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UB Law Forum Volume 19 Number 1 Fall 2006 Article 20 10-1-2006 Policing the Aliens: 'Crimmigration' Conference Looks at Criminal Treatment of Immigrants UB Law Forum Follow this and additional works at: https://digitalcommons.law.buffalo.edu/ub_law_forum Recommended Citation UB Law Forum (2006) "Policing the Aliens: 'Crimmigration' Conference Looks at Criminal Treatment of Immigrants," UB Law Forum: Vol. 19 : No. 1 , Article 20. Available at: https://digitalcommons.law.buffalo.edu/ub_law_forum/vol19/iss1/20 This Article is brought to you for free and open access by the Alumni Publications at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in UB Law Forum by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. Law School ReportBaldy Center for Law & Social Policy 36 37U B  L A W  F O R U M  2 0 0 6tections.” But, he said, such proceed-ings are “useful for government authori-ties because they bypass constitutionalguarantees that exist under criminallaw.”Jonathan Simon of Boalt Hall LawSchool at the University of California atBerkeley, appearing by video link, gavea historical tour of the 20th century andtold how public policy toward illegalimmigrants shifted from a rehabilitationor correctional model to a crime-controlmodel. “Since the 1960s,” he said, “thewar on crime has reshaped the mentali-ty of governance across the board.” Be-ginning in the mid-1990s, he said,“criminal alienstatutes” were beefedup, local autonomyover immigrants wasreplaced by a morerigid national policy,and prisons increas-ingly have been usedas “a tool of incapaci-tation or removal.”“After 9/11,” hesaid, “the war on ter-ror has been littlemore than a continua-tion of the war oncrime. The govern-ment wanted to treatit as a crime problemwithout any law get-ting in the way.”Juliet Stumpf ofLewis & Clark LawSchool noted that“immigration law en-forcement agencieshave come to look alot like criminal lawenforcement agen-cies,” with the power to make arrestsand execute warrants. “There is still anenormous gap between constitutionallaw as it relates to immigrants and theconstitutional rights of criminal defen-dants. The Fifth and Sixth amendmentsreally do not apply in the immigrationcontext.”As well, she said, “race and nationalorigin are treated quite differently in thetwo areas. In the immigration context,they can be a factor in, for example,when an immigration agent can stopsomebody. That is something that is ex-plicitly not permitted in criminal pro-ceedings.”Huyen Pham of the University ofMissouri School of Law discussed therole of local governments in enforcingimmigration laws. She noted that Con-gress has passed laws that prohibit localgovernments from telling their employ-ees to withhold information about theirimmigration status, in effect saying tothese governments, “You cannot have alaw that prevents your employees fromcooperating with us.” Nearly 50 citiesand towns have tried to limit this coop-eration, she said: “I call these local lawsnon-cooperation laws, because their ef-fect is to limit the authority of local po-lice, hospital workers and teachers tocooperate with law enforcement. Themajority of these laws were passed after9/11, when the federal government waspushing for local governments to get in-volved in immigration law enforce-ment.”Local governments, she said, resistcooperating with federal immigrationauthorities because that works againstsuch valuable tools as community polic-ing – “I cannot do this if my communitythinks I’m going to report them to theINS.” There is also concern, she said,that immigrants will not go to hospitalswhen they have medical problems, andwill keep their children out of schoolout of concern they will be deported.”UB Law Adjunct Professor JoanneMacri, who has studied conditions inNew York State prisons, said, “I believein the very near future we will see agrand expansion of immigration deten-tion facilities.” A subsidiary of the Hal-liburton Corp., for example, has won afederal contract to build facilities thatwill accommodate up to 40,000 illegalaliens by 2008.She noted that detention of aliens isadministrative, not judicial, in nature. “Itis not punishment; it is not sentencing.The problem I have is with an individ-ual who asks, ‘When am I getting out ofhere?’ And the answer is, ‘I do notknow, unless you want to get out ofhere really fast,’” i.e.through deportation.UB Law School’sJohanna Oreskovic,spoke at length aboutthe trafficking in chil-dren for adoption.“International adop-tion tend to followwar, crime, povertyand social disruption,so countries that havethe least infrastructurefor regulating whatchildren becomeavailable for adoptionare targeted,” shesaid.“Internationaladoption agencies areessentially businesses,and huge amounts ofmoney are trans-ferred, very little ofwhich goes to thesending country, verylittle of which goes tobenefit children re-maining behind. This creates a blackmarket situation in which large profitsare being made by intermediaries.”The existence of such a market, shesaid, is “indicative of a much broaderfailure to adopt regulations on the fed-eral level to control these adoptions.There is no federal crime for traffickingin children for purposes of adoption.”The conference featured timely andprovactive discussion with a large audi-ence. “By naming and investigating thelegal trend of ‘crimmigration,’ Miller andher colleagues have pinpointed a cru-cial new area of legal scholarship andadvocacy,” commented Baldy directorLynn Mather.Policing the aliens‘Crimmigration’ conference looks at criminal treatment of immigrantsThe war on drugs. Thewar on terror. Asgovernments bringlaw enforcement re-sources to bear onthese threats to public security,crime control has increasinglycome to target immigrants tothe United States, some ob-servers say.“Crimmigration” is thecatchall term for the trend in im-migration law and policy re-forms that adopt a criminallypunitive approach to managingnon-citizens. These reforms in-clude detaining certain classesof removable aliens; local policebeing called on to enforce fed-eral immigration laws; expedit-ed removal of undocumentedworkers; and the deportation ofso-called “criminal” aliens.An ambitious conference onApril 28 and 29, “Merging Immi-gration and Crime Control: AnInterdisciplinary Workshop,”brought a wide variety of schol-ars and clinicians to O’BrianHall to discuss aspects of this le-gal trend. Organized by UB LawProfessor Teresa Miller and acolleague from Hofstra Univer-sity, Nora Demleitner, the con-ference was held under the aus-pices of the Baldy Center forLaw and Social Policy. Miller’sresearch has focused on prisonsand the policies of mass incar-ceration that are responsible for prisonexpansion and the burgeoning num-bers of people incarcerated in the Unit-ed States. Her interest in incarcerationhas led her to research the growingprevalence of detention as a policywithin the immigration system.Also presenting was UB Law Profes-sor Johanna Oreskovic, whose researchinterest centers on the development ofinternational adoption as a social andlegal institution. Among the visiting par-ticipants were scholars from RutgersUniversity, the University of Californiaat Berkeley, Boston College, Washing-ton University in St. Louis and the Uni-versity of Toronto.A sampling of the discussion:Stephen Legomsky of Wash-ington University in St. Louis,author of the standard textbookImmigration and Refugee Lawand Policy, described how soci-ety’s perceptions about crimi-nals and deportees have be-come “increasingly negativeand intertwined.” Legomskynoted “uncanny similarities be-tween deportation and criminallaw,” and said enforcement ofimmigration laws has movedfrom the Immigration and Natu-ralization Service, its traditionalhome, to the Department ofHomeland Security as fears overforeign-born terrorists prolifer-ate.Randall Shelden, an expertin criminal justice at the Univer-sity of Nevada, Las Vegas, gavea historical perspective by dis-cussing Executive Order 9066 –the World War II-era move tointern Japanese-Americans.