Social Control and Justice

Social Control and Justice

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Social Control and Justice Crimmigration in the Age of Fear

Edited by Maria João Guia, Maartje van der Woude & Joanne van der Leun


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Published, sold and distributed by Eleven International Publishing P.O. Box 85576 2508 CG The Hague The Netherlands Tel.: +31 70 33 070 33 Fax: +31 70 33 070 30 e-mail: [email protected] www.elevenpub.com Sold and distributed in USA and Canada International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786, USA Tel: 1-800-944-6190 (toll-free) Fax: +1 503 280-8832 [email protected] www.isbs.com Eleven International Publishing is an imprint of Boom uitgevers Den Haag. ISBN 978-94-90947-78-1 © 2013 Maria João Guia, Maartje van der Woude & Joanne van der Leun (eds.) | Eleven International Publishing This publication is protected by international copyright law. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher. Printed in The Netherlands


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Contents

Social control and justice: Crimmigration in the Age of Fear Juliet P. Stumpf

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Crimmigration, Securitisation and the Criminal Law of the Crimmigrant17 Maria João Guia

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A Reflection on Crimmigration in the Netherlands Joanne van der Leun & Maartje van der Woude

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Entering the risk society: A contested terrain for immigration enforcement Robert Koulish, Ph.D.

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The Changing Landscape of the Criminalisation of Migration in Europe: The Protective Function of European Union Law Valsamis Mitsilegas Disappearing rights: How states are eroding membership in American society Dr Doris Marie Provine

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115

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The impact of immigration enforcement outsourcing on ice priorities127 Michele Waslin

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The Spirit of Crimmigration António Pedro Dores

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Crime and Immigration: The discourses of fear as a theoretical approach to critical evaluation. Débora da Cunha Piacesi

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Recorded crime committed by migrant groups and native Dutch in the Netherlands Roel Jennissen

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143

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The foreign-born in the Canadian federal correctional population199 Derrick Thomas

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The Impact of Safety on Levels of Ethnocentrism Tuba Bircan

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The control of irregular migrants and the Criminal Law of the Enemy José Ángel Brandariz García

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Crime among irregular immigrants and the influence of crimmigration processes Arjen Leerkes

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The wide scope of immigration in the Azores and its relationship with crime Maria da Graça Borges Castanho

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231

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Irregular immigrants and their Irish citizen children Alan Desmond

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The Treaty of Prüm and unauthorised migration João Pedro C. Alves de Campos

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About the authors

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CINETS group

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Social control and justice: Crimmigration in the Age of Fear Introduction

Juliet P. Stumpf

Social control and justice: Crimmigration in the Age of Fear offers a fresh, multi-disciplinary and international examination of a phenomenon that has altered the landscape of migration in the United States and is now taking root in Canada and throughout Europe. Crimmigration law consists of the letter and practice of laws and policies at the intersection of criminal law and immigration law. Crimmigration scholars study the creation of crimmigration laws and policies, their enforcement, and the institutional dynamics that create crimmigration law and are created by it. Many have written about the use of crimmigration law to exert social control over groups marginalised by ethnic bias, class, or citizenship status. This book is the first of a planned series of volumes mapping the geography of crimmigration law in Europe, Canada, the United States, and beyond. The work of the international scholars in this book explores the origins and effects of crimmigration. It uncovers its new manifestations in previously uncharted territory. The inspiration for this book arose from the early exchanges of crimmigration scholars meeting at two interdisciplinary conferences bridging two continents to share ideas, concerns, and information about the spread of crimmigration law. Three intrepid crimmigration scholars from two universities, Maria João Guia at the University of Coimbra in Portugal and Joanne van der Leun and Maartje van der Woude at the University of Leiden in the Netherlands, undertook to gather in this volume the pioneering work of these international researchers. The number of authors who have contributed their ideas, the range of their disciplinary backgrounds, and their geographic diversity is a testament to the masterful organisational talents of the editors. It is also a sign of the breadth and depth of international interest that the appearance of the crimmigration phenomenon has inspired. This volume will become a touchstone for those seeking to learn more and teach others about this young and growing field.


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Crimmigration Law: A Primer Crimmigration law has two horns. The first is the expansion of immigration consequences, such as deportation or exclusion grounds that are based on criminal convictions. In the United States, a series of legislative changes to the immigration laws have expanded the types of crimes that constitute grounds for deportation. Grounds for deportation now reach far beyond serious crimes to include misdemeanours and petty crimes. These laws also made crime-based deportation grounds retroactive, with the effect that long-term US residents became deportable for offences that occurred many years in the past. Combined with severe restrictions on avenues of relief from deportation passed contemporaneously, the impact of these laws have fallen most heavily on lawful permanent residents and those who otherwise would have pathways to lawful status. The second horn of crimmigration law is the expansion of criminal law and criminal procedural tools as a way to regulate migration and especially unauthorised migration. In the United States, this has primarily entailed heightened levels of criminal prosecutions for illegal entry and illegal re-entry. It also includes recent legislation criminalising new forms of conduct, such as marrying for the purpose of obtaining an immigration benefit, as well as heightened levels of enforcement of immigration law prohibitions on unlawful bordercrossing and unlawful presence. Crimmigration law has reached beyond the non-citizen to engage private actors both as collaborators in enforcement and as targets of enforcement. For example, immigration legislation in the mid-1980s engaged employers as immigration regulators to screen new employees for the immigration status needed to work in the United States while at the same time criminalising those employers who made a pattern or practice of hiring undocumented employees. Passing or modifying criminal laws against smuggling or harbouring unauthorised noncitizens targeted the US citizens and legal immigrants associated with those crimes. The events of September 11, 2001, and the ensuing construction of institutions and social norms that prioritised national security, fuelled the rapid rise of crimmigration law in the decade that followed. Using pre-existing statutory and administrative tools, federal immigration officers and state and local police made non-citizens a main focus of national security enforcement operations. Federal agents identified immigrants from countries with mainly Arab or Muslim populations as potential threats or sources of information relating to national security, and targeted them for questioning, detention, or arrest, often resulting in deportation. Pervasive fears about national security engendered official enforcement efforts that instilled fear and insecurity in many ethnically diverse neighbourhoods.


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The initial urgent call for action to maintain national security at all costs has quieted. Its legacy, however, is a greater public acceptance of overt official enforcement actions in the name of national security. It has also left a widespread perception that immigration, crime, and anti-terrorism are interlinked. These developments have sparked action from people and entities outside of the federal government interested in either enforcing crimmigration law or resisting its forward march. Several states and localities have passed everharsher laws criminalising conduct related to migration such as seeking work as day-labourers or renting housing to unauthorised immigrants. Many state and local governments have sought to augment federal immigration enforcement using their own police force. Private actors, such as the members of the ‘Minuteman Project’, have set up private enforcement operations to patrol the border between the United States and Mexico and inform federal officials when they believe they see unlawful activity. State and private enforcement of federal immigration law is controversial largely because of concerns that it arises from ethnic bias, functions in a discriminatory way, or targets long-term residents whose presence benefits the United States. Those who have resisted the onset of crimmigration law include both governments and private actors. Most US state and local police departments have declined the invitation from the federal government to deputise their officers to act as immigration agents. Many states and localities protested the federal government’s implementation of a programme called Secure Communities that would pass on to immigration authorities the fingerprint information that police collect when they make an arrest. State legislatures have reduced sentence maximums to reduce the impact of crime-based deportations, criminal sentencing judges have taken account of immigration status to reduce exposure to deportation, and governors have pardoned non-citizens to the same end. Each of these actions represents a small step toward ameliorating the unbending trajectory of crimmigration law. The future of crimmigration law in the United States is uncertain, but it likely will proceed in step with the direction that criminal law and sentencing take. Given the intricacy with which immigration enforcement and criminal law are interlocked, they cannot help but influence each other going forward. Others have written about the way in which criminal law has traditionally acted as a form of social control, allowing the government to wield threats of criminal punishment or engage the tools of authority as a means of keeping marginalised populations in check. Citing the disproportionate numbers of people of colour in jails and the freedom that unbridled discretion gives to police officers and other officials to stop, arrest, or otherwise more heavily police communities of colour and lower socioeconomic status, sociologists have pointed out that criminal law has become more than a means of controlling crime. It has taken on a new role as a means of controlling distrusted social groups.


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Crimmigration seems to fulfil a similar function. With both criminal punishment and deportation at their disposal, officials responsible for criminal and immigration enforcement have acquired wide discretion to use their enforcement authorities to lawfully target a large swath of the non-citizen population. That discretion extends to citizens and lawfully present non-citizens who may be suspected of belonging to the group of unauthorised or removable non-citizens. Researchers have documented that visible minorities, such as Latinos and Asians of ethnicities associated with unlawful migration, experience higher levels of crimmigration enforcement. US courts have approved of using race as a factor for immigration enforcement, and immigration enforcement operations have targeted worksites or other gathering places that are heavily populated by those ethnic groups. The combination of harsher immigration and criminal legislation, wider discretion at the lower end of the chain of authority, the simultaneous participation of various government and private entities, infusions of funding and enthusiasm for crimmigration enforcement has fuelled an unprecedented rise in crimmigration law. It has changed the public perception of the non-citizen in the United States from a figure closely associated with the history and cultural roots of the United States to one associated with trespass, criminal deviance, and risk to the nation’s security.

Crimmigration Law beyond the United States Crimmigration law has gained footholds in Canada and Europe. It manifests itself differently outside the United States because of differences in each area’s approach to migration and criminal control. Nevertheless, it remains a recognisable trend with consistent parallels to US crimmigration law. Canada has long enjoyed a reputation for protecting and fostering immigrants, with policies oriented toward recognising refugees, careful attention to international human rights laws, and boasting a highly developed integration program. Yet more recently, crimmigration law has begun to appear in Canada, exemplified by legislative initiatives that would require the government to detain some immigrants who entered irregularly, including asylum seekers. In Europe, the abolition of internal borders among the countries that are parties to the Schengen Agreement also saw the establishment of Frontex, a new immigration agency responsible for policing the exterior boundaries of the Schengen countries. With these developments, European immigration law and policy is undergoing seismic shifts as social and economic migration pose new challenges for the new structure. Valsamis Mitsilegas, in his chapter on the protective function of European Union law, provides a fascinating window into the tension inherent in the power to regulate migration of the European Union and the national governments. He explores how the competence in migration regulation shared between Member


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States and the European Union ‘raises complex issues with regard to the degree of sovereignty or discretion left to Member States when they legislate on irregular migration and when they promote legislative choices resulting in the criminalisation of migration.’ This tension arises from the distinct approaches that the European Union and some of its Member States have taken to unlawful migration. Whereas the European Union has criminalised the activities of individuals who facilitate irregular migration, such as human trafficking and human smuggling, Member States such as France and Italy have criminalised irregular migration or unauthorised residence directly. The Mitsilegas’ chapter explores the extent to which European Union law plays a protective role for migrants in ‘setting limits to state power and safeguards for the migrants who fall within the reach of criminal law.’ Maartje van der Woude and Joanne van der Leun propose that crimmigration in Europe demands new research on the significance of public perceptions and framing of the criminalisation of migration. They note that framing migration as a potential security threat paints immigrants as dangerous enemies, legitimising the use of secrecy, violence, and other extraordinary measures legitimated through law. Their chapter calls for research that closely studies the links between this kind of framing and the legal responses that follow it.

The Age of Fear This book describes some of the major developments stemming from the rise of crimmigration across continents and borders, and traces their implications. In placing crimmigration in the ‘Age of Fear,’ the book challenges us to consider the many facets of fear that interrelate with crimmigration. Fear has the power to produce and shape the contours of crimmigration law and the structures and products of the institutions that seek to control it. Maartje van der Woude and Joanne van der Leun give as an example the Dutch political agenda’s dual priorities of fighting crime and reducing public fears. They posit that this agenda reflects a ‘culture of control’ in which shielding society from possible security risks have become the most critical goals. The increased securitisation of Dutch society has fostered a climate which frames criminals and immigrants as dangerous ‘others.’ Fear of migration is caught up with other fears – fear of economic destabilisation, social upheaval related to the changing ethnic composition of the population, and job loss. At the same time, the rise of crimmigration fuels widely-held feelings of fear and insecurity about crime, terror, and social instability, all coalescing around the migration of non-citizens. Each of the chapters in this book sketches one or more of the facets of these institution-bending fears.


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While exploring the bases for the diverse fears that surround crimmigration law, the book also examines whether these fears are grounded in bias or aversion to difference. Débora da Cunha Piacesi provides context for this exploration. Her chapter on discourses of fear analyses theoretical perspectives that inquire into ‘the exaggerated perception of fear in contemporary societies,’ seeking to unveil the mechanisms that criminalise ‘the other’. Similarly, Maria João Guia evokes the ‘panic and insecurity’ that pervade modern societies, fashioning an image of the immigrant as a threat, as an unwelcome intruder in the host society.

Fear of crime and terrorism One of the main drivers of crimmigration law is a combined fear of heightened levels of crime and the fear of terrorist acts. Several of the chapters explore these themes. Tuba Bircan’s contribution begins with the assumption that ‘any connection between expressions of fear of increased criminal activity and immigration is likely to be mostly symbolic in nature.’ Other chapters devote themselves to empirical explorations into the connection between crime and migration. Roel Jennissen’s study, relying on data from the Netherlands’ Police Recognition System of known criminal offenders, concludes that ‘the (recorded) crime rate among people with a non-western background is not favourable when compared with that of the native Dutch population.’ In contrast, Derrick Thomas’ study of Canadian immigrants concludes that ‘the data show that immigrants on the whole are less likely than the Canadian-born population to be imprisoned’ and that low levels of education and employment ‘are far better predictors of incarceration than membership in any birthplace group.’ Thomas’ conclusions are consistent with empirical studies in the United States. The empirical research of Arjen Leerkes, Joanne van der Leun and Godfried Engbersen begins to explore some of the reasons underlying the connections between crime and irregular migration. They suggest that crimmigration policies may backfire. Their study indicated that the rise in registered crimes committed by irregular migrants in the Netherlands is partially an unintended consequence of stricter policies curbing illegal migration. Intensified border controls that exclude irregular immigrants from the formal labour market and public provisions may have had the unintended side effect of increasing criminal involvement, predominantly by fostering subsistence drug-related crimes. They call for more attention to ‘the complex and unintended interplay between policies and migrant behaviour,’ emphasising the need to ‘illuminate unintended and even perverse outcomes.’ The governmental response to these fears varies from increased surveillance to global and national criminalisation schemes. João Pedro C. Alves de Campos writes about one result of these fears. The Treaty of Prüm established


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a new form of surveillance in Europe through the transnational exchange of DNA profiles ‘aimed at improving cooperation in combating terrorism and as a way of fighting crime and illegal immigration.’ Valsamis Mitsilegas characterises the European Union’s criminalisation of trafficking and facilitation of unauthorised entry, transit and residence as ‘a confluence of policy objectives between the European Union and the global community’ in that the EU’s focus on criminalisation is a way to securitise migration at a global level and establish legal and policy links between migration and organised crime.

Fear of social change and ‘the other’ Some of the fears that underlie the development of crimmigration law are less specific than those relating to crime or terrorism. António Pedro Dores, in his chapter on the Spirit of Crimmigration, hypothesises that crimmigration is a state of mind, a reaction to fear of social change related to class and nationality, a fear ‘induced by decadent social processes’ that are financial, economic and democratic. Other chapters identify this social fear as fear of ‘the other’, a fear stemming from perceived differences in ethnicity or foreignness or the unknown, or all three of these. Tuba Bircan’s study indicates that the fear of crime is ‘strongly related to ethnocentric attitudes’. Robert Koulish notes that endowing the government with plenary powers goes hand-in-hand with ‘late modern risk strategies (…) managing the uncertainty of unidentified and undocumented immigrants in a post September 11 world.’ Maria João Guia explains that the ‘Criminal Law of the Enemy’ focuses more on the status of the immigrant than on their deeds. The emergence of crimmigration and the reinforcement of securitisation, she says, has shaped the conditions under which ‘the immigrant-other is a target of permanent suspicion.’

Crimmigration as Social Control What are the consequences of these multifaceted fears? Individuals and institutions, such as legislatures and law enforcement, local, national, and international governing bodies, seek to exert social control over the people – the migrants – around whom these fears collect. Mitsilegas points out that ‘the broad scope of criminalisation (in particular as regards the facilitation offences), and the logic of law enforcement and prosecutorial efficiency as regards the granting of rights to migrants, have resulted in a legal framework leading to limited safeguards and legal certainty for vulnerable migrants….’ They impose significant barriers to access to the European Union on those who seek international protection. Maria da Graça Borges Castanho’s chapter on the deportation to the Azores of numerous Azorean migrants describes how deportation imposes on the Azores significant challenges to integrating the returning migrants into


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the Azorean population when their sojourn has provided often long-term lifealtering experiences. These chapters dovetail with the ideas of other authors in this volume. Robert Koulish suggests that crimmigration is part of a ‘control society’. Examining the geography of this control society through the example of immigrant alternatives to detention, known as ATDs,, Koulish argues that alternatives to detention extend ‘a new form of neoliberal freedom’ even as they actually diminish liberty. In a different context José Ángel Brandariz García and Agustina Iglesias Skulj, in their chapter on The Control of Irregular Migrants and the Criminal Law of the Enemy: Notes on the Exclusion and Inclusion in the Field of Penal Policy in Spain, conclude that penal policy over migrants in Spain serves as a form of social control. They note that ‘migration policies are not aimed at putting an end to irregular migratory flows, but at managing them, facilitating the mass utilisation of the migrant workforce in conditions of utmost flexibility.’ Sometimes these attempts at social control lead to struggles between institutions and governments over how to enforce, how much to enforce, and who enforcement should target. Michele Waslin, in The Impact of Immigration Enforcement Outsourcing on Ice Priorities, concludes that the laws and ordinances that US states and localities pass aimed at controlling unauthorised migration ‘have the potential to interfere with the federal government’s ability to implement its own enforcement priorities’. Doris Marie Provine, in Disappearing rights: How states are eroding membership in American society, describes ‘the federal iceberg of congealed enforcement policy’ and the steady erosion of non-federal rights and privileges that states had regularly recognised for all of their residents. Finally, Mitsilegas describes the Court of Justice of the European Union’s approach to the conflict between the European Union and its Member States over migration control. He asserts that the cases signify ‘a direct challenge to the employment of symbolic criminal law by Member States’ making it harder for Member States choosing to criminalise migration to evade the control of European Union institutions and law.

The role of membership This book goes beyond merely identifying and defining the various facets of crimmigration law. It initiates the heavy work of shaping solutions to the profound issues that crimmigration raises. These solutions call for thoughtful consideration of what justice requires when the State seeks to exert social control over non-citizens. The chapters, each a tentative testing of new ground, collect around the gravitational pull of membership. Provine grounds the discussion by recognising that the surge of state and local interest in criminalising migration has engendered ‘a lively debate over the meaning of membership in American society.’ Guia explains that non-citizens


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are ‘often denied the opportunity to become a full member of the society’ where they intend to settle; they are ‘external entit[ies]’ in societies with pre-existing social webs. They are ‘forced to open a space’ to ‘create affectivity ties with the other members’ of that society. Provine and Guia have it right. Understanding the role of membership is critical to the study of crimmigration. Conceptions of membership are fundamental to the two constituent parts of crimmigration law: criminal law and immigration law. Criminal law concerns itself with identifying when an act is so repugnant that the actor must be excluded, however briefly, from the liberty that members of society usually enjoy. Immigration law concerns itself with who may formally join the membership of a society, and who will be excluded or expelled. Both areas of law function as expressions of a society’s view of membership. They exclude some through incarceration or expulsion from the country; they include others wholly through full citizenship or partially through descending levels of immigration status. Crimmigration law combines these exclusionary, expulsive, and expressive powers of criminal and immigration law over non-citizens through exercises of authority at the zenith of government power: incarceration, detention, exclusion, and expulsion. In her exploration of state-level crimmigration law, Provine reaches to the heart of the membership morass to invoke the ‘fundamental nexus of membership: liberty to participate in society without surveillance or suspicion.’ Collecting around this theme of the nexus of membership, other chapters bring different perspectives and contexts to the question of what membership means and who may lay claim to it. Maria da Graça Borges Castanho’s chapter presents the irony that the formal Portuguese citizenship of deportees to the Azores excludes them from access to public resources for integrating immigrants. She recommends a bifurcated membership status for deportees who left the Azores at a young age: formal Portuguese citizenship while at the same time consideration as immigrants. Alan Desmond highlights the inclusive, universalist approach that the Court of Justice of the European Union has taken to the membership status of parents of European Union citizens when those parents are irregular immigrants. Describing Ireland’s efforts to deport or otherwise exclude such parents from the comparatively protective norms governing territorially present persons, he describes the holding of Gerardo Ruiz Zambrano v. Office national de l’employ, which largely prohibited states from refusing residence to the non-national parents of European Union citizens. Desmond explains that the ‘Zambrano judgment has had the effect of vindicating the right to family and private life in Ireland of Irish citizen children.’ The Mitsilegas chapter teaches that institutional dynamics can impact the establishment of just crimmigration policies. He characterises the role of European Union law in reining in Member State choices to criminalise unauthorised


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migration as a ‘protective function of EU law’. Principles of European Union law, ‘including the protection of fundamental rights and the principle of proportionality’, place limits on immigration enforcement and national efforts to criminalise migration. These differing conceptions of how non-citizens may belong to a society or be excluded from it, and the institutional dynamics that affect that belonging, are pieces of an intricate puzzle of membership that crimmigration law significantly complicates. Each of the chapters of this book frames a different piece of this puzzle, providing a new context, a new idea, a new problem, new data, a new dynamic. Each takes a new step toward exploring and resolving the tensions inherent in governing migration through the powerful tools and sanctions of crimmigration law.


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Crimmigration, Securitisation and the Criminal Law of the Crimmigrant

Maria João Guia

“Migration is increasingly interpreted as a security problem (…) The popularity of this security prism is not an expression of traditional responses to a rise of insecurity, crime, terrorism, and the negative effects of globalization; it is the result of the creation of a continuum of threats and general unease in which many different actors exchange their fears and beliefs in the process of making a risky and dangerous society.” Bigo (2005)

1 Introduction1 Migratory movements are presently registering an increase, although they are still an exception to the rule. The growing number of migrants, often ‘invisible’, whose predicament has come about largely as a product of economic and social discrepancies, has been the topic of a remarkably wide range of debates, involving both political and academic spheres (Baganha & Góis, 1999). Unquestionably, migratory movements benefit, at least economically (and demographically), the countries of origin and the host countries, but this phenomenon can have some negative aspects as well, such as the shaping or the reinforcement of transnational criminal networks, and social disorganisation, caused by these massive population movements in short periods of time (Bales, 1999). These immigrants have played crucial roles in the development of the economies of countries where they settle, meeting the demand for a low-cost workforce and demographic growth. This phenomenon can have some negative aspects, such as the shaping or the reinforcement of transnational criminal networks, and

1

This paper is a brief resume of a chapter of the PhD thesis of the author that is being concluded at the University of Coimbra, Portugal. The author would like to express her gratitude to João Pedroso, Alexandra Aragão, António Domingos, Juliet Stumpf, Maartje van der Woude, José Ángel Brandariz, Eduardo Guia, Tânia Vasco and Freya Beesley.


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social disorganisation, caused by these massive population movements over short periods of time. Frequently restricted to an irregular status, some immigrants become involved in criminal activities in the hope of improving the quality of their lives, and their vulnerability makes them easy prey for criminal nets. In Portugal, immigrant-related criminality has been given considerable coverage in the media, and this has created in the public a sense of prejudice that associates immigration with criminality. In the United States, the most recent studies addressing this issue have questioned the validity of this correlation between crime rates and the arrival of immigrants (Rumbaut & Ewing, 2007; Stowell, 2007; Wadsworth, 2010). In recent years, the United States have introduced increasingly tougher criminal laws, and the convergence between criminal law and immigration law has given way to a phenomenon that Stumpf (2006) designated as ‘crimmigration’. This phenomenon has significantly increased the vulnerability of immigrants living in that country, especially those living in irregular situations. This perception of the immigrant as the ‘other’, the outsider, motivated us to reflect on the Criminal Law of the Enemy, a theory enunciated by Günter Jakobs in 1985.2 According to this theory, the mere possibility of someone becoming a threat increases their chances of being rejected and expands the control exerted over their actions, through securitisation sieges. It leads to the possible emergence of the Criminal Law of the Crimmigrant. This bipolarity in the way the immigrant is perceived, viewed, on the one hand, as a necessary tool for the renovation and sustainability of the State and, on the other hand, as a potential enemy whose presence requires a preventive reinforcement of security measures, has created prisms of otherness involving immigration and crime, despite the complete lack of solid and fully substantiated conclusions.3 Cases of offender-victim bipolarisation have been documented – a circle that lends a certain fluctuation to the roles of ‘victim’’offender’. The response of some states has been to introduce increasingly tough measures, and intolerance towards irregularity has grown, frequently giving way to the mixing up of victims and perpetrators. For the most part, there is a mist of suspicion, a toughening of policies and an intolerance towards nonnational offenders that is similar to the reaction to irregularity.

2

3

JAKOBS, Günther. Kriminalisierung im Vorfeld einer Rechtsgutsverletzung. Zeitschrift für die gesamte Strafrechtswissenschaft. n. 97, 1985, pp. 753 e ss. (Spanish version Estudios de derecho penal. Madrid: Civitas: UAM, 1997, pp. 293 e ss.). We are aware of crime committed by non-nationals citizens; they are not only the highly passive victims of circumstances, but for this paper, we have chosen a specific perspective which does not reduce the whole of reality as for them being offenders as well. Nevertheless, this is not the specific point of this paper.


