July / August 1997
Volume 1 / Number 5
Research Perspectives on Migration
A joint project of the International Migration Policy Program of the
Carnegie Endowment for International Peace and the Urban Institute
Immigration and
the Justice System
Draw a Venn diagram on the topic of immigration and the justice
system and you will find in the overlap at least three distinct
concerns. The first would be immigrants as crime victims; the
second, immigrants as criminals; and the third, the socio-cultural
dimension of immigrants’ relationship to the criminal justice
system.
Each has its own sub-categories. Under the category of immigrants as crime victims, one might distinguish the following
types of victimization:
• Hate crime on account of nativity status, national origin, or
race, which is often provoked by economic issues;
• Criminal exploitation, both by fellow nationals and by the
native-born;
• Routine victimization, perhaps exacerbated by immigrant
propinquity to urban, high-crime neighborhoods;
Here, the paramount policy questions concern the dimensions
of the problems and how they might be diminished.
Immigrants as criminals would include the following types:
• Terrorists who target the U.S. or its allies, such as the World
Trade Center bombers;
• Organized criminal syndicates, such as Russian Mafias,
Vietnamese Triads, Central American and Mexican drug cartels,
Mexican and Chinese people-smuggling rings, and so on;
• Individual felons, who commit a wide range of crimes, and
who are by far the most numerous of the groups in this list;
• Youth criminal groups, particularly those involved in gangrelated activity;
• Illegal aliens, who, although generally industrious, law-abiding individuals, often aggravate the “crime” of their unauthorized presence by other illegal acts, such as using fraudulent
documents to obtain employment or other benefits. (Most
observers, however, would insist that that whatever illegality
is implied by an immigrant’s unauthorized presence in this
country belongs at the furthest end of the spectrum from terrorist and organized crime activity.)
There are two very broad questions to be asked about this issue.
First, what are the dimensions of the problem and how might
they be alleviated, either through admission or integration policies? Second, what types of illegal behavior trigger—or ought
to trigger—deportation proceedings?
Finally, there are a host of issues concerning how immigrants
either access or become inadvertently involved in the criminal
justice system. These issues arise out of the immigrants’ and the
host society’s attitudes about each other’s socio-cultural practices, or about crime and its enforcement. Two, particularly,
stand out:
• Socio-cultural practices deemed unacceptable by the host
society, such as those having to do with gender relations: the
marriage of underage women or genital mutilation, for example. The discussions here center around how the host society
can legitimately and sensitively enforce its laws within the
bounds of a pluralistic society;
• The insular nature of many immigrant communities, which
may complicate police-community relations, leading both to
intergroup friction and to a failure of protection. This issue may
be particularly salient if the immigrant community in question comes from a country in which authorities routinely violate
international norms of due process and human rights.
(continued on page 3)
In This Issue
Immigration and the Justice System . . . . . . . . . . . . . . 1
Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
When Culture Is a Defense or Impediment . . . . . . . . . 8
Removing Criminal Aliens . . . . . . . . . . . . . . . . . . . . .13
Suggested Reading . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Books & Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Research Perspectives on Migration
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Editor’s Note
Research Perspectives on Migration (RPM) is a bimonthly newsletter bridging the worlds
of research and policy to bring timely, reliable information about migration issues to a
broad audience of policymakers, scholars, journalists, and advocates.
There are few unambiguous results in immigration studies. Whether the subject is immigrant participation in
social welfare programs or entrepreneurship, or the net
contribution of immigrants to the economy of the nation,
most respected studies show that immigration entails a
multitude of positive and negative features.
Immigration has emerged as one of the most pressing issues on the nation’s domestic
agenda. Like race or crime, immigration arouses deep economic and cultural anxieties and can provoke fierce political debate. Internationally, migration has the potential to pose serious challenges for democratic order and stability. The movement of
people, whether voluntary or forced, is implicated in some of the great conflicts of
our time.
RPM will provide a solid basis of fact and objective analysis to debates that have too
often been marked by emotion, questionable or anecdotal evidence, and occasional
demagoguery. Each issue of RPM will focus on a specific topic dealing with immigrants
and refugees: welfare use; educational attainment and economic progress; population growth and the environment; entrepreneurship; crime and health.
Often, when overly ambitious immigration “reforms”
falter, the problem stems from a failure to give these pluses
and minuses the careful consideration they demand.
Instead, caught up in a pro- or anti-immigration mood,
legislators act on the basis of simplicities that at best
capture a portion of reality. The resulting policies often
create new problems even as they solve others.
RPM is a joint product of the International Migration Policy Program of the Carnegie
Endowment for International Peace and the Urban Institute. Its editorial board includes
distinguished academics, researchers, policy analysts, and journalists.
RPM’s purpose is to synthesize the best research on current issues in a timely and accessible manner, to enhance public understanding of migration, and to contribute constructively to today’s ongoing policy debates.
In short, there is probably no better recipe for bad policy
design in complex social issues than to be unequivocal.
Which is what makes this issue of RPM so unusual. Few
stereotypes of immigrants are as enduring, or have been
proven so categorically false over literally decades of
research, as the notion that immigrants are disproportionately likely to engage in criminal activity. The results
of that research are summarized in the pages that follow,
and are surprisingly unambiguous: immigrants are disproportionately unlikely to be criminal.
Editorial Board
Demetrios Papademetriou, Chair
Director, International Migration Policy Program
Carnegie Endowment for International Peace
David Aronson, Editor
Research Perspectives on Migration
Carnegie Endowment for International Peace
David Card
Theodore A. Wells Professor of Economics
Princeton University
Wayne Cornelius
Guilded Professor of U.S. - Mexican Relations
University of California at San Diego.
That is not to say that there are no grounds for concern.
Although the data are at best suggestive, unauthorized
immigrants appear to be more likely to be incarcerated
than either immigrants or the native born. Immigrant
communities may sometimes be used as “bases” or
“launching pads” for international criminal syndicates
that originate abroad. And much more research needs
to be conducted on rates of criminality among the second
generation.
Michael Fix
Director, Immigrant Policy Program
The Urban Institute
Stephen H. Legomsky
Charles F. Nagel Professor of International
and Comparative Law
Washington University in St. Louis
B. Lindsay Lowell
Director of Policy Analysis
U.S. Commission on Immigration Reform
Milton Morris
Senior Vice President
The Joint Center for Political and Economic Studies
Nevertheless, the evidence regarding immigrant
non-participation in criminal activity is clear enough to
prompt the question of why the converse is so widely
believed. Indeed, if anything, immigrants are more sinned
against than sinning. As the recent murder of Oumar Dia,
a Mauritanian immigrant in Denver, Colorado, demonstrates, irrational fear of the outsider can sometimes have
lethal consequences.
Kathleen Newland
Senior Associate
Carnegie Endowment for International Peace
Jeffrey S. Passel
Director, Program for Research on Immigration Policy
The Urban Institute
Patricia R. Pessar
Director, Global Migration Project
Yale University
Roberto Suro
Staff Writer
The Washington Post
Support for this newsletter is generously provided by
the Ford and Mellon Foundations.
2
syndicates. The extent of this problem remains unknown;
however, there is some reason to believe that it may be
exaggerated.
Executive Summary
*Data are incomplete on immigrants as victims of various
types of criminal activity.
• It would appear that immigrants are victims of hate crime
more as a result of their ethnicity or race than their nativity.
• Unauthorized immigrants are often victimized as a result
of their status, often by co-ethnics.
