline to deportation (Stuesse and Coleman 2014). Still, because local police explain their behavior as “just” doing their jobs, the systemic racism embedded in these institutional poli- cies appears to be the natural result of colorblind policies.

Criminalizing Latinos in the Jail: The Davidson County Sheriff’s Office In the previous section, I highlighted how institu- tional policing practices contribute to immigrants’ precarity and criminalization. In this section, I examine a similar phenomenon in the Davidson County Jail. I show that the jail’s institutional poli- cies and practices produce disproportionately harsh punishment for Latino arrestees, and I argue that inserting immigration enforcement into criminal justice procedures enhances the state’s power to detain and punish Latinos. Between 2007 and 2012, the DCSO implemented an immigration enforce- ment program called 287(g). As part of the pro- gram, sheriff’s deputies, who are trained to enforce immigration laws, interview foreign-born arrestees to determine their immigration status (see Armenta 2012). The overwhelming majority of immigrants interviewed and identified for removal are Latino.

Thus, Latino immigrants enter the jail as Nashville residents whose presence is formally unau- thorized by law but tacitly accepted as necessary to

the low-wage workforce. Many exit, however, as immigrant detainees or “criminal aliens,” identified for removal even before they have been convicted of any criminal offense. Implementing immigration screenings upon arrest rather than conviction is a policy decision and political choice. It means that even those who are arrested without cause are subject to deportation. Thus, when a young Latino man pre- sented himself at the jail after an arrest warrant was erroneously served at his house, he was processed for removal through 287(g) even though the charges were dismissed.

Astoundingly, just like the police officers who believe they are doing immigrants a favor by citing them, some DCSO deputies allow themselves to believe that immigrants enjoy getting processed for removal. They imagine that the immigration inter- view, which lasts between 30 and 45 minutes and occurs in a small room, is a respite from the rest of the booking process. Chad, a deputy with 12 years in the Sheriff’s Office, explains:

Most of the time they’re in the office with me they’re laughing. . . . They’re already in an uncomfortable situation if they’re facing deportation and if they’ve got family here, so I try to break the ice. I try to make them feel comfortable and let them know what their options are. . . . And I think they feel more comfortable when they come to us than they are out there. When they come to us, I make it a habit to go a little further with them just because I understand what they’re facing. Out there it’s pretty much an assembly line, whereas with us they get one-on-one.

Indeed, most sheriff’s deputies emphasized that they strove to implement a deportation process that was “humane” or “compassionate.” They wanted to “change the face” of deportation processing. They insisted that they were not the bad guys, pointing out that they had no control over who police arrested and delivered to their custody.

In their analysis of criminal justice processing in Seattle, Beckett and Evans (2015) point out that the criminal justice system processes unauthorized immi- grants differently than other arrestees. This is also the case in Nashville, where the 287(g) program trans- formed criminal justice processing, with citizens and noncitizens experiencing differential access to justice. For example, arrestees on immigration detainers were categorically denied the opportunity to bond out or secure pretrial release. If they were given a local bond and decided to pay, it triggered an immediate transfer

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from local to federal custody, rather than release. As a result, bail bond agents refused to post bail for arrest- ees on immigration detainers. Ineligible for pretrial release, most Latino arrestees were incarcerated until their criminal court date.

In addition to not being able to bond out of local custody, inmates on immigration detainers were often denied access to alternative and diversionary sentencing programs. Since a release from jail trig- gered a transfer to federal custody, unauthorized immigrants could not comply with any sentence that did not involve physical custody. Immigrants could not comply with the terms of alternatives to incar- ceration, for instance, probation. A DCSO employee explained:

A lot of them are being assigned probation but they can’t complete it because they’re inside. . . . For example, this guy here, Mr. Ramos. He’s on probation. He’s got no more charges, but he’s in ICE custody, so nobody knows how to handle it. You can’t do community service! You can’t go to the DUI school!

In addition to having longer overall stays in jail, inmates on immigration detainers experienced harsher procedures once in custody. For example, DCSO officials classified all noncitizen arrestees on immigration detainers as medium-security inmates, even when their arrest offenses corresponded with the lowest-risk classifications. This bureaucratic decision restricted Latino arrestees’ access to spaces, activities, and programs to which other inmates had access. One DCSO employee recognized this practice as an injus- tice, comparing Latinos’ experiences to those of other racial and ethnic groups: “Ok. So what you’re telling me is this African American and this one guy and this oriental who is in here can go down the hall 15 steps but Latinos, because they’re not legal, are more of a safety risk? Where are they going to go?”

The following well-publicized and controver- sial case demonstrates how the jail’s decision to transform low-level misdemeanor arrestees into medium-risk offenders creates extraordinary puni- tive procedures for Latino arrestees. In July 2008, a Mexican woman who was nine months pregnant was arrested for driving without a license. When she went into labor while in custody, jail employ- ees treated her as if she were a serious offender. For the majority of her labor and recovery, she was shackled to the hospital bed, a deputy guarding her door. She returned to jail two days later, at which point her infant was released to her family. Had this woman been U.S.-born, she would have been eli- gible for pretrial release and could have bonded out

of jail. At the very least, she would have been treated as a low-risk offender and not shackled dur- ing childbirth.

As this section shows, institutional policies and practices converge to produce particularly punitive treatment for Latinos from the moment they arrive in custody. After booking, officials interview and screen foreign-born arrestees for legal status, sub- jecting many Latinos, even those with legal status, to additional scrutiny. Once marked with an immi- gration detainer, immigrants move through the criminal justice system differently than the native- born, with differential access to bail, longer dura- tions in jail, elevated risk classifications, and the looming threat of deportation. These processes are also happening in Norway, where penal policies distinguish between Norwegians, EU nationals, and non–EU nationals (Ugelvick 2013).

Although Latinos comprised the majority of immigrant removals from Davidson County, offi- cials insisted that immigrant removals were “color- blind.” Indeed, officials touted the “diversity” of immigrant removals, pointing out that they screened everyone who was foreign-born and that deportees were from many countries of origin. For example, one official said, “I’ve sent individuals from Canada, England, Germany, and Russia through immigration court. People like to use the phrase Mexicans, but not everyone is from Mexico.” Another official made a similar statement:

The basic misconception—and that’s even if you look in the newspaper at the news articles and stuff, the misconception is that we are just deporting everybody Mexican. If you Mexican, they gonna deport you, and that’s not true. I mean, nine times out of ten, majority of the cases that we do are Mexican—Mexican descent. But, we got Honduras, El Salvador, and all this and that.

What is telling about both of these statements is that even as officials are making assertions about the diversity of immigrant removals, they are doing so by referencing Mexicans. To both officials, Mexicans have emerged as the “master category” for “illegality,” a term synonymous with remov- ability. This is consistent with earlier work which argues that illegality is a racialized social condition that has become a defining feature of “Mexican”- ness (De Genova 2004).

