Professor Eagly’s October 2013 article, “Criminal Justice for Noncitizens: An Analysis of Variation in Local Enforcement,” is now online!
Please also enjoy this summary that she graciously prepared exclusively for the N.Y.U. Law Review website.
“Immigration kind of hogties you.”
—Assistant district attorney, Houston, Texas
“Very little for most people is scarier than the thought of losing a green card.”
—Deputy county public defender, Los Angeles, California
“People will voluntarily deport and we keep track of that. We move them to the administrative caseload to be sure they don’t come back.”
—Adult probation officer, Phoenix, Arizona
The deportation of “criminal aliens” is now the driving force in American immigration enforcement. In recent years, the Congress, the Department of Justice, the Department of Homeland Security, and the White House have all placed criminals front and center in establishing immigration enforcement priorities. By fostering immigration screening at local jails and courthouses, federal authorities have filled the deportation pipeline with migrants arrested by local police and prosecuted in county courtrooms. Criminals and others identified during criminal arrests, such as “repeat immigration violators” and “fugitives from warrants,” now constitute a full ninety percent of all persons removed from the country. In effect, federal immigration enforcement has become a criminal removal system.
The growing centrality of criminality to immigration enforcement is one of the most significant historical shifts in the federal immigration system. Yet, the influence of this transformation on the everyday practice of criminal law remains underexplored. The nascent scholarship in this area has concentrated on the treatment of criminals within the immigration system, rather than on noncitizens within the criminal system. Thus, although there is a body of research about the effects of criminal convictions on immigration adjudication, scholars have largely ignored the effects of immigration enforcement on bread-and-butter criminal charges brought in local criminal courts.
This lack of attention to the role that immigration plays in criminal adjudication is reinforced by two common misperceptions: The first pertains to the immigration system and the second to the criminal system. The first misperception is that immigration enforcement is restricted exclusively to the federal government. According to this description of the federal immigration system, local criminal justice agencies have no formal role in immigration enforcement. The second misperception is that immigration status and the desire to inform immigration outcomes are not factors in the adjudication of criminal cases. By this account, how crimes are charged or sanctions imposed at the local level, although fraught with race and class disparities, does not single out noncitizens for different treatment within the criminal system.
As this Article demonstrates, however, neither of these descriptions reflects the reality of criminal practice. Rather than restricted to the federal domain, immigration enforcement is now deeply intertwined with the local enforcement of criminal law. Indeed, the federal government has formally enlisted state and local authorities to assist with enforcement through, among other initiatives, cooperative agreements with local law enforcement. The idea that immigration is not part of the local criminal process is also losing credibility. Far from remaining blind to the immigration status of defendants, some states and localities direct law enforcement to inquire about status while policing neighborhoods, whereas other states and localities explicitly prohibit the practice. Judges presiding over criminal cases, prosecutors, parole and probation officers, jail personnel, and court clerks are also increasingly subject to specific rules and policies regarding whether and how to think about immigration status in processing cases.
Together, these two parallel developments—federal solicitation of local criminal system involvement in immigration removal and criminal system consideration of alienage in the processing of state crimes—represent a sea change in criminal justice. Appreciating how local criminal justice is structured in this era of immigration policing therefore requires examining how system participants actually go about their day-to-day work. How are the programs, priorities, and procedures of the new criminal removal system integrated into the institutional structure of local criminal justice agencies? How do immigration-oriented concerns (such as deportation and migration control) interact at the local level with criminal justice-oriented concerns (such as criminal punishment and crime control)?
In examining the criminal-immigration enforcement nexus, this Article explores the criminal justice systems in three large urban centers: Los Angeles County, California; Harris County, Texas; and Maricopa County, Arizona. I chose to study these three counties because each ranks among the top in the nation on three separate indices of criminal alien enforcement: (1) number of arrests of noncitizens by local police and sheriffs; (2) size of criminal alien population housed in local jails; and (3) volume of fingerprint matches found through the federal government’s new jail-based immigration screening program known as Secure Communities. This steady flow of noncitizens is perhaps not surprising given that these southwestern urban counties are among the most populous in the nation and manage massive criminal caseloads. Each county is also located close to the Mexican border and has a significant noncitizen population. The geography and demographics of these three jurisdictions thus afford them significant experience with the criminal processing of noncitizens.