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Immigrants and enemies

The globalisation phenomenon, and the increase in the visibility of migrants on the move, have triggered certain changes in the nature of human relationships, infusing the collective subconscious with a feeling of insecurity and mistrust towards the other, branding the foreigner as a ‘threat’ and even as a potential ‘terrorist’ (Ferreira, 2010), and this tendency is frequently reinforced by the media. In fact, this insecurity is exploited to the highest degree by the hegemonic power, focusing on the potential danger of delinquency rather than other important factors, such as changes in social classes, the disruption of social, family and political supports (Pinho & Gomes, 2010). Moreover, and despite contributing to the decrease in public anxiety (Pinho & Gomes, 2010), access to new technologies for surveillance and mobility control (such as biometric data reading systems, surveillance cameras, intelligence sharing systems, among others) has led to the categorisation and stereotyping of certain groups as being dangerous and has intensified their exclusion. The events of 9/11 and the attacks which followed in Spain and in the United Kingdom defined a critical moment in the so-called ‘globalisation of threats’ (Mateus, 2010), included in transnational criminality, and favoured the implementation of increasingly restrictive measures. This clash was decisive and led to a wider framing that established a connection with the migration phenomenon, where immigrants are viewed as a threat to the well-being of societies, and as criminals and competitors in the labour market. This is especially true in the USA, where a significant percentage of the immigrant community tries to settle (RCMI, 2005). The main activities of these transnational criminal networks pertain to economic offences with international implications, trafficking on a global scale, environmental damage on a transnational level, offences committed in the context of migration processes and the growing interaction between terrorist organisations (Melià, 2009). Regarding terrorism, the discourses that have been widely globalised have increased owing to the recent escalation of violence and they seem to be based on a single keystone while containing a “specific ideological element, a distorted normative mechanism based on the construction of a certain social identity” (Melià, 2009). This is where the concept ‘Criminal Law of the Enemy’ comes in, a law that, instead of maintaining the norm, wages war against potential threats (Cabette & Loberto, 2008), drawing closer to a ‘Paleo-Repressive Penal Law’ (Melià, 2008). This concept involves the expansion of the criminalisation scope, the drastic increase in sentences and the restriction of the procedural status granted to the accused (Garcia, 2007). It came about as the result of a constructed and generalised idea that advocates the existence of different rules for ‘enemies’ (or terrorists) (Melià, 2009), based on the danger that their actions may potentially pose (‘criminalisation in the previous state’, according to Jakobs (1985)), and the need to apprehend those enemies when they start to seem dangerous as opposed to when the crime has already been committed (Schäuble, 2006 in Melià, 2009). With this shift, criminal law changes from being ‘reactive policy in the face of events to become a


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proactive policy for risk management’ (Walker, 2004 in Melià 2009) based on an evaluation of the degree of danger displayed by the individual. This theory, proposed by Günter Jakobs, (1985) was grounded in the works of authors such as Aristotle, Cicero, Locke, Rousseau, Hobbes, Fichte and Kant and their theories involving differentiated citizens (Ambos, 2008). All of these authors seem to recognise the existence of two criminal laws, one for the citizen and another one for the enemy, where the status of citizen is either left untouched or it is simply removed (Gomes & Molina, 2007; Roxin & Greco, 2002). According to Ambos, Carl Schmitt was the founding father of the modern and legal concept of ‘enemy’, an individual categorised by the State as being ‘different’, to whom the norm cannot be applied and where the only solution for the conflict is war (Ambos, 2008). Criminal law of the enemy has found its maximum expression in the United States, where it is used as an aggressive control method towards the so-called ‘dangerous subcultures’, such as organised crime and terrorism (Frommel, 2008). Regardless of the need to repress crime, under the paradigmatic gaze of the Criminal Law of the Enemy, sanctions are considered ‘disproportionately high’ (Melià, 2008), bringing ‘punitivism’ back by an effective enforcement of law, through the implementation of new criminal norms or the toughening of previous norms (Díez Ripollés, 2004). In the realm of securitisation applied to immigration, the immigrant, perceived as a threat to an ‘identity’, is seen as imposing himself by opposing the other (Brancante & Reis, 2009), and is presented as a rival to the natives and not as an element which can potentially become a part of that society. The individual ceases to be punished for committing an offence and starts being punished because he is ‘a part of’ or ‘one of’ them (Cabette & Loberto, 2008). Indeed, this process identifies not only the fact but, especially, a specific type of author who has made this fact a reality and who is considered the other, and all the elements that contribute to being identified as such (Melià, 2008). Once applied, the label of ‘criminal’ ‘becomes a kind of tattoo that feeds the social rejection as a second penalty’ (Pinho & Gomes, 2010). Penal law is an instrument that serves justice and the citizens, by way of a general positive prevention and the stabilisation of norms. According to criminal law, every human being is a citizen and ‘enemies’, by nature, do not exist. Penal Law and Criminal Law of the Enemy are, therefore, different in the sense that the latter ‘demonises’ and excludes the author (or group of authors) without strictly referring to the offence in question (Pinho & Gomes, 2010). According to Cancio Melià (2008), ‘the 21st century’s metacode’, the inclusion/exclusion dichotomy, has been increasingly addressed, especially within the social sciences, and its theoretical significance has been growing because it also mediates the remaining codes. When the target of the process is the author, and not the act itself, the offender’s degree of culpability increases. And when the author is the main target, as opposed to the punishable act, the adopted measures are reinforced under the guise of a proactive protection in the face of the danger


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imposed by the author and their activities, expanding the dimension of the supposed threat embodied by the author. This phenomenon translates itself into the reinforcement of a securitisation process whose purpose is to fight public insecurity. In the USA, securitisation processes have come to play a determinant role on the borders, serving as actual gatekeepers, and this phenomenon has reached Europe after the 9/11, London and Madrid attacks, based on the need to ‘reinforce control over external borders’ and ‘exercise the utmost vigilance when issuing identity documents and residence permits’ (Council of the European Union, 2001). Countries that host immigrants have, generally speaking and under the influence of the global crisis, adopted tougher measures when making decisions involving criminal offences and the irregularity of immigrants. The United States and other developed countries attract immigrants that want to improve their living conditions, and not everyone is able to reach these countries. The following image illustrates how economic power and the control established over the immigrant population, with the adoption of immigration policies, define immigrant exclusion inside host societies. Figure 1

Relationship: economic power – migrations – control – demography

Source: the author (based on Stumpf (2006) and Solivetti (2010))

A review of the available American literature led me to define and elaborate the figure that I am here presenting, and I would like to explain why. This figure illustrates how economic power and the control established over the immigrant population, with the adoption of immigration policies, define immigrant exclusion inside the host societies. Bearing in mind the most relevant parameters, the base of this pyramid is composed of extremely poor countries which are experiencing explosive demographic growth. In these countries, migratory movements are mainly internal, and only in exceptional cases are these migrants able to cross international borders, owing to their extremely limited economic power, which functions


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as an obstacle. On the other hand, when immigrants from these countries are detected in host countries, mostly in an irregular situation,4 they are frequently subject to deportation to their countries of origin. This is particularly true in countries where the crimmigration phenomenon has taken root. The middle section is composed of developing countries, characterised by migratory movements of an explosive nature, owing to easy access to travel. Migrants from this group often spend some years working abroad and subsequently return to their country of origin. These immigrants amount to a significant percentage of the active population willing to work abroad, and they are generally well accepted and granted the necessary documents for their regularisation in host countries, even if their entry and initial years of permanence are processed by irregular means. For this reason, these immigrants are not perceived by the public as the ones that are mainly subject to expulsion, although that is also sometimes the case. The top of the pyramid is mainly composed of natives of rich and powerful countries, where the number of immigrants granted the necessary legal documents to settle is becoming progressively smaller. Therefore, this section encompasses the host countries where the majority of immigrants from the other two sections desire to settle. The conflicts that stem from the goals delineated by these immigrants and the inflexible rules established by the states at the top of the pyramid have paved the way for the crimmigration phenomenon, based on rules imposed on irregular entries and the consequent expulsion to the countries of origin. Crimmigration has led to the criminalisation of behaviour on the pretext of potential terrorist attacks, and allows for a frequent confusion between illegal/irregular entry/stay and the actual perpetration of crimes.

3

Liquidity and otherness: migrations on the move

The society that we know nowadays is contaminated by impermanence, uncertainty and constant transformation. Bauman portrays this post-modern era through the concept of liquidity, which is the opposite of the static, defining and solid attributes associated with modernity. “Liquids, unlike solids, cannot easily hold their shape (…) Liquid life is a precarious life, lived under conditions of constant uncertainty.” Zygmunt Bauman (2005)

4

Even if we mention a lot of cases of irregular migrants, irregularity is not the main focus of this paper. It is only when policy measures towards irregularity are about to be merged with the answer to criminal offences committed by immigrants that the focus on irregularity is more relevant.


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The uncertainty that permeates our present lives, especially the lack of security on every level, changes the way we live and influences our acceptance, and even fear, of interaction with human beings from different backgrounds who, until recently, were not able to travel so easily and were not perceived as a threat to society. Bauman refers to the great migration movements, triggered by poverty and by the need to create better living conditions, to show how wrong the prognoses involving theories concerning modernity and the ‘perfect estimates made by western economists’ (Cugini, 2008) were, especially concerning the negative effects brought about by globalisation. In his literary works, Bauman addresses the changes observed in feelings, especially love and family matters, he debates the ongoing transformation of society into a growing individualism, and he also considers the changes in the love expressed towards fellow beings. This growing individualism that pervades our post-modern era implies the loss of group values and the gradual stigmatisation of immigrants seeking richer countries, who are now perceived as ‘strangers’, ‘different’, ‘foreigners’ and who now induce feelings of fear (Bauman, 2003), in an open conflict with the traditional welcome given to a fellow being. According to this author, the atrocities experienced during the Holocaust, especially the feelings of rejection of the aggressor/assaulted, overbearing/humiliated, were transferred to our postmodern societies culminating in a so called ‘mixophobia’ that translates itself into an ‘impulse that leads to islands of similarity and sameness in the middle of an ocean of variety and difference’ (Bauman, 2003). The other is perceived as a threat to safety and freedom, and is therefore denied a higher degree of acceptance and condemned to isolation and alienation; these are attitudes that are becoming more prevalent in our day. Additionally, Bauman considers the degree of personal freedom and the identity that each individual is able, or unable, to choose for himself. According to the author, there is a subgroup composed of a growing number of people who are denied the right to participate in a society, who are ‘refused, excluded and unable to enter’: rejects, vagabonds, refugees. From this perspective in the migration field, and focusing especially on identity or the lack of access to one, we can highlight the problem of irregular immigration and its implications in the abovementioned issue. The phenomenon of irregular immigration involves human beings that, for a number of reasons, are in a situation of vulnerability, in which their identity becomes precarious. Boaventura de Sousa Santos (2009) debates this issue, categorising migrants according to two main axes: autonomy and risk, as shown in Figure 2:


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Figure 2

‘Transnational Third World’

AUTONOMY

TOURIST BUSINESSMEN MIGRANTS REFUGEES VICTIMS OF CRIME

RISK

Source: the author (based on Boaventura de Sousa Santos, 2009)

The author places tourists at the highest level of autonomy and at the lowest level of risk; refugees are placed in the opposite position, displaying the highest level of risk and the lowest level of autonomy. We propose the inclusion of a different category at the bottom: immigrants who are victims of crimes,5 considering their low, or even nonexistent, degree of autonomy and their greater level of risk. The identity of migrants is evaluated, according to this author and following this model, in consonance with the way they can behave and interact with the outside world and in consonance with the relationships they establish with society. The ‘transnational third world’, defined by Boaventura de Sousa Santos (2009), is composed of immigrants from all sorts of social backgrounds. Those who have the highest degree of autonomy to fully exercise their rights and the lowest likelihood of being involved in risky situations (i.e., tourists) are literally in a position of advantage when compared to migrants, who are substantially more likely to be involved in problematic situations and who face a lesser degree of acceptance from society in general (for instance, refugees and victims of crimes, such as human trafficking). But this categorisation transcends these two axes, risk and autonomy, in the sense that illegal immigrants are denied several rights; Sousa Santos (2009), classifies them as 3rd class citizens, owners of an uncertain

5

By ‘victims of crimes’, we do mention people that are on the move in the category of victim (like victims of human trafficking, children in a criminal net committing organised robberies, forced marriages, etc).


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status.6 He also labels legal residents as 2nd class citizens, marking a clear contrast between these two groups and the natives, whom the author considers 1st class citizens. The same author referred to ILO data7 predicting that by 2010 the number of illegal immigrants in the world would amount to 25 million. Briefly returning to Bauman, modernity is based on the idea that man can transform and improve the world. To do this, he will have to eliminate or set aside everything that does not fall within that scope, the surplus that needs to be rejected. This group of rejects includes ‘millions of people that the Western world treats as garbage, something undesirable that needs to be discarded’ (Cugini, 2008). This group is composed of the surplus and the superfluous after the selection made by the capacitated world (especially in economic terms) and it is therefore considered a source of insecurity. Immigrants are included in this category: “Immigrants, particularly the newly arrived, exhale that oppressive odor of the trash can which, despite its many disguises, haunts the nights of the potential victims of this growing vulnerability.” Zygmunt Bauman (2005, p. 8)

Globalisation was the decisive element for the emergence of this group, to the extent that these immigrants are pushed into segregation (because they do not have any other choice) and the policies, put in place to solve this problem, confine them to a state of permanent uncertainty. For this author, post-modernity is the absence of certainty, of solidity, of the prevailing and safe structure that modernity experienced; these traits were replaced by permanent instability and transmutation of states and identities for those who undergo these processes. The ability to adapt to new states is, therefore, one of the necessary traits, a quality that defines one of the groups set forth by Bauman: tourists and vagabonds. The tourist, he ‘who succeeds in not belonging to the place’ that he visits (Bauman, 1998), represents independence and mobility (in line with the categorisation proposed by Boaventura, according to the axes of autonomy and risk); he holds certain rights that exempt him from remaining in one location when he feels compelled to seek a new one, and he is always welcomed and viewed favourably. On the other hand, vagabonds are similarly on the move, but they are forced to do so and they do not have a choice. The very reasons that motivate them to seek better living conditions are the ones that make them undesired and unaccepted by the societies they enter, just like Bauman’s ‘rejects’. In

6

7

‘Foreign citizens who do not benefit from social rights included in contributive social systems, have access to benefits that guarantee a minimum standard of existence, postulated by the inherent dignity of the human being. It is important to notice, however, that some of these rights might be granted to “regular foreign citizens” only.’ (Canotilho & Moreira, 2007, p. 357). Migration News Sheet, 1991:3, Op. Sousa Santos (2009).


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this sense, the tourist is the vagabond’s ‘alter-ego’, but the latter is an increasing weight that society tries to get rid of: he is society’s survivor. There are many factors that contribute to the lack of integration of immigrants in the host societies. The State may sometimes be stricter about the behaviour of those coming from abroad. But does that make them the enemy? Günter Jakobs refers to the ‘compliance with normative expectation’8 by the individual who is a part of society, and creates a boundary between those who do and those who do not correspond to his conception of person. He presents a bipartite sectioning of society that defines the Criminal Law of the Enemy. According to this author, he who does not comply with the normative order is against it, and he is consequently considered an enemy. Zaffaroni (2006) readopts the concept of Criminal Law of the Enemy, labelling people as citizens (those who abide by the laws established by a Regulatory State) or enemies (dangerous individuals, subjected to an ‘internal brute punitive power’ (Gomes, (2008)). The immigrant is often included in this context of the enemy, seen through the negative lens that the concept implies, and he is often denied the opportunity to become a full member of the society where he intends to settle; he is an external entity in a close-knit society that carries preestablished connections and that is forced to open a space so the immigrant can create affectivity ties with the other members. In today’s world, strongly influenced by a globalisation phenomenon made easier by the media, the relationships and the perceptions, held by human beings, as individuals and as an integral part of different groups, have undergone certain changes. People have, for many years, been urged to seek locations where they can find better living conditions, and have been frequently forced to leave their country of origin and migrate to remote locations. The arrival of large numbers of human beings that do not originally belong to the host environment demands a great deal of ability to interact. Growing feelings of insecurity and mistrust have emerged in cities that were suddenly transformed into metropolises. As a result, interpersonal relationships have become devoid of friendliness9 and certain elements of society have started to make a living from violations to the order established by the Regulatory State. The way in which the other is accepted and perceived – the other as an external entity to the core group – has become characterised by a great many reservations. The stranger, the foreigner, the external element to the core society, is initially placed in a

8 9

Vide Luhmann, 2002 and Jakobs, 2003. The term friendliness intends to express a feeling that is similar not only to the concept expressed by Trenner (1988), when he mentions ‘the display of those qualities we expect to find in a friend’, but also a feeling that goes beyond mere openness and welcome, to become an attitude of full acceptance and active integration.


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quarantine of acceptance and he is frequently perceived as an enemy. Simmel (in Waizbort, 2000) underlines the ambivalent position of the ‘foreigner’ that lives in a limbo between the old and the new, pushing the physical aspect of the border. This aspect is materialised in a belonging to a country or a nationality and it is focused on symbolic and material aspects, as well as on the ties that are established. As for the relationship between the immigrant and the criminal world, a generalised perception tends to suggest the existence of a connection between the newly-arrived and the grey world of delinquency. This connection stems from ignorance about the other, from intolerance towards his behaviour and cultural choices and from the proliferation of alarming news in the media, involving acts of violence perpetrated by this ‘foreign enemy’, which contributes to the dissemination of antinomy and rejection towards all those belonging to the group of the newly-arrived. When society closes itself inside a defensive shell, this trend towards animosity becomes very hard to reverse; at this point, finding facts that are open to analysis is crucial for a full integration and acceptance of the other in the host society. Those who are punished for violating the norms imposed by society should be included in a group of enemy-offenders, and should not be confused with a stigmatised subgroup of alleged enemy-immigrants. Additionally, and bearing in mind more inclusive policies, a more comprehensive attitude from the State has allowed for the implementation of several strategies that grant immigrants certain rights that are usually reserved to citizens, such as access to a minimum pension provision. Yet if we consider the factors that may be decisive in terms of inclusion, we will be forced to reflect on the concept of citizenship and acquisition of nationality. What approaches have been adopted over the years and in what way have these issues been addressed and changed?

4

Immigration and criminality: a brief discussion

Studies addressing this topic have generally identified the existence of an indirect relationship between immigration and crime. There are also certain theories that establish a link between certain nationalities and certain types of crime in certain countries. This connection between criminality and immigration follows the development of studies that link poverty to criminality (Tonry, 1995), based on the existence of presupposed cultural conflicts (Sellin, 1938) and social disorganisation (Shaw & McKay, 1952), and resulting from economic deprivation, unequal access to the labour market and justice, and xenophobia (Baganha, 1996; Bianchi, Buonanno & Pinotti, 2008; Cunha, 2008; Santos & Seabra, 2005, 2006; Tonry, 2004; Tournier, 1996; Wacquant, 1998, 1999). However, as we have already mentioned above, some authors argue that immigration


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contributes to a decrease in violent crime rates (Martinez, 2002; Rumbaut & Ewing, 2007; Stowell, 2007; Wadsworth, 2010). In Portugal, literature has focused on economic problems, exclusion, xenophobia and the feeling of insecurity disseminated by the media. These studies have mainly focused on inmate populations, (Cunha, 2008; Fonseca, 2010; Malheiros & Esteves, 2001; Rocha, 2001), on the discrimination observed in charges, convictions and provisional detentions (Baganha, 1996; Santos & Seabra, 2005; Santos & Seabra, 2006), as well as on the relationship between immigration and crime (Guia, 2008, 2010a, 2010b; Peixoto, 2008; Santos & Seabra, 2005). Available national data suggest a lower percentage of violent crimes among non-national inmates, but a higher incidence rate. Additionally, despite the discrepancies and the lack of standardisation of the variables in cause, to date it has been impossible to establish a correlation between immigration and violent criminality. But it is not only the results of statistical data which reveal the complexity of violent crime. It is clear that the simple choice of terms used to define irregularity is often used as a vehicle for certain political statements (Anderson & Ruhs, 2010), and some authors argue that the term ‘illegal immigration’, besides being semantically incorrect, is judgmental (encouraged by the media) and associates this phenomenon with crime (Sciortino, 2000). It suggests, once again, a national security issue that must be fought by sovereign states through the regulation and the reinforcement of border control since borders are essentially the element that authorises or blocks the circulation of individuals (Mateus, 2010). In this context, the School of Copenhagen has proposed the perspective of securitisation where the existence of political options implies their legitimisation through a ‘discursive act’ (Buzan, Waever & Wilde, 1998) that reveals the existence of a threat that justifies the adoption of extraordinary security measures in order to guarantee the safety of a certain object of reference (a state, a nation, a religion). Regardless of whether this threat really exists, this idea must be accepted and recognised by the target audience (Buzan, Waever & Wilde, 1998), becoming an ‘existential’ threat that goes beyond a normal problem and that justifies the customisation of borders according to political choices and the way the concept of national threat is perceived. This securitisation generates security conditions inside the border that guarantee its safety from the outside (Biersteker, 2003). The United States is the third most populous country in the world, and one of the preferred destinations for immigrants; estimated numbers of irregular immigrants are significantly larger than official numbers (Hoefer, Rytina & Campbell, 2006). The United States was responsible for one of the largest programmes of immigrant regularisation in 1986 (Monger & Yankay, 2011). The term ‘irregular’ has been proposed by several authors It seems to avoid the intolerant and xenophobic connotations attached to the previous term (‘illegal’), and tries to assume a certain political neutrality (Anderson & Ruhs, 2010; Düvell, 2008; Fargues, 2009; Vogel & Jandl, 2008). There are, however, those who claim


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that both terms have the same meaning (Düvell, 2008; Pinkerton, McLaughlan & Salt, 2004), and give preference to the adoption of different terms that specify the violation to a specific immigration law (be that the lack of necessary documentation– ‘undocumented’, ‘unauthorised’ – or the absence of registration with the relevant authorities – ‘clandestine’) (Düvell, 2008; Fargues, 2009; Vogel & Jandl, 2008). The history and development of the United States explain many of the factors pertaining to migration movements in the country. Having emerged from the massive immigration of European citizens and from their domination over the natives, and owing its growth to slave labour and later to immigrant labour, the country experienced a significant degree of racism towards African-Americans until very recently, an attitude that has spread informally to other nationalities. The very birth of the country explains its ethnic and cultural character – the existence of closed communities from several different countries. From 1980 onward, with the increase of Asian and Mexican immigrants (Miller, 2003; Stumpf, 2006), and more recently owing to the threat of terrorist attacks, criminal law and immigration law have started to converge, giving birth to the socalled crimmigration phenomenon that is characterised by a high degree of intransigence towards foreign citizens. The stratification of the access to rights, including the right to exercise full citizenship, and the accumulation of criminal and immigration sanctions (Stumpf, 2006), have led to an immediate increase in deportations (Stumpf, 2011). Immigration law has now been applied to behaviour that was previously dealt with exclusively by criminal law, and expulsion orders have started to include situations involving irregularity and convictions amounting to 5 years or more – which nowadays include several non-violent crimes. Also, the ban period on re-entry has doubled, as well as the detention period of ‘non-citizens’ without charges, provided for in the anti-terrorist law. In this context, the increase of convictions and expulsion orders involving foreign citizens serve as an exclusion tool (implicit and explicit, respectively) and reflect political choices.

5

Portugal: Immigration and criminality

In Portugal, the immigrant community is mainly composed of young, single men, who are generally better qualified than national citizens, and who are confined to subordinate work stations, longer work hours and inferior living conditions that can ‘push’ them into the criminal world. However, contrary to what is observed in other countries, the number of crimes committed by minorities is relatively small (Santos & Seabra, 2005, 2006), and the inmates’ nationalities fluctuate according to the migration flows registered in Portugal (Guia, 2008, 2010a, 2010b). In our analysis of convictions, social exclusion seems to be central to this problem, and it is particularly connected to the trafficking of narcotics in poor neighbourhoods and suburbs mainly occupied by immigrants


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from former Portuguese colonies. The violence that informs the history and the culture of the countries of origin of large immigrant communities living in Portugal may have be behind the transposition of certain violent crimes to Portugal territory (Guia, 2008). We recognise a pattern surrounding certain types of criminality according to nationality; this translates into the emergence of new types of crime in Portugal, which have been recently subject to legislation. Lack of knowledge concerning the law and absence of support can push some of these foreign citizens into the criminal world, and especially into criminal networks where the exchange of roles between the victims and the aggressors is very common (Guia, 2008). Analysing the relationship between immigration and criminality is not an easy task, and our previous studies do not suggest that foreign nationals commit more crimes than national citizens, although it is possible to establish a number of associations between types of crime and nationalities (Guia, 2008, 2010a, 2010b). But when we speak of violent crime there is a lack of detailed data which prevents us from drawing definitive conclusions about the situation in Portugal. The very concept of violent criminality is not clearly defined, and it may differ from society to society. Violent criminality, particularly violent and highly organised criminality, is defined in the Portuguese Procedural Penal Code10 as involving behaviour that are intentionally directed against the life, physical integrity or personal freedom of an individual, behaviour involving criminal association, trafficking in human beings, trafficking in weapons, trafficking in narcotic drugs and psychotropic substances, corruption, influence peddling and money laundering, and punishable with a maximum prison sentence of 5 years or more in some cases and 8 years or more in other cases. Despite the existence of a sentence-related criterion in the Procedural Penal Code and bearing in mind that these norms apply to a wide range of crimes that would not allow us to address immigration issues individually, we had to define a concept of violent criminality that would allow us to study the participation of resident and non-resident foreign citizens in Portugal, a concept based on the substantive nature of the facts (attacks against human life, physical integrity or sexual freedom). We tried to define a concept of violence that would raise no doubts, and practical reasons forced us to establish certain limits to our choice (we bore in mind that we would be using statistical data pertaining to convicted inmates and made available on the Portuguese Prison Services – DGSP website).11 Therefore, our definition of violence is a product of, based on

10 11

Approved by Decree-Law Nr 78/87, 17 February, republished by Law Nr 48/2007, 29 august, (1st art., subparagraph j) l and m). In this study we only used published data, available on the DGSP Statistics website. This list includes statistical data for crimes ‘against people’, subdivided in ‘homicides’, ‘offences against physical integrity’, ‘rape’ and ‘other’; ‘crimes against the values and the interests of


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the available statistical data, those crimes that we considered to be violent12 and this choice is in agreement with the crimes specified as being violent in their nature in Eurostat13 statistics, available on their website (‘violence against people’ – such as offences to physical integrity – ‘robbery’ – using force or threatening to use force – and ‘sexual offences’ – including rape and sexual abuse) and by the FBI14- homicide, robbery, rape and offences against physical integrity. Accordingly, we selected those with indicators of violence following the reference published in the Portuguese Penal Code. We began by including in this concept the crimes of homicide, especially simple and qualified homicides, but also certain types of manslaughter. Subsequently, we included crimes of attacks to the physical integrity of a person (including simple offences, aggravated offences, qualified offences, privileged offences, aggravation by outcome, and unintentional attacks to the physical integrity of a person), rape and crimes of robbery, to the extent that the latter involves the use of violence to acquire the goods in question. After defining the scope of our concept, we collected statistical data from the DGSP concerning non-national citizens convicted of one, or more, of these four crimes. We compiled the data in an Excel sheet and proceeded with the statistical processing of data using SPSS software.

6

Deconstructing immigrant violence and preliminary results of our investigation15

After studying compiled, analysed and published data,16 we observed that, in terms of percentages and excluding crimes involving robbery,17 the percentage of convictions for violent crimes in the immigrant group and the total amount of convictions in the same group remained fairly consistent between 2002 (19.2%) and 2005 (19.8%) with only a slight increase, decreasing to 17.5% in 2008, according to the data shown in Table 1.

12 13 14 15

16 17

life in society’ subdivided in ‘acts of arson’ and ‘others’; crimes against heritage sites’ subdivided in ‘robbery’, ‘simple and qualified theft’ and ‘others’; ‘crimes related to narcotics’ subdivided in ‘trafficking’, ‘criminal association’, ‘drug trafficking of minor quantities’, ‘precursors’, ‘trafficking – use’ and ‘others’; and ‘other crimes’ subdivided in ‘rubber cheques’ and ‘others’. Constituting attacks against human life or the physical integrity and sexual liberty of the individual, or implying the acquiring of goods by violent means. See Eurostat – ‘Table 4 – Crimes recorded by the police: Violent Crime’. See http://www.fbi.gov/ucr/cius2008/offenses/violent_crime/ Our investigation is ongoing. For this paper, we decided to present the part of it that has already been analysed and could give us tools for the understanding of some ideas about Portuguese crimes committed by non-nationals. Results previously published in Guia (2010). Not yet finalised the data analysis.


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Table 1

Number of immigrants convicted by main violent crime18 in 2002, 2005 and 20081920

Year 2002 Crime No Homicide Rape Off.Phys.Integ. Robbery Partial Sum Total conv.

2005 No

% 78 30 21 ---20 129 671

11.6% 4.5% 3.1% --19.2% 100%

2008 No

% 98 29 46 --173 876

11.2% 3.3% 5.3% --19.8% 100%

% 10719 41 31 (136) 179 1019

10.5% 4.0% 3.0% --17.5% 100%

Source: DGSP

Concerning convicted Portuguese individuals, we observed that the percentages for violent crimes,21 also excluding crimes involving robbery, were approximately 16.8% in 2002, increasing to 19.6% in 2005 and to 20.1% in 2008. However, this increase needs to be understood in its context: certain changes in the Portuguese Criminal Code have led to a fewer inmates convicted with lighter sentences and the same number of inmates serving heavier sentences, thus increasing the proportion of individuals convicted for violent crimes. If we compare the number of Portuguese individuals convicted for the four violent crimes here accounted for in 2008 (including robbery) (n=2,766) and the number of Portuguese citizens in the same year (n=6,781,711),22 and the number of immigrants convicted for the same crimes (n=315)23 and the number of foreign residents

18 19

20

21 22

23

See point 5 about the chosen concept of violence here. This figure is the result of the number of incarcerated people for each of these crimes (like a point in time). We must attend to sentences (punishable type of crime) and the length of punishment (the number of years that imply incarceration and because of that may increase this data). To estimate this number, we would need to build a table with approximately 5,000 entries, and this was not possible in the present article. However, the sum of every conviction for crimes of robbery by non-national citizens amounts to 156 convictions in 2002 (13.8% of all non-national convicts in 2002) and 204 in 2005 (15.1% of all convicts in 2005). We are certain that this is an inflated number, because in our analysis we referred only to the main crime behind the conviction of the non-national inmate in order to achieve a certain uniformity of parameters when compared with the available data for national inmates. Nevertheless, the numbers are lower than those for Portuguese convicts. In order to achieve a certain degree of uniformity we did not quantify the crimes of robbery in this column. In report: to the totals of convictions of each crime. These numbers were obtained by subtracting the population 65 (1,874,209) from a total of 10,627,250 and subtracting, in the non-national resident population, 65 (15,129), amounting to 440,277 non-national residents. Source: Resident population estimates in 31.XII.2008, by gender and main age groups, NUTS I, II and II (NUTS 2002) and Municipalities. www.ine.pt and ‘População residente em território nacional, por grandes grupos etários’, RIFA/SEF, 2008. www.sef.pt. The numbers given here differ somewhat from previously published studies because the methodology applied to analyse them included a new variable, ‘migrant group’, which is not discussed in the present paper.


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(n=348,339),24 we notice that the incidence of violent crime-related convictions corresponds to 0.4/1,000 for Portuguese citizens and 0.9/1,000 for immigrants, which in itself and despite the statistical difference does not explain the reality of the issue under study. We are aware of the volatile nature of this image given that the groups under comparison in our study are not fully standardised in terms of social, educational, demographic and professional ranks.25 But in the near future it is our intention to deliver a more in-depth analysis as the PhD thesis, which includes the present study, is submitted and defended. A cross-check between the data presented here and the qualitative information collected in a focus group held on 18 April 2011, which brought together representatives from every national security force26 – and bearing in mind that some of the conclusions drawn from the discussion indicate the success of the proactive and integrationist solutions put into practice27 – there are no signs that conclusively suggest a connection between irregularity and the increase in violent criminality.28 We can therefore infer a possible discrepancy between the construction and deconstruction of immigrant-related violence and the migration policies adopted by certain countries, based on a generalised positive/negative perception influenced by the growth of securitisation and crimmigration.29 The feeling of panic and insecurity that pervades societies and the image of the immigrant as a threat, or someone who is not welcomed inside the host society, may well be a projection of reality, although there is general agreement concerning certain transnational criminal practices that states face and must fight.