The 287(g) program empowered DCSO officials to detain arrestees on suspected immigration viola- tions, allowing officials to use accent, phenotype, or last name as markers for illegality. For example, in

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2010, Davidson County officials placed an immigra- tion detainer on a U.S. citizen of Mexican descent. Born in Portland, Oregon, the man should never have been subjected to a 287(g) interview, but he was after the arresting officer wrongly listed Mexico as the man’s place of birth. Although the man could name the Portland hospital where he was born, sup- plied a Tennessee ID that required proof of citizen- ship to obtain, and recited a valid social security number, sheriff’s deputies were unconvinced that the man, who spoke limited English, was in fact a citizen. Ineligible for pretrial release because of the immigration detainer, the man remained in custody until the local charges against him were dismissed for lack of probable cause. Rather than release him, however, DCSO officials held him for nine addi- tional hours until his relatives arrived with his birth certificate and passport. He had been in jail for more than 10 days. Officials insisted that they were just doing their jobs.

During its tenure, Davidson County’s 287(g) program was one of the most active immigration enforcement programs in the country. Between 2007 and 2011, Sheriff’s Office employees identified approximately 8,400 removable immigrants in the Davidson County jail. The overwhelming majority of those identified for removal by sheriff’s deputies were Latinos arrested by local police for minor offenses. Although officials would argue that these removals are solely about immigration status, I sub- mit that they are fundamentally about race.

DIScUSSION: RAcIALIzINg cRIMMIgRATION This article extends the literature on the racializa- tion of Latinos via the immigration enforcement system by examining the role of local law enforce- ment agencies in the production and punishment of illegality. Examining immigration enforcement from the bottom up makes clear that Latino crimi- nalization is institutionally created through penal policies that criminal justice institutions take for granted. The criminal justice system is not color- blind but rather is a system of structural racism that creates racial inequality and reinforces ideas about racial difference (Murakawa and Beckett 2010; Van Cleve and Mayes 2015). From what behaviors are “legal” and “illegal,” to how laws are enforced by local police, to how individuals are processed after arrest, Latinos experience particularly harsh punishment and increased scrutiny from legal authorities, both on the street and in jail. This occurs through subtle, institutional, and ostensibly race-neutral laws and policies that produce racial

inequality, even as those who perform them believe they are colorblind.

For example, I argue that the MNPD’s order-main- tenance approach to policing, with its emphasis on investigatory vehicle stops, drives the contact between Latinos and the police. Although not a response to immigration, and technically a race- neutral policy, investigatory police stops are a powerful race-making practice, both reflecting American racial stratification and actively maintaining it (Epp et al. 2014). Patrol officers make stops for technical violations because it is a bureaucratic priority. Although their tactics may put officers into contact with all residents, these prac- tices subject only some residents to increased levels of scrutiny. Through their implementation of the MNPD’s policing priorities, officers subject Latino residents to lengthier inspections, sanctions, and sometimes arrest. These interactions signal Latinos’ place in the racial hierarchy, marking Latinos as less than full citizens in the polity.

It is critical to point out that Nashville police do not see what they do as policing immigration. That is, unlike police officers in Netherlands (van der Leun 2003) or London (Parmar 2011), local police are not empowered to stop-and-search in the name of national security, counterterrorism, or immigra- tion enforcement. However, given that criminal laws and immigration laws map onto one another (so that a violation of immigration law guarantees a viola- tion of state criminal law), local police cite and arrest Latinos because Latinos are outside the law by design. By framing their practices as merely doing their jobs, law enforcement bureaucrats can explain away the racial disparities that their practices pro- duce as the natural results of (nonracial) laws and policies. Ultimately, these aggressive police prac- tices undermine the relationship between Latinos and law enforcement, because minorities experience involuntary police encounters as racial profiling (Epp et al. 2014; Solis, Portillos, and Brunson 2009).

Like other researchers examining how immigra- tion status affects criminal justice processing (Beckett and Evans 2015; Light 2014), I argue that both alienage and legal status affect how Latinos move through the criminal justice system. For exam- ple, because unauthorized immigrants are issued an immigration detainer, they cannot access pretrial release and diversionary programs. However, unlike extant research on the social control and punishment of noncitizens, I do not imply that this citizenship penalty means that racial inequality is insignificant. Rather, I argue that policies that punish noncitizens are examples of a colorblind institutional racism that is structural and systemic. Thus, even though the overwhelming majority of Latino immigrants

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12 Sociology of Race and Ethnicity

identified for removal are arrested for misdemeanor driving offenses, their contact with criminal justice institutions essentially transforms them into “crimi- nal aliens” who are so “dangerous” they are categor- ically classified as medium-risk offenders.

In addition to pointing out how many of the dis- parate outcomes that Latinos experience in criminal justice processing are institutionalized and embed- ded in law and policy, I also show how frontline workers amplify racialized outcomes through their interactions. For example, I saw an officer wrongly assume that an American motorist of Latino descent was foreign-born when filling out a state citation. Had the officer made the same mistake on an arrest report, the motorist would have been subjected to an immigration screening. This is exactly what hap- pened when the Sheriff’s Office illegally detained the young Latino man born in Oregon. Armed with an arrest report that (erroneously) indicated the man’s place of birth was Mexico, DCSO officials disregarded the man’s assertions that he was born in Portland. In each of these cases, frontline workers, armed with the authority to categorize people as native- or foreign-born, or legally or illegally pres- ent, acted on their assumptions and implicit biases, assuming that Latino status, Mexican-ness, and ille- gality were one and the same. Their decisions clearly illustrate that policies that punish people based on citizenship have spillover effects that harm all Latinos, regardless of legal status or nativ- ity (Aranda, Menjívar, and Donato 2014; Massey 2014a; Massey and Pren 2012).

cONcLUSION Although this article analyzes the process of Latino punishment and removal in one metropolitan area, the themes that I identify are relevant throughout the United States. The current U.S. system of mass deportation depends on the penal punishment and marginality produced through the criminal justice system. Frontline bureaucratic actors in the crimmi- gration system play a crucial role in Latino immi- grant removal. For example, police, correctional officers, lawyers, and judges perform discrete and specialized tasks that contribute to deportation, but few recognize themselves as forming part of the immigration enforcement machinery. Their work, as well as Latinos’ vulnerability to it, is so taken for granted as the natural order of things that their role in punishing Latinos is largely invisible. So police make arrests that ultimately subject immigrants to immigration screenings, but the police officers them- selves do not enforce immigration law. Sheriff’s

deputies, who screen immigrants to verify their sta- tus, identify removable immigrants but decide nei- ther who is arrested nor who is ultimately removed. And although the majority of arrestees end up in jail for very minor violations, because they appear in deportation statistics as “criminal aliens,” their removal is seen to serve the interest of national security.

Race is central to understanding the crimmigra- tion system’s devastating effects on Latino commu- nities. This article highlights the mechanisms—the laws, policies, and practices—that undergird sys- temic and institutionalized racism, reproducing racial domination and reinforcing white supremacy. Policies and practices that punish noncitizens, and more particularly unauthorized residents, are racist. Although their effects may not always be intentional, they stem from a long tradition of preserving the American racial hierarchy. As scholars, it is critically important that we do not erase race from our analy- ses. Although it is easy to identify policies and prac- tices as racist when they overtly target Latinos or other racial groups, it is even more important that we identify and critique those policies and practices that are not overtly racist but are no less devastating in their consequences.

NOTES 1. The term Latino is a pan-ethnic label that describes

culturally and geographically heterogeneous groups of Latin American ancestry. Although Latinos can be of any race and nativity, popular representations of Latinos in the United States emphasize an olive or brown skin tone, dark hair, lower-class origins, and the use of the Spanish language. For those who fit this image, physical appearance serves as an embodied marker of exclusion and “illegality” (Romero 2006). Thus, when I use the term Latino throughout this paper, I am referring specifically to individuals of Mexican, Central American, or South American origin who conform to popular represen- tations of “Mexicanness” and/or “illegality.”

