Undocumented Immigrants and criminal justice
The issue of undocumented immigrants in the United States is intertwined with the nation's criminal justice system, presenting a multifaceted challenge for law enforcement and policymakers. As of 2021, there were an estimated 10.5 million undocumented immigrants in the U.S., primarily from Mexico and Central America, contributing significantly to both the economy and the complexities of immigration enforcement. The federal government has historically responded to illegal immigration with increased border security and enforcement measures, particularly following the September 11 attacks, which further heightened concerns about national security.
State and local jurisdictions face unique challenges as they navigate the costs associated with arresting and prosecuting undocumented immigrants. This has led some states to seek federal reimbursement for these expenses, while programs like the State Criminal Alien Assistance Program (SCAAP) provide limited federal support. Additionally, the adoption of "sanctuary laws" by certain cities aims to foster trust within immigrant communities and encourage crime reporting, although these laws remain contentious and provoke debate about their implications for public safety and federal law compliance.
Looking ahead, the trend of undocumented immigration is expected to persist, raising ongoing questions about effective policy responses that balance enforcement with human rights considerations. As the conversation evolves, the intersection of immigration and criminal justice will remain a critical area of focus for communities across the United States.
Subject Terms
Undocumented Immigrants and criminal justice
SIGNIFICANCE: The steady increase in the population of undocumented immigrants in the United States presents a variety of challenges to the American criminal justice system. In addition to the federal government’s monumental problem of enforcing the nation’s immigration laws, state and local law-enforcement agencies face a growing problem of criminal activities by undocumented immigrants.
In 1994, the US Immigration and Naturalization Service (INS) produced the first detailed national estimates of the numbers of undocumented immigrants in the United States. The INS estimated that 3.4 million unauthorized residents were in the country in October 1992. Later, the INS estimated the number to be about 7 million in the year 2000. The US Census Bureau’s estimate for that same year was 8 million. According to the Pew Research Center, by 2021, the number had reached 10.5 million, and some researchers believe that the actual number of undocumented immigrants is even significantly higher.
Mexico, the United States’ southern neighbor, is the single largest source of undocumented immigrants. More than 10.5 million undocumented immigrants residing in the United States in 2021. While the majority came from Mexico, according to the Pew Research Center, the number dropped from 900,000 from 2017 to 2021. Undocumented Mexican workers in the United States are an important part of the Mexican national economy. They send home an estimated $20 billion to $30 billion a year.
Many other undocumented immigrants came from other parts of Latin America, primarily Central American nations. Taken together, Mexicans and other Latin Americans make up more than three-fourths of all undocumented immigrants in the United States. About 10 percent of undocumented immigrants originate in Asia, while Europe and Canada supply about 5 percent. The rest come from Africa and other parts of the world.
Undocumented Immigrants and the Criminal Justice System
The standard American response to illegal immigration has been increased border enforcement through the authority of the federal government. Throughout the 1990s, the numbers of both illegal border crossings and undocumented immigrants in the United States increased incrementally. Among the strategies to stem illegal immigration were Operation Gatekeeper in California, Operation Hold-the-Line in Texas, and Operation Safeguard in Arizona. All were attempts to deter illegal border crossings.
The US Department of Justice allocated unprecedented resources to these innovative strategies, including additional Border Patrol agents; advanced computer systems; and improved security fences, lighting, and support vehicles. As a result, by 1998, the numbers of attempted border crossings and apprehensions dropped to their lowest levels in almost twenty years. However, human rights activists and researchers criticized these efforts and argued that increased surveillance along the border was not preventing illegal entries but instead was forcing undocumented immigrants to seek riskier methods of entering the United States. In response to these charges, US president George W. Bush and Mexican president Vicente Fox later pledged to pursue immigration reform policies to address border enforcement and human rights concerns.
The fact that the terrorist attacks on the United States of September 11, 2001, were perpetrated by undocumented immigrants made countering illegal immigration a top priority of the Bush administration. After that date, new federal laws and policies were adopted, including the Patriot Act of 2001 , the Homeland Security Act of 2002, and the Enhanced Border Security and Visa Entry Reform Act of 2002. In March 2003, the Immigration and Naturalization Service was divided into three bureaus within the newly created Department of Homeland Security: the Bureau of Immigration and Customs Enforcement (ICE), the Bureau of Customs and Border Protection (CBP), and US Citizenship and Immigration Services (USCIS).