24

25 26

27

28 29

This number was obtained by subtracting from the non-national residents total (n= 440,277) from those 65 (15,129). Source: ‘População residente em território nacional, por grades grupos etários’, RIFA/SEF, 2008. www.sef.pt. In this final stage of our investigation, we are trying to achieve a certain degree of uniformity between the groups in terms of incomes, education and other relevant parameters. Focus group organised by the author and held on 18 April 2011, on CES, in Lisbon, with representatives from the Public Security Police, the National Republican Guard, Europol (Criminal Police), the Foreign Nationals and Borders Service, the Department for Investigation and Criminal Action, the Central Department for Investigation and Criminal Action, the Superior Magistrates Counsel, the High Commissariat for Immigration and Intercultural Diversity, the Information and Security Service and the Internal Security Office. In this regard, Portugal was recently considered the country with the second best immigration practices, out of a group of 31 countries, where Sweden occupied the first place, and according to an evaluation of 148 parameters (MIPEX III, 2011). Even though our focus in this paper was not irregularity and we are still reading sentences of violent crimes which will enable us to collect more data on this subject. This hypothesis is considered in the PhD research topics and will be taken into account in final conclusions to be presented in 2013.


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7 Conclusions The increase in migration flows has led to certain changes in the crime field, and these may be connected with the vulnerability of these communities, induced by several factors. In Portugal, speaking in absolute terms, the number of non-national inmates has decreased in the last few years, but its proportional increase has created the illusion of an overall increase.30 Indeed, the numbers pertaining to nonnational inmates have proportionately increased when compared with the Portuguese inmate population, to the extent that these have registered a significant decrease. Moreover, the concepts of ‘foreigner’ and ‘immigrant’ are subject to confusion in the media when the nationality of crime suspects is mentioned, and this has fostered feelings of suspicion towards new arrivals. Looking at the North American panorama and the evolution of migration policies from 1980 onwards, such as the expansion of the scope for certain crime typologies and the increase in the sentences imposed on foreign citizens – which further imply their removal and the loss of several acquired rights – we come face to face with the new crimmigration paradigm that emerged from the convergence between criminal law and immigration law, under the influence of the ‘membership theory’ (Stumpf, 2006). American investigators have recently concluded that the growing number of immigrants does not have any connection with the number of violent crimes and may, in fact, be connected with the decrease in violent criminality. Similar studies have also been done in Europe, and the conclusions have been somewhat similar (Bianchi et al., 2008), but the results published by several government institutions reveal a great degree of scepticism towards these academic findings, highlighting other relevant information which opposes these conclusions. The image that frequently prevails is the image of the immigrant as the ‘enemy’. The State, concerned with public unrest, tends to enforce or reinforce increasingly restrictive measures involving the acceptance, settlement and integration of new immigrants. Tolerance, traditionally felt in Europe towards that ‘aiding mass of external rebuilders’, has become intolerance and the rights of those seeking better opportunities have been greatly reduced. Accordingly, certain behaviour tend to be criminalised in hegemonic terms and, in practice, this favours the mobility of certain individuals and hinders, or even denies, the acceptance of others, creating a source of inequalities and the emergence of a stratified citizenship.

30

Collected and estimated data from 2002, 2005 and 2008.


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The Criminal Law of the Enemy, which focuses more on the author and less on the deed, has over the last few years (as with the emergence of crimmigration and the reinforcement of securitisation) created the conditions for the existence of a state where the immigrant-other is a target of permanent suspicion, and this heightens our belief that in the near future we may witness the emergence of a Criminal Law of the Crimmigrant. This Criminal Law of the Crimmigrant may already be taking root in the crimmigration enforcement as criminal law becomes strongly imbued with strict irregular immigration control measures, and the reinforcement of securitisation measures, which have recently been adopted to allow an increase in penalties for immigrant-related behaviour, serve as crime prevention mechanisms.

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A Reflection on Crimmigration in the Netherlands On the Cultural Security Complex and the Impact of Framing

Joanne van der Leun & Maartje van der Woude*

1 Introduction Almost thirty years ago, Adler (1983) saw the Netherlands as a country not obsessed with crime. Nowadays, crime has become a collective obsession, with migrants as symbolic suspects par excellence. Despite falling crime rates since 2002, incarceration rates are high, the penal system is sober, and public and political discourses on crime and potential ‘dangerous others’ are far from tolerant (Boone & Moerings, 2007; Downes & Van Swaaningen, 2007). Although the impact and aftermath of the 9/11 terrorist attacks have contributed to these changes, in fact, the attacks mainly fertilised an already lush breeding ground. Lingering apprehensions of the Dutch multicultural society were raised and domestic issues of immigration, integration, and the over-representation of non-Western ethnic minorities1 in registered crime statistics were given a hitherto unknown acuteness (Van der Woude, 2010). The relationship between ethnicity and social problems, especially crime and nuisance, has progressively become a political issue, resulting in extreme political statements and a growing pressure on law enforcement officials to focus their attention, not only on crime, but also on migrants. Undoubtedly such a pressure, combined with the increased complexity and the trans-boundary nature of crime, could lead to selective law enforcement, focusing only on the visible ‘others’.

*

1

The authors would like to thank all participants of the 2012 Honours Class on Crimmigration at Leiden Law School for their valuable comments which further inspired us to rework the article and conduct further research into crimmigration. Special thanks go out to Jo-Anne Nijland, for critically reflecting and commenting upon previous drafts of this chapter. The common term in Dutch policy circles apart from ‘allochtonous’ is ‘ethnic minorities’, the term referring to policy categories rather than to ethnic groups. The term race is hardly ever used.


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Crime, security and migration are issues that have dominated the political agendas of many Western countries for the past couple of decades. Although the Netherlands may be an outspoken case, it is not unique. Within various disciplines – ranging from legal studies and criminology to international relations and political sciences, and in various national contexts – scholars have sought to answer, describe, debate and explain a diverse range of questions and phenomena falling within the broadest scope of these three issues. Recently in the crimmigration-debate, which was started by Stumpf in 2006 and to which this book is dedicated, there have been attempts to more thoroughly interconnect crime, security and migration at a theoretical level (for the Netherlands, see Van der Leun, 2010) with an eye for recent changes. Nevertheless, the crimmigration debate, and therewith the definition of crimmigration, remains very much US-focused. Whereas the interconnectedness of immigration and crime is also an important topic of research in many European countries, the theoretical framework against which this is studied is the very broad and rather abstract framework of securitisation. For some reason, the crimmigration terminology is scarcely implemented in these discussions on the securitisation of migration. A possible explanation could be found in the importance of the unique national social and political context while analysing issues on immigration and crime, as a result of which the largely US-dominated crimmigration debate simply does not fit the context of individual European countries. Obviously, the process of crimmigration is closely related to a nation’s unique history of migration and race. Therefore, it is important to pay attention to the national context in which crimmigration is studied. Of course, the same could be said for the securitisation debate with regard to its connection to the unique context of the United States. In a first modest attempt to create a more ‘global’ definition of crimmigration, in this present chapter we will critically reflect upon the definition of crimmigration from a more continental-European point of view. As we will illustrate in this chapter on the basis of the unique national context of the Netherlands, studying crimmigration in the context of various countries also makes it necessary to broaden the scope of the definition. By bringing together insights from both the crimmigration-debate and the securitisation debate we hope to build some theoretical bridges that eventually could further stimulate more empirical and comparative research into this important issue. In order to meet this rather prestigious aim, we will first delve deeper into the term crimmigration and offer a broader understanding of the process of crimmigration. Subsequently, we will present the case study of the Netherlands, and the important social and political changes that have contributed to a stark punitive turn leading to an increased securitisation of society and a climate in which crimi-


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nals and immigrants are seen and framed as potential ‘dangerous’ others. Tying in with these changes, we will discuss the development of a more actuarial – preventive – criminal justice system. We will also briefly touch upon the issue of ethnic profiling in relation to the aforementioned social, political and legislative developments after which we will wrap up with some discussion and conclusions on the case study of the Netherlands in relation to the definition of crimmigration.

2

Crimmigration: more than merely legal alignment

Stumpf, in her ground-breaking article, originally introduced the term crimmigration to denote the merger of immigration law and criminal law in both substance and procedure (Stumpf, 2006). So far, the crimmigration trend has mostly been studied by Anglo-Saxon scholars applying a legal-theoretical approach (Miller, 2005; Chacon, 2009; Welch, 2011; Legomsky, 2007; Hartry, 2012). However, a thorough discussion on what constitutes crimmigration and how this phenomenon should be studied is still missing in the academic world. The purpose of this section is to stimulate the discussion on the scope of the definition of crimmigration. Since signs of crimmigration are predominantly studied at the legal level, our starting point here is that the definition of crimmigration should be broadened. In line with Aas (2011, p. 332) – although she does not present it as such – we would like to propose the following definition of crimmigration: the intertwinement of crime control and migration control. At first glance, this definition seems largely similar to Stumpf’s definition. However, with a slight amendment, it enables including another level of research: besides legal signs of crimmigration it also includes social signs of crimmigration. Signs of crimmigration on the legal level can be obtained through analysing the convergence of criminal law and migration law. The three different fronts which Stumpf placed at the basis of defining crimmigration on the legal level therewith remain part of the definition: 1. The substance of immigration law and criminal law increasingly overlaps; 2. The procedural aspects of prosecuting immigration violations have taken on many of the earmarks of criminal procedure; 3. Immigration enforcement has come to resemble criminal law enforcement. However, when further exploring the dynamics of the process of criminalisation, in addition to these legal signs we feel it is also valuable to more specifically include social signs into the definition of crimmigration. Criminalisation can concern different subject matters ranging from drugs and prostitution to immigration, and can therefore be employed in different ways. The concept of criminalisation is mostly defined as the use of substantive


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c riminal law to treat a certain conduct as a criminal offence.2 In relation to the criminalisation of migration, legal signs that point to the intersection of crime control and migration control are mostly visible, outward manifestations established by the State. For example, the decision to create legislation for migrationrelated offences is a conscious act of the legislator and therefore a visible sign of crimmigration. However, criminalisation is not merely a legal process. The practice of stereotyping, the emergence of deviant behaviour and the construction of crime are to a great extent the result of complex social processes (Becker, 1963). Besides clear legislative signs, examples of less visible signs showing a crimmigration trend exist as well. An important example, which we will further elaborate upon in Section 5 with regard to the Netherlands, is racial or ethnic profiling: a sign visible in both policing practices as well as in the prosecution and sentencing sphere (Wermink, De Keijser & Schuyt, 2012; Weenink, 2009). Racial or ethnic profiling is an unconscious social process of controlling migration via the criminal justice system, an inward sign of intersecting migration and crime control. From this point of view, besides a legal dimension, there is also a clear socio-political dimension to the process of crimmigration. What then is the academic relevance of broadening the scope of the definition of crimmigration by specifically including the socio-political dimension as well? Through including social signs into the definition, more comparative and interdisciplinary research on crimmigration can be done. Migration is a topic par excellence for scholarly research that requires a trans-national and interdisciplinary approach. Although migration control is mostly subject to national policy, migration flows are dynamic and trans-boundary. So far, Anglo-Saxon scholars have dominated the debate on crimmigration, thereby focusing mostly on crimmigration in US from a national methodological framework. However, this makes it very difficult to conduct comparative research. The combination of national methodological frameworks and a cosmopolitan outlook is very important if scholars want to study the content and theoretical framework of crimmigration. Furthermore, the study of crimmigration, so far, merely concerns legal research. Although interdisciplinary research between different legal disciplines has been stimulated, little research has been undertaken by scholars from sociological or humanities disciplines. Through including social practices and perceptions as signs into the definition, empirical evidence can be collected on the basis of which crimmigration can be measured.

2

See, for example, Mitsilegas (2012) in a yet to be published paper on the changing landscape of the criminalisation of migration in Europe. For the purpose of his analysis, he employs a narrow definition of criminalisation: ‘ the use of substantive criminal law to treat conduct related to migration flows as a criminal offence and to impose sanction for the breach of criminal law’, p. 1.


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Consequently, crimmigration trends in different countries can be more easily compared. However, here we also touch upon a problematic aspect of broadening the scope of crimmigration. We now know how to measure the legal signs according to the three different fronts, as legal research has shown. But where should we draw the line between a social sign and a non-social sign of the intersection of crime control and migration control? It is clear that racial or ethnic profiling can be defined as a social sign of crimmigration. But, what about the legislative proposal currently pending before the Dutch House of Representatives aiming to criminalise wearing a burqa?3 Is that also an unconscious way of controlling migration through criminal law? We think that there should be at least a link between incentives based on immigration control and the criminal justice system. Whereas criminalising wearing a burqa is a sign of societal and political distrust in religious expressions of certain immigrants, it cannot be seen as an action directly based on motives to control immigration. In order to cope with these and similar issues, it is important to analyse the process of crimmigration both in relation to practice and theory. The intersection of crime control and migration control is a first move towards a definition that travels. However, research into crimmigration cannot suffice with studying the legal and social signs of the crimmigration trend. Part of studying crimmigration is analysing how issues relating to crime and immigration are perceived and framed in the social and political context. The definition of crimmigration can be constituted on a global level, but a phenomenon or trend like crimmigration can never be sufficiently studied without analysing the social and political discourse towards migration. Studying the framing of immigration in the political and social discourse can help to better understand both the rationale underlying legal dimension of crimmigration as well the social signs of crimmigration such as, for instance, racial profiling. Furthermore, overarching theories connect the signs of crimmigration and the societal context, and explain the crimmigration trend. Theories can be used to explain various situations, trends, phenomena on an abstract theoretical level; they provide the umbrella to bring all components together.

3

The ban applies to all forms of clothing that covers the face, including balaclavas as well as burkas. The bill forbids this clothing in public spaces, public buildings, educational and healthcare institutions and public transport. Infringements of the ban will carry a fine of up to 390 Euros. http://www.government.nl/news/2012/01/27/government-approves-ban-onclothing-that-covers-the-face.html


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Depending on the academic environment and national background, scholars have placed the crimmigration trend in various theoretical frameworks. However, the scopes of the various theoretical frameworks seem to indicate, at least partially, the same phenomenon: a political and public discourse based on fear and security in which crimmigration is used as a form of social control. In sum, we think that the discussion on crimmigration would benefit from a more thorough interdisciplinary and transnational discussion, by taking into account not only national legal outlooks, but also social, political and cultural perspectives which combine both national and transnational methodological frameworks. The present tendency to refer to the very broad securitisation framework within Europe and within the social sciences, and rather to crimmigration in the US and within legal studies, does not help international comparison, or interdisciplinary studies. Therefore, we would like to invite other scholars in the field of crimmigration to reflect on our definition and define the line between signs that do, and those that do not, fall under the scope of the definition of crimmigration. In the following section, we take the first initiative and explore the Dutch context against the background of the process of crimmigration.

3

The unique national context of crimmigration in the Netherlands

As stated in the previous sections, when discussing and analysing the construction of crimmigration, it is important to bear in mind that the debate on crimmigration – and, therefore, also the various views on and explanations for the process of crimmigration – is largely US focused. Due to the unique historical roots of race and immigration issues and relating policies in the United States, the observed tendencies in the US crimmigration debate cannot be generalised in a straightforward matter to the European situation. Whereas the immigration debate in the US is closely tied up with the country’s history of slavery, in many European countries, the presence of sizeable ethnic minority groups is a rather recent phenomenon, as large immigration flows into Europe only came into being during the second half of the 20th century (Castles & Miller, 2003; Hooghe et al., 2008). Also, within the European continent, there are stark differences between the various countries with regard to the debate and policies on immigration. As various studies on European trends in attitudes toward ethnic minorities show, unlike those in the US, the outcomes are far from monotonous (Coenders & Scheepers, 1998; Semyonev, Raijman & Gorodzeisky 2006). Diversified and country-specific profiles are found instead, hampering clear-cut analyses with regard to crimmigration in Europe. On the contrary, in order to understand and analyse the process of crimmigration in the European context, a first important step seems to be an in-depth study of the individual countries. Despite the fact that Garland in The Culture


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of Control mentions the Netherlands as a country that did not respond to the upheaval of late modernity with the establishment of a culture obsessed with crime and insecurity (Garland 2001, p. 201), with the benefit of hindsight it seems safe to say that this conclusion was drawn too quickly. As in many other Western countries from the mid seventies onwards, the Netherlands slowly has transformed into a culture of control, and the country – especially around the turn of the millennium – witnessed a sharp punitive turn (Garland, 2001). A distinct feature of the Dutch culture of control, which will be discussed in detail in the following section, is a punitive turn; not only with regard to criminals and criminal justice policy, but also with regard to immigrants and immigration policy. 3.1

A growing immigrant population

From the early 1960s on, the Netherlands can be considered a country of immigration, albeit a reluctant one. In this ‘Golden Age’ of the Dutch welfare state, ‘guest workers’ were recruited from the Mediterranean in order to fill the job surplus. Only much later, when they started bringing their families over, it began to dawn on the Dutch that many of them were going to stay. In the 1970s, almost half of the non-Dutch immigrants to the Netherlands came from just five countries: Turkey, Morocco, Surinam, Netherlands Antilles and Indonesia. In the 1990s, the percentage of these five immigrant groups steadily declined to less than 25 percent of the foreign bourn immigrants. Since then, the share of immigrants from other countries increased from 30 percent in the early 1980s to more than 55 percent in the first years of the twenty-first century (Engbersen, Van der Leun & De Boom, 2007). This includes a sizeable asylum immigration and contemporary labour migration. The Dutch government eased its immigration rules concerning the highlyskilled aliens starting with October 2004 (IND, 2004). At the same time, immigration from other EU-countries persists and is recently rising, particularly since Poland, Bulgaria, and Romania joined the EU respectively in 2004 and 2007 (Engbersen, Snel, Meeteren, Van de Pol & Dekker, 2011). For a long time the dominant policy model was based on multiculturalism. In line with the Dutch tradition of ‘pillarization’, or compartmentalisation along socio-political lines, there were special arrangements for immigrants, financed by the state (WRR, 2007, p. 15). Incorporation policies aimed at ‘mutual adaptation in a multicultural society with equal opportunities for Dutch people and ethnic minorities’ (WRR, 1979). Although there appeared to be consensus because migration problems were rarely openly discussed, discontent with failing integration, in particular of groups with a Muslim background, simmered. An analysis of the public and the political debate with regard to minorities and immigrants clearly showed a ‘getting tough on immigration’ tendency starting from the early nineties onwards (WRR, 2007). Research by the Social


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and Cultural Research Agency (SCP) seemed to confirm this: during the years 1995-2002 there was a growing negative general attitude towards immigrants, and almost 50% of the population was of the opinion that there were too many immigrants living in the Netherlands (SCP 2003, p. 306-311). 3.2

A beacon of tolerance dimmed?

Over the past couple of years, many authors have successfully refuted Garland’s previously mentioned statement on the emergence of a culture of control in the Netherlands (Pakes, 2004, 2006; Downes & Van Swaaningen, 2007; Cavadino & Dignan, 2006). Although, time-wise, the developments in both the US and the UK on the one hand, and the Netherlands on the other, are out of sync, almost all of the twelve indices of changes that are distinguished by Garland as indicators of the culture of control are – to a greater or lesser extent – also visible in the Dutch national context. In order to fully grasp the impact of the emerging Dutch culture of control on the process of crimmigration, it is necessary to briefly recollect some the events leading and contributing to this emergence. The Netherlands has long been a symbol of tolerance and a country in which criminal justice policy could be characterised by a great deal of leniency and stability. Roughly put, these characterisations apply to the situation before the mid-1980s (Downes, 1988; Downes & Van Swaaningen, 2007). Prior to 1985, crime and deviance were hardly considered social problems at all, but, after that, a shift occurred in which crime was placed within a law and order discourse. The government papers Crime and Society (Ministry of Justice, 1985) and Law in Motion (Ministry of Justice, 1990), are generally taken to be the decisive point of change in Dutch criminal justice policy, or, as Downes puts it, ‘the fundamental break with the lenient tradition in our country’ (Downes, 1988). Gradually, a more business-like, centralised, bureaucratised and efficiency-oriented criminal justice apparatus was introduced. Its main goal: to counter the rising crime rates as efficiently as possible (Rutherford, 1996, pp. 60-61). Due to steeply rising crime rates after 1960, combined with an increasingly ‘liquid’ or ‘fluid’, individualistic society (Bauman, 2000; Boutellier, 2002) there was a growing concern among both the general public. This made government officials fear an even greater public loss of confidence in the government as a protector of public and private interests (Roethof Commission, 1984, p. 1). In order to regain public trust in government, Crime and Society emphasised performance monitoring of criminal justice agencies, a required increase in detection rates and an enhanced visibility of the damage that crime is seen to inflict on society. Criminal law was, and still is, seen as one of the most important means to increase the perceived loss of social control. All in all, the developments have clearly resulted in a more managerial usage of criminal law and the criminal justice system (Rutherford, 1996; Van der


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Woude, 2010). Despite widely shared criticism among legal scholars and academics regarding the development of a instrumentalist criminal justice system, in the years to follow, slowly, but surely,a rather Garlandian culture of control (Garland, 2001) has emerged; with almost predictable consequences, such as rising prison rates, a massively expansive criminal justice machinery and a firm ‘law and order’ discourse in order to protect the public (Pakes, 2004; Van Swaaningen, 2005; Downes & Van Swaaningen, 2007). When discussing the impact of the punitive turn in the US and UK on the public and political discourse, Garland addresses the changed perspective with regard to addressing issues on law and order. This changed perspective is known as the criminology of the other. Capturing the essence of the criminology of the other, Garland elabourates: This is a criminology that trades in images, archetypes and anxieties, rather than in careful analysis and research findings. In its deliberate echoing of public concerns and media biases and its focus on the most worrisome threats, it is, in effect a politicised discourse of the collective unconscious (…) In its standard tropes and rhetorical invocations, this political discourse relies upon a archaic criminology of the criminal type, the alien other.’ (2001, p. 135.)

This way of thinking about, as well as framing, law and order issues draws on popular fears and resentments. As Welch states, conforming to the precepts of moral panic, the criminology of the other clings to criminal stereotypes resonating with racism and classism and that sense of ‘otherness’ reinforces an ‘us versus them’ worldview (Welch, 2008, pp. 41-42). Although Garland does not directly connect this change in discourse to the realm of immigration and immigration policies, his focus is on criminal justice policy and penal policy, particularly these indices of the culture of control seems important when analysing the process of crimmigration in the Netherlands.4 As various authors have pointed out, a key characteristic of the Dutch culture of control – besides concerns about property and petty crime – are growing concerns and negative sentiments about immigration policy and immigrants, both in public and political discourse (Pakes, 2004, 2006; Cavadino & Dignan, 2006 Engbersen et al., 2007; Koemans, 2011). In tracing back the first features of the Dutch culture of control, it is interesting to see that whereas Crime and Society (Ministry of Justice, 1985) and Law in Motion (Ministry of Justice, 1990) are seen as decisive points of change in Dutch criminal justice policy, both reports

4

This exclusive focus on the general social and political trend towards increased punitiveness in countries is actually one of the critiques against the culture of control thesis, and towards globalisation of punitive approaches in general. Theories falling under this approach do not account for the particular overrepresentation of foreign nationals, a factor that could be driving penal severity rather than being a by-product of it.


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can also be seen to mark a turning point with regard to the political discourse on migrants. Whereas, for a long time, criminal justice policies evolved without paying specific attention to migrants, both reports were inspired by, and also specifically addressed, the growing negative sentiments towards the second (and, later, also third) generation Moroccan youngsters. This population was overrepresented in the crime statistics and therefore seen as partially responsible for the increase in petty and property crime. From the mid-1980s onwards the country’s tolerant attitude towards deviance and crime seems to have disappeared, to make way for a sharp and excluding discourse on issues of crime and law and order. In a political and social climate in which issues of crime and law and order are connected with immigration issues, as will be discussed in Section 5, the changes within the realm of criminal law, as a result of the emerging Dutch culture of control, cannot be analysed without keeping the immigration-factor in mind. The excluding law & order discourse does not only target ‘regular’ criminals, it is also clearly directed towards other ‘dangerous others’. 3.3

An excluding discourse underlying Dutch cultural security complex

Although the first features of the Dutch culture of control date back to the mideighties, it was not until the 21st century that this culture of control really gained momentum. The 2002 governmental elections in the Netherlands are often seen as a ‘watershed’ moment in the discussions surrounding immigration. Worries suddenly came to the fore in a very loud and open way. The rise in prominence on the Dutch political spectrum of right-wing politician Pim Fortuyn, an outspoken critic of ‘multiculturalism’, revealed a sense of uncertainty, insecurity and dissatisfaction among the population (Geddes, 2003, p. 118). Fortuyn heavily criticised the previous coalitions, claiming that they had intentionally neglected important issues such as collective safety and the ‘dangers’ of the multicultural drama into which the Netherlands had developed. Since Fortuyn was explicitly negative about Islam, the 2001 terrorist attacks were grist to his mill. His stance against Muslim culture, which for several years had largely fallen on deaf ears, met with increased public and political approval in the aftermath of the 9/11 attacks in the United States. According to Fortuyn, the attacks were proof that Muslim faith and culture could be considered backward (Fortuyn, 1997, 2002) and that Muslim immigration would jeopardise essential values of Dutch society. Fortuyn was bound to hail a monstrous victory at the general elections of 15 May 2002 yet, on 6 May, the unlikely happened. After a radio interview, Pim Fortuyn was shot and murdered by a radical-left environmental activist. Despite his fairly short political career, Fortuyn has left a permanent mark on the political agenda: ever since the 2002 elections, collective safety, crime and migration have been themes of sharpened political and public discussion


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(Van Praag, 2003; Lunshof, 2004; Wansink, 2004, pp. 167-184). The issues are not exclusively claimed by right-wing parties, however. Pim Fortuyn’s migration agenda had an echo with the subsequent immigration policies implemented by the following coalition governments, and crime, migration and integration policies were redefined and fine-tuned and this still takes place within the current demissionary Cabinet which is supported by the party of Geert Wilders (PVV). Pakes speaks of the emergence of a ‘cultural security complex’ in The Netherlands. Whereas crime was previously seen as endangering people’s personal security, after the turn of the millennium, crime and potential crime risks are seen as threatening for the cultural fabric of society. Allegedly over-offending minority groups are regarded, not only as a danger to individuals, but also as a violation of the permissive and tolerant Dutch society as a whole. Their offending per se is part of that danger, but – more importantly – their perceived failure to adopt a ‘Dutch way of life’ and its corresponding norms and values, has increasingly become part of that same threat (Pakes, 2004, p. 293). With respect to legally residing migrants, this cultural security complex is visible in, for instance, lower thresholds for deportation, (see the chapter by Leerkes et al. in this volume). With respect to illegal or irregular migrants, the Dutch government promotes a comprehensive ‘discouragement policy’ towards illegal residence through intensified labour market controls, high fines for employers, through preventing the use of public services by people without a residence status and through increasing emphasis on surveillance, detention and expulsion (Van der Leun, 2006, 2010; Broeders, 2009). Priority is given to illegally residing immigrants suspected of committing criminal offences or causing troubles. Increasingly irregular migrants are viewed through a crime control lens.