2. The term racialization refers to the process by which ideas about race are constructed, perceived as meaningful, and acted upon. Race is a social construct used to classify people according to ideas about phenotype, culture, ancestry, country of origin, and ethnicity (see Omi and Winant 2014). Although Hispanic and Latino are officially eth- nic labels, they function in the same ways as racial labels.

3. For a thorough review of changes to federal immi- gration law, see Coleman (2007), Golash-Boza and Hondagneu-Sotelo (2013), and Stumpf (2006).

4. These requirements emerged from a 1996 federal welfare reform law that targeted “deadbeat parents”

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by creating new child support enforcement tools, allowing states to track, identify, and potentially deny or revoke licenses to parents who did not ful- fill child support obligations.

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Varsanyi, Monica W., Paul F. Lewis, Doris Marie Provine, and Scott H. Decker. 2012. “A Multilayered Jurisdictional Patchwork: Immigration Federalism in the United States.” Law & Policy.

Wilson, James Q. and George L. Kelling. 1982. “Broken Windows: The Police and Neighborhood Safety.” Atlantic Monthly, March 1982, pp. 29–38.

Winders, Jamie. 2006. “‘New Americans’ in a ‘New- South’ City? Immigrant and Refugee Politics in the Music City.” Social & Cultural Geography 7(3):421–35.

Winders, Jamie. 2013. Nashville in the New Millennium: Immigrant Settlement, Urban Transformation, and Social Belonging. New York: Russell Sage Foundation.

Zúñiga, Victor and Rubén Hernández-Leon, eds. 2005. New Destinations: Mexican Immigration in the United States. New York: Russell Sage.

at UNIV OF PENNSYLVANIA on August 17, 2016sre.sagepub.comDownloaded fromhttp://sre.sagepub.com/

54 b o o m c a l i f o r n i a . c o m

kelly lytle hernández

Amnesty or Abolition? Felons, illegals, and the case for a new abolition movement

Boom: A Journal of California, Vol. 1, Number 4, pps 54–68. ISSN 2153-8018, electronic ISSN 2153-764X. © 2011

by the Regents of the University of California. All rights reserved. Please direct all requests for permission to

photocopy or reproduce article content through the University of California Press’s Rights and Permissions

website, http://www.ucpressjournals.com/reprintInfo.asp. DOI: 10.1525/boom.2011.1.4.54.

N early 10 percent of California’s residents are prisoners, parolees, felons, 1

or undocumented immigrants.2 Although differently constituted, these

groups form a caste of persons living in the Golden State for whom nei-

ther democracy nor freedom is guaranteed. Prisoners, parolees, and undocumented

immigrants cannot vote. Parolees, felons, and undocumented immigrants are vari-

ously denied access to public housing, food stamps, educational loans, and employ-

ment. Prisoners, deportees, and immigrant detainees are forcibly removed from their

families and communities, while undocumented immigrants, parolees, and persons

under warrant live with the constant fear of arrest.3

Disfranchised, denied core protections of the social welfare state, and imprisoned,

detained, or under threat of warrant or deportation, the status of undocumented im-

migrants, prisoners, and ex-offenders in the United States pivots on shared exclu-

sions from full political and social membership. This story of democracy denied and

PhOTO by AmIT GUPTA

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freedom unfound is one of clear racial significance across

the country, with blacks and Latinos comprising an ex-

traordinary 60 percent of the total prison population in the

United States. home to a substantive slice of the nation’s

undocumented and incarcerated populations, California is

a heartland of racial exclusion in the United States today.

In recent years, legal scholars have detailed the increas-

ingly tangled world of exclusion rooted in felony conviction

and unsanctioned migration.4 The series of civil disabili-

ties that have been heaped on citizens convicted of felony

charges since the 1970s, namely drug offenders, have gut-

ted the substance of their citizenship rights. Today, accord-

ing to legal scholar Juliet Stumpf, the “status of an ex-felon

strikingly resembles that of an alien” as “criminal offend-

ers [have been]—literally—alienated” by limitations upon

the right to vote, restricted employment opportunities, and

exclusions from welfare benefits.5 The criminal justice

system, in other words, has created a legal framework by

which the rights and benefits of citizenship are stripped

away from US citizens until they mirror (and, at times, dip

below) those of noncitizen immigrants within the United

States. As US citizens have slipped toward what Stumpf de-

scribes as “alienation” through the criminal justice system,

the status of immigrants in the United States has tipped

toward criminalization through the implosion of crimi-

nal law and immigration law. In particular, Congress has

greatly expanded the list of offenses that trigger deportation

for legal immigrants while immigration law enforcement

has become better coordinated among federal, state, and

local officials. The result is that everyday criminal law en-

forcement activities are now harnessed to identify undocu-

mented immigrants and enforce US immigration law. The

rise of “crimmigration” law, as legal scholars like to say, has

transformed the lives of immigrants in the United States.

minor criminal violations and everyday legal infractions,

ranging from shoplifting to traffic violations, now routinely

trigger one of the state’s most consequential sanctions—

deportation.

This essay explores the historical development of the

alienation of citizen offenders and the criminalization of

immigrants in the United States; in particular, it chronicles

how immigration control and mass incarceration emerged

as the systems of social control that frame alienated citi-

zens and criminalized immigrants as a racialized caste of

outsiders in the United States today. Pulling back the layers

of citizen alienation in our modern democracy, and chart-

ing how our nation of immigrants came to deport so many

for so little, reveals a story of race and unfreedom reaching

back to the era of emancipation.

Immigration Control

Perhaps most Americans believe their ancestors arrived

legally in the United States but few today are aware that

Congress left immigration almost unregulated for almost

a century after the Revolution. During that time, practically

any person who reached American shores of their own voli-

tion could enter the United States to work. Immigration

control began nearly 150 years ago, during the US Civil War,

long before our current struggles at the US-mexico border.

About one year into that brutal war, Northern congress-

men learned of a devious plot by slaveowners in Louisiana.

Ever more anxious about the specter of emancipation, plan-

tation owners had quietly begun to import Chinese contract

workers. Popularly known and derided as “coolies,” these

workers were regarded as a racially inferior and unfree

political caste that, in the case of emancipation, could be

used to replace black slave labor across the South. Learning

of the plan, Congress passed the Anti-Coolie Act of 1862,

which prohibited US citizens from importing these workers

into the United States. Passed to prevent the reinvention of

slavery in the American South, the Anti-Coolie Act of 1862

functioned as the nation’s “last slave-trade act and its first

immigration law.”6

Keeping Chinese workers out of the country, Congress

reasoned, would prevent the creation of a new form of

“unfree” labor in the United States. And yet, even as they

considered additional “protective” measures, Frederick

Douglass, the brilliant abolitionist orator and former slave,

offered a stinging critique. Douglass firmly supported un-

restricted immigration from the world over and challenged

claims that Chinese immigrants would reintroduce “the

slave problem” to the United States.

Perhaps most Americans

believe their ancestors

arrived legally in the

United States.