Although the federal government is primarily responsible for securing the nation’s borders, the impact of undocumented immigrants on the criminal justice system reaches far beyond the federal system. Indeed, the problem and its required solutions may have an even deeper impact on state and local jurisdictions. At state and local levels, the costs of arresting, prosecuting, sentencing, and supervising undocumented immigrants who commit criminal offenses have become a major issue. Some states have filed suits to force the federal government to reimburse them for the costs of criminal justice actions against immigrants for whom the federal government is responsible.
The federal government does reimburse states for some costs associated with criminal acts by undocumented immigrants. Section 510 of the Immigration Reform and Control Act of 1986 (IRCA) authorizes the US attorney general to reimburse states for the criminal justice costs attributable to undocumented persons. The Bureau of Justice Assistance, a branch of the Office of Justice Programs, administers the State Criminal Alien Assistance Program (SCAAP), in conjunction with the Bureau of Immigration and Customs Enforcement (ICE) of the Department of Homeland Security. SCAAP provides federal payments to states and localities that incur correctional officer salary costs for incarcerating undocumented immigrants who have been convicted of at least one felony or two misdemeanors for violations of state or local law and are incarcerated for at least four consecutive days during a reporting period. During the fiscal year 2022, the total appropriation was approximately $2.5 million. SCAAP payments are calculated with a formula that provides pro-rata shares of the funds to jurisdictions that apply, based on the total number of eligible criminal immigrants as determined by ICE.
Criminal undocumented immigrants pose considerable challenges to law-enforcement efforts in part due to the highly criticized stance of many cities and counties that have adopted “sanctuary laws.” Such laws are local ordinances adopted in attempts to reduce victimizations of undocumented immigrants and to improve crime reporting rates among immigrant populations. The National Council of La Raza and other advocacy groups have defended sanctuary laws by arguing that they promote community-oriented policing and protect against racial profiling, police misconduct, and civil rights violations. Critics against the policy contend that such laws allow undocumented immigrants who commit crimes to circumvent federal law and avoid identification and deportation.
Future Trends
The number of undocumented immigrants residing in the United States grew steadily throughout the 1990s. More than half of all unauthorized visitors in the country were born in Mexico. According to the Center for Immigration Studies, about 9 percent of living people born in Mexico now reside in the United States. Additional resources to deter illegal border crossings as a result of laws implemented following the September 11, 2001, attacks have done little to slow the influx of undocumented immigrants, and there is no evidence to suggest that current levels of illegal entry into the United States will decrease significantly.
Barring major changes in the nation’s legal immigration policy or enforcement strategies, it is likely that immigration will continue at roughly current levels. More and more people will continue to enter this country lawfully. At the same time, however, it can be expected that many will enter the United States illegally. Controlling the national borders, thwarting organized immigrant smuggling rings, and identifying and deporting people who are in the United States illegally, especially those who commit crimes, will be priorities.
Bibliography
Daniels, Roger. Guarding the Golden Door: American Immigration Policy and Immigrants Since 1882. New York: Hill & Wang, 2004. Study of the impact of ignorance, partisan politics, and unintended consequences in immigration policy during the post-9/11 war on terrorism.
Hing, Bill Ong. Defining America Through Immigration Policy. Philadelphia: Temple University Press, 2004. Broad survey of federal immigration policies and their impact on the social structure of the United States.
Nevins, Joseph. Operation Gatekeeper: The Rise of the “Illegal Alien” and the Making of the U.S.-Mexico Boundary. New York: Routledge, 2002. Critical history of federal efforts to control the influx of undocumented immigration across the border with Mexico.
Ngai, Mae M. Impossible Subjects: Illegal Aliens and the Making of Modern America. Princeton, N.J.: Princeton University Press, 2004. History of immigration that emphasizes the place of illegal aliens in the construction of modern American society and nationality.
"What We Know About Unauthorized Immigrants Living in the United States." Pew Research Center, 16 Nov. 2023, www.pewresearch.org/short-reads/2023/11/16/what-we-know-about-unauthorized-immigrants-living-in-the-us/. Accessed 5 July 2024.
Williams, Mary E., ed. Immigration: Opposing Viewpoints. San Diego: Greenhaven Press, 2004. Collection of essays by experts and observers familiar with immigration, presenting diverse social, political, and legal views on U.S. immigration policy.