4

Researching immigration and crime

Over the years, many studies in the Netherlands found an over-representation of certain groups of immigrants and their offspring in official crime statistics, also when controlling for demographic and socio-economic differences (Engbersen et al., 2007; Haen-Marshall, 1997; Junger-Tas, 1997; Bovenkerk, 2003). At present, Antilleans and second generation Moroccans stand out in a negative way (Blom et al., 2005). In order to find an explanation for this overrepresentation in the 1980s and 1990s, most available studies pointed to the issue of selectivity: the fact that police data, crime registrations and data of the judicial system are inherently biased because they depend on police policies and routines and complex decision making processes (Sampson, Robert & Lauritsen, 1997). Crimes which are relatively often committed by immigrants are highly visible types of crime. Both the Dutch Aliens Act and the Identification Act were even explicitly designed to prevent discrimination of foreigners. According to some, this aim has succeeded (Junger-Tas, 1997; Boekhoorn, Speller & Kruijssen, 2004),


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while others doubt that. For instance, early studies reported that negative stereotyping of non-western immigrants is not uncommon among police officers. (Bovenkerk, 1991). Junger (1990) maintained that ethnic selectivity by the police is, usually, not racist as such and, rather, that this arises from the desire to optimise the ‘organisational output’ given limited police resources. Police officers tend to monitor groups they suspect of crime, which may inflate registered crime of ethnic minorities. Yet, Bowling (1990) argued that she overlooked influential filtering processes by the police which are shaped by institutional police practices and beliefs. Still, in a review study of two decades ago, Rovers concluded that at the stage of arrest there was no ground to assume a selective approach towards individuals from a migrant background (Rovers, 1999; cf. Wittebrood, 2004). In 1989, Junger concluded that – because no study showed clear evidence of police discriminations in The Netherlands and because the country had a ‘liberal tradition’ – ethnic bias was not a plausible explanation for group differences in crime figures. Since then, Dutch criminological literature usually accepts that selective law enforcement influences but does not cause or explain ethnic differences in criminal involvement (Blom, Oudhof, Bijl & Bakker, 2005; Van der Leun et al., 2010). Discrimination is not seen as relevant, contrasting sharply with an extended literature on police discrimination in the UK and the US, where ‘ethnic and racial profiling’ and ‘stop and search policies’ have been thoroughly studied, including their negative effects on migrant populations. For a long time the selectivity discussion in The Netherlands was seen as outdated. It is without doubt, however, that migrants and crime are increasingly seen as directly connected. Even recent governmental documents calling for a step away from policies that specifically target migrants or minorities, continues to stress the overrepresentation of migrants in problem behaviour, including overrepresentation in crime (Ministry of Home Affairs, 2011). Therefore, earlier assumptions about the absence of discrimination and selectivity in the Dutch Criminal Justice System, including the police force, cannot hold anymore. Some preliminary reflections Looking at the case of The Netherlands and the impact of both the public and the political discourse in creating and maintaining the cultural security complex – in order to explain and understand the process of crimmigration in The Netherlands – it seems necessary to focus more on the aspect of the perceptions and framing of immigration issues. The significance of framing – how people communicate a particular and limited perception of reality – cannot be underestimated. Nevertheless, in the crimmigration-debate as it has evolved so far, both framing and perceptions obviously are touched upon, but do not seem to belong to the core of the discussion. Although by incorporating both concepts the much older sociological and criminological concept of criminalisation of migration


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and immigration gets firmly incorporated into the discussion on crimmigration, we think this will also benefit the understanding of the more traditional – legal – part of the crimmigration process: the merging of immigration law and criminal law. By framing migration and immigrants as potential (national) security threats, immigrants are pictured as dangerous ‘enemies of the state’. Framing in terms of ‘national security’ obviously has potentially far-reaching implications such as the legitimisation of the use of secrecy, violence and other extraordinary (legal) measures (Buzan et al., 1998; Huysmans, 2006) Issues framed as a threat, a crisis, or linked to national security in some other explicit way, demand to be handled with greater force, gravity and haste than other issues (Keeler, 1993: p. 436; Kingdon, 1995; Boin et al., 2005) While the securitisation literature does revolve around framing, this usually happens in a highly abstract matter, whereas we propose here to be much more precise and link issues of framing directly to the process of law making and the implementation of laws and regulations. In the following section, we will further illustrate this by presenting some relevant changes in the Dutch legal landscape, in particular the development of actuarial justice in relation to a clear social sign of crimmigration: ethnic profiling.

5

Where the social and legal contexts of crimmigration meet: ethnic profiling

Over the past two decades, fighting crime and diminishing fears has become prominent on the Dutch political agenda. Less attention is paid to individual rights especially since the public also seems willing to accept restrictions upon their individual rights and liberties if that is what it takes (Muller, Kummeling & Bron, 2007; Jansen, Tolsma & De Graaf, 2008). The answer to the perceived increase in crime and insecurity is mostly found in a more preventive criminal law, also referred to as actuarial justice (Feeley & Simon, 1994; Van Den Heuvel, 2003, pp. 79-92; De Roos, 2007, pp. 129-149). The term refers to the increasing focus on the early detection and prevention of possible crime threats and risks (Moerings, 2003, 2006). By using risk assessments, by broadening criminal liability through means of criminalising behaviour in preliminary stages before a harmful act has taken place, by introducing new and harsher penalties and by introducing new potentially intrusive investigatory powers, everything is aimed at detecting and ‘disarming’ risky and possibly dangerous (groups of) persons as soon as possible. (Feeley & Simon, 1992, pp. 452, 457). Whereas the development of actuarial justice is often related to the process of crimmigration by pointing, for instance, at the dangers of racial and ethnic profiling, in order to connect the two, the missing link – again – seems to be the concept of framing.


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The development of actuarial justice has resulted in an increase of discretionary powers for law enforcement officials: when it comes down to exercising new investigative measures, it is up to them to decide who is considered a potential risk and who is not. There is a risk that such activities may be carried out (in part) on the basis of generalisations relating to race, ethnicity, religion or nationality instead of on the basis of individual behaviour and/or objective evidence. This may be expressed, directly or indirectly, in the decisions of supervisory and/or investigative officials, regarding matters such as who they detain for identity checks, interrogation, security searches and arrest. Yet, the practice of ethnic profiling, which could easily happen unconsciously, cannot be explained without also looking at the impact of perceptions and framing. As focal concerns and attribution theory in relation to sentencing research have shown, when faced with time and information restraints, judges tend to resort to a ‘perceptual shorthand’ to make decisions about the dangerousness and risk of recidivism of an offender (Tillyer & Hartley, 2010). This shorthand is based on stereotypes and attributions linked to personal characteristics, thereby providing an explanation for extra-legal factors such as gender, race, ethnicity and social class being influential in sentencing outcomes (Steffensmeier et al., 1998). These stereotypes and attributions, in turn, are influenced by the way in which certain issues and concepts are framed in the (popular) media as well as in social and political discourse. Recent research by Weenink (2009) seems to support the notion of perceptual shorthand influencing Dutch prosecutorial decision-making in juvenile justice cases. Wermink et al. (2012) draw similar conclusions with respect to judges in penal cases. Although these outcomes refer to judiciary discretion, it is equally conceivable that police officers may develop similar shorthand. Especially while exercising investigative powers without the necessity of there being a reasonable suspicion or concrete indications, one has to resort to something other than concrete offender-information on which to base one’s decision. Categorisation and stereotyping are inherent to police work (Brown, 1981, p. 34; Wilson, 1989; Bridges, 1999; Philips & Bowling, 2003; Bowling & Philips, 2007; Miller, 2010). As described in Section 3, many of the changes in the Dutch criminal justice system can be related somehow to high crime figures for violent crimes in the 1990s, and the subsequent public and political unrest. This also holds for the introduction of preventive stop and search powers in 2002. The answer was found in the possibility to perform preventive security searches among citizens in designated areas that were seen to be more prone to attract violence or public order problems. Before 2002, law enforcement officials could carry out searches if there was a reasonable suspicion of a criminal offence and in order to establish identity (Art. 55b Code of Criminal Procedure). Preventive searches were limited to airports only (Art. 52(3) Weapons and Ammunitions Act).


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The legal basis for the 2002 expansion of preventive searches can be found in both the Municipalities Act and the Weapons and Ammunitions Act. After having consulted the municipal council and the public prosecutor, the powers to stop and search were vested in the mayor, by means of a by-law. The mayor decided which areas would be designated as ‘security risk zones’ in which anyone could be subjected to a ‘preventive search’ by police officers during a period of twelve hours. The police were empowered by the authority of the public prosecutor to search any individual, as well as goods and vehicles, without having grounds for suspicion. The fact that these areas have been the stage of violent weapon-incidents in the past was sufficient to designate them as ‘security risk zones’ (Kamerstukken II 2000/01, 26 865, nr. 7, p. 2-3). Preventive searches can also be carried out as part of large scaled traffic controls, also known as ‘phishing actions’. During these actions, bearing illustrious names such as ‘Operation Dawn’ and ‘Operation Twilight’, barriers are raised on parts of the highway in order to randomly check vehicles. Motorists are checked for their drivers-licenses, insurances, but also for outstanding fines, tax debts and residence permits. Besides all this, occupants as well as their luggage may also be subjected to preventive searching. The legal context of these actions has been disputed over the years: questions have been raised about the legitimacy, as well as the effectiveness (Jansen & Janssen 2010; Salet, 2009). However, this has not’ contributed to a reserved attitude with regard to exercising stop and search powers: Over the years 2003, 2004, 2005 and 2006, both in Amsterdam and Rotterdam together respectively, 47,409; 48,406; 29,786 and 18,005 preventive searches were carried out (COT, 2007, p. 68). For 2007, data are missing, but in Amsterdam 15,973 preventive searches were carried out in 2008 (COT, 2009, p. 6). With the expanding powers of the police it seems fair to seriously consider the possibility of ethnic profiling in relation to actuarial justice in The Netherlands, especially against the background of the development of a cultural-security complex which we described before. Expanded powers in several areas, which are not all dealt with here, may very well affect the position of (alleged) irregular migrants. For instance, the most recent Aliens Act 2000, which came into force in 2001, includes several renewed and expanded provisions (Art. 50 and 53) for immigration authorities to carry out house searches for irregular migrants, and also broadened the scope for stopping people in the street to ask for their identity and nationality. An independent evaluation in 2004 of the use of these powers under the renewed Aliens Act 2000 showed that the new powers were increasingly being used, which was indicated by rising numbers of immigrants being stopped and questioned (Boekhoorn et al., 2004). In addition, the amendment on 1 January 2005 of the Identification Act by the Extended Identification Act (Wet op de Uitgebreide Identificatieplicht), made it obligatory for every person over the age of 14 to carry identification, whereas before this would hold only in specific situations.


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If potentially illegally residing migrants are stopped more often to have their identity checked, this will also affect migrants with a legal residence status, as the police will not be able to discern a lack of valid papers beforehand. All these separate dimensions of crimmigration have our attention (see also Van der Leun and Van der Woude, 2011) but, for the present chapters, delving into them would be a step too far.

6

Discussion: Much research ground to be covered

In this chapter we have argued that we see crimmigration as a societal process in which migration control and crime control increasingly become aligned and interwoven, both on the legal level (legislation and policies) and the socio-political level (discourse and social signs) For the Dutch context we have shown how – in line with the general assumption of the crimmigration literature – powers to apprehend migrants have gradually been expanded. This happened in a rapidly changing context in which actuarial justice and worries about globalisation and international migration went hand in hand. With respect to the extent to which ethnic profiling and selective attention, indeed, shape daily practices and interaction in practice, there is still much research ground to be covered, but there are certainly indications that they do. At the moment, an amendment of existing laws is under consideration in The Netherlands which would criminalise illegal residence per se. According to Stumpf (2006), this would be the quintessential step of crimmigration: when being illegally in a country would automatically mean falling under criminal law, (see also the chapter by Leerkes et al. in this volume). We have attempted to demonstrate in the present chapter that Stumpf rightly views de jure criminalisation of illegal residence as a very far reaching step, but we have also argued that, according to us, crimmigration is also a much broader societal process which includes subtle forms of framing migrants as criminals, which cannot be seen as a separate process, but rather should be seen as part of the crimmigration process. The latter also refers to a final issue which seems particularly of importance for scholars who do empirical work and which has remained largely unsolved so far: how can we observe or ‘measure’ crimmigration, especially if we broaden the definition, as we do, without over-generalising. This is not just a matter of definitions. There is also a crucial normative dilemma, namely, that we can reinforce claims about crimmigration as a result of studying it (cf. Huysmans 2002, p. 43, 47).5 We take this risk to be greatest when we look very superficially

5

In his work Huysmans speaks about securitisation, not crimmigration. Referring to the normative dilemma of securitisation studies he states: ‘speaking and writing about security is never innocent’. We translate this to the crimmigration debate.


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and uncritically at broad trends, thereby overlooking contradictory developments and issues of implementation in practice (cf. Van der Leun, 2010). Charrett (2009), when reflecting on the theoretical framework of securitisation, also points to the importance of not just focusing on the state level in avoiding the pitfalls of reinforcing securitisation. In being specific about concrete social and legal aspects of crimmigration empirically, and by moving beyond the formal law making process to also include studying daily practices, routines and instructions for, and of, law enforcement agents (law in practice), as well as those who are subjected to controls, we hope to encourage meaningful international comparison on sub themes beyond the US and Australia.

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Junger-Tas, J. (1997). Ethnic minorities and criminal justice in the Netherlands. In M. Tonry (Ed.), Ethnicity, crime and immigration: Comparative and cross-national perspectives (pp. 257-310). Chicago and London: University of Chicago Press. Keeler, J.T.S. (1993). Opening the window for reform: Mandates, crises and extraordinary policymaking. Comparative Political Studies, 25 (4), 433–86. Kingdon, J.W. (1995). Agendas, alternatives and public policies. New York: Longman. Koemans, M. (2011). The War on Antisocial behaviour. Leiden University: Meijers Institute. Legomsky, S.H. (2007). The new path of immigration law: Asymmetric incorporation of criminal justice norms, Washington and Lee University Law Review, 64, 469-528. Lunshof, K. (2004). Van polderen naar polariseren, Amsterdam: Uitgeverij Bert Bakker. Miller, T.A. (2005). Blurring the boundaries between immigration and crime control after September 11th, B.C. Third World Law Journal 25, 81, 113. Miller, J. (2010). Stop and search in England: A reformed tactic or business as usual? British Journal of Criminology, 50, 954–974. Ministry of Home Affairs/ Ministerie van Binnenlandse Zaken en Koninkrijksrelaties (2011). Integratie, binding, inburgering. The Hague: Staatsuitgeverij. Ministry of Justice/ Ministerie van Justitie (1985). Samenleving en Criminaliteit: Een beleidsplan voor de komende jaren [Society and crime: A policy plan for the coming years]. The Hague: Staatsuitgeverij. Ministry of Justice/ Ministerie van Justitie (1990). Recht in beweging; Een beleidsplan voor de komende jaren [Law in motion: A policy plan for the coming years]. The Hague: Staatsuitgeverij. Mitsilegas, V. (2012). The changing landscape of the criminalization of migration in Europe. Unpublished paper. Moerings, L.M. (2003). Straffen met het oog op veiligheid: Een onderneming vol risico’s. Leiden University: inaugural lecture. Moerings, L.M. (2006). Risicojustitie als inzet voor een veiliger samenleving: Zeden- en antiterrorismewetgeving als illustratie. In W. Huisman, L.M. Moerings en G. Suurmond (Eds.), Veiligheid en recht: Nieuwe doelwitten en strategieën (pp. 161-173). The Hague: Boom Juridische uitgevers, Muller, E.R, Kummeling, H.R.B.M., & Bron, R.P (2007). Veiligheid en privacy. The Hague: Boom Juridische Uitgevers. Pakes, F. (2004). The politics of discontent: The emergence of a new criminal justice discourse in the Netherlands. The Howard Journal, 284-298. Pakes, F. (2006). The ebb and flow of criminal justice in the Netherlands. International Journal of the Sociology of Law, 34, 141-156. Philips, C., & Bowling, B. (2003). Racism, ethnicity and criminology: Developing minority perspectives. British Journal of Criminology, 43, 269-290. Roethof Commission, (1984). Interim-rapport Commissie Kleine Criminaliteit. The Hague: Staatsuitgeverij. Rovers, B. (1999). Klassenjustitie: Overzicht van onderzoek naar selectiviteit in de Nederlandse strafrechtsketen. Rotterdam: Erasmus Universiteit Rotterdam. Rutherford, A. (1996). Transforming criminal policy. Winchester: Waterside Press. Salet, R., 2009. Preventief fouilleren als praktijk. Nederlands Juristenblad, 84 (27), 1724-1728 Sampson, R.J., & Lauritsen, J.L. (1997). Racial and ethnic disparities in crime and criminal justice in the United States. In M. Tonry (Ed.), Ethnicity, crime, and immigration: Comparative and crossnational perspectives (pp. 311-374). Chicago: University of Chicago Press. Semyonev et al. (2006). The rise of anti-foreigner sentiment in European societies, 1988–2000. American Sociological Review, 71, 426–449. Sociaal en Cultureel Planbureau (2003). De sociale staat van Nederland. Den Haag: Staatsuitgeverij Steffensmeier, D.J., Ulmer, J.T., & Kramer, J.H. (1998). The interaction of race, gender, and age in criminal sentencing: The punishment cost of being young, black, and male. Criminology, 36, 763−797.


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Stumpf, J. (2006). The crimmigration crisis: Immigrants, crime, and sovereign power. American University Law Review, Vol. 56 (367), Lewis & Clark Law School Legal Research Paper Series Paper No. 2007 – 2. Tillyer, R., & Hartley, R.D. (2010). Driving racial profiling research forward: Learning lessons from sentencing research. Journal of Criminal Justice, 38, 657–665. Van den Heuvel, G.A.A.J. (2003). Reflecties over actueel risicostrafrecht. In P.L. Bal, E. Prakken, & G.E. Smaers (Eds.), Veiligheid of Vergelding (pp. 79-92). Alphen aan den Rijn: Kluwer. Van der Leun, J.P. (2006). Excluding illegal migrants in the Netherlands: Between National policies and Local implementations. West European Politics, 29 (2), pp. 304-320. Van der Leun, J.P. (2010). Crimmigratie. Apeldoorn/Antwerpen: Maklu. Van der Leun, J.P., Kromhout, M., Easton, M., & Weerman, F. (Eds.) (2010). Criminaliteit, migratie en etniciteit: Nieuwe richtingen binnen een complex en beladen onderzoeksterrein. Special issue of Tijdschrift voor Criminologie, 2, 107-121. Van der Leun, J.P., & Van der Woude, M.A.H. (2011). Ethnic profiling in the Netherlands? A reflection on expanding preventive powers, ethnic profiling and a changing social and political context. Policing and Society, 21 (4), 444-455. Van der Woude, M.A.H. (2010). Wetgeving in een veiligheidscultuur: Totstandkoming van antiterrorismewetgeving in Nederland bezien vanuit maatschappelijke en (rechts)politieke context. The Hague: Boom Juridische Uitgevers. Van Praag, P. (2003). The winners and losers in a turbulent political year. Acta Politica, 38 (1), pp. 5-22. Van Swaaningen, R. (2005). Public safety and the management of fear. Theoretical Criminology, 9(3), 289-305. Wansink, H.A. (2004) De Erfenis van Fortuyn: De Nederlandse democratie na de opstand van de kiezers. Amsterdam: Meulenhoff. Weenink, D. (2009). Explaining ethnic inequality in the juvenile justice system.: An analysis of the outcomes of Dutch prosecutorial decision making. British Journal of Criminology, 49, 220-242. Welch, M. (2008). Scapegoats of September 11th. New Brunswick: Rutgers University Press. Welch, M. (2011). The sonics of crimmigration in Australia: Wall of noise and quiet manoeuvring. British Journal of Criminology, 52 (2), 1-21. Wermink, H., De Keijser, J. & Schuyt, P. (2012). Verschillen in straftoemeting in soortgelijke zaken: Een kwantitatief onderzoek naar de rol van specifieke kenmerken van de dader. Nederlands Juristenblad, 11, 726-733. Wetenschappelijke Raad voor Regeringsbeleid (1979). Etnische minderheden. The Hague: SDU Uitgevers. Wetenschappelijke Raad voor Regeringsbeleid (2007). In debat over Nederland. Amsterdam: Amsterdam University Press. Wilson, J.Q. (1989). Bureaucracy: What government agencies do and why they do it. New York: Basic. Wittebrood, K. (2004). Van delictmelding tot officiële aangifte: Sprake van sociale ongelijkheid? Tijdschrift voor Criminologie, 46 (56), 56-71.


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Entering the risk society: A contested terrain for immigration enforcement1

Robert Koulish, Ph.D. *

Risking the governmentality of alternatives to immigrant detention “My point is not that everything is bad, but that everything is dangerous, which is not exactly the same as bad. If everything is dangerous, then we always have something to do. So my position leads not to apathy but to a hyper- and pessimistic activism.”2 “The hidden central issue in world risk society is how to feign control over the uncontrollable- in politics, law, science, technology, economy and everyday life.”3

*

1

2

3

I would like to acknowledge the following people for reading versions of the paper, commenting on panel presentations or otherwise providing feedback to me as I developed this research. Stephanie Flores-Koulish, my wife, partner and best friend; Olivia and Julian; Jon Goldberg-Hiller; Sarah Pedersen, and Michael Rosenberg for their research assistance, Michelle Brane; Maria Joao Guia; Mark Noferi; Ingrid Eagly; Susan Biber-Coutin; Juliet Stumpf; Stephen Legomsky; Hiroshi Motomura, and Alessandro De Giorgi, panel discussants at the 2010 and 2011 Law and Society Association meetings; and colleagues and students at the University of Maryland, and the Center for American Politics and Citizenship (CAPC).The discussions and feedback were splendid. The interpretations of the issues presented in this article are my own. An earlier version of this project appears online in Spiderman’s Web and the Governmentality of Electronic Immigrant Detention Law, Culture and the Humanities 1743872111433376, first published on February 13, 2012 as doi:10.1177/1743872111433376. The online version of this article can be found at: http://lch.sagepub.com/content/early/2012/02/02/174387211143 3376 H. Dreyfus, P. Rabinow, M. Foucault: Beyond structuralism and hermeneutics, with an afterword by and an Interview with Michel Foucault, The University of Chicago Press, Chicago,1983, 231-232 U Beck, and E Beck-Gernsheim, Individualisation: institutionalised individualism and its social and political consequences, Sage, London, 2002, 41.


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I


Introduction: Risking Alternatives to Detention (ATD)

Since 2004, the Department of Homeland Security (DHS) has assessed risk as a useful technology for calculating and managing undocumented immigrants. Uncertainty, which is the focus of risk analysis, applies to nearly every aspect of undocumented status, from the immigrants’ decision to leave their country, to crossing borders and living on the lam, to society’s understandable fear of the unknown about a population of brown people that reside in their communities without papers or authorisation. Thus, it seems almost fated that undocumented immigrants would be subjected to risk technologies. In this chapter I examine two discordant themes in the immigration enforcement discourse: modernism, which covers sovereignty and plenary powers, and late modernism, which focuses on post-sovereignty and risk. The modernist theme, as many scholars throughout the ages have shown, focuses upon rationality and the idea of individual mastery over circumstance. In the immigration context, the modernist theme emphasizes immigration laws that claim to maintain the territorial integrity of the sovereign nation-state.4 As Anthony Giddens suggests, the nation-state “develops only as part of a wider nationstate system, has very specific forms of territoriality and surveillance capabilities, and monopolizes effective control over the means of violence” (Giddens, 1991). In this chapter, I suggest Congress’s plenary powers over immigration are analogous to the monopoly of control. Further, the contested terrain between modern and late modern discourse is quickly edging towards the latter, which favours risk management as the dominant frame for immigration control. Gone, perhaps forever, is the promise of territorial integrity (secure borders), and in its place risk informs a new agenda of spatial control and surveillance capabilities. A sharp contrast exists between the modern scenario of preventing unwanted noncitizens from entering the country, and late modern efforts to manage immigrants after they arrive. The risk society concedes unauthorised border crossing. It develops the idea that undocumented immigration is a global phenomenon that transgresses sovereign borders both in its origins and destination. Like other post-sovereign phenomena – like AIDS or global warming or even radioactive tuna swimming from Japan into the fishing nets of US fishermen off the shores of San Diego, California – undocumented immigration is unimpeded by law. In fact, the government’s focus on the social control of undocumented immigrants is a sign that sovereignty has become an anachronism.

4

The origins of the notion of the sovereign nation-state can be found in the Peace of Westphalia in 1648. The idea is based on territoriality and the absence of external agents in domestic affairs. Put another way, the modern nation-state has mastery over domestic circumstance, a thoroughly modernist concept.


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Undocumented immigration comprises post-sovereign risk that is in league with AIDS, global warming and toxic sea life. This analogy asserts two things:5 First, government regulations are about as likely to stop undocumented immigrants (as a population not discrete individuals) as they are to stop any postsovereign phenomenon from crossing sovereign boundaries. Such phenomena are no longer perceived as stoppable dangers; rather they are manageable risks. Second, risk narrative makes playful associations between constructs like undocumented immigration and real hazards to human life like AIDS and global warming, to real and deleterious effect. Such rhetorical analogies can blur very real distinctions between life-threatening catastrophes, like AIDS or global warming, and undocumented migrants. They also suggest how criminalisation emerges from the risk discourse. As the years following 9/11 showed, it is easier to criminalise human beings if we first analogise them to some potential border-crossing, global catastrophe. I would also suggest that criminalisation is a fundamental risk strategy. At the same time, however, the risk discourse contains modes of social control that extend beyond criminalisation. Consider President Obama’s recent executive order that suspends the removal of undocumented immigrants who are under thirty years of age and enter the US before the age of sixteen. The executive order is an example of risk management. It brings undocumented young people into the system, and provides them some freedom but few rights. The immigrants’ status could be revoked at any time without due process. The discussion below about alternatives to detention introduces another social control scenario that exists within the risk management narrative, while including but also extending beyond criminalisation. While the criminalisation of immigrants may ebb and flow depending upon the sways of the political climate, the risk discourse is more representative of a new regime that guides the development of database technologies of social control. Risk plays a fundamental role in the undocumented immigration discourse in several ways. The border crossing experience for any discrete undocumented immigrant is fraught with risk. At a meta-level, undocumented immigration itself poses a risk to the integrity of the sovereign nation-state. Risk applies to territorial borders themselves as well as to basic government functions, which have to do with caring for and protecting people within territorial borders. As obvious as it sounds government protects and serves only the populations it knows about, which in many instances excludes undocumented immigrants. As an outcome, undocumented populations are ostensibly ungovernable, which constitutes risk for them and government as well as other populations

5

By no means am I suggesting moral equivalency between undocumented immigration and any of these other phenomena.


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within territorial boundaries. Consider an undocumented immigrant whose status prevents her from obtaining health insurance under the Affordable Care Act (Aguilera, 2012). She contracts a contagious illness; it spreads into the larger community and quickly becomes a risk to public health. In this discrete instance, we can see how undocumented populations are perceived as both atrisk and a risk to others, and thus also illustrate the schizophrenic way in which society sees undocumented immigration. As society seeks to penalise undocumented immigrants for their status, it harms itself in the process. Since the purpose of risk management is to regulate (not prevent or get rid of) uncertainty, the government uses risk management techniques to collect data on populations of people about whom not much had previously been known. In this way, the government gains knowledge and power over elusive populations that by definition are ostensibly ungovernable. To the extent the government gets to know an undocumented population, it gains the capacity for governing it and protecting and caring for it. This has been a missing link in the development of federal immigration policy. For over a century, the government has had the power (recognized by the courts) but not the capacity to govern undocumented populations. Now, it seems, it has both. Governing strategies can take one of three possible approaches: 1) caring for ‘at risk’ populations (a liberal approach); 2) protecting against a risk-laden population (a neoliberal approach); 3) providing some combination of the two. Regardless of the governing strategy, risk technology goes a long way towards addressing a fundamental concern with undocumented immigration. Along the way, managing undocumented populations in post-9/11America has also become a lucrative endeavour. In recent years, as the modernist venture documents one failed border defence project after another, late modern riskrelated initiatives highlight effective and lucrative alternatives. Highly marketable opportunities for private management firms highlight strategies for managing brown populations that have crossed the border and now reside in domestic cities and towns. In Section 2, I describe the governmentality of immigration control. This discussion focuses on the ‘conduct of conduct’ of immigration control. It deals with how professionals think about immigration control, the discourse they use, and how technologies of control are established and deployed. The modern/late modern tension introduces two notable modernist technologies of power: sovereignty, defined as the freedom and autonomy that follows the nation-state, and plenary powers, which is a technology of sovereignty, and combines them with the late modern technique of risk management. The ‘exceptional’ nature of plenary powers shifts the focus beyond constitutional


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norms and into the field of power politics (Agamben, 1995). 6 Both approaches to immigration control occupy this realm of power politics. In Section 3, I examine the development of modern immigration enforcement discourses through the lens of Michel Foucault’s notion of the panopticon. The panopticon is the modernist technology of control that subdues bodies by making them docile and productive. It is painless, centralised and limited by its physical structure. Next, in Section 4, I introduce the immigrant risk society, which is the driving force behind late modern immigration control. The immigrant risk society extends control technologies beyond the institutional panopticon and creates a control society, as Gilles Deleuze refers to it. The control society takes us beyond the certainty of the highly rationalised panopticon and into life’s uncertainties outside the walls of physical custody. It also decentralises technologies of control into local communities and organisations. In Sections 5 and 6, I illustrate how risk management drives two alternatives to detention (ATD): a new market-based alternative to detention and a community-based alternative to detention. The two approaches to ATD increase the immigrants’ freedom but still subject them to control mechanisms that constrain liberty. As described below, the constraints embedded in the Intensive Supervision Appearance Program (ISAP) programme are pretty obvious. ATD shifts the locus of control for ATD from closed institutions to open spaces. At issue, following Deleuze, is how privately managed ATD programmes constrain the liberty of ‘free’ immigrants. I address two forms of ATD programmes. The first is a for profit venture that supervises immigrants with electronic monitoring; the second is a non-profit form of community based supervision that supervises immigrants with community support and a variety of professionalized disciplines. The constraint on liberty coming from the privately managed regime is more obvious and punitive; less obvious are the constraints to liberty that are embedded within a new non-profit community support network. These constraints, more productive than repressive, function in lieu of ankle bracelets to discipline immigrants into docile subjects. In conclusion, I suggest an inverse relationship between criminalisation and risk management. Extreme acts of criminalisation are likely to diminish as government finds it is less costly and just as effective to merely ‘constrain liberty’

6

It is in Agamben’s state of exception where questions of citizenship and individual rights are diminished.


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in the new risk society.7 At the same time, the risk society is likely to increase control over the population of immigrants who reside inside the territorial boundaries of the United States. As will be shown, this milder and gentler system of control enhances freedom, constrains individual liberty as it outsources enforcement responsibilities to nongovernmental entities.