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56 b o o m c a l i f o r n i a . c o m

“It was not the Ethiopian as a man, but the Ethiopian

as a slave and a coveted article of merchandise, that gave

us trouble,” argued Douglass.7 The problem of slavery, in

other words, was not rooted in the bodies of enslaved per-

sons but rather in the laws that organize inequitable social

relations and protect the marginalization of humans. This

was the radical abolitionist critique that Douglass had cut

during the movement, and then war, to end slavery. When

he applied his wisdom to the congressional effort to halt

Chinese immigration, he hinted that the quest for immi-

gration control was at its core an anti-abolitionist project.

It degraded human rights, fueled forms of racial think-

ing, and encompassed strategies of exclusion that African

Americans were battling against in the years after the Civil

War in their struggle to achieve full emancipation. In this,

the black freedom struggle was directly tied to immigration

politics and Douglass recognized the critical importance of

opposing the rise of immigration control.

but Douglass’s abolitionist critique went unheeded.

Congress continued to pass legislation restricting immi-

gration into the United States. In time, the rise of a US im-

migration control regime would write a new chapter in the

story of unfreedom. In particular, increasingly restrictive

immigration legislation created the “illegal alien” as a sub-

stantively marginalized political category in American life.

Creation of the Illegal Alien

The creation of the illegal alien unfolded in the decades

following the Anti-Coolie Act, as Congress dramatically

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expanded the limitations placed on legal entry into the

United States. In 1882, Congress banned Chinese workers

and all “lunatics, idiots, convicts, those liable to become

public charges, and those suffering from contagious dis-

eases.” In 1885, all contract workers were prohibited from

entering the United States. In 1891, polygamists were

added to the list of banned persons and, in 1903, anar-

chists, beggars, and epileptics joined the growing list. In

1907, Congress also excluded imbeciles, feeble-minded per-

sons, unaccompanied minors, those with tuberculosis, and

women of immoral purposes. That same year, the President

signed a Gentlemen’s Agreement with Japan that strictly

regulated and limited Japanese immigration to the United

States. by 1924, Congress had categorically prohibited all

persons of Asian origin from entering and introduced a na-

tional origins system, which limited how many immigrants

could enter the United States each year; it favored Western

European immigrants. In effect, Congress had prohibited

much of the world from legally entering the United States.

The congressional project to restrict immigration thus

took shape between the 1880s and 1920s as the United

States, from northeastern manufacturing to southwest-

ern agribusiness, was rapidly becoming one of the world’s

most robust industrial economies. Despite numerical and

categorical limitations, immigrant workers still arrived by

the hundreds of thousands. Not all were qualified to legally

enter the country. To evade immigration restrictions, they

crossed the borders without inspection, used fraudulent doc-

uments to enter at ports of entry, overstayed visas, and vio-

lated conditions of legal residency.8 Immigration restrictions

in an era of mass global migration, in other words, trig-

gered the creation of “illegal immigration” as a new realm

of social activity. As people from other countries stepped

around US immigration restrictions, they stepped into the

socio-political category of the illegal alien.

As immigrants entered in violation of US immigration

laws, the Supreme Court faced tough new questions re-

garding the status of persons not formally authorized to be

within the United States. In a series of decisions made dur-

ing the late-nineteenth century, often referred to as the Chi-

nese Exclusion cases, the court established a framework for

shaping the rights and status of unauthorized persons living

in the United States. In Chae Chan Ping vs United States

(1889), the Supreme Court established that immigration

control was, as a matter of foreign affairs, a realm of unme-

diated congressional and executive authority.9 According to

the decision, “The power of exclusion of foreigners being an

incident of sovereignty belonging to the government of the

United States . . . cannot be granted away or restrained on

behalf of anyone . . . The political department of our govern-

ment . . . is alone competent to act upon the subject.” Thus,

the US Supreme Court limited the “reach of the Constitu-

tion and the scope of judicial review” over the development

of immigration law by defining it as a matter of sovereignty

and thereby a zone of unmediated federal power.10

In the 1893 Fong Yue Ting decision, the court held that

the federal government’s right to expel foreigners was

“absolute” and “unqualified“; therefore, immigrants, even

lawful permanent residents, could be deported from the

country at any time for any reason. This decision also estab-

lished that “deportation is not a punishment for crime” but

rather an administrative process of returning immigrants

to the place where they belonged. Defining deportation as

“an administrative process” was highly significant because

much of the bill of Rights applies only to criminal punish-

ment. Accordingly, the court held in Fong Yue Ting, “the

provisions of the Constitution, securing the right of trial

by jury, and prohibiting unreasonable search and seizures,

and cruel and unusual punishment, have no application.”11

In these two decisions, each saturated with ideas of Chinese

immigrants as “hordes of barbarians” and “alien races in-

capable of assimilation,” the foundation for the rights and

status of persons coming to be known as “illegal aliens” in

the United States was established.12 For the first time since

slavery, an entire category of people in the United States

could be imprisoned without a trial by jury. Their homes

For the first time since slavery, an entire

category of people in the United States could

be imprisoned without a trial by jury.

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58 b o o m c a l i f o r n i a . c o m

could be searched without warrants, they could be detained

without being arrested, and punished by Americans in ways

Americans could not be.

Over the next century, the Supreme Court would decide

immigration cases when framed as constitutional issues

regarding the rights of persons in the United States; but

the federal project for immigration control, in general, de-

veloped with little oversight from the courts and limited ap-

plication of the Constitution.13 Therefore, the “illegal alien”

developed as a uniquely marginal, political category of per-

sons in post-Civil War America.

The Threat of Deportation

For unauthorized immigrants, their distance from the

Constitution and the formal power of immigration control

are compounded by the fear of deportation, which limits

their ability to fully exercise their rights as persons and

workers in the United States. In particular, as the regime

of US immigration control expanded over the course of the

twentieth century, the threat of deportation—once a fairly

remote concern—now hangs over workplace disputes,

limits mobility along roadways, and shapes the most in-

timate family decisions about marriage, divorce, housing,

and child rearing. In effect, the US immigration regime

has constructed the political category of the illegal alien as

an expansive site of social inequalities that constitutes, as

historian mae Ngai argues, a “caste unambiguously situ-

ated outside the boundaries of formal membership and

social legitimacy.”14

No institution in US history has played a more signifi-

cant role in defining the caste of “illegal aliens” than the US

border Patrol. With the mandate to detect and apprehend

persons for unauthorized entry into the Untied States, bor-

der Patrol officers spend their working hours literally bring-

ing bodies to the consequential but relatively broad and

abstract political category of illegal immigrant. Unauthor-

ized immigration is a field of social activity constituted by

everything from expired visas and border jumping to false

statements and unemployment. The border Patrol trans-

lates this broad field of social activity into an identifiable

social reality of persons policed, apprehended, detained,

and deported for violating US immigration law. Therefore,

the making of the political category of the “illegal alien” an

everyday reality in American life is rooted in the decisions

and discretions made by the US border Patrol in the pursuit

of immigration law enforcement.15

The Border Patrol

Congress established the US border Patrol in 1924 to en-

force the enormous web of immigration restrictions that

had developed since the passage of the Anti-Coolie Act of

1862. Their jurisdiction stretched along the Canadian bor-

der, spanned the US-mexico border and, in time, extended to

include the Florida Gulf Coast region and various coastlines.