*Immigrants themselves appear to be disproportionately unlikely to
be criminal. Studies indicate that immigrants are one to two thirds
as likely to be incarcerated as the native born.
*However, while the data are at best suggestive, unauthorized immigrants appear to be much more likely to be criminal than either the native born or their authorized brethren.
*It has long been popularly believed that immigrants are
disproportionately criminal. Some politicians today continue
to actively promote this belief.
*One recent study suggests that immigrant neighborhoods are
associated with slightly higher than average rates of violent crime.
It is not clear, however, whether immigrants are victims or
victimizers in this case.
*Early studies on the link between immigrants and criminal activity found that immigrants were disproportionately
unlikely to be criminal. However, these same studies
suggested that the sons of immigrants might be disproportionately criminal.
*The link between criminality and the second generation,
hypothesized by earlier studies, has not been studied recently,
in large part because of the absence of viable data.
*Contemporary immigrant communities can inadvertently
provide a “refuge” or a “home” for international criminal
effectively addressed through more systematic and aggressive
intelligence gathering and policing efforts, relying on the
resources and comparative advantages of several law enforcement and intelligence agencies. But should immigrants be found
to contribute disproportionately to domestic crime rates, this
may, as some politicians have argued, constitute an argument
for restricting, or otherwise reconsidering, current immigration
policies.
(continued from page 1)
Obviously, each element of these three issues entails different
analytical and policy challenges, and a review of different sets
of literature. Ironically, what prevents the discussion from
becoming unwieldy is the paucity of data. For many reasons,
including the fact that criminal activity is by its nature covert,
information about the extent and nature of immigrants’ relationship to the criminal justice system is patchy, at best. This
article, therefore, is meant to be a tentative and by necessity
incomplete exercise in mapping out the terrain.
Crime against Immigrants
There will, however, be an attempt to examine at least one issue
in depth, and that is the extent of immigrant participation in
“ordinary” criminal activity. There are several reasons for this
focus. It is in the nature of democratic governance that public
perceptions ultimately drive policy, and immigrant criminality is one of the more recurrent of the concerns that are voiced
about immigration. More than most, it is also an issue that lends
itself to demagoguery. The presence of strangers—and immigrants are, by definition, strangers—almost always heightens
one’s level of apprehension. That immigrants tend to settle in
poorer, urban neighborhoods where crime tends to be highest probably exacerbates the appearance of a link between
immigrants and crime. Furthermore, it is the issue that appears
to be most amenable to improvement through the manipulation of admission policies. However spectacular, the participation of a few individual immigrants in some high-profile
terrorist acts is not a plausible argument for reducing immigration levels, though more robust screening procedures may
be called for at ports of entry. These issues can be much more
Immigrant advocates sometimes argue that to focus on immigrants as perpetrators of crime is unfair and one-sided. What
about immigrants as victims of crime, particularly of crimes that
are committed against them at least in part because of their nativity status? The case of Vincent Chen, the Chinese American who
was beaten to death in Detroit because three unemployed auto
workers mistook him for Japanese, is often taken as paradigmatic.
So, too, is the recent shooting death of Mauritanian immigrant
Oumar Dia by “skin-head” Nathan Thrill in Denver, Colorado.
However, it is not clear to what extent immigrants suffer from
hate crime as a result of their nativity status. Usually, as in the
case of Mr. Chen and Mr. Dia, immigrants are targeted because
they belong to some racial, ethnic, or national origin group.
(Nathan Thrill has stated that he shot Mr. Dia because he couldn’t stand to “live in a world with blacks.”) None of the groups
that track hate crime in the United States—the Anti-Defamation
League of the B’nai Brith, the Southern Poverty Law Center,
or the FBI—do so by nativity, and as a result, there are no firm
statistics on the topic.
3
of Chinese—estimates vary widely on the number—pay
between $35,000 and $50,000 each to be smuggled to the
United States. Notes one scholar: “The business is almost as
lucrative as drug trafficking and less risky [to the trafficker].”
A rash of “anti-immigrant” incidents were reported in California
in 1994, and were said to be the “ugly face” of what was for
many an anti-immigrant political campaign. But nearly all of
these incidents took place against Asians and Latin Americans,
many of them native-born citizens; while no incidents, to our
knowledge, took place against California’s rather large Canadian
contingent—even though there are presumably many unauthorized immigrants among Canadians as well. It would appear
that “the immigrant” becomes an object of antipathy in America
primarily when he or she is viewed through the prism of ethnicity and race.
Sometimes, however, the people trade can be just as deadly.
Newspaper accounts feature stories of immigrants pushed
out of a speeding car by their smugglers to avoid arrest; abandoned in the desert by their guides to suffocate in a locked
boxcar; or starved by their boat captains. Nor is their safety
assured once they reach the US. Employers sometimes threaten
to “call immigration” to deprive them of fair compensation
for their services. Because many unauthorized immigrants must
“work off” their payment to the smuggler after arriving in the
US, some are forced into prostitution, while many others work
on farms or in the needle trade for subsistence wages. Often,
the smuggling rings threaten to harm the immigrants’ families
back in the home country if they are not paid off. (In a sense,
this represents the reemergence of indentured servitude, which,
along with slavery, was supposed to have disappeared long
ago.) According to some estimates, 50,000 immigrants toil in
New York City sweatshops upwards of 70 hours a week for
wages as low as $1 per hour.
Immigrant participation in “ordinary”
criminal activity would appear to be the
issue most amenable to improvement
through the manipulation of admission
policies.
Anti-immigrant and anti-immigration sentiment in the United
States is clearly a rope of many strands, some of which are
tinged with prejudice or xenophobia. Disentangling these is
an important research project, and should contribute to the
health of the public discourse. This discourse has suffered from
ambiguities that lead to charges and countercharges of bad
faith and intellectual dishonesty. On the one hand, racism and
xenophobia have such long and dishonorable traditions in
the American body politic that it pays to be vigilant against
them; on the other, it is wholly unfair to tar those who wish to
raise legitimate concerns about immigration—about some of
its local fiscal impacts, for example, or this country’s capacity
to fully incorporate some immigrants economically—with
the brush of racism. One research goal might be to develop a
neutral mechanism to test which strands of the rope restrictionist politicians and columnists are pulling when they speak
out against immigration or immigrants. Another might be to
determine whether there is a causal relationship between antiimmigrant rhetoric and acts of violence against immigrants.
Immigrants and Criminality: A
Brief History of Public Perceptions
and Sociological Evidence
The link between immigration and crime has long been a matter
of public and policy concern. The Industrial Commission of
1901 published a special report on “Immigration and the Foreign
Born,” which, in one of its sections, looked at crime. It came
to two central conclusions: first, that the foreign born were less
likely to commit crimes than the native born; and second,
that a disproportionate number of the incarcerated had foreignborn parents. Remarkably, the Commission argued that this
second finding constituted “just as strong an argument as to
the injurious effect of immigration as would be a high proportion [of criminals] among the foreign born themselves.”
Immigrants, of course, are subject to many other sorts of victimization. Because they generally settle in poorer, urban neighborhoods, they are often victims of the everyday crime that
has a disproportionate impact on these environments. There is
some evidence, as will be discussed later, that violent crime
also affects immigrant-dense urban neighborhoods disproportionately.
A decade later, the Immigration Commission of 1911 reached
similar conclusions, but couched them in more neutral terms:
“No satisfactory evidence has yet been produced to show
that immigration has resulted in an increase in crime disproportionate to the increase in adult population . . . . In fact, the
figures seem to show a contrary result.” It too, however, found
evidence that the offspring of the foreign born were disproportionately likely to be convicted of a crime.
