The subject of immigration, particularly “illegal” immigration has long been a topic of discussion amongst media pundits, scholars and politicians. From the news worthy “posses” of Sheriff Joe Arpaio from Maricopa County, Arizona; the immigration law of 2010, President Obama’s rhetoric in election campaign speeches, and his State of the Union Addresses, immigration law will be addressed in the near future. The national discussion has taken the form of a question as to what “we” as a nation should do to address this issue. Often, the issue of fairness, constitutionality, and reality come in the form of talking points by media pundits and politicians alike. The conflict that arises in this discussion is a reflection of the historic tension between the responsibilities and powers of individual states, and the responsibilities and power of the Federal Government. Further, the assumption that federal law somehow trumps state law conflicts with the reality that the “Supremacy Clause” of the Constitution trumps any state attempt to circumvent powers of the federal government. Concerning the subject of “constitutionality”, the question as to whether actions taken by the federal government to address the issue of policing immigration is in conflict with the precepts articulated in our founding document.
The conflict arises as to which governmental body shall retain jurisdiction in enforcing immigration laws; the States or the Federal Government. Between the discussion over jurisdiction and how a nation or community is to respond to policing immigration, or how to assuage the fears of recent immigrants who may have arrived here legally, as well as those who bear the same skin tone as recent immigrants; law enforcement officials have been placed in a predicament as to how to police immigration without creating a panic in the communities they serve.
In his article “Policing Immigration: Federal Laws and Local Police”, Decker et al., (as cited in Cole & Gertz, 2013) addresses the issue of policy incoherence of local law enforcement regarding immigration. In his study “Immigration and the Recent Crime Drop in the United States: A Pooled, Cross-Sectional-Time Series Analysis of Metropolitan Areas”, Stowell et al., (2009) attempts to addresses the question of whether there is a nexus between immigration and crime. The two studies are dissimilar in their design. Stowell et al., (2009) research design was a time series cross-sectional analysis of neighborhood crime level data in large metropolitan areas. Between the years 1994-2000, a regression model was used to analyze crime data for a sampling of metropolitan areas with populations of 500,000 residents or greater. There were 103 metropolitan areas surveyed using the FBI’s Uniform Crime Report coupled with US Census Bureau data to reach the statistical findings (Stowell, Messner, McGeever & Raffalovich, 2009).
In addition, Decker et al., (2013) analyzed immigration from the perspective of local law enforcement agencies. Using US Census Bureau data, Decker was able to identify 452 local police departments in metropolitan areas with populations of 60,000 residents or greater. The analysis was a non-time series survey, and did not include a regression model. Decker identified three areas of concern for policing immigration at a local level. The first analysis was the extent of convergence or divergence local police authorities had with the local political leadership and their constituent bodies. The second focused on the extent those communities were given policy direction to their police departments, or to what extent local police departments designed their own policies to police immigration. Finally, Decker analyzed the extent to which police officers responded to the policy guidance they had received from either their departments or political bodies.
Though both studies are dissimilar in their designs, they both illustrate the extent to which impacts on policing immigration have on both the local police departments that service particular communities as well as how police departments respond to neighborhood level crime. Based on the survey conducted, Decker identifies four types of cities based on policy direction that were provided to local police departments. Type 1 cities represented nineteen percent (19%) of the sample and tend to have an official policy that is supportive of immigration and employs a “don’t ask, don’t tell” policy. Type 2 cities represented twenty nine percent (29%) of the sample have official policy, but unlike Type 1 cities, these policies are proactive and encourage aggressive enforcement of immigration statutes. Type 3 cities represented 18 percent of the sample and tended to have unwritten policies by local police departments, however no official policy direction from the cities elective bodies. Type 4 cities represented 32 percent (32%) of the sample and had neither official city government policy nor police department policy for policing immigration (Decker, Lewis, Provine & Varsanyi, 2013).
All four types cited in the sample provided by Decker et al., (2013) represents not only divergent means of policing immigration at the local level, but also represents problems at the federal level. Since type 3 and 4 cities represents the largest sample, and both do not have official policies, police officers lacking guidance are left to make their own ad hoc decisions enforcing immigration (Decker, Lewis, Provine & Varsanyi, 2013). Furthermore, as shown in the study, the large sample of departments stated they not only lacked policy guidance from city officials regarding policing immigration, but also had unwritten or limited agreements with the federal immigration and Customs Enforcement (ICE) agency, and ad hoc decision making was left to local officials to decide how to best police immigration.