In addition to preventing persons from crossing into the

United States without official sanction, the border Patrol’s

job included policing borderland regions to detect and arrest

persons defined as illegal immigrants. At first, border Patrol

officers in the US-mexico border region were confused about

how to translate their broad mandate and jurisdiction into a

practical course of law enforcement. Thousands of excluded

persons—Asians, unaccompanied minors, persons with

trachoma—regularly violated US immigration law. Even US

citizens routinely violated immigration restrictions by refus-

ing to cross through official ports of entry. Working in far-

flung offices in border communities, border Patrol officers

were given no guidance from national immigration officials

regarding how to prioritize the enforcement of US immigra-

tion restrictions. The officers, for example, could have raided

brothels or policed the primary racial targets of US immigra-

tion restrictions, namely Asians. but the early officers of the

US border Patrol took an unexpected approach.

hired from local border communities, border Patrol offi-

cers along the US-mexico border focused almost exclusively

on apprehending and deporting undocumented mexican

workers. Ironically, mexico’s migrant workers were not cat-

egorically prohibited from entering the United States, but

they often evaded the administrative requirements for legal

entry, such as paying entrance fees and passing a literacy

test and health exam. For the working-class white men,

hired from local border communities, who worked as bor-

der Patrol officers during the 1920s and 1930s, directing

US immigration law enforcement toward mexican border

crossers—the primary labor force for the region’s dominant

agribusiness industry—functioned as a means of wrestling

respect from agribusinessmen, demanding deference from

mexicans in general, achieving upward social mobility for

their families, and/or concealing racial violence within the

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60 b o o m c a l i f o r n i a . c o m

framework of police work. Although they were satisfying

more personal and local interests in immigration control,

by targeting unsanctioned mexican immigrants instead of

the many other possible targets of immigration control,

border Patrol officers effectively mexicanized the set of in-

herently and lawfully unequal social relations that emerged

from the regime of US immigration control in the mexican

border region. mexicanizing the caste of illegals remained

a regional story until concerns regarding national security

during World War II forced the border Patrol to become a

more centrally operated institution.

During World War II, Congress transferred the border

Patrol’s parent agency, the Immigration and Naturalization

Service (INS), from the Department of Labor to the Depart-

ment of Justice. Located within the Department of Justice,

immigration control entered into the growing bureaucracy

of federal law enforcement under the US Attorney General

and alongside the FbI, US marshals, and the bureau of

Prisons. With new resources, tighter supervision, more per-

sonnel, and improved training, these were the years when

the border Patrol’s national focus turned toward policing

unsanctioned mexican immigration.

This turn was primarily influenced by the establish-

ment of the bracero Program, a US/mexico contract labor

program launched in 1942. between 1942 and 1964, over

four million mexicans legally worked in the United States

through the bracero Program. Still, a large number of

mexican nationals crossed the border without sanction in

search of work. To protect a binational program designed

to import legal mexican workers in the United States, the

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62 b o o m c a l i f o r n i a . c o m

US border Patrol adopted an aggressive campaign to work

with mexican authorities to deport illegal mexican workers.

To increase the number of deportees, Special mexican De-

portation Parties were established. by 1944, this program

had significantly increased the number of mexicans appre-

hended each year. Concurrently, the number of mexicans as

a percentage of the total number of apprehensions nation-

wide shot up to over 90 percent.

by the early 1950s, the US border Patrol’s Special mexi-

can Deportation Parties were apprehending hundreds of

thousands of mexican immigrants each year. In may 1954,

the border Patrol announced that a crisis of unsanctioned

mexican immigration had developed along the US-mexico

border and that it would soon launch a major campaign

to end that crisis. A few weeks later, in the now infamous

Operation Wetback campaign of 1954, border Patrol task

forces swept across the Southwest and declared to have

solved the so-called “wetback problem” by deporting over

one million mexican nationals.

After the campaign and into the mid-1960s, border Pa-

trol apprehensions along the US-mexico border dropped

dramatically.

Operation Wetback is often cited today as evidence that

immigration law enforcement, if aggressively pursued, can

successfully end unsanctioned migration. but aggressive

enforcement is not how the border Patrol scored its suc-

cesses during the summer of 1954. The border Patrol sig-

nificantly overreported the number of persons apprehended

during Operation Wetback and achieved a declining num-

ber of apprehensions after the campaign by demobilizing

the task forces. Assigned to two-man horse patrols, officers

simply could not apprehend the same number of persons

as the days when they worked in deportation task forces.

Reduced immigration enforcement, rather than aggressive

immigration enforcement, was how the US border Patrol

achieved a declining number of apprehensions in the years

after Operation Wetback. Still, the border Patrol’s procla-

mations of triumph along the US-mexico border opened a

series of questions regarding practices and priorities of US

migration control in the future.

Rise of the Criminal Alien

In the years after Operation Wetback, border Patrol offi-

cials carefully reinvented immigration control as a matter

of crime control. As early as November 1956, officers were

instructed that, “the word ‘wetback’ . . . should be deleted

from the vocabulary of all Immigration officers” because

“today’s apprehensions consist in the main part of crim-

inals, often vicious in type, and of hardened and defiant

repeaters.” To defeat the image of a poor worker crossing

the border without sanction, a border Patrol supervisor in-

structed officers that, “whenever a criminal record exists,

we use the words, ‘criminal alien,’ and when no criminal

record exists, the words, ‘deportable alien.’ I feel this change

will have a psychological effect on the public and courts that

will benefit the Service.”16 The linguistic turn toward ap-

proaching migration control as a matter of crime control,

supported by the emerging War on Drugs throughout the

country, reconfigured the everyday activities of immigration

law enforcement.

Drug Wars

The War on Drugs is most often associated with Ronald

Reagan and the 1980s but the 1940s and 1950s were critical

years in the development of the campaign.17 between 1946

and 1951, the Uniform Narcotic Drug Acts created manda-

tory minimum prison sentences for drug convictions. In

1951, the boggs Act established a mandatory minimum of

two years even for first-time offenders. The ascent of drug

control legislation reached a new level with the passage of

the Narcotics Control Act of 1956, which imposed life im-

prisonment and even the death penalty for certain drug of-

fenses, and made drug convictions a trigger for deportation

for immigrants. here were the state’s ultimate sanctions:

life in prison, death, and banishment.

The border Patrol was deeply impacted by the rise of

drug control as a federal law-enforcement initiative. In 1955,

Congress designated all border Patrol officers as customs

inspectors and gave the organization primary authority over

drug interdiction between official ports of entry. In addi-

tion, the border Patrol began targeting immigrant prosti-

tutes and drug runners. The INS detention centers along

the US-mexico border had been established to function as

staging centers from where detainees were prepared for de-

portation or the more widely used form of forcible removal

known as “voluntary return.” With a new focus on arresting

and deporting “criminal aliens,” these centers adopted new

policies and procedures to handle criminals rather than mi-

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boom | w i n t e r 2 011 63

grants. In particular, the INS began strip-searching all de-

tainees upon entrance to the immigrant detention facilities

and detained migrants for longer periods to run criminal

background checks on all deportees.