To document local practices, I rely on eighty-four interviews I conducted with stakeholders in the three counties—prosecutors, public defenders, private attorneys, judges, pretrial services officers, probation officers, and jail personnel. I also draw on other relevant data, including local laws and procedures, criminal court documents and forms, criminal and immigration enforcement statistics, and prosecution policies and training materials. Many of these materials were obtained through the Freedom of Information Act and state public records acts.
My research on these three counties reveals two important findings. The first finding is that criminal law’s integration with immigration enforcement has a far more powerful impact on local criminal process than previously understood. Across all three counties, criminal law officials are keenly aware of both the immigration status of defendants and the practical effects of the federal government’s reliance on convictions in making immigration enforcement decisions. Federal immigration agents are a continuous presence in the local law enforcement system: They are often physically present in local jails, impede release on criminal bail, train prosecutors on how to secure plea agreements that guarantee removal, and sometimes deport noncitizen defendants prior to their criminal trials. Deportation also poses unique challenges for plea bargaining and sentencing because noncitizens are often deported before they are able to complete probation, community service, or other similar requirements imposed by the criminal court.
My second finding is that, despite these consistently deep connections between federal and local officials across all three counties, each county has navigated this criminal-immigration integration in a strikingly different way. At the county level, I find that criminal justice for noncitizens is influenced by two somewhat overlapping sets of discretionary decisions. One set includes local practices that weigh alienage status at different points in the criminal process (such as enhancing a criminal sentence if a defendant is undocumented). The other set of discretionary decisions includes criminal policies and procedures adopted in response to federal immigration enforcement efforts (such as reporting arrestees to immigration authorities or fashioning a plea agreement to avoid deportation). Significantly, within each county, I find that the various criminal system participants (including prosecutors, defense attorneys, judges, and probation officers) have developed a shared understanding of the local criminal system’s role in both sets of discretionary decisions.
Drawing on my research, I provide a framework for conceptualizing the varied approaches of these three influential counties. As I describe, Los Angeles has adopted an alienage neutral model that seeks to shield the criminal process from consideration of immigration status and the disproportionate effects of immigration enforcement on criminal bargaining and sentencing outcomes. Harris County has implemented an illegal alien punishment model in which judges and prosecutors allocate harsher criminal system punishments for those who commit crimes while in violation of this country’s immigration laws. Finally, Maricopa County has created an immigration enforcement model in which local law enforcement, prosecutors, judges, and probation officers attempt to discern immigration status at every stage in the criminal process and bring all potentially deportable noncitizens to the attention of federal immigration officials.
In each jurisdiction, federal immigration enforcement and local criminal practice form a coherent, interlocking system that advances distinct conceptions of noncitizen criminal justice. Although, as I explain, there can be some divergence between what local actors say and what they do in a particular case, at the level of criminal justice policy and articulated practice, each county has developed a unique understanding of how immigration status relates to criminal punishment and the appropriate role of local law enforcement in attaining immigration enforcement goals. As a result, each of the three models affects different categories of noncitizens at different points in the criminal process.
These findings have significant implications for the design of both local criminal justice systems and federal immigration enforcement. For the criminal justice system, the three counties teach us that the treatment of noncitizens incorporates different local understandings of how to achieve equality in criminal sanctioning across alienage lines and eliminate the perceived impact of immigration on crime control. Disentangling these two issues makes it possible to entertain with more clarity what policies and practices are at stake in crafting a local approach to noncitizen justice. For the federal immigration system, the distinct county models challenge the assumption of national uniformity that drives much of federal immigration policy. If uniformity is indeed the desired federal approach, this research demonstrates that more careful thought must be applied to both the exercise of discretion in making deportation decisions and the federal supervision of local criminal justice practices. In short, in this era of unprecedented immigration enforcement against suspected criminals, this Article’s on-the-ground inquiry recalibrates our understanding of both criminal justice and immigration federalism.
