The Enforcement Pathologies of Immigration Policing

Abstract

State and local police have become increasing involved in enforcing immigration law. While so called “immigration policing” is not new, as some scholars have claimed, it has increased in visibility and influence. This is due in large part to state and federal legislation that has broadened the footprint of immigration policing programs, and to increased federal funding, which has enabled state/federal cooperative programs to flourish. The federal government has created many of the immigration enforcement partnerships between federal agents and state and local police. Today, U.S. Immigration and Customs Enforcement lists no fewer than thirteen immigration enforcement cooperatives, including the 287(g) program and Secure Communities, recently renamed the “Priority Enforcement Program.” In addition, state legislatures have also been busy empowering state and local police to do immigration enforcement in their jurisdictions, including in Arizona where an important immigration policing provision was upheld by the Supreme Court in Arizona v. United States.The increased participation of state and local officials has thrust immigration policing into the limelight and triggered passionate reactions by scholars and the media both pro and con. While these debates have important things to say, this article will assume that immigration policing – in some form – is here to stay. The reason is simple: Immigration policing simply makes sense (or in any event it is too tempting to resist). State and local police are already on the street interacting with citizens, enforcing laws, investigating suspicious conduct, and arresting suspected criminals. Why not ask officers engaged in these activities to pursue any suspected immigration violations at the same time, especially if they can do so without changing their ordinary policing activities? While there are 18,000 federal immigration agents there are over 750,000 state and local police with arrest authority. Conscripting state and local police creates a substantial “force multiplier” for the much more limited federal immigration workforce. Proponents of immigration policing argue that state and local police can serve as a force multiplier without producing any adverse effect on either federal immigration priorities or state law enforcement priorities. The goal of this article is to dispute this claim. The claim relies on the assumption that state and local officials will continue to make law enforcement decisions uninfluenced by the knowledge that stops, investigations, and detentions in connection with other crimes are a gateway to immigration enforcement. It is well know, however, that police officers routinely use “pretextual” street and traffic stops for minor offenses to investigate other crimes for which they lack probable cause. Not surprisingly, police involved in immigration policing are using street and traffic stops as a mechanism for investigating suspected immigration violations. This strategy both compromises federal immigration policy – by shifting the focus away from dangerous criminal aliens and toward minor offenders – and diverts state and local policing resources away from ordinary criminal enforcement. Moreover, stops with hidden immigration enforcement motivations lead almost inevitably to racial profiling, most of which is either legal or very difficult to challenge.The second part of the article draws on lessons from the Fourth Amendment context to explore possible solutions that will address these distortions while retaining important benefits from the federal/state/local partnerships. The most important strategy for addressing pretextual policing is to decouple state and local policing from automatic (or the perception of automatic) immigration enforcement. One step toward decoupling is to treat stops and arrests for minor offenses, which create the risk of pretextual stops and racial profiling, differently for purposes of immigration enforcement than stops and arrests for more serious crimes. A number of states have moved in this direction by declining to honor ICE detainers for potential immigration violators unless those individuals have actually been convicted of a serious crime. Other states have adopted policies that bar police from initiating police action for the purpose of investigating suspected immigration violations. ICE has also taken steps to channel its enforcement efforts toward illegal aliens who have committed serious crimes or repeatedly flouted federal immigration.Such efforts point the way forward in an enforcement world in which state and local immigration policing is here to stay.