by the late 1970s, immigration control was thoroughly

enmeshed in crime control and drug interdiction in the

US-mexico border region.18 During the 1980s, this implo-

sion of law enforcement activities was reinforced with fed-

eral legislation that intimately bound immigration law to

criminal law. The Anti-Drug Abuse Act of 1988 established

a long list of retroactively applied “aggravated” felonies that

triggered deportation for immigrants, including lawful

permanent residents. Shoplifting, passing bad checks, and

drug possession all constituted aggravated felonies sub-

ject to automatic deportation proceedings. The Anti-Drug

Abuse Act, therefore, created new ways for immigrants to

be marked as illegal and thereby deported.19 by the mid-

1990s, nonviolent offenses including, document fraud, ve-

hicle trafficking, and skipping bail were all added to the list

of aggravated felonies that triggered deportation. In 1996,

the Antiterrorism and Effective Death Penalty Act defined

a single conviction of “moral turpitude” as a deportable

offense while the Illegal Immigration Reform and Immi-

grant Responsibility Act, also passed in 1996, defined any

conviction that carried a minimum sentence of one year

as a deportable offense. by the turn of the twenty-first cen-

tury, the new legislation had substantively expanded the

deportability of legal immigrants while undocumented

immigrants became more likely to be arrested for minor

infractions via federal programs that coordinate with and

reimburse localities for checking the immigration status

of persons detained on ancillary charges.20 The Criminal

Alien Program (CAP) and Secure Communities program,

for example, have allowed federal authorities to iden-

tify undocumented immigrants throughout the country

among persons detained for misdemeanors and traffic

violations.21

Today, over 60 percent of all deportations from the

United States are triggered by criminal convictions, mostly

traffic offenses, nonviolent drug crimes, and immigration-

related violations.22 After serving their criminal sentence,

most immigrants who are identified for deportation will

spend over one month in a detention facility, most likely

a rented-out jail bed in one of several hundred jail facili-

ties throughout the country that contract with Immigration

and Customs Enforcement. In this era of mass incarcera-

tion, it is in jails and prisons across the United States where

the paths of criminalized immigrants awaiting deportation

have crossed with those of alienated citizens.

Mass Incarceration

Incarceration is an old story in the United States: jails

reach back to the colonial era and prisons developed dur-

ing the early nineteenth century. however, mass incar-

ceration is a relatively recent phenomenon in American

life.23 Whereas the country’s per-capita prison population

remained relatively stable between the mid-nineteenth

and mid-twentieth centuries, it began to tick up in the

1970s before exploding during the 1980s. Today, the

United States holds over two million people behind bars.

A total of seven million people—or 3.2 percent of the total

adult population—are currently under some form of cor-

rectional supervision, and an estimated 50 million people

have criminal records.24

The growth in the prison population has demanded an

expansive set of institutions to hold, process, service, and

monitor these millions of people. According to political

scientist marie Gottschalk, if one includes prisoners, pro-

bationers, parolees and their families, employees of cor-

rectional institutions, and residents in communities where

prisons are built, mass incarceration directly impacts the

daily lives of tens of millions of people throughout the

country.25

California hosted one of the most dramatic prison

booms in the late twentieth century. Fueled by new drug

laws and sentencing practices, the state prisoner popula-

tion increased by nearly 500 percent between 1982 and

2000. by 1992, California boasted the largest prison sys-

tem in the Western world, with over 50 percent more pris-

oners than the US federal prison system and 40,000 more

than the prison systems of Great britain and Germany

The state prisoner

population increased

by nearly 500 percent

between 1982 and 2000.

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64 b o o m c a l i f o r n i a . c o m

combined.26 The state built twenty-three new prisons be-

tween 1982 and 2000, compared to twelve prisons built

between 1852 and 1964.27 Today, the Department of Cor-

rections and Rehabilitation is California’s largest state

agency, with over 54,000 employees servicing nearly

161,704 inmates and 104,872 parolees.28

Like immigration control, mass incarceration is a zone

of racial inequity. African Americans and Latinos, to-

gether, constitute 67 percent of the total state-prison popu-

lation, but the rate of incarceration is significantly higher

for the former. As of 2005, African American men were

incarcerated at a rate of 5,125 per 100,000 in the general

state population, compared to 1,142 for Latinos, 770 for

whites, and 474 for men of other races. by the mid-1990s,

five times as many black men in California were in prison

than were enrolled in public higher education.29 Among

women, African Americans were incarcerated at a rate of

346 per 100,000 in the population, compared to 80 for

whites, 62 for Latinas, and 27 for women of other races.30

Today, black women are among the fastest growing prison

populations.

Scholars and activists have been detailing since the mid-

1980s how mass incarceration significantly shapes the life

chances of African Americans, specifically as Congress and

state legislatures restrict the social rights and benefits af-

forded to citizens convicted of a felony.31 The right to vote,

parental rights, and access to welfare benefits, including

public housing, food stamps, and educational loans, for

example, can be revoked for felony drug convictions. With

higher rates of incarceration, African Americans are un-

evenly impacted by these “collateral consequences” of im-

prisonment. yet to fully understand the meaning of mass

incarceration at the turn of the twenty-first century, it is

important to, once again, return to the nineteenth-century

struggle for abolition.

In December 1865, upon Northern victory in the Civil

War, Congress ratified the Thirteenth Amendment to the

United States Constitution, which declared that “Neither

slavery nor involuntary servitude, except as a punishment

for crime whereof the party shall have been duly convicted,

shall exist within the United States, or any place subject

to their jurisdiction.”32 With its adoption, black emanci-

pation from Southern slavery was accomplished, but the

abolition struggle was incomplete, as convicts emerged

as legitimate subjects of involuntary servitude. Into the

twentieth century, in prisons and jails across the coun-

try, involuntary servitude flourished under the protection

of the Thirteenth Amendment. Incarceration, in other

words, functioned as a zone of exception in post- emanci-

pation America.33

In 1868, Congress ratified the Fourteenth Amendment,

which protected the citizenship status of freed slaves by

firmly conferring citizenship upon all persons born or

naturalized in the United States. In the decades ahead,

municipalities and states would limit the substance of

black citizenship with Jim Crow laws designed to margin-

alize African Americans under the rubric of “separate but

equal.” State legislatures also significantly altered the rights

and privileges of citizenship according to convict status.

According to California’s 1872 Penal Code, for example,

persons convicted for felonies and sentenced to life in state

prison were defined as “civilly dead,” and those convicted

and sentenced to any term less than life in state prison lost

all civil rights, other than those individually adjudicated or

protected.34

Over the years, various rights and protections have

been granted to California’s inmates—by 1914, the right

to receive correspondence: in the 1975 Inmate bill of

Rights, the right to marry, bring civil lawsuits, make

wills, and create powers of attorney. Court decisions have

also protected inmate access to health care and, most re-

cently, the US Supreme Court upheld an order to pro-

tect inmates from the “cruel and unusual punishments”

that accompany rampant overcrowding in the California

prison system. Still, the many “collateral consequences”

for felony conviction constitutes mass incarceration as a

rights-stripping modality in the political landscape of the

state and nation.

“Collateral consequences” is a term for the many social

and political consequences attached to felony conviction.

