Trajectories of Immigration Enforcement and the Criminal Justice System: The Costs and Benefits of Inequality

On the 12th of November 2014 Professor Jennifer Chacón spoke at All Soul’s College in Oxford on the topic of ‘Immigration Enforcement and the Criminal Justice System in the US’.

Chacón’s seminar was a comparison of the trajectories of immigration enforcement and criminal justice in the U.S, arguing the punativeness of both in recent years have shifted in opposite directions, but that both moves have resulted in poor outcomes for vulnerable groups.

Chacón argued that the U.S criminal justice system is heading towards the ‘end of the severity revolution.’ For the past four years in a row the population held in prisons in the US has been falling; the result of a shift towards decriminalisation. A great deal of this change, she argued, is based in austerity measures – prisons are expensive. Trends in immigration enforcement, however, have seen increasing criminalization with greater federal powers than ever before to issue immigration prosecutions. As an example, Chacón illustrated that in 2012 sixty-three thousand federal prosecutions were made, forty per cent of these were for immigration offences. There were more immigration convictions in this year than any other group of offences, far more than those doled out for drugs or violent crimes. In short, federal prosecutions in general are declining, but migration offences are making up an ever increasing portion of them.

On the surface these shifts in punativeness are polar opposites, however, Chacón argued both are on the same trajectory. In an age of austerity measures, and in a country where popular perception sees migrants as a threat to fiscal stability, the prosecution of migrants is a cheap fix to the ‘siege’ from across the border. The vulnerability of migrants is ignored and prosecuted individuals are inevitably deported becoming an expense for their home nations instead of the U.S. With all these deportations, naturally the immigration enforcement sector is booming, creating jobs and wealth for the middle classes. For example, in recent years the number of border agents have increased from five to twenty thousand individuals – this is despite border apprehensions dipping to a historical low in the same period.

‘Money saving,’ Chacón, asserted, is also a big driver of decriminalization in a criminal justice sector that now prefers fines and tagging to prison sentences. However, these new methods inevitably have greatest impact on the vulnerable and the marginalised. Poorer individuals who commit a minor offence are less able to pay their fines and are more likely to breach tagging restrictions, so they are also more likely to end up in prison. Meanwhile, as with immigration enforcement, the booming tagging and surveillance sectors create wealth and jobs for the middle classes.

The trajectories highlighted here by Chacón are worrying, and I can’t help but compare them with those of immigration enforcement and the criminal justice system in the UK. I can’t say the criminal justice system here is moving towards decriminalisation with prison occupancy at record levels, however, the outsourcing of prison services, tagging and probation services to private companies is the same. Undoubtedly this outsourcing creates wealth for some in the name of austerity and at the cost of services for a marginalised and vulnerable population. The rise in self-inflicted prisoner deaths linked to budget cuts and staff shortages is a particularly poignant example of this. Immigration enforcement draws a closer parallel, with a steady increase in criminalisation in recent years, and with the same private, for profit, companies involved in the criminal justice system running immigration removal centres, and providing security during enforced removals. Here again a vulnerable population is at risk, with protections such as legal aid no longer available due to austerity measures and serious questions being raised regarding the standard of care provided to individuals in detention.

Chacón’s argument highlights gross inequalities arising from the trajectories of immigration enforcement and the criminal justice system in the U.S. Unfortunately this is not something that can be dismissed as a problem of the U.S as parallels can easily be draw here in UK. Whether deliberate or not it doesn’t seem right that companies profit from the criminalisation of migrants, nor from a reduction in services for prisoners. Perhaps it’s time we reminded the world that we are talking here of people, not products to be sold for the highest possible profit margin.