2

Competing discourses

In this section, I examine the governmentality of immigration enforcement. Michel Foucault coined the term governmentality during a series of lectures in the late 1970s to connote how problems and technologies of governance are formulated and addressed. Foucault refers to governmentality as the ‘conduct of conduct.’ Following Foucault’s description, I examine a shift in the ‘conduct of conduct’ for immigration enforcement. While metaphors of certainty and integrity are associated with sovereign borders and completeness of plenary powers within modernist discourse, late modern discourse addresses concepts associated with permeability, uncertainty and risk. Thus we see metaphors of territorial integrity that are associated with sovereignty shift to metaphors of border crossing and risk. The late modern metaphors are constitutive of Ulrich Beck’s risk society and Gilles Deleuze’s control society, which I refer to interchangeably. Two crucial aspects of governmentality are worth mentioning. First, according to Judith Butler, ‘governmentality operates through policies and departments, through managerial and bureaucratic institutions, through the law when the law is understood as ‘a set of tactics,’ and through forms of state power, although not exclusively’ (Butler, 2004). Following Butler, therefore, I refer to governmentality in terms of how control tactics operate through policy, i.e., how technologies regulate immigrants into and within society, and punish them within a civil law context. Second, it includes the role private actors play in directing human behaviour. This includes how individuals shape their own subjectivities. Thus, following Cruikshank who examines the technologies, or ethical obligations, of citizenship (Cruikshank, 1999), and Rose who examines self- governance as extending government into the soul (Rose, 1999), I suggest these are some of the ways of seeing neoliberalism, where regulation and discipline are forced upon the autonomous, self-regulating individual. Citizens are positioned as neoliberal subjects; they are active subjects of governance.

7

I put this idea forward tentatively. It remains quite possible that criminalisation will continue to develop as it serves other purposes, such as instilling fear in immigrants and citizens alike. This fear is yet another control technology.


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Late modern governmentality manages the uncertainty of risk. This late-modern discourse is softer than its predecessor and on the face of it more democratic. It puts less emphasis on the palliative functions of enlightenment science and more on its unintended consequences. It creates proactive and self-regulating subjects. The discourse is neoliberal to the extent that self-regulation conforms to well-advertised corporate norms, personal responsibility and entrepreneurship. In this regard, we understand immigration enforcement in terms of the government shifting responsibility for immigrant supervision onto nongovernmental entities and immigrants themselves. Another dimension shows how self-regulation coincides with freedom from detention and legal custody. Such negative freedom (freedom from custody) supports government outsourcing of supervisory responsibilities to non-governmental actors. Since such freedom is not a corollary of having liberty (civil liberty and having rights), such neoliberal freedom can occur within a spectrum of control. In other words, as we see with risk management as well as with alternatives to detention (ATD) initiatives, social control and freedom go hand in hand in late modern society. For example, immigrants in ATD programmes are no longer in custody. They are ‘free’ while at the same time they remain subjected to electronic and community-based control technologies that constrain liberty. This is neither a normatively good or bad thing; rather it is a description of late modern power relationships. In this space, immigrants have the freedom to abide by dominant norms as a result of their own autonomous choices. Thus autonomy and freedom have become constructs of late modern technologies of power. The norms themselves are created, not by ‘the people’ but by professionals in politics, law, business, and administration. Choice is limited to abiding by these norms and being considered normal or worthy, or rejecting them and being seen as abnormal or unworthy. Another way of describing the ‘conduct of conduct’ has to do with how discourse frames rules that subsequently regulate human behaviour (Burchell, Gordon & Miller, 1991). Foucault describes the normative regulation of conduct in terms of normalisation (Foucault, 1977).8 Normalisation is the process of creating citizen subjects and of excluding persons who fail to abide. Since 9/11, we have seen a shift from modern to late modern frames of normalising citizen subjects. Only ‘worthy’ immigrants are allowed to traverse the normalisation process with the intended outcome being the production of a neoliberal subject.

8

Foucault refers to normalisation in terms of idealised norms of conduct. In the context of immigration control, normalisation has to do with using discipline to get immigrants to act as if they were citizens. Normalisation in the immigration context has to do with Americanisation, a process of right conduct for immigrants.


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The normalisation process is multidimensional and even contradictory. It creates a neoliberal subject that passes through the immigrant from a variety of sources. For example, the ATD case management system discussed in the final section illustrates several and at times contradictory discourses of power that come together to create the immigrant subject. Immigrants enter a network of discourses that are intended to address psychic, legal and physical wounds. Only ‘worthy victims’ are allowed to be cared for in this way: the asylum applicants who have shown a credible fear of persecution. ‘Unworthy victims’ are the at-risk immigrants. Government protects society against them; they are not protected. They remain in detention and are likely to receive removal orders by ICE or in immigration court. As for the ‘worthy’ victims, immigrants who volunteer for community supervision are also participants in their own rehabilitation, availing themselves of a variety of disciplines that are deployed through the community support network. Such neoliberal subjects assume responsibility for their own normalisation, while ultimately relying upon the disciplining techniques imposed through a variety of professional disciplines. Foucault has famously written about panoptic power pertaining to sexuality, the asylum, or prison in modernity and late modernity. Gilles Deleuze picks up the Foucauldian torch to examine control in the noncustodial setting. Following Foucault and Deleuze, I discuss immigrant detention and ATD scenarios, a noncustodial form of control. ATD technologies of control pertain to immigrants who are outside custody but whose liberty is constrained both in terms of coercion (external power) and normalisation (power internalised). In the Intensive Supervision Appearance programme (ISAP) discussed below, electronic monitoring is a noncustodial form of control, which places constraints on the immigrants’ movements in space and time. In the Community Support Network (CSN), also discussed below, support communities are assembled to make sure the immigrant reports for hearings and removal. This latter discourse subjects immigrants to dominant service-delivery discourses of knowledge and power. In this scenario, power from competing disciplines rains down upon immigrants as it creates new docile subjects. Both ATD practices guide the subject into voluntary compliance with social norms. ISAP involves coercive pressures as the CSN subject immigrants to intensive surveillance. Put another way, these ATD procedures comprise two somewhat complementary technologies of normalisation. The wisp of plenary powers, as they pertain to informal and thus largely unmonitored administrative initiatives, delimits the government’s power over immigrants in this context. Such examples include Secure Communities and ISAP II. These initiatives deploy plenary (unchecked) powers. They are administered with none of the democratic checks (transparency and accountability) that are typically reserved for administrative rules and regulations.


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Foucault and the Modernity of Immigration Control

In large part, the exemplary status of immigration law derives from interweaving two historically different approaches to sovereignty. Early modern characteristics describe sovereignty in terms of self-preservation (Foucault, 1977). Rogers Smith has written extensively about how the exclusionary threads of immigration law are irreconcilable with liberalism (Smith, 1993). These illiberal threads are rooted in the early modern conception of sovereignty that play out in both the process and substance of immigration law. In terms of process, the doctrine of plenary powers gives Congress nearly unchecked authority to establish processes for detention and removal. In terms of substance, Congress enjoys the same power to exclude any category of immigrants of its choosing, accountable only to the court of public opinion. The modernist discourse emphasises territorial integrity, which ostensibly provides for the general population’s safety and wellbeing (e.g., health, sanitation, mental and physical capacities). The plenary power to exclude facilitates territorial integrity. The modern immigration discourse originates in the early administrative state where expert knowledge and plenary power first intersected in the early 1890s. The opening of Ellis Island in 1892 and naming of the first immigration commissioner ushered in this new administrative capacity. Using the expertise of doctors, researchers and other public servants, Ellis Island became one of the first sites where administrative and plenary powers crossed for the purpose of inspecting and monitoring immigrants coming off the passenger boats at ports of entry. Modern discourse originates at this intersection. The inspections compared new immigrants from southern and eastern Europe against the norm of the first wave immigrants from northern and western Europe. Immigrant exclusions were based upon social Darwinist understandings of these latter immigrants as genetically inferior to their predecessors. Many of the categories that excluded immigrants, such as those in the 1882 legislation (lunatics, idiots convicts and those likely to become a public charge), perceived immigrants as behaving in ‘ape-like’ ways. These immigrants were perceived as either burdens ‘on the public purse,’ or ‘unassimilable’ (Torpey, 2000). Such immigrants were excluded while the immigrants who entered the country were put on a two-year probationary period as potential burdens ‘on the public purse’. Once experts determined immigrants were unfit to disembark, they were put into the cells at Ellis Island, where they remained until a ship could return them to their country of origin. Others were detained for a while some indefinitely, as others were subjected to ‘scientific’ experimentation, and then released into the country or returned home. Since the earliest days at Ellis Island, immigrant detention has served as a quintessential example of the Foucauldian panopticon. According to Foucault,


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Social Control and Justice “Power has its principle not so much in a person as in a certain concerted distribution of bodies, surfaces, lights, gazes; in an arrangement whose internal mechanisms produce the relation in which individuals are caught up… . So, it is not necessary to use force to constrain the convict to good behavior, the madman to calm, the worker to work, the schoolboy to application, the patient to the observation of the regulations… . He who is subject to a field of visibility, and who knows it, assumes responsibility for the constraints of power; he makes them play spontaneously upon himself; he inscribes in himself the power relation in which he simultaneously plays both roles; he becomes the principle of his own subjection.” Foucault (1977)

Since Chae Chan Ping, immigration control has provided an example of how the modern state deploys sovereign power on immigrants. Early court cases constructed a scenario of danger that helped rationalise the use of prerogative powers as the basis for immigration control. Justice Field’s opinion in Chae Chan Ping appeals to sovereignty as the power of self-preservation that was needed to deal with crisis and potential crisis situations, coming as a result of war or, put another way, from ‘vast hordes of people crowding upon us’.9 Field also suggests that a function of sovereignty, which deploys plenary powers, is to repel warlike dangers. “The existence of war would render the necessity of the proceedings only more obvious and pressing. The same necessity, to a less pressing degree, may arise when war does not exist, and the same authority which adjudges the necessity in one case must also determine it in the other. In both instances, its determination is conclusive upon the judiciary.”

In discussing plenary powers, the Court provides the rationale for shifting the short-term exception into a long-term policy: ‘The same necessity, in a less pressing degree, may arise when war does not exist.’10 Here, the exception becomes the rule for governing immigration. Indeed the perception of the potential danger of the alien other was and remains the key rationale why sovereignty persists as the basis for immigration law. Just a few years later, in Fong Yue Ting, Justice Gray extended the government’s rein over immigrants to include immigrants already inside the country.11 The border at issue had to do with law courts. In both instances (Chae Chan Ping and Fong Yue Ting) plenary powers were invoked to protect important institutions. Whereas Chae Chan Ping focused on sovereign powers at the territorial

9 See Chae Chan Ping v. US (1889), which is the first of a series of Supreme Court cases to discuss plenary powers in the context of immigration exclusion. 10 Ibid. 11 Fong Yue Ting v US 149 US 698 (1893) extended plenary powers to include deportation scenarios.


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border Fong Yue Ting applied the same super power to persons inside the country. Chinese exclusion and Cold War immigration cases, which played a fundamental part in the development, some say stunted, of immigration law, portray undesirable immigrants as posing a threat to US society. The discourse suggests that stricter immigration laws enacted under the doctrine of plenary powers would remove the threat and effectively seal ports of entry. With unlimited power, it seems, the government could master all circumstance, ward off any threat and keep sovereignty intact. This discourse, which promises to secure borders in exchange for plenary powers, crumbles under the realities of undocumented immigration. The promise it seems simply could not be kept.

4

The Immigrant Risk Society

Foucault observes that the primary function of the modern nation-state is to intervene, manage, and protect its inhabitants so as to maximise wealth, welfare and productivity (Lupton, 1999). “The things with which in this sense government is to be concerned are, in fact, men, but men in their relations, their links, their imbrication with those other things which are wealth, resources, means of subsistence, the territory with its specific qualities, climate, irrigation, fertility, etc; men in their relation to that other kind of things, customs, habits, ways of acting and thinking, etc; lastly, men in their relation to that other kind of things, accidents, misfortunes such as famine, epidemics, death, etc.” Foucault (1991, p. 93)

The existence of a substantial undocumented subpopulation in the United States is indicative of a failure of governing. The undocumented population is ungovernable. It is located inside territorial boundaries, off the books and in shadow economies and polities. By definition and practice, the undocumented and hence unregulated population is ungovernable. Severe criminalisation pushes them deeper into the shadows. For example, as local police come to assume federal immigration enforcement responsibilities as part of the Secure Communities initiative or under state mandated “papers please” provisions of Arizona’s anti-immigration law, undocumented immigrants and their families become increasingly loath to report a crime or health problem in their neighbourhoods. As an outcome, the State is less likely to achieve its core mission to protect the residents and provide for wellbeing. Such are some of the condition of the immigrant risk society. Ulrich Beck suggests several stages to the risk society. First is the construction of risk; second is the recognition of risk; third is the strategising to manage risk.


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First, Beck refers to reflexivity as occurring when risks are produced, but society has yet to concede them.12 The risk that coincides with undocumented immigration may be traced to the immigration policies of the 1960s and 1970s, which placed ceilings on the number of visas the government gave to non-citizens from the western hemisphere countries hoping to reside in the United States. When per country caps were placed on migration from Mexico, a huge spill over entered the country without authorisation. Next, by 1976 society starts to concede the risk produced shortly after the Immigration Act of 1976. For much of the next generation, the modernist discourse would prevail, but along the way concessions to uncertainty and the inevitability of undocumented immigrants laid the groundwork for a new discourse. Beck refers to this reflection stage, which involves self-confrontation, and concedes the unanticipated consequences of modernist policies and programmes. To all intents and purposes, this reflection stage became salient during the latter 1970s when the Carter Administration initiated efforts to militarise the border, and 1980s, when President Reagan signalled the demise of the modernist discourse with his assertion that border states (on the Mexico border) had ‘lost control’ to an ‘invasion’ of ‘illegal Mexican immigrants’ (Durand, Massey & Parrado). It was during this time that the State conceded the risk that its own policies and practices had produced. Rather than sealing off the border, a last failed modern claim on territorial integrity and a technological and political impossibility to boot, a new narrative of controlling immigrants that were already present in the country gained steam with the Employer Sanctions provision of the Immigration Reform and Control Act of 1986. Although employer sanctions were poorly devised and proved impossible to enforce, the reliance upon ID technology (by 1980s standards) as a means of controlling immigrants who were already here signalled a strategy shift and helped pave the way for a new discourse. Third, the new discourse seized upon the modernist project of detention and immigrant removal and soon established its own narrative space. At first, the first immigration-related response of strict criminalisation and securitisation (Rickerd, 2011) merely ‘double downed’ on an unfulfilled promise of a restored and whole sovereignty (Wadhia, 2009). The modernist project, however, could not handle the certainty in its own narrative. The SBInet fiasco of 2006 followed by DHS Secretary Napolitano’s quip

12

The existing undocumented immigration problem is an outcome of several late 20th century initiatives including immigration policies that set a visa ceiling on neighbouring countries in the western hemisphere, maquiladora programmes and NAFTA which opened the US Mexico border for commerce and kept it closed to migrant labour.


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in 2008, ‘You build a 50-foot wall, somebody will find a 51-foot ladder,’13 provided evidence of the dying discourse. The SBInet fiasco promised a virtual fence and then delivered a panoptic gaze that could not distinguish a human being from a deer or raccoon (US GAO, 2008). Even with plenary powers and technological advances, it turns out Congress still lacked the ability to stop undocumented immigration. The modernist promise of mastery was unable to contend with the uncertain realities of the Post-9/11 world. After September 11, a whole new rationality began to grasp how the government was to handle immigration enforcement. Perhaps the risk society starts with the establishment of the Department of Homeland Security and the shift of immigration enforcement from the Department of Justice to the Department of Homeland Security secured the application of the security moniker to immigration.14 Under the DHS banner, immigration is officially a security concern, which brings risk analysis into the realm of immigration control. When ICE was established in 2003, it transformed its methods of operation previously used by the Immigration and Naturalization Service (INS) and introduced new state of the art technologies of control. Perhaps most indicative of the new discourse is how biometrics (ankle bracelets and databases, hair samples and radio frequency identification—RFID-tags) started to replace the watchtower as the dominant tools for surveillance, and passwords and digital databases quickly replaced human signatures and bureaucratic case file numbers (paper trail) (Deleuze, 1992). Instead of having to carry documents on one’s person as recently ordered by Arizona state authorities in SB 1070, or as customs authorities ordered over a century ago certifying lawful presence of Chinese labourers during the 1890s, under these new initiatives biometric data are stored within databases, which recognise RFIDs, ankle bracelets, retinas, and fingerprint or DNA. These new technologies extend the capacity to mine data about populations and further distinguish members and non-members within their territorial borders. Such are the technologies of the new risk management discourse. Risk management techniques The DHS approach to risk management originates after the September 11 attacks in efforts to render the homeland secure from future terrorist attacks. It initially launched a plan to ‘assess risks and vulnerabilities’ (CRS, 2007). The plan consisted of establishing a ‘minimum infrastructure’ of risk control technologies in every state and city, and then supplement minimal resources in areas with the ‘highest risks and vulnerabilities.’ The plan was to be implemented by enlisting state and local assistance (CRS, 2007).

13 14

E. Sullivan on Associated Press, Nov 20, 2008 Sections 402 and 421 of the Homeland Security Act of 2002, P.L. 107-29, transfer authority for immigration matters, to the Secretary of DHS.


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In 2005, Michael Chertoff, former DHS head, first introduced risk into the immigration lexicon at his confirmation hearings. Chertoff later said, ‘We must make tough choices about how to invest finite human and financial capital to attain the optimal state of preparedness. To do this we will focus preparedness on objective measures of risk and performance. Our analysis will be based on these three variables: threat, vulnerability, and consequence.’15

From this point onward, ICE would use the DHS template to organise its own operations in terms of preparedness for some future unknown event. At first the pursuit of undocumented immigrants was conflated within the manhunt for terrorists. ICE registration initiatives, such as NSEERs and US-VISIT, were enacted with this purpose in mind. As years passed, with growing infrastructure (capacity), such pursuit of potential terrorists would also include potential risks to public safety. Immigrants, particularly undocumented ones, would be adorned with both labels. From a risk perspective, initial data collection is more important than detention, legal hearings and removal. For example, consider how the technological genius of Secure Community collects data during the criminal booking stage of proceedings regardless of what transpires further down the criminal and/or immigration process. Biometric data from the immigrant are fed into FBI and ICE databases (IDENT) regardless of the charge, where it remains even if the charge is eventually dropped. Thus a stop for a flickering taillight could land someone’s data in the database. For all intents and purposes, once the digital fingerprint is entered the immigrant is no longer undocumented. Since such immigrants remain undocumented in a legal sense, they become even more vulnerable to local law enforcement, which has gained access to these technologies through such immigration initiatives as Secure Communities. Secure Communities also hit a nerve because it fulfilled the DHS strategy to extend the control infrastructure into states and cities and to use state and local law enforcement as force multipliers. In this way, local law enforcement quickly became a technology of control within the risk management strategy. After immigrants are arrested and booked by local police, many are then turned over to immigration authorities. Once in immigration custody the immigrant receives a risk assessment test, called Risk Classification Assessment (RCA). The RCA is an automated system that is scheduled for roll out countrywide in 2012. It accounts for a variety of calculations dealing with public safety and the risk of not showing up for a scheduled hearing.

15

Department of Homeland Security, second stage review remarks, July 5, 2005.


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The RCA criteria ostensibly distinguish worthy noncitizens from unworthy ones (Berger, 2009).16 Worthy noncitizens are among those with special vulnerabilities, which include ‘disability, serious medial or mental health needs, risk based on sexual orientation or gender identity, advanced age, pregnancy, nursing, sole caretaking responsibilities or victimisation, including individuals who may be eligible for relief related to the Violence Against Women Act (VAWA),17 victims of crime (U visa), or victims of human trafficking (T visa)’.18 Such victims are ‘worthy’ to the extent they are powerless, abused, moral, responsible, and entrepreneurial. In other words they are worthy because they are no risk. This process is not dissimilar from the Ellis Island Social Darwinist approaches that used psychological testing as a determinant of a human being’s value and worthiness. The unworthy victim is a ‘liar, troublesome, criminal’ ‘and (is) removed from the United States’ (Berger, 2009, p. 214). According to the RCA, the worthy victim (who ostensibly poses no threat) is released from detention while the unworthy victim remains in ICE custody. It just happens that the worthy immigrant is labelled powerless and vulnerable and thus is low risk. That is unless the powerless victim is an asylum seeker. The parole process for detained asylum seekers follows a similar route. Managing asylum seeking and parole As recent ATD strategies suggest, immigration enforcement authorities become less religious in their efforts to detain and deport undocumented immigrants after they gain the capacity and method to regulate, categorise, and survey. Exceptional plenary powers are insufficient in themselves to the task of controlling a population. Technologies of control along with such methods as risk assessment add capacity (previously lacking) to the government’s plenary power over the undocumented population. Since the 1890s, immigration enforcement has included administrative infrastructure, examinations and surveillance of immigrants at formal detentions centres usually located at ports of entry. New techniques of control were warranted, however, to contend with the undocumented immigration routine of entering the country between ports of entry without any formal examination process. Immigrants who were caught by the Border Patrol or ICE were booked at local detention centres where they were subjected to a risk assessment. Some of these noncitizens become eligible for release into ATD regimes. This project focuses

16 17 18

See Berger, 2009, shows how the legal regime distinguishes worthy and unworthy immigrant victims. At the writing of the chapter, Congress is re-examining its commitment to VAWA. ICE Custody Classification System, ‘Instructions for Completing the ICE Custody Classification Worksheet,’ PBNDS (2011) p. 72


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on the role that non-detained noncitizens play in the governmentality of immigration enforcement. Generally speaking, the risk logic is designed to: “… dissolve the notion of a subject or a concrete individual, and put in its place a combination of factors, the factors of risk. Such a transformation, if this is indeed what is taking place, carries important practical implications. The essential component of intervention no longer takes the form of the direct face-to-face relationship between the carer and the cared, the helper and the helped, the professional and the client. It comes instead to reside in the establishing of flows of population based on the collation of a range of abstract factors deemed liable to produce risk.” Castel (1991)

In this passage, Robert Castel clearly distinguishes risk management from a legal narrative. This extra-legal system of control has deep roots in immigration law. It is premised upon the exceptional foundation of plenary powers, which has developed along a trajectory that has more in common with political power than the rule of law.19 The management logic is more closely aligned to politics than law, and lessens the relevance of law in immigration enforcement determinations. Immigration enforcement operates in a distinct manner from legal enforcement systems. Unlike regulatory systems that regulate detained populations for purposes of punishment, rehabilitation or deterrence, the immigration system warehouses and commodifies immigrants within an increasingly privatised system of control. The immigration discourse reconstitutes the immigrant as a neoliberal subject when not removing or detaining immigrants. This occurs though technologies of risk and other forms of control. The seeds for failure regarding federal immigration enforcement were sown as far back as 1976 when public policy restricting visa entries from Mexico coincided with both an intensifying economic demand in the US for cheap labour and a porous 2,000-mile long land border. There is simply no way to prevent undocumented immigration without sealing the border with Mexico, something the Bush and Obama Administrations have tried half-heartedly and all but abandoned. The new immigration enforcement mission contributes to the contradictory message that greets undocumented workers at the border, which says ‘jobs available’ and ‘no entry.’ The mission is to calculate and manage the risk of

19

See D Kenney, P Schrag (2008), for an excellent example of the political nature of the legal process for political asylum applications.


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aving undocumented immigrants favourably respond to the former rather h than be deterred by the latter. It took from 1976 until now for the risk discourse to take hold with 9/11 hastening and then justifying the trajectory of this new path. Now that the risk discourse has taken hold it seems to occupy the heart of ICE’s organisational and enforcement strategy, with many unintended consequences, a couple of which are discussed below. Alternatives to Detention Several recent immigration initiatives create administrative spaces that diminish judicial review of administrative decisions and restrict the liberty of immigrants (Diawara v DHS, 2010).20 These initiatives make use of digital technologies in the enforcement of immigration law. Along the way they leave spaces of unchecked power that are much darker and wider than any discretionary wiggle room immigration officers have historically enjoyed in the course of their law enforcement activities (Koulish, 2012). The ATD programmes introduce a scenario in which immigrants who have neither been arrested nor charged with a crime, nor are in custody are nonetheless forced into a criminal-like process without judicial review. In this scenario electronic devices neither deprive the immigrant of a liberty interest nor amount to a custodial relationship. In other words, being attached to an electronic device is the same as being free. Whereas political branches and courts typically balance the use of control technologies with due process, this immigration scenario circumvents this legitimising process (Motomura, 1990). The important question here has to do with whether or not ATD immigrants are in custody (Diawara v DHS, 2010).21 If ATD immigrants were in custody then the State would be responsible for their care and they would have habeas corpus rights to seek redress against the State. The decision to place ATD immigrants outside custody, however, forces immigrants into a neoliberal subjectivity. They enjoy freedom liberty but the trade off is surveillance of risk.22 For a moment compare the scenario of being released without ATD, and then with ATD. In the former instance, immigrants released from detention (and custody), are suddenly responsible for their own wellbeing and preservation as well as for

20

Diawara v DHS (MD Dist. Court, 2010) suggests immigrants under ERS supervision are neither in custody nor “detained” under the meaning of Zadvydas v Davis (2001). The distinction between detention and custody is somewhat blurry. See Koulish (2012) for discussion of this issue in greater detail. I agree with legal scholar Mark Noferi (personal correspondence on file with author) that this distinction is likely to be further fleshed out in the courts in coming years. 21 Ibid. 22 I would like to attribute this insight to Mark Noferi. The term freedom as I use it in this paper can also be referred to as liberty in an absolute sense, tho in this paper I analogize the term liberty to rights. Thus, I discuss the contradiction between freedom and liberty in this ATD context.


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showing up at the correct immigration court on the correct day and time. This expectation is less ‘freeing’ than it seems, however, because of severe cultural and resource constraints. For example, many immigrants speak no English and thus cannot understand simple date/time and location information printed in English on ‘notice to appear’ forms. For these immigrants ‘freedom’ is challenged by the everyday realities of being a ‘foreign-tongued other’ in an English-speaking world. In the second instance, which I discuss in detail below, immigrants released into ATD gain a modicum of resource support but this advance carries the trade off of being subjected to surveillance for risk.23 ATD/ISAP Origins In 2002, the soon to be former INS introduced the Alternative to Detention Initiative (ATD), a pilot programme that deployed electronic monitoring via radio frequency and global position satellite monitoring and was intended to ensure that ‘aliens released from detention appear for their court hearings.’24 The ATD initiative consisted of three programmes: the Electronic Monitoring Program (EMP), which began in 2007; the Intensive Supervision Appearance Program (ISAP), which was initiated in 2004 and quickly became the most popular of the programmes; and the enhanced Supervision Reporting Program (ESR), which was initiated in 2008. ESR used the same monitoring methods as ISAP with one difference: it required fewer home visits. The ESR contract was also initially awarded to the firm Group 4 Securicor (G4S). In practice, these programmes were distinguishable by their different reporting requirements but are otherwise quite similar. ISAP has been the most popular programme and recipient of the most funds. The programmes are managed through the Office of Detention and Removal Operations (DRO). This consisted largely of electronic monitoring and home arrest, structured reporting requirements and unscheduled home visits. In August 2009, ICE announced plans to overhaul its immigration detention system (Schriro, 2009). One component of this effort has been to accelerate the development of ATD programmes. It is worth noting that neither ISAP nor ESR designers drafted regulations under 8 Code of Federal Regulations (CFR). The programmes were drafted outside Administrative Procedure Act (APA) requirements, with no public notice and comment, i.e., no feedback and no accountability. The lack of public accountability provides an explanation for an investigation reported in the Houston Chronicle that found that ESR ‘suffered from poor data tracking of immigrants

23 Ibid. 24 http://www.aila.org/content/default.aspx?bc=1016%7C6715%7C12053%7C26286%7C26314 %7C10854


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who have absconded from the program’ (Carol, 2009). Such flaws provide examples of the lack of accountability that too often accompanies plenary powers. Funding for ATD programmes started small but quickly grew into a significant financial commitment. In 2002, Congress appropriated $3 million for ATD. In FY 2005, Congress authorised $5 million. The following year its commitment to ATD jumped to $28.5 million (LIRS, 2011). In 2004 ATD was outsourced to Behavioral Interventions (BI), a private firm that specialises in electronic monitoring of criminals.25 In June 2004, BI case specialists were tasked with administering the new programme as a trial run in eight cities including Washington D.C. and Baltimore. The programme relied on ankle bracelets, GPS monitoring devices, telephonic reporting, unannounced home visits and home arrest (curfews) (LIRS, 2011). In July 2009, Detention and Removal Operations (DRO) awarded a $372 million five-year contract to BI Inc. for the Intensive Supervision Appearances Program (ISAPII). At about the same time federal allocations jumped to $63 million in 2009, and approximately $72 million in 2011.26 Since 2010, these three programmes coalesced under GEO Group management at about the same time that this group known for detaining immigrants acquired BI Incorporated for $415 million. It is not insignificant that GEO Group has come to manage both closed detention facilities and ATD (Byrd, 2010). As a private firm seeking to increase its share of the immigrant control market, GEO Group now has no financial incentive to distinguish detained from nondetained immigrants, or to distinguish alternatives to detention from alternatives to release.27 The idea is that GEO Group stands poised to extend its services into the market of immigrants who are not in detention. At the moment about 17,500 immigrants are enrolled in ISAP II and, as LIRS has reported ISAPII is poised to expand its contract with ICE as more offices open from July 2009 through July 2014’ (LIRS, 2011, 25).