For example, in addition to disfranchisement for incarcer-

ated felons and parolees in the State of California, federal

law prohibits persons with drug convictions from being

on or near the premises of public housing and maintains

a lifetime ban on welfare benefits for persons with drug

convictions. Such bans and exclusions are the material

evidence that the criminal justice system operates as a

broad-reaching system of social stratification that holds

persons aloft from full citizenship and social belong-

ing. Given the deeply racialized dimensions of mass

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boom | w i n t e r 2 011 65

incarceration in California and across the country, legal

scholar michelle Alexander refers to mass incarceration

as the “new Jim Crow.”35

but African Americans have not always constituted such

a disproportionate number of inmates in California. In the

1920s, African Americans comprised 7 percent of the state

and federal prison population in California.36 During World

War II, tens of thousands of African Americans migrated to

the West Coast to take jobs in the region’s growing indus-

trial sector. Still, the black presence in the California prison

system did not skyrocket until deindustrialization and the

War on Drugs accelerated during the early 1980s.37

As the escalation of the War on Drugs swept increas-

ing numbers of underemployed African Americans into

the California prison system, it was also increasing funds

for immigration control in the US-mexico borderlands.

During the 1970s, new investments in border enforce-

ment for drug interdiction allowed the overall project of

immigration control to expand. by the early 1980s, the

border Patrol routinely apprehended over one million

persons per year and, by the close of the decade, increas-

ing numbers of undocumented immigrants were being

convicted of immigration violations and drug charges

prior to deportation. The Urban Institute reports that the

number of unauthorized immigrants sentenced in federal

courts increased by 167 percent between 1991 and 1995,

compared with 13 percent for citizens. In these years, im-

migration violations and drug crimes, most occurring in

the Southwestern United States, constituted 85 percent of

all offenses for which undocumented immigrants were

convicted.38

The Illegal Immigration Reform and Immigration Re-

sponsibility Act (1996) further pushed undocumented im-

migrants into the prison system for nonviolent crime by

increasing penalties for unsanctioned migration and re-

quiring detention of immigrants undergoing deportation

hearings. Today, Latinos, principally mexicans, make

up the largest group of inmates in federal prison; and

undocumented immigrants, alongside black women, rep-

resent one of the fastest growing incarcerated populations

in California.39

In the jails and prisons of the Golden State, the crossed

paths of felons and illegals clarify the meaning of mass in-

carceration and immigration control. For the mexicanized

caste of illegals, the arrival in US jails and prisons confirms

that the US immigration control system is busy not only

removing people from the United States but also in deliv-

ering them to peculiar institutions where far-reaching and

racialized social, political, and economic inequities are now

defined within the United States. For the African Ameri-

cans who are unevenly represented among California’s con-

vict population, the arrival of undocumented immigrants

in the prison system strengthens the prison’s function as

a special reserve for those without full citizenship rights

in the United States. This tangle of alienated citizens and

criminalized immigrants is a deeply historical construct

that reaches up from the unfinished abolition struggle of

the nineteenth century and across the twentieth-century

experience with race and inequity to define today’s caste of

felons and illegal immigrants.

In the years ahead, as we grapple with the yet unfulfilled

promises of immigration reform and prison reform, the

success of our efforts will rest in remembering the history

to which we respond. Since the era of emancipation, the

rise of immigration control and mass incarceration has

created a racialized caste of outsiders within the United

States. bigger jails with better food and improved health

care—while immediately needed—will never address the

larger and deeper problem of alienated citizens living in

states of internal exile, both within and beyond the prison

walls. Similarly, amnesty and paths to citizenship—while

urgently needed—will never be enough. As the case of

The black presence in the California

prison system did not skyrocket until

deindustrialization and the War on Drugs

accelerated during the early 1980s.

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66 b o o m c a l i f o r n i a . c o m

African Americans makes clear, citizenship can be gained

and lost (time and again). Today it is the criminal justice

system that renders the substance of citizenship, itself,

unpredictable. In other words, a path to citizenship for

undocumented immigrants in an era of mass incarcera-

tion may not be as valuable as it seems if pursued without

a challenge to the inequities of mass incarceration; how-

ever, understanding the long history that brought us here

carries within it alternatives to consider. At the beginning

of it all, there was an abolitionist’s critique. “It was not

the Ethiopian as a man, but the Ethiopian as a slave and

a coveted article of merchandise, that gave us trouble,”

explained Frederick Douglass in 1869. Like the slave, the

caste of felons and illegal immigrants is a construct. We

will need an abolitionist critique to imagine and build a

world without it.40 b

Notes

1 In this essay, the terms “illegal alien,” “convict,” and “felon” are

not used to reference human beings but rather political catego-

ries created by immigration and criminal law. When referring

to persons, either the terms unauthorized immigrant, unsanc-

tioned immigrant, undocumented immigrant, or persons con-

victed of a felony are used.

2 California’s total state population in 2010 was 37,253,956. Of

this number, there are an estimated two million undocumented

immigrants, an estimated 1.5 million ex-felons, and 170,000

currently in prison.

3 Voluntary Return was a process established during the 1920s

to be used in lieu of formal deportation proceedings. Under

Voluntary Return, immigrants waive their right to a deportation

hearing and are not formally deported from the country but are

required to leave the country. most forced removals from the

United States occur as Voluntary Returns rather than formal

deportations. Immigrant detainees are persons held in deten-

tion facilities that are either administered or contracted with

by Immigration and Customs Enforcement. most detainees

are held while disputing a deportation order or while awaiting

deportation.

4 Examples of recent scholarship include, Nora V. Demleitner,

“Preventing Internal Exile: The Need for Restrictions on Sen-

tencing Collateral Consequences,” 11 Stanford Law and Policy

Review 153 (1999); Teresa miller, “Citizenship and Severity:

Recent Immigration Reforms and the New Penology,” 17

Georgetown Immigration Law Journal 611 (2003); Juliet Stumpf,

“The ‘Crimmigration Crisis’: Immigrants, Crime and Sover-

eign Power,” 56 American University Law Review 367 (2006),

367–419; yolanda Vazquez, “Perpetuating the marginalization

of Latinos: A Collateral Consequence of the Incorporation of

Immigration Law into the Criminal Justice System,” Howard

Law Journal 54 (2011), 639–674. See also, “Policing, Detention,

Deportation, and Resistance,” a special volume of Social Justice:

A Journal of Crime, Conflict and World Order, v 36, n2 (2009).

5 Stumpf, “The Crimmigration Crisis,” 399.

6 moon ho-Jung, Coolies and Cane: Race, Labor, and Sugar in

the Age of Emancipation (baltimore: John hopkins University

Press, 2006), 38.

7 Frederick Douglass, “Our Composite Nationality” (1869).

8 Patrick Ettinger, Imaginary Lines: Border Enforcement and the

Origins of Undocumented Immigration, 1882–1930 (Austin: Uni-

versity of Texas Press, 2009).

9 The political branches of government include Congress and

Executive branch through the US Attorney General.

10 Quote from “Crimmigration Crisis,” 392. For information on

the cases discussed above, see Gabriel Chin, “Chae Chan Ping

and Fong yue Ting: The Origin of Plenary Power,” Immigration

Law Stories, David martin and Peter Schuck, eds., (Foundation

Press, 2005); Ian haney Lopez, White by Law: The Legal Con-

struction of Race (New york: New york University Press, 1996).

11 Fong Yue Ting vs United States, 149 US 698, 730 (1893).

12 Quoted in Chin, 20.

13 For a discussion of the rights granted to undocumented im-

migrants, see miller, “Citizenship and Severity,” 620–624

14 mae Ngai, Impossible Subjects: Illegal Aliens and the Making

of Modern America (Princeton: Princeton University Press,

2004), 2.

15 The following discussion of the US border Patrol is derived

from my book, Migra! A History of the U.S. Border Patrol (berke-

ley: University of California Press, 2010).