Immigrants—especially unauthorized immigrants—can also
be victimized as a result of their status, often by co-ethnics.
One major source: the immigrant smuggling rings that occasionally erupt in the news, as they did when the Golden Venture
ran aground near New York in 1993. Last summer’s reports of
deaf-mute Mexicans living and working in conditions of nearenslavement as subway beggars and streetcorner vendors in
several US cities struck the same theme. Each year, thousands
In 1931, the National Commission on Law Observance and
Enforcement assembled arrest and crime statistics in fifty-two
cities and concluded that the available data “seem to disagree
radically with the popular belief that a high percentage [of
4
pour across our southern border into the United States. Most
come without job skills. Crime explodes. And who pays the
cost of their health care, housing, welfare? You do.”
crime] may be ascribed to the ‘alien.’“ Although it was unable
to analyze similar statistics on the children of immigrants—
then, as now, that data simply did not exist—it conducted extensive interviews with police officers, prosecutors, and judges,
and found a consensus that the “sons” of immigrants, rather
than the immigrants themselves, were the source of the “immigrant crime problem.”1
The New War?
The growth in the number and visibility of international criminal networks has focused attention on the role immigrants and
immigrant communities may play in supporting them—if only
by providing them with a sort of “camouflage.” The transnationalism of organized crime is abetted by one of the most
common features of the globalizing world: the increasing
salience of diasporas. As a result, it is much easier for criminals to embed their organizations in these immigrant communities and use them as a base from which to operate in foreign
soil. “Headquartered” in countries where criminal syndicates
and government authorities can sometimes be collaborators,
these “businesses” include drug running and distribution, money
lending and laundering, tax and currency fraud, alien smuggling, and extra-judicial contract enforcement. Whether it be
the Russian mafia, Chinese Triads, or Nigerian, Mexican, and
Colombian drug runners, these criminal enterprises pose extraordinary challenges to law enforcement agencies. The obstacles to successfully penetrating these enterprises include
language, gaining access to often insular communities, official
corruption, and tracing flows of money across international
borders.
The paradox implicit in these findings, confirmed over three
decades of increasingly rigorous research, gave the fledgling
discipline of sociology an opportunity to flex its interpretive
muscle. The explanation proffered by such researchers as
Reckless and Smith or Sutherland, was that immigrants were
a self-selected lot given to hard work and deferring gratification, and more than willing to assume a subordinate social position in their new society in return for the vastly superior
economic opportunities it provided them. Their sons, however,
compared themselves to their American friends rather than to
their cousins left behind in the old country, and found their
position wanting. In addition, they faced a host of frustrations
and constraints their fathers had not had to deal with: alienation from both the host and native culture; a lack of economically successful role models; ubiquitous gang activity; and
economic aspirations that they could not realistically hope to
satisfy. These were, it was said, the basis for youthful delinquency and a possible future career in criminality.
Skip ahead six decades, to Governor Pete Wilson’s come-frombehind gubernatorial victory of 1994. His championing of
Proposition 187, which mandated sharp cuts in services to illegal immigrants, and a “three strikes and you’re out” sentencing policy boosted his popularity and played a major role in
his reelection. These two “hot-button” issues were philosophically similar in that both represented a “get-tough” approach
to social issues, particularly against people who were perceived
to be threatening the public’s physical and economic security. But they were associated in more direct terms as well, since
illegal aliens were thought to represent a major source of criminality. Section 1 of Proposition 187 proposed that “The People
of California . . . have suffered and are suffering personal injury
and damage caused by the criminal conduct of illegal aliens
in this state.”
The inevitable dearth of data on this emerging issue has not
deterred an abundance of speculation and commentary, much
of it based on dramatic but anecdotal evidence. Because more
is known about the Russian mafias than about most other immigrant criminal groups, they might serve to illustrate both the
nature of the problem and its potential for exaggeration.
Russia’s post-Cold War lurch into capitalism is generally
acknowledged to have been accompanied by pervasive criminality. Many circumstances contribute to this problem, which
is one of the many negative historical legacies of Communist
rule. Among them would be the emergence of a new, “robber
baron” elite that, like the country’s former elite, arrogates extralegal privileges to itself; and a tradition, often born of necessity, sometimes legitimate, and usually quite sophisticated, of
circumventing the old Soviet system’s bureaucratic demands
through fraud, forgery, corruption, smuggling, and other means.
Given the weakness of the contemporary Russian state, the
upshot has been the creation of a “buccaneer capitalism.”
In championing get-tough measures on illegal immigrants and
relating them to the crime problem, Wilson was exploiting
widely held attitudes. A 1993 Time magazine poll found that
59 percent of respondents nationwide believed that immigrants
“add to the crime problem.” Other politicians made similar
claims. Senator Alan Simpson complained about the effects
of both legal and illegal immigration when he declared that
“taxpayers are being adversely affected—for example, by welfare
abuse, schools that are overcrowded . . . [and] rising crime.”
Pat Buchanan, who set new standards for rhetoric on this issue,
campaigned aggressively on the social anxieties aroused by
illegal immigrants: “Each year millions of illegal immigrants
Some analysts suggest that given these realities within Russia,
the large flow of Russian immigrants into the United States may
be reason for alarm. And indeed, a number of Russian mafias
have sprouted offshoots in the US, where they are thought to
engage in everything from currency violations, to motor fuel
tax scams, to murder. The problem has of late attracted the inter5
est of Hollywood, which in these politically correct days is in
constant need of credibly threatening caucasians.
Percent of Alien
Inmates in State Prisons
26%
But even if Hollywood is exaggerating its extent, the problem
is increasingly serious, and worth monitoring. In New York City,
home to the largest Russian community in the US, approximately 400 ex-Soviet immigrants were arrested in 1993. In
1994, there were 750 arrests, and in 1995, there were approximately 1,000. But it is important to maintain a sense of perspective. Ninety percent of these arrests were for misdemeanors
or traffic offenses. Similar points might be made about immigrant ties to Asian Triads and Latin American and African drug
cartels.
Mexico
14%
Other
Central & South
American
13%
Caribbean
47%
Source: DOJ Statistics, Survey of State Prison Population, 1991
Figure 1
Of course, one might posit that it is because they don’t get
caught that organized criminals—foreign or domestic—pose
such a danger. The problem, then, of course, is to avoid sounding merely alarmist: one doesn’t want to declare that the proof
that something is an especially subtle and insidious problem
is precisely that we know so little about it. One might summarize the state of knowledge as follows: while foreign organized
crime represents a growing threat, it is not clear to what extent
these particular criminals are entering the nation via immigration visas, as opposed, say, to tourist or other visas.
zens. (A large part of both increases resulted from the “war
on drugs,” which, beginning in the mid-1980s, resulted in the
imposition of severe prison sentences for drug infractions.)
Taken as a whole, these figures would appear to suggest the
existence of a serious immigration-related crime problem.
However, according to the same BOJ report, 44 percent of
noncitizens prosecuted in federal court in 1994 were charged
with drug offenses; compared to citizens, they were more likely
to have played a minor role in the drug conspiracy and were
more likely to receive a lighter sentence. Furthermore, an additional 34 percent were prosecuted for immigration-related
offenses, such as violating the terms of a visa. These are offenses
citizens cannot commit. (However, reflecting the fact that drug
offenses generally drew much longer sentences, 76 percent
of incarcerated noncitizens were in jail for drug-related offenses.)