25 26

27

See ISAP II, Statement of Work, Contract No. HSCECR-09-D-00002, SOW-30. See ICE Fact Sheets; US Public Law 112-10, April 15, 2011; LIRS 201; S Byrd, Alternatives to Detention and Immigration Judges Bond Jurisdiction, Immigration Law Advisor, April, 2010, See http://www.justice.gov/eoir/vll/ILA-Newsleter/ILA%202010/vol4no4.pdf My point here is to draw an analogy to vertical integration in the corporate world, a form of management control in which different functions in a supply chain have the same owner. It is not to suggest that GEO Group would lobby against itself for detention or ATD. Rather GEO stands to profit regardless of government priorities to detain or release immigrants from detention. They now cover two different market functions (detention and release from detention) within the immigration enforcement regime.


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6


Alternative to Detention II: Community Support Network

ATD also exists as a private, not for profit alternative to the market-based model. In this section I introduce a pilot initiative that extends the State’s gaze as it subjects asylum seekers to a variety of control technologies. It subjects immigrants to multiple risk assessments in detention (risk classification assessment, a credible fear interview and parole interview) and several more after release from detention. After immigrants voluntarily enter the community support network (CSN), they are exposed to expert disciplines in the legal and helping professions, all designed for the purpose of getting immigrants to show up for their court hearings and removal. When asylum applicants notify immigration authorities at ports of entry that they would like to apply for political asylum, they are placed in expedited removal,28 which means they are also placed in mandatory detention. Until recently, such asylum applicants would linger in detention for weeks or months, sometimes longer. In January 2010, ICE rolled out a UNHCR inspired recommendation to parole immigrants who have established ‘credible fear,’ and order them released from custody. After asylum seekers establish credible fear, they become eligible for a parole interview.29 The parole test is similar to the RCA test that determines whether immigrants may be released into ISAP. In this instance, however, risk classification is used to determine whether asylum applicants are to be released into the CSN pilot programme. Yet, whereas ‘worthy victims’ might still have been excluded a century ago as public charges, they now reside inside the country albeit without formal status.30 Origins of CSN The CSN idea sprung from the May 2011 Global Roundtable on Alternatives to Detention held in Geneva. The roundtable was hosted by the United Nations High Commission for Refugees (UNHCR) and was attended by four UN agencies, non-governmental organisations (NGOs) and government representatives from over a dozen countries. The meeting was a way for countries to share their experiences, best practices lessons learned, and discuss remaining gaps in considering alternatives to immigration detention. It was also in response to this

28 29

30

INA Section 235(b). US Immigration and Customs enforcement parole of arriving aliens found to have a credible fear of persecution of torture, online at http://www.ice.gov/doclib/dro/pdf/11002.1-hdparole_of_arriving_aliens_found_credible_fear.pdf. As parolees they have not been formally admitted into the country. This status ensures their fate may be determined by the classification system of multiple professional disciplines (legal, psychological and social work). These professionals now have the task of rendering authoritative judgments about how immigrants are faring in their new surroundings. As a result of how they fare, parolees could be returned to detention or be deported.


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discussion about best practices in Australia and gaps in the United States that representatives from ICE and US-based NGOs devised the idea for the CSN. CCSN, the Gaze and Normalisation This community-based alternative to detention provides the State with an occasion to delegate some of its sovereign responsibilities to service providers in civil society. According to an agreement between ICE and NGOs, the CSN is intended to “… demonstrate that providing non-profit case management and access to holistic services (e.g., legal, psycho-social, medical, housing) helps ensure the release from detention for those who do not need to be detained, increases appearance rates at immigration court hearings and ICE appointments and promotes increased individual health and well-being and successful long-term integration of those granted relief at the end of their removal proceedings.”31

From the look of the CSN plan and conversations I was privy to, the CSN intends to deliver immigrants to freedom and provide them with access to legal, psychosocial, medical and housing services. According to LIRS, the sponsoring NGO, the CSN will provide “… access to stable housing, intensive case management, and legal representation provided by non-profit employees that are accustomed to working with traumatised foreign-born individuals will encourage rehabilitation and social integration and compliance with immigration proceedings.”32

And it will do so at much lower cost than detention. Thus we see the CSN as combining two agendas: the State intends to get immigrants to appear in court at the lowest possible cost, and NGOs are committed to seeing low risk immigrants released from detention and exposed to legal assistance, medical care and social services. A new power/knowledge emerges from this win-win scenario using technologies of quantitative data collection and the adoption of case management processes. The technologies consist of risk assessment and a variety of case management and professional tests and examinations. They also trigger the normalisation of this undocumented population. A fair amount of data is produced, and much of it ends up in government databases. The CSN also establishes a new locus of power over immigrants that connect non-profit management, expert knowledge (legal, psychological and social work) with the institutional power of the Department of Homeland Security.

31 32

Personal correspondence 1 on file with the author, April 2012. Personal correspondence 2 on file with the author, April 2012.


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Social Control and Justice “This model will work as a complement to current local enforcement and removal operations (ERO) supervision and support our officers to make decisions to release individuals that do not need to be detained. Commitment to this pilot will allow ICE to affirmatively demonstrate its receptivity to its international obligations as well as recommendations made by NGO and academic reports on the issue of alternatives to detention. This initial pilot also helps ERO explore whether this non-profit service delivery model supports appearance rates at a lower cost.”33

Along the way the discourse creates a normative non-citizen subjectivity, which is to be law abiding, dependent and docile. This occurs as the State extends its gaze over the undocumented population. The gaze is extended by agreement between ICE and the participating NGO community. The agreement also tacitly shifts the locus of the state’s gaze from the detention centre into and through civic and professional organisations. While the government extends its gaze over immigrants it outsources risk and responsibility to the CSN. The NGO network subsidises the project through private grants, philanthropy and fundraising and thus assumes nearly all the financial risk. The network also assumes responsibility for the care and wellbeing of persons whose temporary parole status reinforces ICE’s plenary seeming power over them. Finally, ICE can revoke this temporary parole status at any point in the process, at whim, which enhances their leverage over the immigrant and CSN. Thus the entire experiment occurs under the unchecked, or plenary, ICE authority. Although the State relinquishes direct physical control over immigrants, it gains even more data about populations of undocumented immigrants. About a year after the plan was hatched, asylum applicants in six regions around the country had volunteered to participate in the CSN pilot programme. By fall 2012, they will have been released from detention at the doorstep of one of the community support providers and continue their asylum claims under CSN supervision. Although the outcomes for this pilot won’t be known for quite some time, the CSN introduces a new element to the governmentality of immigrant ATD. It suggests new technologies in noncustodial control over undocumented immigrants that facilitates efforts at data collection and risk assessment even during periods of government retrenchment. In this new neoliberal sensibility, the government widens its control net over non-detained immigrants, and now it does so within a post-human rights discourse. This new, late modern discourse addresses the uncertainty that marks the undocumented population. It also deals with some of the concerns of immigrant rights advocates, while prom-

33 ibid


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ising to cut costs. All the while, it extends disciplining technologies into and through local immigrant communities.

7 Conclusion In this chapter I have examined the clash between modern and late modern immigration discourses in immigration enforcement. My premise is that a new control discourse has emerged and is edging closer to fruition in the aftermath of 9/11. It adapts the modernist foundation for immigration control- plenary powers- to the late modern reality of administrative and private initiatives. It is a ‘gentler and milder’ form of neoliberal control that transfers responsibility (risk) to nongovernmental entities including the immigrants themselves. As effectiveness and efficiency increase for government, freedom increases for the immigrant: a seemingly win-win scenario. This new regime manages the risk that is related to having a population of people about whom not much is known. As discussed, undocumented immigration is a late modern (post-sovereign) phenomenon. The purpose of risk management is to identify and discipline the undocumented population that resides in cities and towns across the country. Thus, in this new regime, immigration control focuses less on the sovereign concern for territorial integrity and more on the late modern interest in population management. I subject this late modern phenomenon to critical examination, using the case study of recent alternative to detention scenarios. The new risk society focuses on worthy victims and for the first time extends immigration control over a population of immigrants that have been released from detention. This new immigrant freedom is also a subject of examination, as I contend it is a freedom without much liberty. In part this is because the new discourse pays little attention to legal requirements and, with it, individuals rights and liberty. New technologies of power are deployed with the intent of gathering data. Such new data systems replace individual rights as the preferred technology of care and protections. Within new support communities, immigrants experience technologies of power from a variety of locus points, from private firms and non-profit social service providers. I have attempted to prove this argument with reference to immigrant alternative to detention. Immigrants in ATD programmes have limited access to courts and are denied important rights that similarly situated persons receive in the criminal process. I imagine that such noncustodial alternatives to detention represent a future direction for immigration enforcement: normalisation on the cheap, which creates law abiding and dependent victims. As long as a risk society can manage the risk of undocumented immigration, -- that is, identify and normalise undocumented immigrants-- more costly and drastic methods of criminalisation are likely to be unnecessary.


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Given the likelihood of the risk society continuing to develop in the foreseeable future, the larger questions, I think, also have to do with how risk discourse constructs new ways of seeing freedom and liberty in immigrant communities; how it leads immigrants into yet more webs of control, and how democracy might experiment with new ways of addressing the risk society.

References Agamben, G. (1998). Homo Sacer Homo Sacer Sovereign Power and Bare Life (Translated by Daniel Heller-Roazen) Stanford, Ca.: Stanford University. Agamben, G. (2004). Retrieved May 20, 2012. (http://www.germanlawjournal.com/pdfs/ Vol05No05/PDF_Vol_05_No_05_609-614_special_issue_Raulff_Interview.pdf) Aguilera, E. (June 28, 2012). Health care law excludes undocumented immigrants. San Diego: U-T news. Aleinikoff, A. (1990). Citizens, aliens, membership and the Constitution, Const. Comm. 7. Aleinikoff, A. (2002) Semblances of Sovereignty: The Constitution, the State, and American Citizenship, Cambridge: Harvard University. American Immigration Lawyer’s Association, ‘Position Paper: Alternatives to Detention,’ July 3, 2008 Baili, A. (2006). Scapegoating the vulnerable: preventative detention of immigrants in America’s war on terror, Stud. In Law, Pol. Soc’y 38, 54. Berger, S. (2009). (Un)Worthy Latina: battered immigrants under VAWA and the construction of neoliberal subjects. Citizenship Studies. 13, 3, 214. Brubaker, R. (1992). Citizenship and nationhood in France and Germany. Cambridge MA: Harvard University. Burchell, G, et al. ed.. (1991). The Foucault effect: studies in governmentality. Chicago, Ill.: University of Chicago. Butler, J. (2004). Indefinite detention, in precarious life: the powers of mourning and violence. New York: Verso Press. Byrd, S. (2010). Alternatives to detention and immigration judges bond jurisdiction, Immigration law advisor (EOIR). See http://www.justice.gov/eoir/vll/ILA-Newsleter/ILA%202010/vol4no4. pdf, 2010 Carol, S. (October 6, 2009). Flaws found in options for immigrant detention, Houston Chronicle. Castel, R. (1991). From dangerousness to risk, in The Foucault Effect.. Catholic Immigration Network (CLINIC). (2000). The needless detention of immigrants, Washington: U.S. Catholic Conference. Chacon, J. (2009). Managing migration through crime Columbia L. Rev. 109, 135. Cole, D. (2003). The New McCartheyism: Repeating the History in the War on Terrorism, Harv. C.R.-C.L. L. Rev. 38,3. CRS Report for Congress. (Feb. 2, 2007). The Department of Homeland Security’s risk assessment methodology: evolution, issues, and options for Congress. Cruikshank, B. (1999). The will to empower: democratic citizens and other subjects. Ithaca and London: Cornell University Press. Deleuze, G. (1992). Postscript on the societies of control. October 59. Cambridge, MA.: MIT. Dean, M. (1999). Governmentality: power and rule in modern society. London: Sage. Eagly I.(2010). Prosecuting immigration. Northwestern University Law Rev., 104, 4 Foucault, M. (1977). Discipline and Punish: The Birth of the Prison. New York: Pantheon. Giddens, A. (1991). Modernity and Self-Identity: Self and Society in the Late Modern Age. Stanford Ca.,: Stanford University.


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Kenney, D. and Schrag, P. (2008). Asylum denied: a refugee’s struggle for safety in America. Berkeley: UC Press. Koulish, R,(2012). Spiderman’s web and the governmentality of electronic immigrant detention. Law, culture and the humanities. 1743872111433376, first published on February 13, 2012 as doi:10.1177/1743872111433376. Koulish, R. (2010). Immigration and american democracy: subverting the rule of law. New York: Routledge. Koulish, R. (2008). Blackwater and the privatisation of immigration control. St. Thomas Law Review. 20. Legomsky, S. (1984). Immigration law and the principle of plenary power. Congressional Power. Supreme Court Review. 255. Legomsky, S. (1987). Immigration and the judiciary: law and politics in Britain and America. Oxford: Oxford University. Legomsky, S. (2007). The new path of immigration law: asymmetric incorporation of criminal justice norms. Washington & Lee Law Review, 64. Lutheran Immigration and Refugee Services (LIRS). (2011). Unlocking Liberty: A Way Forward for US Immigration Detention Policy. Manning, S. Boell, J. Rotman,J. for the ... (n.d.). Retrieved from http://www.aila.org/content/ default.aspx?docid=29251 Meyer, J F. (2004). Home Confinement with Electronic Monitoring. in Intermediate Sanctions in Corrections 97, 104-09. Motomura, H. (1990). Law After a century of plenary power: phantom constitutional norms and statutory interpretation, Yale L.J.,100. Murphy, E. (2008). Paradigms of restraint. Duke L. J. 57, 1321. Provine, DM. (2007). Unequal under law: race in the war on drugs. Chicago: University of Chicago. C Rickerd. (May 6, 2011). Homeland Security suspends discriminatory immigration programme. Retrieved from http://www.aclu.org/blog/immigrants-rights-racial-justice/homeland-security-suspends-ineffective-discriminatory Roberts, J, (2004). The Virtual Prison: Community Custody and the Evolution of Imprisonment. Reardon, G. (Sept 8, 2008). Immigrants fights restrictions at home. City Limits. Rose, N. (2009) Governing the soul: the shaping of the private self. London: Free Association Books. Saito, N. (2003). The enduring effect of the Chinese exclusion cases: The ‘plenary power’ justification for on-going abuses of human rights. Asian Law Journal, 10. Schriro, D. (2009). ICE, DHS, Immigration Detention Overview and Recommendations. available at http://www.ice.gov/ doclib/091005_ice_detention_report-final.pdf. Smith, R. (1993). Beyond Tocqueville, Myrdal and Hartz: the multiple traditions in America. American Political Science Review, 87(3): 549-566. Stumpf, J. (2006). The crimmigration crisis: immigrants, crime and sovereign power, 56 American Univ. L. Rev., 56. Torpey, J. (2000). The invention of the passport: surveillance, citizenship and the state Cambridge: Cambridge University. US GAO. (2008). Secure border initiative: observations on selected aspects of SBInet programme implementation, US Government Accountability Office. GAO-08-131T. Vedantam, S. (Nov. 12010). Call for help leads to possible deportation Washington Post. Zhang, S, Polakow, R & Nidorf, B. (1995). Varied uses of electronic monitoring: The Los Angeles experience, in Intermediate Sanctions: Sentencing in the 1990s 3, 3-4.

Cases Cited Ashwander v Tenn. Valley Authority., 297 US 288, 341 (345-48 (1936)). Chae Chan Ping v US 130 US US 581 (1889)


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US v. Curtiss-Wright Export Corporation 299 US 304 (1936) Demore v Kim 538 US 510 (2003) Diawara v DHS (2010) Fong Yue Ting v US 149 US 698 (1893) US ex rel. Knauff v. Shaughnessy 338 US 537 (1950) Shaughnessy v US ex rel. Mezei, 345 US 206 (1953) Zadvydas v Davis, 533 US 678 (2001) INS v St Cyr, 553 US 289 (2001) Hensley v. Mun. Court, San Jose Milpitas Judicial Dist., Santa Clara County, Cal., 411 US 345 (1973) Nguyen v B.I., 435 F.Supp. 2d 1109 (2006) Matter of Sanchez, 20 I&N Dec. 223, 225 (BIA 1990) Mendoza-Martinez, 372 US 168 (1963) Jones v. Cunningham, 371 US 236, 243 (1963) Santa Clara County, Cal., 411 US 345 (1973)

Statutes Cited Act of Aug. 3, 1882, ch. 376, sec 2, 22 Stat. 214; Act of Mar. 3, 1875, ch. 141, sec5, 18 Stat 477. Immigration Act, Chap. 376, 214 (1882) Immigration Act. Chap, 551, 1084 (1891) Public Law 104-208, 110 Stat. 3009 (Sept. 30, 1996) Pub. L. No. 104-132, 110 Stat. 1214 (April 12, 1996)


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The Changing Landscape of the Criminalisation of Migration in Europe: The Protective Function of European Union Law

Valsamis Mitsilegas

1 Introduction The past decade witnessed a growing emphasis on criminalisation as a means of enforcing immigration control in Europe. This chapter will map the evolution and content of such criminalisation at the European Union and national level, by exploring the intersection between migration law and criminal law at the level of the European Union, and by examining the challenges that criminalisation poses for the relationship between European Union law and national immigration law. For these purposes, the chapter will employ a narrow definition of criminalisation, which is defined as the use of substantive criminal law to treat conduct related to migration flows as a criminal offence and to impose sanctions for the breach of criminal law. The analysis will take place at two levels: at the level of criminalisation of migration in the law of the European Union; and at the level of the criminalisation of migration by European Union Member States. The first part of the chapter will thus examine the various ways in which European Union law has employed criminal law in order to deal with immigration enforcement. The second part will examine the ways in which Member States of the European Union have criminalised migration and will highlight the limits that European Union law has posed on state sovereignty and the power of the State to criminalise. The chapter will thus test the protective function of European Union law, in setting limits to state power and safeguards for the migrants who fall within the reach of criminal law.


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2


The Criminalisation of Migration in the Law of the European Union

The European Union legislator has adopted a number of measures dealing with the criminalisation of migration. However, and unlike recent trends in certain EU Member States, European Union law has not criminalised the conduct of migrants as such. Rather, the law has focused primarily at targeting individuals who facilitate, in one way or another, irregular migration. Such criminalisation has been founded on a broader process of securitisation of migration, with the phenomena of human trafficking and human smuggling viewed as global security threats linked to the threat of transnational organised crime. A second wave of criminalisation measures has been linked with the broader trend towards the privatisation of immigration control, whereby the private sector (including, in this case, employers) are co-opted by the State to assist in immigration control and to prevent irregular movement or stay. While such criminalisation does not necessarily lead to the imposition of criminal sanctions on migrants themselves, it has potentially a significant impact on their rights and their visibility vis-à-vis the State. Criminalisation as securitisation: the criminalisation of human trafficking and smuggling

The criminalisation of human trafficking and human smuggling in European Union law follows closely the approach adopted by the 2000 United Nations Convention on Transnational Organised Crime (the Palermo Convention), with the European Union playing a key part in its negotiation (Mitsilegas, 2011, pp. 149-178). The Convention includes two Protocols, one on human trafficking and the other on human smuggling. The first major global effort to legislate on immigration control was thus made possible on the basis of security considerations (Mitsilegas, 2012). According to Gallagher “… while human rights concerns may have provided some impetus (or cover) for collective action; it was clearly the sovereignty/security issues surrounding trafficking and migrant smuggling, as well as the perceived link with organised criminal groups operating across national borders, that provided the true driving force behind such efforts.” Gallagher (2010)

Rather than focusing on the rights of migrants, the Trafficking and Smuggling Protocols were justified primarily on the basis of the need to protect states from transnational criminality. This securitisation approach has been criticised heavily for effectively criminalising migration and extending the reach of the State, with James Hathaway arguing that


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“… the focus of the transnational effort against human trafficking on the prevention of cross-border movements created a legal slippery slope in which it proved possible to set a transnational duty to criminalise not only ‘human trafficking’ . . . but also the much broader phenomenon of human smuggling.” Hathaway (2008)1

and that the U.N. intervention is really a pretext for the globalisation of border control.2 The Criminalisation of Human Trafficking The first major legal instrument criminalising human trafficking at EU level has been the 2002 Framework Decision on combating trafficking in human beings.3 The Framework Decision put forward a comprehensive criminalisation framework:4 it established criminal offences for the trafficking in human beings which mirrored to a great extent the definitions of trafficking included in the Palermo Convention5 and called upon Member States to punish these offences with substantial sanctions.6 The Framework Decision prioritised criminalisation and enforcement over the rights of the victims of trafficking, containing only limited and general provisions on the protection of victims.7

1

‘’See Anne T. Gallagher, Human Rights and Human Trafficking: Quagmire or Firm Ground? A Response to James Hathaway 49 Va. J. Int’l L. 789 (2009). 2 Hathaway, supra note 4, at 25-35. 3 COUNCIL FRAMEWORK DECISION of 19 July 2002 on combating trafficking in human beings (2002/629/JHA) L203/1, 1.8.2002. 4 For an analysis of the 2002 Framework Decision see Obokata, (2003; pp.917-936). 5 Article 1(1) of the Framework Decision calls upon Member States to take the necessary measures to ensure that the following acts are punishable: the recruitment, transportation, transfer, harbouring, subsequent reception of a person, including exchange or transfer of control over that person, where: (a) use is made of coercion, force or threat, including abduction, or (b) use is made of deceit or fraud, or(c) there is an abuse of authority or of a position of vulnerability, which is such that the person has no real and acceptable alternative but to submit to the abuse involved, or (d) payments or benefits are given or received to achieve the consent of a person having control over another person for the purpose of exploitation of that person’s labour or services, including at least forced or compulsory labour or services, slavery or practices similar to slavery or servitude, or for the purpose of the exploitation of the prostitution of others or other forms of sexual exploitation, including in pornography. 6 See in particular Article 3(2) which called for high levels of sanctions (imprisonment with a maximum penalty of no less than eight years) if any of the following aggravating circumstances have occurred: (a) the offence has deliberately or by gross negligence endangered the life of the victim; (b) the offence has been committed against a victim who was particularly vulnerable (a victim shall be considered to have been particularly vulnerable at least when the victim was under the age of sexual majority under national law and the offence has been committed for the purpose of the exploitation of the prostitution of others or other forms of sexual exploitation, including pornography) (c) the offence has been committed by use of serious violence or has caused particularly serious harm to the victim; (d) the offence has been committed within the framework of a criminal organisation. 7 See Article 7.


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A similar approach to victims’ rights was also reflected in the subsequent Directive on Residence Permits to Victims of Trafficking,8 which was adopted with the specific purpose “… to define the conditions for granting residence permits of limited duration, linked to the length of the relevant national proceedings, to third-country nationals who cooperate in the fight against trafficking in human beings or against action to facilitate illegal immigration.”9

The Directive places a duty on Member States to consider issuing a residence permit for victims of trafficking if the following conditions are met: the opportunity presented for the victim to prolong his or her stay on its territory for the investigations or the judicial proceedings; the demonstration by the victim of a clear intention to cooperate; and the victim having severed all relations with those suspected of human trafficking.10 The residence permit provided is entirely conditional upon the progress of the criminal proceedings—it will not be renewed if the above conditions cease to be satisfied or if a decision adopted by the competent authorities has terminated the relevant proceedings.11 Security of residence may thus be provided to victims only if they facilitate the prosecution of suspected traffickers. The relationship between the enforcement and protective aspects of EU trafficking legislation has been somewhat rebalanced after the entry into force of the Lisbon Treaty by the recent adoption of the 2011 Directive on Trafficking in Human Beings.12 The Directive, which is the outcome of a co-decision process between the Council of Ministers and the European Parliament, replaces the 2002 Framework Decision in relation to Member States who participate in it.13 The Directive extends and intensifies criminalisation, in particular by expanding the concept of exploitation in the definition of the trafficking offences,14

8 9 10 11 12

13 14

Council Directive 2004/81, 2004 O.J. (L 261) 19 (EC). See Article 1. See Article 8. See Article 13(1), Council Directive 2011/36, 2011 O.J. (L 101) 1 (EU). DIRECTIVE 2011/36/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA (OJ L101/1, 15.4.11) Article 21. Article 2(3) of the Directive calls for the punishment of the recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation includes, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced


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by raising the penalty levels for trafficking in human beings,15 and by expanding the concept of vulnerability as an aggravating circumstance enhancing the penalty threshold for trafficking.16 However, at the same time it includes a wide range of provisions on the rights of victims of trafficking. The Directive includes provisions on the protection of victims of trafficking in human beings in criminal investigation and proceedings;17 on assistance, support and protection measures for child victims of trafficking in human beings;18 on assistance and support to child victims;19 on protection of child victims of trafficking in human beings in criminal investigations and proceedings;20 on assistance, support and protection for unaccompanied child victims of trafficking in human beings;21 on compensation to victims and access to national compensation schemes;22 and on the non- prosecution or imposition of penalties on victims for their involvement in criminal activities they have been compelled to commit as a direct consequence of being subjected to trafficking.23 The new trafficking Directive thus combines a strong criminalisation focus with an emphasis on the need to protect victims of trafficking. However, and notwithstanding the plethora of provisions on victims’ rights, (some of which may be found to entail direct effect and thus can be relied on by affected individuals against the State, even in cases of non or incomplete transposition of the Directive in Member States), it should be noted that a number of these provisions continue to be framed in whole or in part under a logic of prosecutorial efficiency.24 Moreover, the fact remains that victim protection continues, after the adoption of the 2011

15

16 17 18 19 20 21 22 23 24

labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs (Article 2(5)). The Directive now provides for a penalty threshold for all trafficking offences defined therein (a maximum penalty of at least five years of imprisonment). The sentence level rises to a maximum penalty of at least 10 years of imprisonment where one of the following aggravating circumstances occur: the offence was committed against a victim who was particularly vulnerable, which, in the context of this Directive, shall include at least child victims; the offence was committed within the framework of a criminal organisation; the offence deliberately or by gross negligence endangered the life of the victim; or was committed by use of serious violence or has caused particularly serious harm to the victim. Member States must also treat the commission of trafficking by public officials in the performance of their duties is regarded as an aggravating circumstance (Article 4). A position of vulnerability is defined generally as a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved (Article 2(4)). Article 12. Article 13. Article 14. Article 15. Article 16. Article 17. Article 8. Referring to the justification for Article 8 of the Directive, the Preamble states that, ‘… the aim of such protection is to safeguard the human rights of victims, to avoid further victimisation and to encourage them to act as witnesses in criminal proceedings against the perpetrators.’ (Emphasis added) Id. at 3.


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Directive, to be disassociated from security of residence as the 2004 Directive on residence permits for victims of trafficking remains in force. The Criminalisation of the Facilitation of Unauthorised Entry, Transit and Residence

An extensive criminalisation approach has been adopted in the context of the aim of combating human smuggling (or, in more neutral EU terminology, the facilitation of unauthorised entry, transit and residence), with a key question in this context being whether the criminalisation of smuggling would lead to the criminalisation of smuggled migrants themselves. This issue has been partly addressed by the Palermo Convention Protocol on the Smuggling of Migrants. While the Protocol expressly states that migrants will not become liable to criminal prosecution for the fact of having been the object of smuggling,25 the provision on the criminalisation of smuggling expressly states that it does not prevent states from taking measures against a person whose conduct constitutes an offence under their domestic law.26 The Smuggling Protocol thus does not prevent states from treating illegal entry, stay, or residence as such, as criminal offences under their domestic law.27 Moreover, the Smuggling Protocol does not exclude the criminalisation of individuals or organisations providing assistance to individuals for the purposes of them accessing, or remaining in, the territory of states in order to lodge an application for asylum. An expansive approach to the criminalisation of human smuggling is reflected in EU law. The relevant legal framework is set out by a Directive defining what is called, in EU law, the ‘facilitation of unauthorised entry, transit and residence’28 accompanied – in the light of the first pillar competence limits regarding criminalisation at the time (Mitsilegas, 2009, chapter 2) – by a third pillar Framework Decision confirming that conduct which is defined as facilitation in the Directive will be treated as a criminal offence.29 The EU Directive goes further than the Smuggling Protocol in that it dispenses with the condition of obtaining a financial or other material benefit for the smuggling offence to be established.30 The Directive calls upon Member States to adopt criminal sanctions for

25 26

27 28 29

30

Id. at 7. Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the Convention Against Transnational Organised Crime art. 6(4), Nov. 15, 2000, available at http:// www.unhcr.org/refworld/docid/479dee062.html [hereinafter Smuggling Protocol]. Id. Council Directive 2002/90, 2002 O.J. (L 328) 19 (EC). COUNCIL FRAMEWORK DECISION of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence (2002/946/ JHA), L 328/1, 5.12.2002. See art. 1(1) (a), id.


