JURIST Guest Columnist David Harris of the University of Toledo College of Law says that despite calls from some quarters for more aggressive immigration control across the United States, local police want nothing to do with immigration enforcement, and they're right....
How We Got Here
Before September 11, 2001, debates about illegal immigration had much more to do with economics, labor supplies, cultural change, and the weak economy of Mexico than they did with law enforcement. As for local police, they sometimes arrested people for the most serious, felony-level immigration offenses, but most illegal immigration involves either civil violations or misdemeanors.
Then came September 11, and immigration opponents gave the issue a different face: national security and terrorism. If millions of illegal, uneducated, and unskilled migrants could get into the U.S., so could a terrorist. Never mind the lack of evidence; the mere possibility, immigration opponents said, constituted a threat.
With the issue now positioned as part of the war on terror, allies in the administration and in Congress began to move on several fronts to involve local police in immigration enforcement. The federal effort that caused the greatest unease among police came in the form of bills the best known of which was the CLEAR Act, in the 108th Congress -- to force local police to get involved in immigration enforcement. Those agencies that had policies to the contrary stood to lose all of the federal reimbursement monies they received to defray their costs when they held deportable aliens in custody for the federal government. Many local governments could ill afford to give up these funds.
State and local police departments (with the exception of a handful of elected sheriffs) objected strongly to the CLEAR Act. For some departments, it amounted to a question of resources; for others, the question was the proper allocation of federal and state responsibilities. But by far the most common, and most intense, objection to the CLEAR Act centered on crime fighting. If police became involved in immigration enforcement, police argued, it would cripple their ability to carry out their core mission: making the streets safe from crime.
To account for this opposition, we must look at some important changes in policing over the past ten to twenty years. During that time, community-oriented policing strategies have become the coin of the realm. Most police have realized that they must have the help and support of the communities they serve in order to do a good job of assuring public safety. This means that police must create and maintain relationships with the communities they serve relationships based on trust. Without this kind of relationship, police will receive little in the way of intelligence and information from the public, making it harder for officers to do their always-difficult jobs. This change in police perspective becomes even more important when examined in conjunction with recent demographic transformations in the U.S. During the past decade, cities and towns all over the U.S. not just in traditional immigrant "gateway" areas like New York, Chicago, and Los Angeles have sprouted their own substantial immigrant populations. The areas of the U.S. experiencing the fastest rates of growth in immigrants are not large urban areas, but suburban and rural areas in states like North Carolina, Georgia and Arkansas. This means that more police departments than ever, in many more places than used to be the case, have first-hand experience doing police work in immigrant communities. If building trust-based relationships with communities is always a central tenet of the best modern police work, police in many small and mid-size communities, as well as big cities, now understand that accomplishing this becomes doubly difficult in immigrant communities. Language barriers, cultural differences, and the fact that many immigrants come from countries in which police behaved corruptly and brutally mean that police must work extra hard to build the important relationships that they need. Without trust-based relationships with these communities, there will be little communication with them; with no communication, there will be precious little sharing of information and intelligence about criminal activity.
Forcing local police into immigration enforcement will make all of this even harder. Police officers understand that if they are forced to become adjunct immigration agents, people in immigrant communities will begin to fear talking to them because doing so might bring with it the potential for deportation. And this fear often arises not just for illegal immigrants, but also for many who have legal status. In the U.S., a large number of immigrant families and households have both legal and illegal members. For example, children in a household may have been born here to illegal immigrant parents, making the kids citizens but the parents deportable. Thus even for those with legal status, the danger of exposure to any official with immigration enforcement duties is quite real. The fear will cause immigrant communities to cut themselves off from police, not offering information about criminal activity and not reporting crime even when they themselves become the victims. Police know where this path leads. Residents, legal and illegal, fear contact with the police and thus fail to report crimes; this leaves predators whom police might otherwise catch on the street. It also further emboldens these criminals, because they know they can strike with a degree of impunity. This will lead to increases in crime, especially serious crimes such as armed robberies, and the criminals perpetrating it will not victimize only illegal immigrants. The result: diminished public safety for everyone.
If the federal government and opponents of illegal immigration succeed in their efforts to force state and local police into the enforcement of immigration law, six negative consequences will follow. First, crime will increase in areas with concentrations of immigrants, and it will then spread to adjoining places. Second, racial profiling will re-emerge as a common practice, spawning complaints against police departments and straining all-important community ties between police and residents. Third, state and local police agencies will become targets of lawsuits over these practices, necessitating the use of millions of dollars for legal defenses and the payment of damages. Fourth, the incarcerated population will grow, requiring more prison building and the growth of proprietary, privately-owned prisons. Fifth, the enforcement efforts will drain always scarce law enforcement resources away from crime fighting. Sixth and perhaps most important pushing police into immigration enforcement will prove a substantial setback to every effort now underway to obtain crucial intelligence against potential terrorists on our own soil an ironic outcome, because those pushing for local police enforcement have dressed their efforts up in the garb of national security. In any number of successful anti-terrorism cases in the U.S. in Lackawanna, N. Y., and Toledo, Ohio, to take just two examples crucial intelligence has almost always come from people in the Middle Eastern, Muslim, and Arab communities. Since these communities contain many immigrants, both legal and illegal, the fear of the police generated by pushing local officers into the business of immigration enforcement will show up among Middle Easterners and Muslims, too cutting off crucial communications and the sharing of information.
The Wrong Path
The opponents of illegal immigration say, correctly, that the stakes in the debate are high. But the question is how we tackle the problem. If we listen to our law enforcement professionals, we'll have the benefit of their hard-won experience. They're the ones who know that pushing them into immigration law enforcement is the wrong path, and it can lead only to disaster.
David A. Harris is the E.N. Balk Professor of Law and Values at University of Toledo College of Law. He has published two books on police behavior, Good Cops: The Case for Preventive Policing(2005) and Profiles in Injustice: Why Racial Profiling Cannot Work (2002), both with The New Press.