“Throughout American his-tory,” he said, “one of the ob-jects of the criminal justice sys-tem is social control – securingor maintaining or perpetuatingthe status quo, and reinforcingracial and class inequalities.”For example, he said, drug lawshave tended to assign theharshest penalties for the use ofdrugs “used mostly by immi-grants and those in the lowerclasses.” Shelden also describeda “symbiotic relationship among theprison system, courtroom interests andpolitical interests” – what he called theprison-industrial complex.Michael Welch, sociologist at RutgersUniversity, argued that “it is unfair touse deportation proceedings to achieveaims of crime control, because deporta-tion lacks significant constitutional pro-Foreground, Maartje van der Woude, Leiden University School of Law.Professor Teresa Miller, UB Law School.Nora Demleitner, Hofstra University.Law School ReportBaldy Center for Law & Social Policy 36 37U B  L A W  F O R U M  2 0 0 6tections.” But, he said, such proceed-ings are “useful for government authori-ties because they bypass constitutionalguarantees that exist under criminallaw.”Jonathan Simon of Boalt Hall LawSchool at the University of California atBerkeley, appearing by video link, gavea historical tour of the 20th century andtold how public policy toward illegalimmigrants shifted from a rehabilitationor correctional model to a crime-controlmodel. “Since the 1960s,” he said, “thewar on crime has reshaped the mentali-ty of governance across the board.” Be-ginning in the mid-1990s, he said,“criminal alienstatutes” were beefedup, local autonomyover immigrants wasreplaced by a morerigid national policy,and prisons increas-ingly have been usedas “a tool of incapaci-tation or removal.”“After 9/11,” hesaid, “the war on ter-ror has been littlemore than a continua-tion of the war oncrime. The govern-ment wanted to treatit as a crime problemwithout any law get-ting in the way.”Juliet Stumpf ofLewis & Clark LawSchool noted that“immigration law en-forcement agencieshave come to look alot like criminal lawenforcement agen-cies,” with the power to make arrestsand execute warrants. “There is still anenormous gap between constitutionallaw as it relates to immigrants and theconstitutional rights of criminal defen-dants. The Fifth and Sixth amendmentsreally do not apply in the immigrationcontext.”As well, she said, “race and nationalorigin are treated quite differently in thetwo areas. In the immigration context,they can be a factor in, for example,when an immigration agent can stopsomebody. That is something that is ex-plicitly not permitted in criminal pro-ceedings.”Huyen Pham of the University ofMissouri School of Law discussed therole of local governments in enforcingimmigration laws. She noted that Con-gress has passed laws that prohibit localgovernments from telling their employ-ees to withhold information about theirimmigration status, in effect saying tothese governments, “You cannot have alaw that prevents your employees fromcooperating with us.” Nearly 50 citiesand towns have tried to limit this coop-eration, she said: “I call these local lawsnon-cooperation laws, because their ef-fect is to limit the authority of local po-lice, hospital workers and teachers tocooperate with law enforcement. Themajority of these laws were passed after9/11, when the federal government waspushing for local governments to get in-volved in immigration law enforce-ment.”Local governments, she said, resistcooperating with federal immigrationauthorities because that works againstsuch valuable tools as community polic-ing – “I cannot do this if my communitythinks I’m going to report them to theINS.” There is also concern, she said,that immigrants will not go to hospitalswhen they have medical problems, andwill keep their children out of schoolout of concern they will be deported.”UB Law Adjunct Professor JoanneMacri, who has studied conditions inNew York State prisons, said, “I believein the very near future we will see agrand expansion of immigration deten-tion facilities.” A subsidiary of the Hal-liburton Corp., for example, has won afederal contract to build facilities thatwill accommodate up to 40,000 illegalaliens by 2008.She noted that detention of aliens isadministrative, not judicial, in nature. “Itis not punishment; it is not sentencing.The problem I have is with an individ-ual who asks, ‘When am I getting out ofhere?’ And the answer is, ‘I do notknow, unless you want to get out ofhere really fast,’” i.e.through deportation.UB Law School’sJohanna Oreskovic,spoke at length aboutthe trafficking in chil-dren for adoption.“International adop-tion tend to followwar, crime, povertyand social disruption,so countries that havethe least infrastructurefor regulating whatchildren becomeavailable for adoptionare targeted,” shesaid.