Given the uncertainty in the data, the best policy response for
the moment may be to remain vigilant. As FBI Director Louis
Freeh has observed, “We made the mistake of ignoring La Cosa
Nostra for more than 50 years in the United States, to the point
where it became an entrenched and overwhelmingly criminal enterprise and presence. . . . We are not about to make
the same mistake.” And as Freeh acknowledged, the solution—
or at least the management and control—of the problem lies
to a large degree in a host of international law enforcement
measures.
Furthermore, noncitizens are not a meaningful enough proxy
for immigrants, since most noncitizens in the US are not immiTypes of Offenses
Alien Inmates
Is There a Link between Immigrants
and Criminality?
Public-Order Offenses
Drug Offenses, Total
Trafficking
Possession
The more relevant immigration policy question concerns the
criminality of the regular immigrant stock. Here, the available statistics are misleading, inadequate, and sometimes contradictory: Most do not permit one to distinguish between
immigrants and noncitizens, for example, or between legal and
illegal immigrants. The difficulties these lacunae entail can
be illustrated by the following. According to Bureau of Justice
Statistics, in 1994 noncitizens constituted 21.6 percent of federal
prison inmates ; the federal government is estimated to have
spent $400 million incarcerating them that year. Furthermore,
as a 1996 BOJ report delineates, the number of noncitizens
incarcerated grew from 4,088 in 1984 to 18,929 in 1994. This
represents an annualized growth rate of 15 percent, which
compares unfavorably to the 10 percent growth rate for citi-
Property Offenses, Total
Burglary
Larceny/Theft
Violent Offenses, Total
Robbery
Assault
Homicide
Sexual Assault
0
5
10
15
25
20
Percent
30
35
40
Sources: DOJ Statistics, Survey of State Prison Inmates, 1991
Figure 2
6
45
grants but visitors, or to use the proper term of art, “non-immigrants”. (Conversely, many immigrants are in fact citizens.)
Indeed, it is impossible, from the statistics that are currently
available, to determine what percentage of noncitizens incarcerated in federal facilities are immigrants, though there is
reason to believe that some high proportion are not: 95 percent
of noncitizens admitted each year to the United States are
neither authorized nor unauthorized immigrants, but tourists,
business people, and others, some of whom are authorized
to remain in the US for several years. To the extent that one
views federal incarceration rates of noncitizens as an issue
requiring a policy response, it may be that the best answer is
to tighten border controls and possibly engage in better screening of non-immigrant visa applicants.
grants (there are 21 such “non-immigrant” categories altogether).
The Urban Institute conducted a survey of the foreign-born incarcerated in the state prison system that determined that the vast
majority of non-immigrants committed their crimes after their
authorized period of stay had elapsed. In other words, the
number of non-immigrants who committed the crimes for which
they were incarcerated while legally present in the US was negligible. Therefore, it is possible to treat the incarcerated LP population as a proxy for the incarcerated legal immigrant population.
The data on the number and percentage of foreign-born in state
prisons for the seven states in question are displayed in Figure
3. They reveal interesting variations. Only 3.1 percent of the
Texas state prison population is foreign-born, the lowest in
the group, as opposed to 18.2 percent of California’s, the highest. And although the overall number of LPs and ILPs are virtually equal, there are nearly twice as many ILPs as LPs in
California; on the other hand, there are nearly three times as
many LPs as ILPs in New York.
The federal criminal justice system is, of course, only a small
segment of the entire American justice system. The evidence with
regard to other aspects of the justice system is equally ambiguous, however. On the one hand, a 1991 Bureau of Justice Statistics
survey of state inmates concluded that only 4.1 percent were
noncitizens. The national origin of these inmates are given in
Figure 1. They were incarcerated for a variety of offenses, ranging in frequency from public order to property, violent and drugrelated offenses [See Figure 2]. On the other hand, according
to the recent INS Congressional testimony cited above, approximately 78,200 foreign-born persons were incarcerated in state
prisons in 1996, which would represent approximately eight
percent of the total incarcerated state prison population. (It is not
at all clear why such differences should exist; one would not
think that five years were sufficient to see a near-doubling in the
proportion of noncitizens incarcerated.) And of the roughly
five million people in the entire justice system in 1994—who
are, that is, either in prison (at federal, state, county, or local
levels) or on parole or probation—450,000, or nine percent,
were noncitizens, roughly their percentage in the general population.
Can these state-wide variations be explained by differences
in the percentage of foreign-born and the proportion of those
who are legal or illegal immigrants? Figure 4 calculates the
number of foreign-born as a percent of the state’s total population, and breaks this figure down by legal status. It shows that
16.2 percent of the seven states’ population is foreign-born,
with 12.8 percent legal immigrants and 3.4 percent illegal immigrants. Figure 5 then compares these numbers to the states’
incarceration rates. This comparison demonstrates a generally consistent pattern. The legal immigrant population is incarcerated at an average rate of 36.7 percent relative to the
incarceration rate of the native-born population. In other words,
legal immigrants are little more than a third as likely to be
imprisoned as the native-born. There are two outliers: in Texas,
immigrants are only 23.4 percent as likely to be incarcerated
as the native born, while in New York, immigrants are 65.2
percent as likely. And though the data are not available, it is
likely that were the socio-economic status of the native and
foreign-born controlled for, immigrant status would further
lessen the probability of incarceration.
Despite these ambiguous and conflicting results, it may make
sense to focus on state incarceration rates, for several reasons.
First, states prosecute a broader range of crimes—including
many of the serious crimes committed against person and property that most of us fear—so the state prison population arguably
offers a better and more representative sampling of the degree
to which immigrants commit these important crimes. More
importantly, data exist for nativity status among the incarcerated in seven key states. (The Urban Institute chose to focus on
these states because they have the highest numbers of illegal
immigrants in their population. These data derive from an analysis by the Urban Institute on the fiscal impacts of undocumented
aliens.) These data can be further broken down into those who
were present legally or illegally at the time they committed
their offense (LPs and ILPs).
When it comes to illegal immigrants, however, the data in Figure
5 are at best suggestive. This is because temporary overstayers—
that is, those non-immigrants who are in the US past their visa dates
but who do not intend to reside in the US—are counted among
the illegally present incarcerated population, but it is impossible
to tell how many of them are counted in the estimate of the total
unauthorized immigrant population. There are no estimates that
we are aware of on the total number of people who are only
temporarily overstaying their visas. Nevertheless, the numbers
suggest that unauthorized immigrants are more likely to be incarcerated than either natives or authorized immigrants, sometimes
by a substantial margin. Certainly the extraordinary state-level variations in these figures suggest one avenue for further research.
(continued on page 10)
The category of the legally present foreign-born can be further
disaggregated into two subgroups: immigrants and non-immi7
When Culture Is a Defense
the immigrants will—not only in their public, but in their private
and communal lives—be governed by their adopted nation’s laws,
which inevitably reflect the perspectives of the dominant culture. Many
who take this position push the argument a step further: the culture
defense, they say, is often used to justify the cruel or oppressive practices that prompt some immigrants to migrate in the first place. Case
in point: female genital mutilation.
In England, a Yoruba mother from Nigeria scars her infant boy’s cheeks
with a razor in a festive ceremony inducting him into the tribe. The
woman is tried for child abuse and given a suspended sentence.
In France, a major cultural-political battle erupts when Muslim girls from
North Africa insist on wearing their traditional headdress to state schools.
