What Part of “Illegal” Don’t You Understand? The Social Consequences of Criminalizing Unauthorized Mexican Migrants in the United States
| Published date | 01 December 2013 |
| DOI | 10.1177/0964663913484638 |
| Author | Jeremy Slack,Daniel Martinez |
| Date | 01 December 2013 |
| Subject Matter | Articles |
Article
Social & Legal Studies
22(4) 535–551
What Part of ‘‘Illegal’’
ª The Author(s) 2013
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Don’t You Understand?
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DOI: 10.1177/0964663913484638
The Social
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Consequences of
Criminalizing
Unauthorized Mexican
Migrants in the United
States
Daniel Martinez
The George Washington University, USA
Jeremy Slack
The University of Arizona, USA
Abstract
In this article, we examine the social repercussions of criminally prosecuting individuals
that cross into the United States without official documentation. The ‘‘criminalization of
immigration law’’ (Coleman, 2007), federal- and state-level anti-immigrant initiatives,
and an incarceration-oriented approach to dealing with unauthorized migration have
redefined what it means to be undocumented in the United States, a definition with
more sociological implications than ever before. Using strain theory (Agnew, 1992; Mer-
ton, 1938) and Cloward and Ohlin’s (1960) concept of illegitimate means structures, we
discuss the social ramifications for migrants who are exposed to a potentially unfamiliar
criminal element while incarcerated for unauthorized entry. First-hand accounts of
migrants’ experiences were gathered from face-to-face semi-structured interviews of
210 randomly selected individuals at a migrant shelter in northern Mexico.
Corresponding author:
Daniel Martinez, Department of Sociology, The George Washington University, 801 22nd Street, NW, Suite
409, Washington, DC 20052, USA.
Email: mada0102@email.arizona.edu
536
Social & Legal Studies 22(4)
Keywords
Criminalization, unauthorized, undocumented, migrants, immigrants, detention, Opera-
tion Streamline
Introduction
Between drug-related violence, state and federal anti-immigrant initiatives, and the newly
minted, ‘‘Consequences Delivery System’’ (CDS) aimed at punishing undocumented
migrants, the situation along the US-Mexico border presents a grim reality for the hundreds
of thousands of people deported every year. Although scholars have identified policy
changes that have contributed greatly to the criminalization of unauthorized immigrants
in the United States (Boehm, 2011; Coleman, 2007; Golash-Boza, 2009; Welch, 2003,
2007), relatively little work has focused on the social implications of this emerging crim-
inalization process. Controversial policies such as Arizona’s Senate Bill 1070 and Alaba-
ma’s House Bill 56, as well as federal programs like Secure Communities, 287(g), and
Operation Streamline have all contributed to the increased incarceration of unauthorized
immigrants in addition to record numbers of interior apprehensions and repatriations by
U.S. Immigrations and Customs Enforcement (ICE). We ask how these policies are con-
tributing to the (re)production and perpetuation of another criminalized, subordinate class
within the United States, while also placing people in danger upon return to Mexico, espe-
cially for those that become involved in crime, as a direct result of the contacts made while
incarcerated for immigration violations or being deported.
Relying on data gathered through semi-structured interviews with recent deportees at
a shelter in northern Mexico, we detail how recent policy changes have, not only
figuratively, but literally redefined what it means to be an ‘‘illegal alien’’ in the United
States. We stress that our intention is not to generalize all unauthorized migrants and the
contemporary migration experience, nor do we empirically test extant theories of crim-
inalization. Rather our goal is to draw on our conversations with deportees to illuminate
the social harm arising from the systematic criminalization of unauthorized migrants as a
politically motivated and profit-generating enterprise. This in itself is a challenging task.
Friedrichs (2007) has called attention to chasm between traditional and critical perspec-
tives in explicating issues of crime and criminalization at a global level. We hope to
indirectly contribute to the bridging of this gap by drawing on extant mainstream theories
of crime to help highlight the consequences of treating violators of immigration law as
criminals, while simultaneously providing a critical analysis of the powerful entities that
have deliberately reshaped immigration policy in the United States.
The Criminalization of Immigration Law and Increased
Incarceration
In this article, we interrogate the ‘‘immigration industrial complex’’ (Golash-Boza,
2009) in order to identify the implications of big business and lawmakers generating
what we believe to be a major social problem—the social criminalization of migrants.