“Internationaladoption agencies areessentially businesses,and huge amounts ofmoney are trans-ferred, very little ofwhich goes to thesending country, verylittle of which goes tobenefit children re-maining behind. This creates a blackmarket situation in which large profitsare being made by intermediaries.”The existence of such a market, shesaid, is “indicative of a much broaderfailure to adopt regulations on the fed-eral level to control these adoptions.There is no federal crime for traffickingin children for purposes of adoption.”The conference featured timely andprovactive discussion with a large audi-ence. “By naming and investigating thelegal trend of ‘crimmigration,’ Miller andher colleagues have pinpointed a cru-cial new area of legal scholarship andadvocacy,” commented Baldy directorLynn Mather.Policing the aliens‘Crimmigration’ conference looks at criminal treatment of immigrantsThe war on drugs. Thewar on terror. Asgovernments bringlaw enforcement re-sources to bear onthese threats to public security,crime control has increasinglycome to target immigrants tothe United States, some ob-servers say.“Crimmigration” is thecatchall term for the trend in im-migration law and policy re-forms that adopt a criminallypunitive approach to managingnon-citizens. These reforms in-clude detaining certain classesof removable aliens; local policebeing called on to enforce fed-eral immigration laws; expedit-ed removal of undocumentedworkers; and the deportation ofso-called “criminal” aliens.An ambitious conference onApril 28 and 29, “Merging Immi-gration and Crime Control: AnInterdisciplinary Workshop,”brought a wide variety of schol-ars and clinicians to O’BrianHall to discuss aspects of this le-gal trend. Organized by UB LawProfessor Teresa Miller and acolleague from Hofstra Univer-sity, Nora Demleitner, the con-ference was held under the aus-pices of the Baldy Center forLaw and Social Policy. Miller’sresearch has focused on prisonsand the policies of mass incar-ceration that are responsible for prisonexpansion and the burgeoning num-bers of people incarcerated in the Unit-ed States. Her interest in incarcerationhas led her to research the growingprevalence of detention as a policywithin the immigration system.Also presenting was UB Law Profes-sor Johanna Oreskovic, whose researchinterest centers on the development ofinternational adoption as a social andlegal institution. Among the visiting par-ticipants were scholars from RutgersUniversity, the University of Californiaat Berkeley, Boston College, Washing-ton University in St. Louis and the Uni-versity of Toronto.A sampling of the discussion:Stephen Legomsky of Wash-ington University in St. Louis,author of the standard textbookImmigration and Refugee Lawand Policy, described how soci-ety’s perceptions about crimi-nals and deportees have be-come “increasingly negativeand intertwined.” Legomskynoted “uncanny similarities be-tween deportation and criminallaw,” and said enforcement ofimmigration laws has movedfrom the Immigration and Natu-ralization Service, its traditionalhome, to the Department ofHomeland Security as fears overforeign-born terrorists prolifer-ate.Randall Shelden, an expertin criminal justice at the Univer-sity of Nevada, Las Vegas, gavea historical perspective by dis-cussing Executive Order 9066 –the World War II-era move tointern Japanese-Americans.“Throughout American his-tory,” he said, “one of the ob-jects of the criminal justice sys-tem is social control – securingor maintaining or perpetuatingthe status quo, and reinforcingracial and class inequalities.”For example, he said, drug lawshave tended to assign theharshest penalties for the use ofdrugs “used mostly by immi-grants and those in the lowerclasses.” Shelden also describeda “symbiotic relationship among theprison system, courtroom interests andpolitical interests” – what he called theprison-industrial complex.Michael Welch, sociologist at RutgersUniversity, argued that “it is unfair touse deportation proceedings to achieveaims of crime control, because deporta-tion lacks significant constitutional pro-Foreground, Maartje van der Woude, Leiden University School of Law.Professor Teresa Miller, UB Law School.Nora Demleitner, Hofstra University.

Policing the Aliens: \u27Crimmigration\u27 Conference Looks at Criminal Treatment of Immigrants

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Policing the Aliens: \u27Crimmigration\u27 Conference Looks at Criminal Treatment of Immigrants

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