Yet what an outsider views as oppression is often seen by the putative
“victim” as one of the deepest and most cherished sources of his or
her socio-cultural identity. Many Chinese women with bound feet viewed
their mutilated limbs as a source of beauty and a signifier of class: not
for them the arduous, backbreaking labor of peasant women. On what
basis can the mainstream decide which of the immigrants’ practices are
oppressive? Ban foot binding, or suttee, and where do you stop? It doesn’t require a Ph.D. in cultural studies to suspect that the Muslim headdress girls from North Africa wear reflects their subordinate position in
society and patriarchal control of their sexuality.
Corbis View
In Ohio, two Pakistani men in their 30s marry brides in junior high
chosen for them by their families. Word leaks out in the small town
where the Pakistani community has settled and the men are arrested
for statutory rape. The marriages are quickly annulled.
Illegal immigrant being interrogated
In each case, immigrants operating on their own socio-cultural understandings about what was customary and right collided with mainstream
norms and legal standards. Although it is no longer universal, many
Yoruba continue to scarify their male children; in the above instance,
the child’s mother even complained that not to scarify him would be a
form of child abuse. How, she asked, does Nigerian scarification differ
materially from Jewish circumcision? The question can be put more
generally: What to do when the immigrants’ practices conflict with their
adopted nation’s laws and the moral beliefs that underlie them?
In practice, decisions about whether to intercede in immigrant sociocultural practices that violate the law appear to revolve around four
considerations: volition, privacy, visibility, and offensiveness. Because
they are not self-actualizing choosers, children are deemed to require
state protection in ways adults are not. Practices that occur within the
closed doors of the family or community and affect only the individuals involved are given greater latitude than those that take place in
public arenas. Similarly, the quieter the immigrant community keeps
about some of its practices the less likely they are to be interfered with.
But no amount of stealth or privacy will help an immigrant community if its practices deeply offend the majority. In Miami, Haitian immigrants who practice animal sacrifice as part of their voodoo religion
petitioned the courts to give them a reprieve on animal cruelty laws,
which, they claimed, interfered with their freedom of religion. The
case was summarily dismissed. Rastafarians in New York have been
equally unsuccessful in legalizing marijuana.
There are two lessons to be drawn, both of them ironic. First, nothing
so reflects the mainstream legal system and its values—its competing
drives to be both impartial and flexible—as the messy response that
cultural differences provoke. Second, nothing so implicitly challenges
the legal system’s assumption that it rests on a-cultural, procedural norms
of fairness and justice as an encounter with genuine otherness.
When Culture Is an Impediment
For months, a Vietnamese family in Washington, DC failed to report
to authorities the repeated sexual molestation of their child by another
adult member of their community. The child was finally killed by the
abuser; only then were police summoned. When the police asked,
through an interpreter, why they were not alerted to the problem earlier,
the Vietnamese replied that they do not call upon strangers to settle
delicate community problems.
Some argue that the tolerance said to underlie Western democracies
is weak tea indeed if it fails to accommodate pluralism when it counts:
any society can tolerate those differences it doesn’t find objectionable.
Others argue the opposite: that implicit in the social contract between
the immigrant and the nation in which they settle is an agreement that
Policing immigrant communities presents a variety of challenges to law
8
Suggested Reading
enforcement officials, of which language is only the most obvious. The customs, principles, and understandings that inform everyday encounters between police and the native born can be
bewildering to newcomers, for they are the product of long, complex
traditions. The mini-drama that ensues every time a cop pulls over
a speeder enacts notions of authority and power that have been
negotiated and re-negotiated throughout Western political history.
Even nuances of body language can be booby trapped: The
Vietnamese who averts his eyes when talking to a police officer may
be showing respect, not behaving suspiciously.
Furthermore, the fact that many immigrant communities establish
inward-looking enclaves can frustrate police efforts to establish effective law enforcement, even as their isolation makes them particularly
vulnerable to criminal elements within and without.
One solution many police forces are currently experimenting with is
to hire officers from within the immigrant communities. The National
Crime Prevention Council (NCPC) examined the effectiveness of these
efforts in a recent study “Lengthening the Stride: Employing Peace
Officers from Newly Arrived Ethnic Groups.”
The NCPC study begins by pointing out that police forces nationwide
remain overwhelmingly white and male, even in areas of high minority and immigrant density. It then establishes the very real benefits
that accrue from hiring newcomers, from avoiding cross-cultural
mistrust, to increasing departmental expertise, to realizing significant
cost savings and enhancing safety—for example, by overcoming
witness reluctance to testify against fellow immigrants.
The NCPC then makes two basic observations. First, immigrant and
law enforcement communities must work together to establish a
cooperative, mutually beneficial relationship. Second, if they are
to meet their goal of improving safety in all neighborhoods, the
relevant law enforcement agencies must reflect the values and
composition of the communities they serve.
Easily said, perhaps, but how to operationalize these admittedly
general precepts? Without being overly prescriptive, the NCPC
suggests the following:
• Police agencies work closely with newcomer groups to build a
solid foundation of trust. This is the basis for encouraging immigrants to become partners in, and even members of, the law enforcement community.
• Recruiting, hiring, and retaining immigrant minority members often
requires helping immigrants overcome at least two significant barriers: proficiency in spoken and written English, and familiarity with
Western norms and values. Particularly promising candidates for
police departments often come from the so-called “half generation,”
who arrived in the US as children or teenagers and who are generally familiar with both the host and the immigrant community.
• Successful policing of immigrant communities takes place in the
✦
Bach, Robert, L. Becoming American, Seeking Justice:
The Immigrants’ Legal Needs Study. Institute for Research
on Multiculturalism and International Labor, Binghampton
University, New York. April, 1996.
✦
Butcher, Kristin F. & Piehl, Anne Morrison. “Cross-City
Evidence on the Relationship Between Immigration and
Crime.” Forthcoming, Journal of Policy Analysis and
Management, 1998.
✦
Butcher, Kristin F. & Piehl, Anne Morrison. “Recent
Immigrants: Unexpected Implications for Crime and
Incarceration.” National Bureau of Economic Research,
Inc. Working Paper Series #6067, June, 1997.
✦
Hagan, John, & Alberto Palloni. “Immigration and the
Myth of the Mexican Criminal,” Unpblshd paper.
✦
House of Representatives, Committee on International
Relations. “The Threat from Russian Organized Crime,”
April 30, 1996.
✦
House of Representatives, Committee on International
Relations. “Global Organized Crime,” January 31, 1996.
✦
Morris, Helen. “Zero Tolerance: The Increasing
Criminalization of Immigration Law.” Interpreter Releases,
Vol. 74, No. 33. August 29, 1997.
✦
Sampson, Robert J., Stephen W. Raudenbush, Felton
Earls. “Neighborhoods and Violent Crime: A Multilevel
Study of Collective Efficacy.” Science Magazine, Vol. 277,
8/15/97, pp. 918-924.
✦
The Urban Institute. Fiscal Impacts of Undocumented
Aliens: Selected Estimates for Seven States. September,
1994.
✦
Tonry, Michael, ed. Ethnicity, Crime, and Immigration:
Comparative and Cross-National Perspectives. The
University of Chicago Press, 1997.
c
RPM is looking for book reviewers. Reviews
should be between 600 and 900 words long, and
should focus on recently published material
relating to immigration. Email queries to
[email protected].
context of police departments that are sensitive to a broad range of
cultural, racial, and ethnic issues.