Martinez and Slack
537
The process of questioning the immigration industrial complex involves theorizing the
intersections between individuals, the state, and the corporations in securing the border;
be it inside the United States or directly at the 2000-mile border with Mexico. Three
interrelated factors, among others, have contributed significantly to the rise of the immi-
gration industrial complex: the ‘‘criminalization of immigration law’’ (Coleman, 2007:
56), a shift toward an incarceration-oriented approach to immigration control, and the
emergence of the CDS (Fisher, 2011)—the latter having largely emerged out of the
aforementioned processes.
During the 1990s and 2000s, the United States attempted to address the issue of
unauthorized migration by adopting the prevention through deterrence strategy, which
relied largely on militarizing the US-Mexico border (Andreas, 1998, 2000; Dunn,
2009; Massey et al., 2003; U.S. Border Patrol, 1994). The prevention through deterrence
strategy also focused on increasing migrant apprehensions near the border as a means
to deter future crossing attempts. After being apprehended, migrants typically agreed
to a voluntary repatriation to a Mexican border town. This approach resulted in the
‘‘voluntary departure complex’’ (Heyman, 1995) in which the migrants simply kept
attempting to cross the border until they successfully avoided detection.
Around the same time, policy-makers seized windows of opportunity created by
moral panics over the 1993 and 2001 terrorist attacks on the World Trade Center to enact
tougher immigration legislation (Coleman, 2007; Golash-Boza, 2009; Welch, 2003,
2007). In the process, policy-makers have coupled ‘‘immigration control to criminal law
enforcement,’’ a course of action that Coleman has described as the ‘‘criminalization of
immigration law’’ (2007: 56). Immigration infractions have historically been treated as
federal civil administrative matters; however, an increasingly anti-immigrant political
climate and worries surrounding potential terrorist attacks have shifted policies toward
criminal prosecution for unauthorized entry (Coleman, 2007; Welch, 2003, 2007). This
has led to an increased risk of apprehension, incarceration, and deportation, stemming
from interactions with law and immigration enforcement officials.
The 1996 Illegal Immigration Reform and Immigration Responsibility Act expanded
the list of ‘‘aggravated felonies—a specific class of crimes committed by non-citizens,
applicable only in the context of immigration law, and warranting deportation from the
U.S.’’ (Coleman, 2007: 58). This included unauthorized reentry. The newly enacted
immigration policies were also made retroactive, meaning that immigrants could be
deported for crimes for which they were previously adjudicated, including instances
where individuals pled guilty to certain offenses in exchange for probation rather than
risk serving jail time, and even in cases where no formal sentence was given (Coleman,
2007; Welch, 2007). This meant that ‘‘individuals could be identified as deportable agg-
ravated felons without an explicit conviction for an aggravated felony’’ (Coleman, 2007:
58). The growing incongruences between immigration law and criminal law have
increased, whereby immigrants are essentially tried twice for the same crime, once in
a criminal court and again in an immigration court. This has resulted in the need for immi-
gration lawyers to undergo training in criminal law and for public defenders to familiarize
themselves with immigration law when defending immigrants in criminal court.
Perhaps most disturbing is that lines between immigration policy and criminal law
have become increasingly blurred, while the judicial review process for immigration
538
Social & Legal Studies 22(4)
violations has become increasingly limited (Coleman, 2007). This restricts the ability of
unauthorized migrants to legitimately defend themselves against charges during the
judicial process and increases the likelihood of an unfavorable outcome compared to
citizens—most notably deportation or incarceration.
The use of private detention facilities to house violators of immigration law has
increased significantly over the past 10 years (Wides-Mun˜oz and Burke, 2012), a trend that
appears to have paralleled increased penalties associated with unauthorized reentry.
Today, about half of all people held on immigration violations are serving time in private
detention facilities (Wides-Mun˜oz and Burke, 2012). The extent to which the private
prison lobby was involved in crafting Arizona’s SB 1070 received increased public scru-
tiny due to a radio news story by National Public Radio (2010). In December 2009,
4 months before the bill was signed into law, the American Legislative Exchange Council
held a conference in Washington DC. At the conference, former Senator Russell Pearce
(R-AZ) and other lobbyists drafted a piece of...
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