16 November 2, 1956 and November 15, 1956 untitled memos.

National Archives and Records Administration 56364/43.3, 94,

59A2038.

17 David F. musto, The American Disease: Origins of Narcotics Con-

trol (New york: Oxford University Press, 1999), 231. See also

Today it is the criminal

justice system that

renders the substance

of citizenship, itself,

unpredictable.

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boom | w i n t e r 2 011 67

Peter Smith, ed., Drug Policy in the Americas (boulder: Westview

Press, 1992).

18 See Peter Andreas, Border Games: Policing the U.S.-Mexico Di-

vide (Ithaca: Cornell University Press, 2000); Timonthy Dunn,

The Militarization of the U.S.-Mexico Border, 1978–1992: Low-

Intensity Conflict Doctrine Comes Home (Austin: Center for mex-

ican American Studies, University of Texas at Austin, 1996).

19 David hernandez, “Pursuant to Deportation: Latinas/os and

Immigrant Detention,” Latino Studies, v 6, n 1–2 (Spring/Sum-

mer 2008).

20 Vazquez, “Perpetuating the marginalization of Latinos,”

655–657.

21 hernandez, “Pursuant to Detention,” 45. See also, bill Ong

hing, “The Immigrant as Criminal: Punishing Dreamers,” 9

Hastings Women’s Law Journal 79 (1998).

22 Vazquez, “Perpetuating the marginalization of Latinos,” 665.

This does not include the nearly one million removed from the

United States each year under “voluntary return.”

23 For an analysis of the rise of mass incarceration, see David

Garland, The Culture of Control: Crime and Social Order in Con-

temporary Society (Chicago: University of Chicago Press, 2001).

See also, Garland, ed., Mass Imprisonment: Social Causes and

Consequences (New york: Russell Sage Foundation, (2001). See

also heather Thompson, “Why mass Incarceration matters:

Rethinking Crisis, Decline, and Transformation in Postwar

American history” Journal of American History v 97, n 3 (De-

cember 2010), 703–734.

24 Demleitner, “Preventing Internal Exile,” 12.

25 marie Gottschalk, The Prison and the Gallows: The Politics of

Mass Incarceration In America (Cambridge: Cambridge Univer-

sity Press, 2006), 1–3.

26 Franklin Zimring and Gordon hawkins, Prison Population and

Criminal Justice Policy in California (berkeley: University of Cal-

ifornia at berkeley, Institute of Governmental Studies Press,

1992), 1.

27 Ruth Wilson Gilmore, Golden Gulag: Prisons, Surplus, Crisis,

and Opposition in Globalizing California (berkeley: University

of California Press, 2007), 7.

28 “Weekly Report of Population, As of midnight June 8, 2011,”

Data Analysis Unit, California Department of Corrections

and Rehabilitation (June 13, 2011), http://www.cdcr.ca.gov/

Reports_Research/Offender_Information_Services_branch/

Population_Reports.html [accessed 15 June 2011].

29 “From Classrooms to Cell blocks: how Prison building Affects

higher Education and African American Enrollment in Califor-

nia,” Center on Juvenile and Criminal Justice (October 1996).

30 “California’s Changing Prison Population,” Public Policy Insti-

tute of California, August 2006.

31 Some examples of more recent work include, Katherine beckett

and Steve herbert, Banished: The Transformation of Urban Social

Control (New york: Oxford University Press, 2010); Jeff manza

and Christopher Uggen, Locked Out: Felon Disenfranchisement

and American Democracy (New york: Oxford University Press,

2006); Sarah Wakefield and Christopher Uggen, “Incarcera-

tion and Stratification,” Annual Review of Sociology v 36 (2010)

387–406; and bruce Western, Punishment and Inequality in

America (Russell Sage Foundation, 2006).

32 Thirteenth Amendment to the United States Constitution.

33 Opposition from the labor and prison reform movements dra-

matically reduced the use of coerced prison labor World War II.

For information on convict labor between the 1860s and 1940s,

see Alex Lichtenstein, Twice the Work of Free Labor: The Political

Economy of Convict Labor in the New South (New york: Verso,

1996); Ward mcAfee, “A history of Convict Labor in Califor-

nia,” Southern California Quarterly, v 72 (Spring 1990), 235–54;

Rebecca mcLennan, The Crisis of Imprisonment: Protest, Politics,

and the Making of the American Penal State, 1776–1941 (Cam-

bridge: Cambridge University Press, 2008); David Oshinsky,

“Worse Than Slavery”: Parchmann Farm and the Ordeal of Jim

Crow Justice (New york: The Free Press, 1996); Robert Perkin-

son, Texas Tough: The Rise of America’s Prison Empire (New york:

metropolotan books, 2010).

34 For more information on the historical development of the

rights of prisoners, see “Civil Death: Capacity of a Convict to

Contract,” California Law Review, v 2, n 5 (July, 1914), 401–402;

“Civil Status of Convicts,” Columbia Law Review, v 14, n 7 (Nov

1914), 592–94; Nathaniel Cantor, “The Prisoner and the Law,”

Annals of the American Academy of Political and Social Science, v

157 (Sept., 1931), 23–32; Alec Ewald, “Civil Death”: The Ideologi-

cal Paradox of Criminal Disenfranchisement Law in the United

States,” Wisconsin Law Review (2002), 1045–1138; “Civil Death:

Capacity of a Convict to Contract,” California Law Review, v 2,

n 5 (July, 1914), 401–402; Rebecca mcLennan, “The Convict’s

Two Lives: Civil and Natural Death in the American Prison,” in

eds., David Garland, Randall mcGowen, and michael meranze,

America’s Death Penalty: Between Past and Present (New york: New

york University Press, 2011); m.W.S., “Constitutional Rights of

Prisoners: The Developing Law,” University of Pennsylvania Law

Review, v 110, n 7 (may, 1962), 985–1008; harry David Saunders,

“Civil Death—A New Look at a n Ancient Doctrine,” William and

Mary Law Review, v 11, n 4 (1970), 988–1003.

35 michelle Alexander, The New Jim Crow: Mass Incarceration in the

Age of Colorblindness (New york: The New Press, 2010).

36 See Patrick A. Langan, “Race of Prisoners Admitted to State and

Federal Institutions, 1926–1986,” Publication #NCJ-125618,

bureau of Justice Statistics, US Department of Justice, (may

1991) and Patrick Langan, John V. Fundis, Lawrence Green-

field, and Victoria Schneider, “historical Statistics on Prisoners

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68 b o o m c a l i f o r n i a . c o m

in State and Federal Institutions, yearend 1935–1986,” publica-

tion # NCJ-111098, bureau of Justice Statistics, US Department

of Justice (may 1988).

37 Wilson Gilmore, Golden Gulag, 110–11.

38 Rebecca Clark and Scott Anderson, “Illegal Aliens in Federal,

State, and Local Criminal Justice Systems,” Urban Institute, 30

June 2000. See also, Jonathan Simon, “Refugees in a Carceral

Era: The Rebirth of Immigration Prisons in the United States,”

Public Culture v 10, n 3 (1988), 577–606.

39 For additional information, see michael Welch, “The Role of

the Immigration and Naturalization Service in the Prison-In-

dustrial Complex,” Social Justice v 27, n 3 (2000), 73–88.

40 Prison abolitionism is already a robust political movement. See

www.criticalresistance.org for more information.

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