• Finally, employing community or neighborhood- (as opposed to
response-oriented) police methods can multiply the benefits of the other
recommendations, by helping to foster a cooperative partnership between
the immigrant and law enforcement communities. c
9
The Foreign-Born Prison Population as Percent of Total Prison Population
Total PP
Total
Il
FB PP
L
FBPP as % of TPP
Total
Il
L
Total
448,625
42,776
21,395
9.5
4.8
4.7
Arizona
19,746
1,666
950
8.4
4.8
3.6
California
125,605
22,913
15,109
18.2
12.0
6.2
Florida
57,166
3,683
951
6.4
1.7
4.8
Illinois
38,531
1,259
348
3.3
0.9
2.4
New Jersey
24,632
1,376
285
5.6
1.2
4.4
New York
66,750
8,223
2,158
12.3
3.2
9.0
Texas
116,195
3,656
1,594
3.1
1.4
1.8
Figure 3
The Foreign Born as Percent of Total State Population
Total SP
in ’000
Total
FBSP in ’000
Il
L
107,189
17,389
3,680
13,709
16.2
3.4
12.8
Arizona
4,235
489
105
384
11.5
2.5
9.0
California
31,730
7,755
1,800
5,955
24.4
5.7
18.8
Florida
14,273
2,037
310
1,727
14.3
2.2
12.1
Illinois
11,845
984
255
729
8.3
2.2
6.1
New Jersey
7,929
1,064
120
944
13.4
1.5
11.9
New York
18,245
2,986
475
2,511
16.4
2.6
13.8
Texas
18,932
2,074
615
1,459
11.0
3.2
7.7
Total
FB as % of SP
Total
Il
L
Key
FB: Foreign Born PP: Prison Population L: Legally present Il: Illegally present SP: State Population
Sources:
Total PP: Sourcebook of criminal justice
statistics, 1995
FB PP: Fiscal Impacts of Undocumented
Aliens, Urban Institute, 1994
Total SP: Selected Characteristics of the
Population by citizenship, U.S.
Bureau of the Census, 1995
FBSP: Totals from Selected
Characteristics of the Population
by citizenship, U.S. Bureau of the
Census, 1995
Illegal breakdown from Estimates
of the Undocumented Population
Residing in the United States
(October 1992 and October 1996
numbers were averaged to
produce 1994 numbers)
Figure 4
Rates of Criminality Among Legal Immigrants As Percentage of Native Born Rate
(%FB of TPP/%FB of SP)
Total
Il
Total
58.6
141.1
36.7
Arizona
73.0
192.0
40.0
California
74.6
210.5
33.0
Florida
44.8
77.3
39.7
Illinois
39.8
40.9
39.3
New Jersey
41.8
80.0
37.0
New York
75.0
123.1
65.2
Texas
28.2
43.8
23.4
Figure 5
10
Legal Immigrants
Institutionalization by Age,1980 Cohort
Institutionalization by Age, 1990 Cohort
3
1.8
1.6
2.5
1.4
2
Percent
Percent
1.2
1
0.8
1.5
1
0.6
0.4
0.5
0.2
0
0
18
20
22
24
26
28
30
32
34
36
38
40
18
20
22
24
26
28
30
32
34
36
38
40
Age
Age
Natives
Immigrants, 1980-84
Immigrants, 1985-90
Natives
Immigrants, 70-74
Immigrants, 75-80
Sources: Butcher & Piehl, from 1990 5% Public Use Microdata
Samples of the US Census
Sources: Butcher & Piehl, from 1980 5% Public Use Microdata
Samples of the US Census
Figure 6a
Figure 6b
Two research teams that have studied immigrant criminality in
depth recently have arrived at similar conclusions. In “Recent
Immigrants: Unexpected Implications for Crime and Incarceration,” Kristin Butcher, of Boston College, and Anne Piehl,
of Harvard’s Kennedy School of Government, survey the Public
Use Microdata Samples of the 1980 and 1990 censuses for
rates of institutionalization of young men (ages 18-40). These
data sources do not provide incarceration rates per se; however,
as Butcher and Piehl point out, for young men “institutionalization is an unambiguously bad outcome”: over 70 percent
are in correctional facilities, while most of the rest are in hospitals, drug treatment centers, mental institutions, and long-term
care facilities.
1992 and the March Current Population Surveys of 1981-1984
and 1986-1990 to investigate whether an area’s crime rate is
associated with the size of its immigrant population. They find
that cities with large immigrant populations indeed have high
crime rates. However, they find no correlation between changes
in crime rates and changes in the percentage of immigrants
within a city, suggesting that the apparent overall relationship
is spurious. In a second step in their analysis, Butcher and Piehl
use data from the National Longitudinal Survey of Youth of 1980
to compare rates of self-reported criminal activity among nativeand foreign-born youths. They find that the foreign-born are
“significantly less likely than native-born to be criminally active,”
irrespective of background characteristics such as SES.
Their conclusions are as follows.
• First, young male immigrants are only two thirds as likely
to be institutionalized as natives [See Graphs 6a & 6b].
• Second, if “characteristics that correlate with labor market
opportunities and criminal justice enforcement intensity” are
controlled for (in other words, if you take into account that
immigrants tend to live in poor city neighborhoods), the institutionalization rate for young male immigrants drops to one
third the native-born rate.
• Third, more recent cohorts of immigrants are not only less
likely to be institutionalized than earlier cohorts, but also appear
to have lower rates of institutionalization than earlier cohorts
after similar periods of time in the country: “Recent immigrants
do not increase their institutionalization rates as quickly as one
would predict from the experience of earlier immigrant cohorts,”
the authors note. To put this in plain and (by necessity) approximate terms, Butcher and Piehl’s evidence suggests that while
earlier immigrants had low crime rates, more recent immigrants
have even lower crime rates.
The second research team to have recently investigated criminality among immigrants consists of John Hagan, of the
University of Toronto, and Alberto Palloni, of the University
of Wisconsin-Madison. They argue that prison statistics greatly
magnify the apparent criminality of immigrants because of
“biases in processes that lead from pre-trial detention through
sentencing.” These biases, say Hagan and Palloni, result in large
part from “a tendency to disproportionately detain immigrants
as potential ‘flight risks,’ from the time of arrest to final court
disposition.” (Detention during the pre-trial period has been
repeatedly shown to significantly increase the likelihood both
of conviction and the severity of punishment in studies of the
justice system.)
Based on a detailed statistical study of immigrants in the criminal justice systems of two cities, El Paso and San Diego, Hagan
and Palloni find that immigrants are more likely to be detained
prior to trial. Adjusting for distortions introduced by these
biases, they conclude that incarceration rates for noncitizens
exaggerate by a factor of three to seven times their rate of criminality compared to citizens. (It may be, however, that as border
cities, El Paso and San Diego are unrepresentative of immigrants’ experience in the justice systems elsewhere: Chicago
In a second paper entitled “Cross-City Evidence on the
Relationship between Immigration and Crime,” Butcher and
Piehl use data from the Uniform Crime Reports from 1979 to
11
judges may not fear that immigrants are flight risks to quite
the same degree. More research is surely needed.)
Is the Second Generation Linked to Higher Levels of Criminal
Behavior?
In sum, the evidence regarding immigrant criminality is far from
complete. The data are inadequate, and there are no data on
incarceration rates for noncitizens or immigrants in county and
local jails. However, the available data all point in the same
general direction. And while they are not fully consistent from
one research team to another—RPM’s calculations that legal
immigrants are 37 percent as likely to be incarcerated as citizens differs somewhat from Butcher and Piehl’s findings that
young male immigrants are two-thirds as likely to be institutionalized—the general trend is clear. It appears that the chief
finding in the studies of 1901, 1921, and 1931, remains true
today: legal immigrants are heavily underrepresented in the
incarcerated population.