Decker et al., (2013) found statistically significant differences in in five out of six areas studied regarding police attitudes toward policy objectives they had received from the federal government, local political bodies, and direction from constituent bodies. Further, the chiefs who were surveyed, discussed when they would contact ICE or check immigration status when their officers made contact with an individual who was suspected of being in the US illegally. Not surprisingly, 85 percent of the time, immigration status was checked when an in individual suspected of being in the US illegally was arrested for a violent crime. Detention for parole violations or failure to appear in court was the second most frequent event causing contact to federal authorities. Domestic violence was the third most common (Decker, Lewis, Provine & Varsanyi, 2013). These findings are consistent with the Stowell et al., (2009) study on crime rates. Stowell et al., (2009) were most concerned with rates of violent crime in their study. It were these findings, as well as the measurements of large metropolitan areas that make both studies similar; though the survey of metropolitan areas varied in scope between the two studies.
The study conducted by Stowell et al., (2009), illustrates the slippery slope that can arise when officers are left to ad hoc decision-making in large urban neighborhoods, if attitudes are influenced by conventional wisdom regarding the nexus between crime and spikes in immigration. Challenging the premise of the Chicago School’s “Social Disorganization theory”, Stowell et al., (2009) found that despite spikes in immigration in the decade between 1994-2004, there was a relationship with the two phenomena with one having an influence on the other and was a modest factor in declining crime rates. The reality that immigrants who emigrate to the United States to escape poverty, and persecution in their home countries, only to face increased vigilance and persecution from local political bodies and police, only serves to terrorize those communities and pit them against others, living there but also against the police and elective bodies. At the extreme, lack of policy guidance to police departments creates an atmosphere of fear in local neighborhoods that house large immigrant communities, and subject immigrants to unscrupulous and whimsical policing, and political agendas by elected officials. An acceptable premise is to say: government is a monopoly on the use of coercive force, and if this premise is accepted, it naturally follows that such force if placed in the hands of misguided policy and policymakers can lead to erosion of civil liberties, and pit a majority group against a minority group. Thus, because there is varying policy standards from one locale to the next, immigrants who may have arrived here legally or illegally never truly know when or where they will be discovered and possibly sent back to the homeland they tried desperately to escape.
Without unifying guidance from the Federal Government in regards to enforcement of illegal immigration, local law enforcement agencies are left to their own devices to develop an immigration policy. Coupled with the incoherence of policy and the political pressures placed on local police departments to either take action in policing immigration or taking a position of non-enforcement, is the myopic and byzantine realm of federal politics, statutes and norms that present challenges to enforcement. Implementing a policing immigration policy faces further challenges for local law enforcement due to the uncertain nature in how to correctly adjudicate it.
Since policing immigration is not a traditional law enforcement function it falls within the purview of other emerging issues for law enforcement. The question of illegal immigration finds nexus’ with these emerging threats such as human trafficking, terrorism, drugs, gangs, hate crime and electronic crimes (Decker, Lewis, Provine & Varsanyi, 2013). Each of the mentioned crimes represents existential threats to not only the federal government, but to local communities as well. Since immigrants tend to gravitate to large metropolitan and urban areas, it falls on local law enforcement to police them. Local law enforcement officials who police crime in their neighborhoods will be faced with the problem of how to effectively deal with immigration. Without policy guidance from the federal government, it follows that local agencies will adopt their own policies and procedures to police immigration.
Decker, S. H., Lewis, P. G., Provine, D. M., Varsanyi, M. W., Policing immigration: Federal laws and local police. In Cole & Gertz, (2013) (Eds.), The Criminal Justice System: Politics and Policies (pp. 184-196). Belmont, CA: Wadsworth, Engage Learning.
Stowell, J. I., Messner, S. F., McGeever, K. F., Raffalovich, L. E., (2009). Immigration and the recent violent crime drop in the United States: A pooled, cross-sectional time-series analysis of metropolitan areas. In Criminology, volume 47 number 3 (pp. 889-928). American Society of Criminology
 See sanctuary city policies of Los Angeles, New York City and San Francisco (Decker, Lewis, Provine & Varsanyi, 2013).
 See the policies of Sheriff Joe Arpaio in Maricopa County, AZ.
 Social Disorganization Theory expounded by the Chicago School holds that urban neighborhoods have three structural characteristics: 1). Economic Deprivation, 2). Residential instability, 3). Racial heterogeneity. It was theorized that since immigrants tended to find economically deprived and traditional high crime neighborhoods as their final destination, there was a positive association with spikes in the crime rate (Stowell et al., 2009).