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“… any person who intentionally assists a person who is not a national of a Member State to enter, or transit across, the territory of a Member State in breach of the laws of the State concerned on the entry or transit of aliens… .”

The Framework Decision contains a general obligation for Member States to criminalise such conduct31 and imposes specific high levels of sanctions only when certain aggravating circumstances occur.32 In spite of the lack of specificity as regards the level of criminal sanctions to be imposed by Member States,33 it is clear that the scope of criminalisation at EU level is very broad as it can cover any form of assistance to enter or transit the territory of an EU Member State in breach of what is essentially administrative law (such as cases where the migrant is travelling without travel documents). Such broad criminalisation may have a negative impact on the position of thirdcountry nationals seeking access to the European Union in order to apply for international protection. The scope of the criminal offences prescribed in EU law may lead to the prosecution of any individual or member of an organisation who provides advice or assistance to migrants. The Directive does attempt to address this issue by providing Member States the option not to impose sanctions for human smuggling by applying their national law and practice for cases where the aim of the behaviour is to provide humanitarian assistance to the person concerned.34 However, this provision is discretionary and its value in redressing the balance set out by the broad definition and criminalisation of human smuggling under EU law is questionable. By using the threat of criminal sanctions, the EU measures on human smuggling essentially aim at deterring individuals and organisations from coming into contact and assisting any third-country national wishing to enter the territory of EU Member States.

31

32

33

34

According to the Framework Decision, Each Member State shall take the measures necessary to ensure that the infringements defined in Articles 1 and 2 of the Directive are punishable by effective, proportionate and dissuasive criminal penalties which may entail extradition (Article 1(3)). Article 1(6) of the Framework Decision further states that the imperative to preserve the coherence of the national penalty system, the actions defined in paragraph 3 shall be punishable by custodial sentences with a maximum sentence of not less than six years, provided that it is among the most severe maximum sentences available for crimes of comparable gravity. According to Article 1(3), Member States must ensure that, when committed for financial gain, the infringements defined in Article 1(1)(a) and, to the extent relevant, Article 2(a) of Directive 2002/90/EC are punishable by custodial sentences with a maximum sentence of not less than eight years where they are committed in any of the following circumstances: the offence was committed as an activity of a criminal organisation; and the offence was committed while endangering the lives of the persons who are the subject of the offence. According to the European Commission, this has led to a wide range of penalties imposed by Member States in the transposition of the Framework Decision- Report from the Commission based on Article 9 of the Council Framework Decision of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence, COM (2006) 770 final, Brussels, 6.12.2006. See Article 1(2), Council Directive 2002/90, supra note 28.


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As has been noted in an issue paper published by the Council of Europe Commissioner for Human Rights, ‘the message which is sent is that contact with foreigners can be risky as it may result in criminal charges’ (Guild, 2009). Criminalisation as privatisation: the introduction of employers’ sanctions A more recent expansion of the criminalisation of migration at EU level concerns the imposition of criminal sanctions on employers of irregular migrants. This move is part of a general trend towards the privatisation of immigration control, whereby the private sector is co-opted by the State in order to conduct what are essentially state functions of immigration control. (Mitsilegas, op.cit). Thus far, the privatisation of immigration control has focused primarily on the prevention of entry into the territory by requiring the private sector (in particular carriers) to conduct immigration controls before entry into the territory; with privatisation acting thus as a form of extraterritorial immigration control. (Mitsilegas, 2010, pp. 39-66). The imposition of criminal sanctions on employers of irregular migrants extends the privatisation of immigration control after entry in the territory, thus multiplying the criminal law enforcement avenues for those deemed to facilitate irregular residence. However, and along with the broader question of whether the private sector can legitimately be asked to assume immigration control duties, the extent to which criminal law is the most effective and proportionate means of privatising immigration control is contested. The debate on the extent to which criminalisation is the optimal way forward towards privatising immigration control by imposing obligations on employers is reflected in the content of the recently adopted EU Directive on employers’ sanctions.35 The Directive prohibits the employment of ‘illegally staying’ thirdcountry nationals.36 An ‘illegally staying’ third-country national is defined as ‘a third-country national present on the territory of a Member State, who does not fulfil, or no longer fulfils, the conditions for stay or residence in that Member State.’37 The scope of the Directive is thus broad, apparently including the employment of both third-country nationals who have entered the territory of a Member State irregularly, and the employment of over-stayers. In addition to this prohibition, the Directive imposes a series of extensive immigration-related duties upon employers, including identification, recordkeeping and reporting duties on employers.38 Sanctions for the infringement of the prohibition to employ ‘illegally staying’ third-country nationals are

35 36

37 38

Council Directive 2009/52, 2009 O.J. (L 168) 24 (EC). See Article 3(1). However, Member States are granted the discretion not to apply this provision to illegally staying third-country nationals whose removal has been postponed and who are allowed to work in accordance with national law (Article 3(3)). Article 2(b). See Article 4(1).


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mainly financial,39 but the Directive provides also for alternative sanctions such as exclusion from public procurement.40 Failure to comply with the identification and reporting duties imposed by Article 4(1) of the Directive also triggers liability for the infringement of the prohibition of illegal employment set out in Article 3: the Directive obliges Member States to ensure that employers who have fulfilled these obligations are not held liable for an infringement of the prohibition of illegal employment unless the employers knew that the document presented as a valid residence permit or another authorisation for stay was a forgery.41 The Directive thus attempts to strike a balance between the aims of rendering employers responsible for checking and recording residence permits of thirdcountry nationals on the one hand, and the aim of addressing the employers’ concerns that they are in no position to proactively identify forged documents on the other. However, it is clear that by equating liability for illegal employment with liability for failure to comply with identification obligations, the Directive aims at establishing a far-reaching layer of privatised control of thirdcounty nationals residing in the territory of EU Member States. While the employers’ sanctions Directive imposes a wide range of duties on the private sector, the use of criminal law for the breach of these duties is limited to specific circumstances. Criminal law sanctions apply only for the intentional infringement of the prohibition of illegal employment under Article 3 (and not for the breach of the identification, recording and reporting obligations set out in Article 4 of the Directive); in accordance with the limits to the then first pillar (Community) criminal law competence set by the Court of Justice in its shipsource pollution ruling.42 The level of criminal sanctions is not specified (infringements are punishable in general by effective, proportionate and dissuasive criminal penalties),43 and criminal sanctions apply only if the following aggravating circumstances occur as regards the infringement of Article 3: the infringement continues or is persistently repeated; is in respect of the simultaneous employment of a significant number of illegally staying third-country nationals; is accompanied by particularly exploitative working conditions; is committed by an employer who, while not having been charged with or convicted of a human trafficking offence,

39 40 41 42 43

See Articles 5-6. See Article 7. Article 4(3). Commission v. Council, Case C-440/05 ECR [2007] I-9097. For an analysis, see V. Mitsilegas, EU Criminal Law, Hart, 2009, chapter 2. Article 10(1). This approach may lead to considerable differences in national implementing law. For an initial overview of implementation trends, see Commission Staff Working Paper accompanying the Commission’s Annual Report on Immigration and Asylum (2010), SEC (2011) 620 final, Brussels, 24.5.2011, pp.27-28.


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uses work or services exacted from an illegally staying third-county national with the knowledge that he or she is a victim of trafficking in human beings; or relates to the illegal employment of a minor.44 The Directive thus uses criminal law to address not only traditional aggravating circumstances (such as persistent offending) but also as a means of acknowledging the need to protect vulnerable migrants who are subject to various forms of exploitation. The proclaimed focus of the Directive on tackling exploitation45 is also reflected in the insertion of further provisions aimed at targeting the private sector when employing irregular migrants under exploitative conditions. At the heart of these provisions is an effort to make irregular migrants come forward and report instances of exploitation. In this light, the Directive places Member States under the duty to ensure that there are effective mechanisms through which third-country nationals in illegal employment may lodge complaints against their employers, directly or through third parties designated by Member States such as trade unions or other associations or a competent authority of the Member State.46 Member States must ensure in this context that third parties, who have a legitimate interest in ensuring compliance with the Directive, may engage, either on behalf of, or in support of, an illegally employed third-country national, with his or her approval, in any administrative or civil proceedings provided for with the objective of implementing the Directive.47 However, the legal position of third parties who assist irregular migrants in this context is uncertain because as was analysed earlier in the chapter, they may be held criminally liable for facilitating unauthorised residence. Acknowledging this risk of criminalisation, the employers’ sanctions Directive includes a safeguard clause, according to which, providing assistance to third-country nationals to lodge complaints will not be considered as facilitation of unauthorised residence under Directive 2002/90/EC.48 The Directive does not stop there, but includes a call to irregular migrants themselves to cooperate with state authorities with the view of tackling employer exploitation. Adopting a strategy similar to the content of the Directive on residence permits on victims of trafficking (analysed earlier in the chapter), the employer sanctions Directive states that, in respect of criminal offences covered by Article 9(1)(c) (the infringement is accompanied by particularly exploitative working conditions) or (e) (the infringement relates to the illegal employment

44 45 46 47 48

Article 9(1). See also recital 13 of the Preamble. Article 13(1). Article 13(2). Article 13(3).


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of a minor), Member States will define in national law the conditions under which they may grant, on a case-by-case basis, permits of limited duration, linked to the length of the relevant national proceedings, to third-country nationals involved, under arrangements comparable to those applicable to third-country nationals who fall within the scope of Directive 2004/81/EC (residence permits for victims of trafficking).49 As with the Directive on residence permits for victims of trafficking, the employer sanctions Directive provides, with extremely limited safeguards on security of residence: residence permits will be granted on a case-by-case basis (thus subject to state discretion), will be of limited duration, and are again framed purely within a logic of prosecutorial efficiency (they are linked to the relevant national proceedings). The Directive thus asks migrants in an irregular situation to come forward and present themselves to the State without offering any legal certainty as to the rights which will be conferred to them if they cooperate and without excluding the prospect of their subsequent return. It remains to be seen whether this provision when implemented by Member States will have any real impact, especially in view of the fact that the vulnerability of exploited workers is not necessarily reflected in detail in EU law compared to the vulnerability of victims of trafficking. The above analysis demonstrates a double contradiction at the heart of the employer sanctions Directive. The Directive’s main objective is to apply what Garland has called the ‘responsibilisation strategy’ (Garland, 1996) to the private sector, by requiring employers to (pro)actively cooperate with the State in tackling irregular employment. Employers are thus viewed as allies to the State, but at the same time they are viewed as targets: irregular migrants, trade unions and other organisations are urged to come forward and denounce exploitation in the workplace. This contradiction is also replicated with regard to migrants themselves: irregular migrants are seen as allies to the State (in being helpful in denouncing exploitation) but they are also obviously the main targets of the Directive, whose aim is to make it more and more difficult for these migrants to find work. This double contradiction poses real obstacles to the Directive achieving its stated aims. It is compounded by the fact that the criminalisation of migration in other EU law instruments provides few safeguards for migrants and citizens alike. The extensive criminalisation of the facilitation of unauthorised entry and residence has the potential of minimising contact by NGOs, other organisations, and individuals with migrants under the threat of criminal prosecution. On the other hand, migrants are offered extremely limited rights as a reward for them cooperating with the State to tackle irregular migration.

49

Article 13(4). Emphasis added.


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As will be seen in the next part, however, the disassociation of this law and policy area from pure state discretion and the very existence of secondary EU law in these fields may be a step forward towards providing safeguards from migrants, when interpreted in the light of European Union constitutional law and its general principles.

3

European Union law as a limit to the Criminalisation of Migration by EU Member States

While European Union law has not explicitly treated breaches of immigration requirements by migrants themselves as criminal offences as such, such trends have been increasingly prevalent in the national legislation of a number of EU Member States. Key examples in this context have been the treatment of irregular entry and residence per se as a criminal offence; and the criminalisation of the failure to comply with return instructions. This punitive turn at the national level has posed considerable challenges for European Union law. The shared competence between Member States and the European Union in the field of migration law raises complex issues with regard to the degree of sovereignty or discretion left to Member States when they legislate on irregular migration, and when they promote legislative choices resulting in the criminalisation of migration. A key question in this regard is whether European Union law poses limits to the power of Member States to adopt national legislation in the field. This part of the chapter will examine the limits that European Union law places on domestic criminal law in general. The analysis will then focus on two recent judgments of the Court of Justice of the European Union, focusing specifically on the compatibility of national legislation criminalising migration with European Union law. The limits posed to the national legislator by EU law will be dissected, and the protective function of European Union law as regards the position of the migrant will be highlighted. The Limits of EU law on national criminal law The debate on the existence and extent of a role for the European Union in the field of criminal law has been long-standing (Mitsilegas, 2009). It appeared long before Member States decided to confer express powers to the European Union (but not to the, then, European Community) to legislate in criminal matters (in the Maastricht Treaty), and certainly before the entry into force of the Lisbon Treaty which abolished the third pillar and streamlined, to a great extent, Union powers in the field. Already in the days of the Treaty of Rome, it became clear that it was impossible to draw a neat distinction between legislation related to the four freedoms and the single market on the one hand, and criminal law on the other. While the European Community at the time did not possess express competence to adopt criminal offences and sanctions at EC level, the European Court of Justice confirmed on a number of occasions that Community law


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places limits on the application of national criminal law. The Member States of the European Union are not entirely free to adopt national criminal law but are bound by their EU law obligations when doing so. The Court of Justice has placed limits on domestic criminal law measures if the latter would have as its effect to limit disproportionately rights established by Community law, in particular rights related to free movement. As early as 1981, the Court stated in Casati that: “In principle, criminal legislation and the rules of criminal procedure are matters for which the Member States are still responsible. However, it is clear from a consistent line of cases decided by the Court, that Community law also sets certain limits in that area as regards the control measures which it permits the Member States to maintain in connection with the free movement of goods and persons. The administrative measures or penalties must not go beyond what is strictly necessary, the control procedures must not be concerned in such a way as to restrict the freedom required by the Treaty, and they must not be accompanied by a penalty which is so disproportionate to the gravity of the infringement that it becomes an obstacle to the exercise of that freedom.”50

The Court justified this approach on the grounds of the necessity to prevent the erosion of Community law freedoms by national measures.51 The Court’s approach is based on the principle of proportionality. As Tridimas (2006, p. 234) has noted, the Court followed in Casati a strict proportionality test, and confirmed this approach in a series of cases concerning obstacles posed by national criminal law to the exercise of Community free movement rights. In subsequent cases, and in order to ensure the effective exercise of Community rights, the Court has not hesitated to check the compatibility with Community law of domestic criminal laws penalising conduct as diverse as driving without a licence in the host Member State (resulting from failure to exchange, within the time limits prescribed by the law of the host State, the home state driving licence with the host state licence),52 and pursuing the organised activity of collecting bets without a licence or a police authorisation.53 In addition to prescribing limits to the imposition of criminal sanctions by Member States, the Court has also found that Community law had an influence in the conduct of d omestic criminal proceedings. More specifically, national autonomy in

50 51 52 53

Case 203/80, [1981] ECR 2595, paragraph 27. Emphasis added. Paragraph 28. Case C-193/94 Skanavi and Chryssanthakopoulos [1996] ECR I-929. Joint Cases C-338/04, C-359/04 and C-360/04, Placanica, Palazzese and Sorricchio, ECR [2007] I-1891. The Court referred therein to the case of Calfa, Case 48/96 [1999] ECR I-11, where it was held that the penalty of expulsion of a Community national found guilty of drug possession for personal use was precluded by Articles 48, 52 and 59 of the EC Treaty and Article 3 of Directive 64/221/EC. Being a tourist, Calfa was deemed by the Court to be a recipient of services following the earlier Cowan ruling (Case 186/87 Cowan v Trésor Public [1989] ECR 195).


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prescribing the language of criminal proceedings may be limited, in order to ensure non-discrimination against persons to whom Community law grants equal treatment rights, as well as free movement.54 It is clear from these cases that the fundamental Union law objective of free movement places considerable limits to national sovereignty in legislating in criminal matters, with European Union law acting as a safeguard against over criminalisation at national level. This general overview of the limits European Union law places on the power of Member States to criminalise, suggests that similar limits apply to the power of Member States to treat breaches of immigration rules as criminal offences. The existence of such limits has now been confirmed by the Court of Justice in two judgments concerning the compatibility of national law criminalising migrants with European Union law. What is significant in these judgments (which will be analysed in detail below), is that the Court examined the compatibility of domestic criminal law, not with European Union law on free movement, but with European Union immigration law and, in particular, legislation dealing with the enforcement of immigration law (the Returns Directive). The Limits of EU Migration Law on National Criminal Law – the El Dridi ruling In the case of El Dridi 55 the Court of Justice examined a preliminary reference request made in proceedings brought against Mr El Dridi, who was sentenced to one year’s imprisonment for the offence of having stayed illegally on Italian territory without valid grounds, contrary to a removal order made against him by the Questore di Udine. He appealed against that decision before the Corte d’appello di Trento (Appeal Court, Trento). That Court was in doubt as to whether a criminal penalty may be imposed during administrative procedures concerning the return of a foreign national to his country of origin due to noncompliance with the stages of those procedures, since such a penalty seems contrary to the principle of sincere cooperation, to the need for attainment of the objectives of Directive 2008/115 (the returns Directive) and for ensuring the effectiveness thereof, and also to the principle that the penalty must be proportionate, appropriate and reasonable. The Court of Appeal noted, in particular, that the criminal sanction provided for in Italian law came into play subsequently to the finding of an infringement of an intermediate stage of the gradual procedure for implementing the return decision, provided for by the returns Directive, and that the level of penalty imposed by national law (a term of imprisonment of one to four years) seems to be extremely severe. In those circumstances, the Corte d’appello di Trento decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

54 55

Case C-274/96 Bickel and Franz, ECR [1998] I-7637. Case C‑61/11 PPU, Hassen El Dridi, alias Karim Soufi, Judgment of 28 April 2011.


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“In the light of the principle of sincere cooperation, the purpose of which is to ensure the attainment of the objectives of the directive, and the principle that the penalty must be proportionate, appropriate and reasonable, do Articles 15 and 16 of Directive 2008/115 … preclude: – the possibility that criminal penalties may be imposed in respect of a breach of an intermediate stage in the administrative return procedure, before that procedure is completed, by having recourse to the most severe administrative measure of constraint which remains available? – the possibility of a sentence of up to four years’ imprisonment being imposed in respect of a simple failure to cooperate in the deportation procedure on the part of the person concerned, in particular where the first removal order issued by the administrative authorities has not been complied with?”56

The ruling of the Court of Justice The Luxembourg Court summed up the referring court’s question as asking whether Directive 2008/115, in particular Articles 15 and 16 thereof, must be interpreted as precluding a Member State’s legislation, such as that at issue in the main proceedings, which provides for a sentence of imprisonment to be imposed on an illegally staying third-country national on the sole ground that he remains, without valid grounds, on the territory of that State, contrary to an order to leave that territory within a given period. The Court of Justice (CJEU) noted in this context the emphasis placed by the national court on the principle of sincere cooperation and on the objective of ensuring the effectiveness of EU law.57 In the light of this question, the CJEU followed a step-by-step approach in order to assess the compatibility of Italian law with EU migration law (the returns Directive). Step 1: Interpreting the returns Directive restrictively in the light of fundamental rights The first step in the Court’s reasoning in El Dridi was to provide an interpretation of the returns Directive, which will inform the implementation of the Directive by Member States. The Court confirms a restrictive interpretation of the coercive provisions of the Directive, stressing from the outset that the Directive pursues the establishment of an effective removal and repatriation policy, based on common standards, for persons to be returned in a humane manner and with full respect for their fundamental rights and also their dignity.58 Member States can depart from the common standards and procedures established by the Directive only as provided for therein.59 In any case, although Article 4(3) of the Directive allows Member States to adopt or maintain provisions that are more favourable than Directive 2008/115 to illegally staying

56 57 58 59

Paragraphs 22-25 of the judgment. Paragraphs 29-30. Paragraph 31. Paragraph 32.


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third-country nationals provided that such provisions are compatible with it, that Directive does not allow those States to apply stricter standards in the area that it governs.60 The Court further observes that the returns Directive sets out specifically the procedure to be applied by each Member State for returning illegally staying third‑country nationals and fixes the order in which the various, successive stages of that procedure should take place.61 It is only in particular circumstances, such as where there is a risk of absconding, that Member States may, first, require the addressee of a return decision to report regularly to the authorities, deposit an adequate financial guarantee, submit documents or stay at a certain place or, second, grant a period shorter than seven days for voluntary departure or even refrain from granting such a period.62 In the latter situation, but also where the obligation to return has not been complied with within the period for voluntary departure, Article 8(1) and (4) of Directive 2008/115 provides that, in order to ensure effective return procedures, those provisions require the Member State which has issued a return decision against an illegally staying third-country national to carry out the removal by taking all necessary measures including, where appropriate, coercive measures, in a proportionate manner and with due respect for, inter alia, fundamental rights.63 Following from recital 16 in the Preamble to the Directive, and from the wording of Article 15(1) that the Member States must carry out the removal using the least coercive measures possible, it is only where, in the light of an assessment of each specific situation, the enforcement of the return decision in the form of removal risks being compromised by the conduct of the person concerned, that the Member States may deprive that person of his liberty and detain him.64 Articles 15 and 16 of the Directive places strict limits on detention.65 In the light of the above discussion, the Court of Justice confirmed that the return procedure established by the Directive corresponds to a gradation of the measures to be taken in order to enforce the return decision, a gradation which goes from the measure which allows the person concerned the most liberty, namely granting a period for his voluntary departure, to measures which restrict that liberty the most, namely detention in a specialised facility. The Court adds that the principle of proportionality must be observed throughout those stages.66 Even the use of the latter measure, which is the most serious constraining measure allowed under the Directive under a forced removal procedure, is strictly

60 61 62 63 64 65 66

Paragraph 33. Emphasis added. Paragraph 34. For a detailed overview of these stages see paragraphs Paragraph 37. Paragraph 38. Paragraph 39. Emphasis added. Paragraph 40. Paragraph 41. Emphasis added.


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regulated, inter alia in order to ensure observance of the fundamental rights of the third‑country nationals concerned.67 It is in the light of those considerations that it must be assessed whether the common rules introduced by the returns Directive preclude national legislation such as that at issue in the main proceedings.68 The assessment of the compatibility of national law with EU migration law (the returns Directive) must thus take into account the need to ensure proportionality and the respect of the fundamental rights of third-country nationals. Step II: Confirming the direct effect of the relevant provisions of the returns Directive Having established the need to assess the compatibility of Italian criminal law in the light of the returns Directive (and taking into account the need to observe proportionality and fundamental rights), the Court was faced with an additional challenge: while Italy had introduced domestic criminal law directly affecting third-country nationals who had not complied with return orders, it had not transposed the returns Directive into Italian law.69 The question thus arises whether the relevant provisions of the returns Directive (Articles 15 and 16) were applicable in Italy in the first place. The Court did not hesitate to grant to these provisions direct effect, meaning that even in the absence of national implementation, Mr El Dridi (whose situation falls within the scope of the Directive) can rely upon Articles 15 and 16 of the returns Directive against the State.70 The Court thus sends a clear message that Member States cannot act unilaterally while at the same time disregarding their obligations under EU law. The Court noted, in particular, that the removal procedure provided for by the Italian legislation at issue in the main proceedings is significantly different from that established by the Directive.71 Step III: A ssessing national criminalisation legislation in the light of the returns Directive: Asserting the Principles of Effectiveness and Loyal Cooperation Having set out the interpretative parameters of the returns Directive and confirming that the Directive provisions relevant to the case have direct effect, the Court went on to assess the compatibility of national law with the Directive. The Court began by granting a certain degree of freedom to Member States to adopt national criminal law aimed inter alia at dissuading those nationals from remaining illegally on those States’ territory. However, this freedom arises only if it is clear that the coercive measures Member States may adopt in implement-

67 68 69 70 71

Paragraph 42. Emphasis added. See also the references to relevant human rights instruments and case law in paragraph 43. Paragraph 44. Paragraph 45. Paragraphs 46-48. Paragraph 50.


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ing the returns Directive have not led to the expected result being attained, namely, the removal of the third-country national against whom they were issued.72 The Court went on to limit the freedom of Member States further. By evoking settled case law mentioned earlier in the chapter (see inter alia, the cases of Casati and Cowan), the Court reiterated its finding that, although in principle criminal legislation and the rules of criminal procedure are matters for which the Member States are responsible, this branch of the law may nevertheless be affected by European Union law.73 While neither the legal basis of the Directive (or its Lisbon successor), nor the Directive itself, precludes the Member States from having competence in criminal matters in the area of irregular immigration and irregular stays, they must adjust their legislation in that area in order to ensure compliance with European Union law.74 The Court based the limits on the power of Member States to adopt criminal law upon the principles of effectiveness and loyal cooperation. It reiterated that Member States may not apply rules, even criminal law rules, which are liable to jeopardise the achievement of the objectives pursued by a Directive and, therefore, deprive it of its effectiveness.75 It also confirmed the applicability of the principle of loyal cooperation as expressed in the second and third subparagraphs respectively of Article 4(3) TEU, according to which Member States inter alia ‘shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union’ and ‘shall … refrain from any measure which could jeopardise the attainment of the Union’s objectives’, including those pursued by Directives.76 Applying these principles to the specific case before it, the Court found that Member States may not, in order to remedy the failure of coercive measures adopted to carry out removals under Article 8(4) of the returns Directive (measures which are subject to the principle of proportionality), provide for a custodial sentence on the sole ground that a third-country national continues to stay illegally on the territory of a Member State after an order to leave the national territory was notified to him and the period granted in that order has expired. Rather, they must pursue their efforts to enforce the return decision, which continues to produce its effects.77 Such a custodial sentence risks jeopardising the attainment of the objective pursued by that Directive, namely, the estab-

72 73 74 75 76 77

Paragraph 52. Paragraph 53. Paragraph 54. Paragraph 55. Paragraph 56. Paragraphs 57-58. Emphasis added.


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lishment of an effective policy of removal and repatriation of illegally staying third-country nationals as it is liable to frustrate the application of the measures referred to in Article 8(1) of Directive 2008/115 and delay the enforcement of the return decision.78 The returns Directive, and in particular Articles 15 and 16 thereof, must thus be interpreted as precluding a Member State’s legislation, such as that at issue in the main proceedings, which provides for a sentence of imprisonment to be imposed on an illegally staying third-country national on the sole ground that he remains, without valid grounds, on the territory of that State, contrary to an order to leave that territory within a given period.79 This finding does not preclude the possibility for Member States to adopt ‘provisions’ (note that there is no express reference to criminal law provisions) regulating the situation in which coercive measures have not resulted in the removal of a third‑country national staying illegally on their territory. However, the adoption of these measures must occur with respect for the principles and objective of the returns Directive (which thus continues to provide the benchmark for the adoption of national criminal law).80 In the light of the above, the National Court is called upon to apply and give full effect to the provisions of EU law; and, to refuse to apply any provision of the Italian law in question which is contrary to the result of the returns Directive, taking due account of the principle of the retroactive application of the more lenient penalty.81 European Union law as a limit to the criminalisation of migration: the impact of El-Dridi

El-Dridi is a landmark judgment on two levels. On the level of constitutional law it reiterates – based on settled case law in the field – that EU law places limits to the power of EU Member States to criminalise: limits which stem from the obligation of Member States to comply with the EU law principles of effectiveness and loyal cooperation. On the level of migration law, it confirms that EU law, and EU migration law specifically, places limits upon Member States’ power to criminalise migration. El Dridi in this context marks a departure from earlier case law. While traditionally, in rulings like Casati, the Court of Justice has placed limits on national criminal law in order to achieve free movement objectives, in El Dridi these limits are justified in order to achieve the effectiveness of an enforcement measure, namely, the EU returns Directive whose potential negative impact on the position of migrants has been criticised.82

78 79 80 81 82

Paragraph 59. Paragraph 62. Paragraph 60. Paragraph 61. For a critical analysis, see A. Baldaccini, ‘The Return and Removal of Irregular Migrants under EU Law: An Analysis of the Returns Directive’ in European Journal of Migration and


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Following El Dridi, the returns Directive plays a two-fold protective role for the affected migrants: being interpreted in the light of proportionality and fundamental rights, it places limits to Member States’ criminalisation powers; and, more generally, it has the potential of bringing the full effect of European Union law on a wide range of Member States’ choices to criminalise migration, with domestic criminal law being subject to an assessment in the light of EU law when all aspects of the return of third-country nationals come into play. While the Court is careful to leave a degree of discretion to Member States by stating that the latter retain the power to adopt provisions in cases where coercive measures provided for by EU law have not resulted in the return of the third-country nationals, it adds that these measures must occur with respect for the principles and objective of the returns Directive. The Limits of EU Migration Law on National Criminal Law- the Case of Achughbabian

The extent to which European Union law places limits on the power of EU Member States to criminalise migration was tested again, post- El-Dridi, in the case of Achughbabian.83 The judgment was in response to a reference for a preliminary ruling from the Cour d’Appel de Paris, and concerned the compatibility of French law criminalising migration with EU law. The case differs from El-Dridi in that it concerns the criminalisation and imposition of criminal sanctions by French law for irregular entry, or residence per se. The applicant was placed in police custody for being suspected of having committed the offence described above. An order obliging the applicant to leave France was already imposed in 2009, and a deportation order was issued in 2011. The applicant argued that the provision criminalising irregular entry and residence was incompatible with EU law in the light of El Dridi. The Cour d’Appel decided to stay the proceedings and refer the following question to the Court for a preliminary ruling: “Taking into account its scope, does Directive [2008/115] preclude national legislation, such as Article L. 621-1 of [Ceseda], which provides for the imposition of a sentence of imprisonment on a third-country national on the sole ground of his illegal entry or residence in national territory?”84

Step 1: Determining the applicability of the returns Directive to national law criminalising irregular stay Achughbabian differs from El-Dridi in that the question referred to Luxembourg concerns the compatibility with EU law to national law concerning the criminalisation of migration, prima facie unrelated to a returns procedure. The French legislation in question criminalised irregular entry or residence as such. It is

83 84

Law, vol.11, 2009, pp.1-17. Case C‑329/11, Alexandre Achughbabian v Préfet du Val-de-Marne, judgment of 6 December 2011. Paragraph 25 Emphasis added.