But what about the secondary finding of the earlier studies—
that the sons of immigrants are overrepresented among criminals—which so provoked earlier critics of immigration? One
quick response is to point out that the children and grandchildren of this allegedly criminal generation appear to have
joined the mainstream—indeed, have become the mainstream.
Whatever criminal propensities the second generation may
have exhibited appear not to reccur in later generations.
But a more complete answer is that there is little research and
even fewer data that address the topic. Some studies, for example, show that criminal behavior among youth correlates
strongly with criminal behavior of family members, which
would suggest that the children of immigrants are, like their
parents, likely to have relatively low rates of criminality.
According to Orlando Rodriguez, in a report to the National
Institute of Justice, there is also some evidence that certain
aspects of the Hispanic family structure appear to deter delinquency. However, in the absence of specific data, one can
only conclude that it is a topic that requires further research.
[See Figure 7 for a breakdown of the state inmate population by race and Hispanic origin.]
There is, however, one recent study that suggests that immigrant concentration may be associated with higher levels of
violent crime in a number of Chicago neighborhoods. The
study, by Robert J. Sampson, Stephen W. Raudenbush, and
Felton Earls, focuses on understanding the underlying conditions and mechanisms which explain why some neighborhoods are more crime-laden than others: “What is it, for
example, about the concentration of poverty [or immigrant
density] that accounts for its association with rates of violence?
What are the social processes that might explain or mediate
this relationship?”
Race or Hispanic Origin of State Prison
Population
50
The authors hypothesize that “collective efficacy,” which they
define as “social cohesion among neighbors combined with
their willingness to intervene on behalf of the public good,”
may be the explanatory link between certain neighborhood
characteristics and rates of criminality. (They measured “collective efficacy” by asking respondents to rate, for example, how
much “people around here are willing to help their neighbors,”
or how much their neighbors could be counted on to intervene
if, say, children were spray-painting a local building.)
45
40
35
White
30
Black
25
20
Hispanic
15
Other
10
5
0
Sampson and his co-authors find that immigrant-dense neighborhoods rate relatively low on levels of collective efficacy,
and speculate that the reason is that such neighborhoods are
characterized by ethnic and linguistic heterogeneity: “Immigrant
concentration may impede the capacity of residents to realize common values and to achieve informal social controls.”
They then argue that the relatively low rates of immigrant
resources of social cohesion and trust in immigrant-dense neighborhoods account for virtually all of the explanation why these
neighborhoods have relatively high rates of violent criminality. Remarkably, however, the study does not specify who
commits the violent crime within these Chicago neighborhoods
and hence whether immigrants tend to be more victims or
perpetrators. Nor does it report findings about other than violent
types of crime.
1986
1991
Source: Survey of State Prison Population, 1991
DOJ Statistics
Figure 7
Policy Implications
In the rhetoric of some political leaders arguing for a “zero
tolerance” policy toward crime, any criminality by immigrants
has the potential for being used as a reason to restrict immigration levels. In some trivial sense, it is inevitably true that
immigrants add to the crime problem, since every immigrant
who commits a crime adds absolutely to the number of crimes
committed. However, the more appropriate test may be whether
12
Corbis View
organized alien smuggling and high-profile terrorist and criminal acts;
• more vigilance at border entry points to reduce illegal immigration;
• improved federal, state, and local coordination to identify
and remove criminal aliens so that habitual or career criminals
are deported;
• more reliable mechanisms for identifying and removing
undocumented immigrants (including visa overstayers), which
nevertheless respect their human rights and are careful to be
non-discriminatory.
A commitment of public resources to these various efforts can,
if undertaken in a coordinated fashion, not only help to reduce
the incidence of crimes committed by noncitizens, but also
gradually change public perceptions about the relationship
between immigration and crime. The evidence on the connection appears to be a “good story” and telling that story, while
working hard to reduce criminality, may serve to avoid the blanket—and patently unfair—stigmatization of entire immigrant
communities. Such stigmatization, as the Italian American experience indicates, is a hard image to correct. c
Notes:
All three commissions were tinged to some degree with the
racism of the epoch; this makes their findings, of low immigrant participation in criminal activity, especially noteworthy.
However, it also puts in doubt the validity of their second claim
regarding the sons of immigrants.
1
Immigrant man standing in front of door
restricting immigration is likely to reduce existing crime rates.
In that sense, the major policy implication of the existing
research is a negative one. Immigrants are underrepresented
among criminals, and restricting their flow will not lower—and
in a statistical sense may even raise—overall crime rates. As
Butcher and Piehl conclude, reducing immigration levels is
unlikely to be a powerful policy lever “through which society
can materially affect crime.”
The Federation for American Immigration Reform [FAIR], which
advocates restricting immigration levels severely, reports that
over 25 percent of the federal prison population are noncitizens. The reasons for this discrepancy are not clear, since FAIR
cites the same Bureau of Justice Statistics Special Report that
RPM is using. Nevertheless, 21.6 percent is still a significant
figure.
2
Sampson et al briefly suggest an alternative. The way to combat
low levels of cohesion and informal social control, they say,
is to “encourag[e] communities to mobilize against violence
through “self-help” strategies of informal social control, perhaps
reinforced by partnerships with agencies of formal social control
(community policing).” It would appear that in this matter, as
is so often the case in immigration policy debates, one is faced
with a choice: do we respond to the downside of immigration by seeking to reduce or eliminate immigrant flows, or by
developing strategies to address the problems and maximize
the benefits that immigration inevitably produces?
Nationwide local and county jail data are unavailable. These
type of jails are typically designed as holding cells, or to house
prisoners sentenced for a year or less.
3
Hagan and Palloni sometimes speak of immigrants when their
data sources refer to noncitizens: this methodological flaw does
not, however, essentially alter their fundamental insight, which
is that immigrants and noncitizens are presumed to have a
“base” in a home country and are therefore viewed as a flight
risk; their consequent detention contributes to higher rates of
conviction and imprisonment.
4
That said, there are a variety of means to reduce immigrantrelated crime:
• much more—and better coordinated—inter-agency intelligence and enforcement cooperation (including international
cooperation that enlists our neighbors and allies) that can reduce
One pilot study in Anaheim and Ventura County jails in
California found that illegal aliens made up 18 and 10 percent
respectively of all suspects arrested in the first nine months of
1997.
5
13
Removing Criminal Aliens
by poor management and record keeping, that it has been inadequately responsive to Congressional mandates, that its inefficiencies have resulted in additional detention costs, and that it
continues to release criminal aliens back into US communities.
Essentially, the complaint has been that the program is not growing as fast as its supporters would like. A recent GAO study determined that in the five states with the most criminal aliens, only
30 percent were being removed under the IHP program.
To the INS, a criminal alien is a noncitizen who has been convicted
of a crime committed in this country for which he or she could be
removed from the United States. Generally, those crimes consist of
“aggravated felonies.” The concept was originally introduced in
the 1988 Anti-Drug Abuse Act (ADAA) to cover murder and other
serious offenses related to the trafficking in drugs or weapons. It was
expanded in 1990 to include crimes of violence for which a fiveyear imprisonment was imposed; it was expanded again in technical corrections to the INA in 1994, and once again in the
Anti-Terrorism and Effective Death Penalty Act (anti-terrorism bill)
and the Immigrant Responsibility Act (IIRAIRA) of 1996. It now covers
virtually all crimes “for which the term of imprisonment [is] at least
one-year,” whether or not the punishment is actually imposed.
The INS has responded to what one writer has termed the “increas-
Corbis View
The INS responds that the IHP has seen an extraordinary growth
rate: in 1988, 1,100 people were processed; in 1993, approximately 5,000 people were processed; in 1996, 10,233 were
processed; and this year, 24,000 are expected to be processed
and deported.
Shackled foot of illegal immigrant.
ing criminalization of immigration law” in several ways. It is prosecuting more and more immigration law violations and
apprehending and deporting more and more noncitizens who
have criminal records. Occasionally, the results are alarming:
stories abound of worthy individuals who had one brush with
the law years ago and who are now caught up in detention and
deportation proceedings. In 1992, it spent $158,821,000 on
deportations and detention; in 1997, it will spend $277,835,000.
Its main focus, however, has been on processing criminal aliens
currently incarcerated in federal and state penitentiaries.
From the left have come complaints not so much about the IHP
program but about the law’s lack of flexibility and overreaching. Critics from this side argue that the law functions in essence
as an additional criminal sanction on non-citizens, even for
offenses that many would not regard as “particularly serious.”
Depending on the state, such crimes might now include turnstile
jumping and orange stealing. To be convicted of an aggravated
felony is not only grounds for deportation, but renders the convict
ineligible for asylum, and, in certain instances, the restriction on
removal relating to refugees. Depending on how it is applied,
this law would appear to violate the 1967 Protocol Relating to
the Status of Refugees, which explicitly forbids returning an alien
to his or her country of origin if doing so would endanger him or
her, unless the alien has been convicted of a “particularly serious crime.” Finally, if the noncitizen is not a permanent resident,
the IHP can be imposed administratively, without the supervision of an Immigration Judge.
As the definition of an aggravated felony has expanded, criminal lawyers have struggled to keep up with the immigration consequences of various types of criminal conviction. Because so many
crimes now result in deportation, many noncitizens may choose
not to accept plea bargains, but to take their chances at trial, thus
imposing additional administrative challenges on an already overburdened legal system.
However, as the salience of the IHP program becomes clearer,
so may two of the program’s more notable “loopholes.” The first
is for the immigrant to lie: as it is now structured, the IHP depends
on the foreign born to provide accurate information about their
country of birth and citizenship to corrections personnel, usually
at time of intake. It seems likely that as the sanction of deportation is more and more rigorously enforced, word will percolate among criminal aliens not to volunteer the information that
they are not citizens. The second is through naturalization. As
one immigration lawyer recently noted, “Attorneys should also
counsel clients that, in the end, the easiest way to avoid the ultimate sanction of future removal from the US is to become a US
citizen.” It is fair game which is the more troubling. c
The primary vehicle for removing aggravated felons after they
have completed their jail time is the Institutional Hearing Program
[IHP], established under the ADAA. The goal is to initiate and
complete the deportation proceedings against criminal aliens
while they are serving their sentence so that they can be expeditiously removed at the end of it. Supporters argue that the
IHP represents a win-win proposition: it means that criminal
aliens don’t end up serving additional detention time as they wait
around for deportation, and it means lowered demand on INS
detention space and savings for the taxpayer.
Yet the program has run into criticism from both the left and the
right. From the right have come complaints that the IHP is hobbled
14
Perhaps Walzer’s most intriguing distinction in tolerance regimes
is between nation-states such as France or Germany, and immigrant societies such as the United States or Canada. The nationstate is not homogenous, says Walzer, but it does contain a
single dominant group that organizes the common life in a
“way that reflects its own history and culture and, if things go
as intended, carries the history forward and sustains the culture.”
Tolerance under this sort of regime always entails a secondary
status: “Minority religion, culture, and history are matters for
what might be called the private collective—about which the
public collective, the nation-state, is always suspicious.”
Books & Events
Book Review:
Getting Along
On Toleration, by Michael Walzer; Yale University Press, 1997.
“The challenge of the 21st Century,” remarked the late Isaiah
Berlin, “will be to manage the peaceful coexistence of ethnic
differences.” Berlin no doubt deliberately meant to echo W. E.
B. Du Bois’ famous statement that the challenge of the 20th
Century would be the color line. He was, in that sense, making
a profoundly pessimistic comment: A century later, and we
are still wrestling with the same underlying problem—how to
get along with people we view to be different from ourselves.
Michael Walzer lends his usual sympathetic and humane intelligence to the question in his short book, On Toleration.
In immigrant societies, by contrast, the dominant majority is
temporary in character and differently constituted for different purposes and on different occasions. “No group in an immigrant society is allowed to organize itself coercively, to seize
control of public space, or monopolize public resources.”
Tolerance under this sort of regime extends equally, to all individuals as individuals, rather than as members of this or that
group: “Now there arise personalized versions of group life,
many different ways of being this or that, which other members
of the group have to tolerate if only because they are tolerated by the society as a whole.” (A rather nice description of
California, if you think about it.)
Tolerance emerged as a political value during the course of
the great religious wars of the 17th Century. As Europeans
butchered each other in vast numbers in the name of Christ, a
few sages here and there started a whispering campaign: How
much sense did it make to force others to follow one’s religion, they asked, since the inward obedience that is the true
mark of faith—as opposed to its outward show—can never properly be ascertained? Yet if toleration emerged as a philosophical ideal in a distinctively Protestant context, Walzer makes it
clear that tolerance has had a long and varied history, that it
incorporates a variety of attitudes and is manifest under a wide
range of regimes.
One may wonder whether Walzer’s distinction between the
nation-state and the immigrant society is perhaps overdrawn:
France is not as driven by notions of blood and belonging as
Walzer’s description would suggest, nor the US by the free association of self-actualizing individuals. (Take a look around
the Senate and in corporate boardrooms for women and minorities if you really believe that dominant majorities in the US are
always shifting and temporary.) Walzer, who needs no reminders
on this score, is no doubt staking out ideal-types as much as
he is describing actual conditions.
Tolerance, Walzer points out, encompasses a variety of reactions to difference, ranging from resignation, indifference and
acceptance, to curiosity and enthusiasm. One is not automatically to be preferred to the others: all allow for autonomous
individuals to fulfill their affiliative needs. Furthermore, these
attitudes can flourish under a range of regimes. The multinational empire establishes its administrative control over territories to which it often grants considerable latitude in local
governance: “The various groups have no choice but to coexist with one another, for their interactions are governed by imperial bureaucrats in accordance with an imperial code.”
Consociations are the most fragile of regimes dedicated to tolerance. The various fates of Belgium, Switzerland, Cyprus, and
Lebanon suggest how difficult it is to maintain political unity
when the constituent groups compete for power and dispute
the degree of autonomy they will surrender to the center without the check of an imperial authority.
In a rather longish epilogue, Walzer focuses with greater sociological attention on the contemporary American situation,
finding two fissiparous tendencies at work. The first is a multiculturalism based on the emphatic articulation of group difference. The second is an individualism that either rejects or is
unable to sustain any vision of a common life or a worthy social
project. The first is the bête noire of conservatives concerned
about the “tribalization” of American life; the second is the
bête noire of communitarians and some liberals concerned
that American individualism has wrought a nation of lonely
egotists. In a neat (perhaps overneat) conclusion, Walzer
suggests that while both tendencies are at work, they may ultimately coalesce in ways that, paradoxically, help to renew the
common project of building a democratic, immigrant society.c
–David Aronson
15
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