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thus not surprising that the Court of Justice commenced addressing the question by the Cour d’Appel by examining the extent to which the returns Directive applies in this context. The Court confirms that Member States retain a degree of sovereignty in adopting criminal sanctions for the breach of immigration law: the returns Directive is not designed to harmonise in their entirety the national rules on the stay of foreign nationals (note the use by the Court of the term ‘stay’ and not ‘residence’ here) and thus does not preclude the law of a Member State from classifying an illegal stay as an offence and laying down penal sanctions to deter and prevent such an infringement of the national rules on residence.85 Neither does the Directive (which concerns only the adoption of return decisions and the implementation of those decisions) preclude a third-country national being placed in detention with a view to determining whether or not his stay is lawful.86 However, the above findings do not mean that national action to criminalise or detain third-country nationals necessarily falls outside the scope of the returns Directive. First, the Court states that national authorities are required, in order to prevent the objective of the returns Directive from being undermined, to act with diligence and take a position without delay on the legality, or otherwise, of the stay of the person concerned. The finding that the stay is illegal will lead, in principle, according to the returns Directive, to a return decision. 87 Detention is thus inextricably linked with the outcome of the return of the third-country national concerned. Second, and notwithstanding state power to criminalise or detain along the lines set out above, it needs to be examined whether the returns Directive precludes the criminalisation of irregular entry or residence under French law in so far as it is capable of leading to an imprisonment in the course of the return procedure governed by the said Directive.88 In that respect, the Court reiterated its ruling in El Dridi that Member States cannot apply criminal legislation capable of imperilling the realisation of the aims pursued by the said directive, thus depriving it of its effectiveness.89 The Court, thus, envisages the possibility that national law criminalising irregular entry or residence is assessed in the light of the returns Directive. Step II Applying the returns Directive to national law criminalising irregular stay- the return of effectiveness and loyal cooperation Having concluded that national law criminalising irregular entry or stay may be assessed in the light of the returns Directive, the Court found that, in the

85 86 87 88 89

Paragraph 28. Paragraphs 29-30. Paragraph 31. Paragraph 32. Emphasis added. Paragraph 33.


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present case, the situation of the applicant in the main proceedings fell, indeed, within that referred to in Article 8(1) of that directive.90 It is clear to the Court that the imposition and implementation of a sentence of imprisonment during the course of the return procedure provided for by the returns Directive does not contribute to the realisation of the removal which that procedure pursues, namely, the physical transportation of the person concerned outside the Member State concerned, and that such a sentence does not therefore constitute a ‘measure’ or a ‘coercive measure’ within the meaning of Article 8 of the Directive.91 The Court went on to highlight the differences between national criminalisation and the system put forward by the returns Directive. It is undisputed that the national legislation at issue in the main proceedings – in that it provides for a term of imprisonment for any third-country national aged over 18 years who stays in France illegally after the expiry of a period of three months from his entry into French territory – is capable of leading to an imprisonment whereas, following the common standards and procedures set out in Articles 6, 8, 15 and 16 of the returns Directive, such a third-country national must, as a matter of priority, be made the subject-matter of a return procedure and may, as regards deprivation of liberty, be subject at most to placing in detention.92 National legislation such as that at issue in the main proceedings is, consequently, likely to thwart the application of the common standards and procedures established by the returns Directive and delay the return, thereby, like the legislation at issue in El Dridi, undermining the effectiveness of the said directive.93 Linking the criminalisation of irregular stay with the return of the third-country national enabled the Court to apply El Dridi in this case which prima facie involved the criminalisation of irregular stay per se. A key factor in the Court’s reasoning was the self-standing nature of criminalisation. The Court noted that in the particular case there was nothing in the evidence before the Court to suggest that Mr Achughbabian has committed any offence other than that consisting in staying illegally on French territory. The situation of the applicant in the main proceedings could not, therefore, be removed from the scope of the returns Directive, as Article 2(2) (b) of the latter clearly cannot, without depriving that directive of its purpose and binding effect, be interpreted as making it lawful for Member States not to apply the common standards and procedures set out by the said Directive to third-country nationals who have committed only the offence of illegal staying.94

90 91 92 93 94

Paragraphs 34-36. Paragraph 37. Paragraph 38. Paragraph 39. Paragraph 41.


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The finding of the applicability of the returns Directive led to the Court to apply its El Dridi reasoning and stress that the principles of effectiveness and loyal cooperation must be respected in order to ensure the objectives of the returns Directive, in particular, that return must take place as soon as possible.95 That would clearly not be the case if, after establishing that a third-country national is staying illegally, the Member State were to preface the implementation of the return decision, or even the adoption of that decision, with a criminal prosecution followed, in appropriate cases, by a term of imprisonment. Such a step would delay the removal and does not appear among the justifications for a postponement of removal referred to in Article 9 of the returns Directive.96 Step III A ffirming the power of Member States to criminalise in cases where the returns Directive has been applied unsuccessfully In Achughbabian, the Court of Justice affirmed the fact that national legislative choices to criminalise migration are constrained by Member States’ obligations to respect European Union law. Mindful of the impact of this ruling on state sovereignty and, in order to address Member States’ concerns that EU law limitations would put an end to the possibility of Member States deterring illegal stays,97 the Court went on to confirm its finding in El Dridi that Member States retain the power to criminalise when the procedure provided for in the returns Directive was applied but did not lead to the return of third-country nationals. According to the Court, while Member States bound by the returns Directive cannot provide for a term of imprisonment for illegally-staying third-country nationals in situations in which the latter must – by virtue of the common standards and procedures established by that Directive, be removed and may, with a view to preparation and implementation of that removal, at the very most, be subject to detention. That does not exclude the possibility of Member States adopting or maintaining provisions, which may be of a criminal nature, governing, in compliance with the principles of the said directive and its objective, the situation in which coercive measures have not enabled the removal of an illegally staying third-country national to take place.98 The returns Directive does not preclude penal sanctions being imposed, following national rules of criminal procedure, on third-country nationals to whom the return procedure established by that directive has been applied and who are illegally staying in the territory of a Member State without there being any justified ground for non‑return.99 However, the Court added a further limit to such criminalisation stating that the imposition of the sanctions mentioned in the previous paragraph is subject to full compliance with fundamental rights,

95 96 97 98 99

Paragraphs 43-45. Paragraph 45. Paragraph 47. Paragraph 46. See also the reference to El Dridi, paragraphs 52 and 60. Paragraph 48.


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particularly those guaranteed by the European Convention for the Protection of Human Rights.100 The Impact of Achughbabian – Affirming the protective function of European Union law

Achughbabian is an important follow-up to El-Dridi in two respects. First, in reiterating the Court’s finding that Member States are not entirely free to adopt domestic criminal law but, when doing so, they are under the obligation to respect European Union law, and the returns Directive in particular. And, second, in extending the scope of El-Dridi to bring within the ambit of EU law, national legislation which at first sight does not appear to be directly related to the returns Directive. It is true that the Court was mindful to leave Member States a degree of freedom to legislate in criminal matters in this contextthe Court has followed this strategy in the past in the ship-source pollution ruling,101 when it affirmed an inroad to state sovereignty in criminal matters (by confirming the earlier ruling in the environmental crime case102 that the Community had competence to adopt criminal offences and sanctions) but, at the same time, left Member States the choice to adopt specific sanctions levels unanimously under the third pillar.103 However, Member States’ freedom to criminalise is placed under strict EU law limits. National criminal law must still be in compliance with the objectives and provision of the returns Directive, as well as with fundamental rights. Moreover, and crucially, the reasoning of the Court leads to the conclusion that it is very unlikely that criminalisation at national level (in particular the criminalisation of irregular entry or stay) can be viewed independently from the returns Directive. As is clear from Achughbabian, the criminalisation of irregular entry or stay cannot be an aim in itself but is ultimately linked to the objective of the return of the third-country national affected- thus bringing into play the application of EU law. In this manner, the Court managed to use EU law (and, remarkably, an enforcement measure such as the returns Directive) in order to protect third-country nationals from extensive criminalisation in Member States.

4

Conclusion: the emerging protective function of European Union law

The intervention of the European Union legislator in terms of using criminal law to control immigration has focused both on preventing the irregular entry

100 101 102 103

Paragraph 49. See supra, note XXX. Commission v Council, Case C-176/03 ECR [2005] I-7879. Mitsilegas, EU Criminal Law, chapter 2.


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of third-country national into the European Union (via the criminalisation of trafficking in human beings and facilitation of unauthorised entry) and on identifying and sanctioning irregular stay and residence after entry (via the criminalisation of the facilitation of unauthorised transit and residence and the imposition of criminal sanctions on employers if a series of aggravating circumstances with regard to the employment of migrants in an irregular situation occur). The criminalisation of trafficking and facilitation of unauthorised entry, transit and residence reflects a confluence of policy objectives between the European Union and the global community, with criminalisation at EU level reflecting the securitisation of migration at global level and the establishment in policy and law of a link between migration and organised crime. This securitisation approach has resulted in the prioritisation of criminal law enforcement needs with little emphasis placed on the impact of these measures on migrants themselves. While it should be noted that the European Union legislator has not chosen to criminalise irregular entry, transit or residence per se, the broad scope of criminalisation (in particular as regards the facilitation offences), and the logic of law enforcement and prosecutorial efficiency as regards the granting of rights to migrants, have resulted in a legal framework leading to limited safeguards and legal certainty for vulnerable migrants and significant adverse consequences for access to the EU by those who wish to claim international protection. This securitisation approach has been toned down somewhat in the second wave of criminalisation measures. The Directive on employers’ sanctions outs forward a more limited and carefully circumscribed criminalisation approach, and addresses to some extent the precarious situation of irregular migrants. The situation of the migrant is also addressed by the revised Directive on trafficking in human beings, which contains a plethora of provisions on the rights of victims of trafficking. While neither Directive provides with a high level of legal certainty for migrants (in particular as regards security of residence), their provisions (in particular those granting rights to third-country nationals) have the potential to offer significant protection to migrants when interpreted by National Courts or by the Court of Justice. The protective function of these measures will be enhanced when interpreted in the light of EU constitutional law which privileges the protection of fundamental rights and the respect of the principle of proportionality. The protective function of European Union law is already evident as regards the second aspect of the criminalisation of migration in Europe, namely the criminalisation of migration not at the EU level, but by individual Member States. Unlike the European Union legislator, a number of Member States, including France and Italy, have chosen to criminalise conduct deemed contrary to national immigration law- thus criminalising migrants directly. In the light of the political sensitivity of the issue and the potential impact on state sovereignty, the determination of whether Member States were free to adopt such


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legislation was crucial, in particular given the shared competence on migration between the Union and Member States. The Court of Justice was called upon to rule on the relationship between national criminal law and European Union law in this context. Its findings confirmed the limits that European Union law places upon national criminal law. In a departure from earlier case law, the Court assessed national law in the light of European Union law dealing, not with free movement, but with the enforcement of migration law (the returns Directive). In this manner, the Court found a way to apply the protective provisions of European Union law to third-country nationals. The protective function of EU law is expressed in this context in two ways: by reminding Member States that even EU law on immigration enforcement. such as the returns Directive, must be interpreted in accordance with fundamental principles of EU law including the protection of fundamental rights and the principle of proportionality; and, crucially, by linking national criminalisation of migration and, in particular, the criminalisation of breaches of national immigration law such as irregular stay, with the implementation of the returns Directive. Member States cannot shield their criminal law by claiming that the criminalisation of irregular entry or stay is self-standing or an end in itself. Such criminalisation is inevitably linked with the ultimate objective of return, which signifies the applicability of European Union law. The Court’s approach signifies a direct challenge to the employment of symbolic criminal law by Member States and makes it increasingly hard for Member States to evade the control of EU institutions and law when they make criminalisation choices in the field.

References Baldaccini, A. (2009). The Return and Removal of Irregular Migrants under EU Law: An Analysis of the Returns Directive in European Journal of Migration and Law, vol.11, pp. 1-17. Gallagher, A.T. (2009). Human Rights and Human Trafficking: Quagmire or Firm Ground? A Response to James Hathaway, 49 Va. J. Int’l L. 789. Gallagher, A. (2010). The International Law of Human Trafficking, CUP. Garland, D. (1996). The Limits of the Sovereign State: Strategies of Crime Control in Contemporary Society in British Journal of Criminology, vol.36, pp. 445-471. Guild, E. (2009). Criminalisation of Migration in Europe: Human Rights Implications, Council of Eur., Comm’r Hum. Rts. 39. Hathaway, J.C. (2008). The Human Rights Quagmire of “Human Trafficking,” 49 Va. J. Int’l L. 1. Mitsilegas, V. (2009). EU Criminal Law, Hart. Mitsilegas, V. (2010). Extraterritorial Immigration Control in the 21st Century: the Individual and the State Transformed, in V. Mitsilegas and B. Ryan (eds.), Extraterritorial Immigration Control: Legal Challenges, Martinus Nijhoff/Brill, pp. 39-66.


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Mitsilegas, V. (2011). The EU and the Rest of the World: Criminal Law and Policy Interconnections, in M. Evans and P. Koutrakos (eds.), Beyond the Established Orders. Policy Interconnections between the EU and the Rest of the World, Hart, pp. 149-178 Mitsilegas, V. (2012). Immigration Control in an Era of Globalisation: Deflecting Foreigners, Weakening Citizens, Strengthening the State in Indiana Journal of Global Legal Studies, vol.19, issue 1, pp. 3-60. Obokata, T. (2003). EU Council Framework Decision on Combating Trafficking in Human Beings: A Critical Appraisal in Common Market Law Review, vol.40, pp. 917-936. Tridimas, T. (2006). The General Principles of EU Law, 2nd edition, Oxford University Press.


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5

Disappearing rights: How states are eroding membership in American society

Dr Doris Marie Provine *

1 Introduction National governments jealously guard their power to set immigration policy, yet the impact of such policies is most sharply felt at the local level. This disjuncture can create political tensions in this era of massive migration. Suspicion that national decision-makers are insensitive and unresponsive to local needs encourages popular resistance to national policies. So it should not be surprising that populist movements to restrict immigration have arisen in many immigrant-receiving nations. In the United States the local response includes lawmaking by sub-national units of governments at every level, much of it oriented toward influencing national policy. Each of the fifty states and many municipalities have considered, and sometimes adopted, legislation directed at immigrants. This type of legislation was for a long time a rarity, but the situation began to change around 2005 in the wake of the federal government’s apparent inability to update its immigration law. Now, immigration is solidly on the state-level agenda and seems likely to remain there. The rise in state and local legislation directed at immigrants has attracted the interest of scholars seeking to understand what legislators hope to achieve and why some jurisdictions, but not others, have been active in this area. The multi-layered fabric of American federalism ensures that this will be no easy task. Three layers of government – states, counties, and cities – all have capacity to enact immigration laws and adopt resolutions, and each differs in its primary economic and social concerns and in the constituency it represents. To discern motivations for immigrant-related lawmaking, scholars have assessed

*

The author gratefully acknowledges the useful research assistance of David Wick and Kyle Johnson and the helpful editorial suggestions of John Michael Shelton.


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the legislative record in states and cities against demographic, political, and environmental data. Investigators have also examined the content of state laws and resolutions to determine whether they tend to be compatible with existing federal law or break new ground (Newton, 2012). Although this research has generated important insights, the task of understanding where localities are ‘coming from’ in proposing and enacting immigration legislation is far from complete. Often overlooked in the effort to understand why laws vary from place to place is the significance of the change that is occurring. Rights and privileges that all immigrants once took for granted are now being steadily eroded through state and local legislation. The process of rights erosion began at the federal level with legislation in 1996 that reduced the rights of legal immigrants and committed the government to stricter enforcement of its immigration laws to ferret out unauthorised immigrants and to prevent them from entering. The federal government’s highly publicised raids and enforcement actions precipitated a nationwide reconceptualisation of immigrants, particularly unauthorised immigrants, as a potentially dangerous and undesirable element. Before this time, with limited periods of exception, unauthorised immigrants were, in effect, denizens of the nation, living among legal residents, and relatively unmolested by local or national authorities. The rights and privileges they enjoyed formed the basis for day-to-day living in American society. This rights formula was incomplete and abuses occurred – particularly in times of anxiety about immigration – but most of the time it worked reasonably well to order the conduct of daily life, benefiting unauthorised immigrants and nonimmigrants alike. This paper argues for keeping this past accommodation in mind in order to critically reflect upon the criminalisation of immigrants that is occurring now. As this paper shows, the reconceptualisation of unauthorised immigrants, although precipitated by changes in federal immigration policy, has been carried further by changes in state and municipal legislation. The discussion below begins with a brief review of changes in federal laws that have made legal status the sine qua non of legitimate membership in American society. I turn then to the actions of the American states. Under the federal iceberg of congealed enforcement policy, a lively debate over the meaning of membership in American society is occurring. Many more bills are proposed than are enacted, and not all reveal an intention to restrict immigrant rights. However, there is a strong trend at the state level toward adoption of the federal perspective, as evidenced by a steady erosion of rights and privileges that immigrants recently enjoyed. The process of rights erosion begins at the margins and then, in some states, reaches the fundamental nexus of membership: liberty to participate in society without surveillance or suspicion.


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The federal government’s plenary power over immigration policy

For most of the first century of its existence, the American republic did not have a national immigration policy. The federal government lacked the consolidated power to attempt to control its borders until after the Civil War. Nor did it have a clear constitutional basis for doing so (Kanstroom, 2007; Newman, 1996). Near the end of the 19th century, under prodding from California state officials, Congress began to assert control over entry into the country. The goal was to reduce immigration from Asia, particularly China. Congress passed the Chinese Exclusion Act in 1882 to bar entry to Chinese migrants. In 1892 it went a step further with the Geary Act, creating onerous procedures applicable to Chinese immigrants already settled in the United States. This new law was immediately challenged on the grounds that it reached beyond the federal government’s constitutional authority (Martin & Shuck, 2005). The Supreme Court rejected that claim in Fong Yue Ting v. U.S (1893), broadly construing Congressional power to control immigration policy over strong dissents by three of its members. This case set the stage for the stillpowerful plenary power doctrine, which holds that the federal government can regulate immigration as it chooses, without the interference of courts or lower levels of government. Congress deployed its plenary power over immigration to gradually build an edifice of law and regulations over entry into the country, deportation, and citizenship (Tichenor, 2002). It lagged, however, in removing unauthorised immigrants, partly out of deference to agricultural interests reliant on unauthorised migrants. Deportations were occasional, but massive when they occurred. During the Depression, for example, the federal government deported between 500,000 and 1 million Mexican-born residents, some of who were U.S. citizens. In 1954 it initiated Operation Wetback, partnering with local police to remove nearly a million Mexicans and Mexican Americans. This picture of sporadic enforcement against unauthorised immigrants changed fundamentally after 1994, when California adopted Proposition 187, a voter-approved initiative designed to deny unauthorised immigrants most social services financed by the State. The new law was quickly and successfully challenged in the courts as extending beyond the State’s authority in matters of immigration enforcement. But its political impact was, nonetheless, enormous. Proposition 187, which received strong support from California voters, was a wake-up call to Congress concerning popular dissatisfaction with lack of enforcement of federal immigration laws. Congress responded by increasing the number of Border Patrol agents and taking steps to fortify the southern land border in urbanised areas (Nevins, 2002; Massey, Durand & Malone, 2002). It also created an explicit new role for states


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and localities in enforcing immigration law within the nation’s interior. The 1996 Anti-Terrorism and Effective Death Penalty Act (AEDPA) gave local police authority to arrest previously deported non-citizen felons. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), also passed in 1996, authorised the training of local and state police to enforce federal immigration laws. Memoranda of understanding between federal immigration officials and local police agencies were authorised to set out specific duties for patrol officers and jail officials trained under the 287(g) Program (a nickname derived from its location in federal statutes). These new laws represented a major shift toward devolution of significant immigration enforcement discretion to the local level. The 287(g) program, in particular, gave state, county, and municipal police power to actually enforce immigration law, making crucial on-the-street decisions without direct federal supervision. But the idea that immigration enforcement is solely a federal responsibility was not so easily dislodged. No local law-enforcement agencies signed up for immigration-enforcement training until 2003, eight years after the programme was authorised. Even then, only a handful of local law-enforcement agencies showed interest. The number increased somewhat with time, reaching 69 in October 2011, and involving 1,500 officers in 24 states (Elmi, Sheida & McCabe 2011). This number, however, represents only a tiny proportion of policing agencies in the United States. Most police departments continue to see immigration enforcement as a federal responsibility (Decker, Scott, Lewis, Provine & Varsanyi, 2009; Decker et al. 2010). The idea that state and local governments should enact their own immigration legislation was also slow to catch on. States and localities had grown accustomed to the idea that they had power only to assist in the integration of immigrants into local communities and that they were under a constitutional obligation not to discriminate on the basis of ethnicity or national origin or, presumably, legal status. The much-publicised failure of Congress to develop its own strategy for immigration reform, along with calls for more enforcement, finally galvanised state legislatures into taking action. By 2005, many had begun to consider proposals to restrict benefits based on legal status. Unauthorised immigrants were soon to feel the effect of their new-found concern.

3

States define the legal world of unauthorised immigrants

The era of passive acceptance of federal leadership in the control of immigration is over. Legislatures in virtually every state now entertain immigration-related proposals on a regular basis. Most have enacted at least a few proposals into law. The movement is energetic and creative, as well as broad-based. Some of these laws are designed to assist unauthorised immigrants, but most are restrictive, limiting services and opportunities to citizens and usually, but not always, to legal permanent residents. Even public space is in jeopardy for unauthorised


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immigrants through restrictions on day-labour solicitation and laws encouraging, or requiring, local police to be on the lookout for people who may lack legal status. Some states are on the verge of criminalising presence in the state without legal status. There is a pattern to this activity that has been encouraged in part by the interest of nationally based organisations, particularly the Federation of Americans for Immigration Reform (FAIR), whose mission is to reduce immigration. The question of why states are adopting immigration legislation or, more precisely, why some states are much more invested in this than others has been a matter for scholarly debate. One theory is that the pressure of numbers in places not accustomed to immigrants has created concerns in the electorate that translate into laws created to discourage immigrants from settlement (Walker, Kyle & Leitner, 2011; Singer, Hardwick & Brettell, 2008). Others suggest that local political culture is key, with Republican areas more anxious about immigration than areas that traditionally vote Democratic (Chavez & Provine, 2009; Ramakrishnan, Karthick & Wong, 2010). It has been suggested that attention to immigration at a national level tends to precipitate anxiety about immigration locally (Hopkins, 2010) and that news coverage and the availability of voter initiatives are relevant (Reich & Barth, 2011). This area of research, clearly, is still in its early stages. Another potentially useful way to analyse state legislative data is to look closely at the types of laws being enacted and when these enactments occur. The information necessary for such an analysis is available from the National Conference of State Legislatures, which began to collect data on immigrant-related bills, resolutions, and laws in 2005. Theirs is a dragnet approach that includes all proposals related to immigration, including budget items that may be directed toward refugees, and licensing requirements that affect very few people. The annual increase in the volume of such proposals is striking. Table 1 indicates the overall pattern. Note the large number of bills introduced, particularly after 2006, and the steadily growing number of resolutions. These are indications that state legislators have abandoned any reluctance they may once have had to get involved in immigration-related legislation. Legislators, nevertheless, remain somewhat cautious about putting their ideas into effect, judging from the number of laws actually enacted. Governors are also playing a role in reducing the number of laws that take effect through their power to veto legislation, as Table 1 indicates. Table 1

State legislative immigration-related activity 2005 – 2011

Bills Introduced Resolutions Adopted Laws Enacted Vetoed


2005

2006

2007

2008

2009

2010

2011

300 0 45 0

570 12 84 6

1,562 50 240 12

1,305 64 206 3

1,500 131 222 20

1,400 138 208 10

1,607 109 197 15

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The enthusiasm for introducing immigration-related legislation may be waning, however. In the first half of 2012 there were 20 percent fewer laws and resolutions adopted than in the same period in 2011. As of June 30, 2012, according to the National Conference of State Legislators, 41 states had enacted 114 bills and adopted 92 resolutions, with 13 bills awaiting a governor’s signature. Law enforcement and identification were the most frequent topics addressed but only five states introduced omnibus enforcement bills in the first half of 2012, down from 50 the year before. The slowdown, if this pattern continues, may have begun a year or two earlier as Table 1 suggests. Nevertheless, it is clear that immigration has a significant place on the state legislative agenda and seems destined to remain there: immigration laws made up ¼ of all laws adopted in the first half of 2012. To gauge the level of seriousness with which state legislatures are approaching immigration, I have filtered this data to focus on enacted laws, excluding resolutions and bills introduced but not acted upon (see also Filandra & Kovacs, 2011).1 The analysis that follows also excludes legislation that affects a very small number of people, such as licensing requirements for specific professions. Also omitted are identification criteria that are mandatory under federal law, such as Real ID requirements, and laws directed at behaviour that would ordinarily be considered criminal, such as legislation around human trafficking. My goal is to focus attention on laws that are broadly restrictive or protective, that is, laws that affect large numbers of people without legal status or with precarious status. Typically, but not always, these laws are intended to prevent people without legal status from doing everyday activities, such as driving a car or accepting employment. Immigration topics addressed in state legislation 2005 – 2011 – Education, generally denying, but sometimes providing, access to lower instate tuition rates at state-supported colleges and universities for unauthorised residents who otherwise meet standard criteria. – Employment, requiring employers to ascertain legal status of their employees or permitting them to avoid this requirement. – Law enforcement/policing/criminal justice, either providing protection against local reports to federal immigration authorities under most circumstances, or taking the opposite approach. This group includes laws limiting access to bail, interpreters, and civil damages. – Public benefits, mostly restrictive of access, although in some cases protecting access to specified services.

1

State legislative resolutions, although not considered in this analysis, can offer insights into the way state legislatures frame immigration. Filandra and Kovacs (2011) make a persuasive case for studying states that have been active in adopting resolutions related to unauthorised immigrants, finding important differences, for example, between Arizona and California in the images conveyed by these resolutions.


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– Health, generally restricting or permitting access to emergency or other services provided at government expense without regard to legal status. – ID/Drivers licenses, generally restricting access to legal residents. – Firearms, restricting access to firearms licenses. – Voting, restricting access to citizens registered to vote. – Omnibus, containing multiple restrictive provisions and focusing particularly on enhanced enforcement by local police. Table 2 below offers a brief summary of immigration-related legislation designed to affect large numbers of unauthorised immigrants. I selected three representative years for the sake of simplicity, and noted the anti- or pro-immigrant character of the legislation for each year. This table is organised to show the mixed cases first, that is, the topics that elicited laws both favourable and unfavourable to immigrants. Table 2 Topic/year – or + Education

State immigration-related laws by topic and intent 2006, 2008, and 2010 2006 2006 2008 2008 negative positive negative positive 1 2 (1 vetoed) 2 0

2010 negative 4

2010 Totals positive 2 (both vetoed) - 7, + 4 = 11 (veto = 3) 3 - 30, + 6 = 36

Employment

11

0

9

3

20

Law enforce.

6

3

5

1

0

2 (1 vetoed)

Pub. benefits Health ID/Driver L.

5 0 3

1 0 0

0 2 7

2 1 0

4 5 4

1 0 1 (vetoed)

Firearms Voting Omnibus Msc.

3 4 0 0

0 0 0 0

4 0 3 3

0 0 0 0

3 0 2 2

0 0 0 3 (1 vetoed)

35

7

44

12 (5 vetoed)

Totals

33

6 (1 veto)

- 11, + 6 = 17 (veto = 1) - 9, +4 = 13 - 6, + 4 = 10 - 14, + 1 = 15 (veto = 1) - 10, + 0 = 10 - 4, + 0 = 4 - 5, + 0 = 5 - 5, +3 = 8 (veto = 1) - 112, + 25 = 137 (veto = 6)

Some patterns are evident here. Gubernatorial vetoes, for example, may be growing more common, although they remain infrequent. Notably, it is only laws favourable to immigrants that have suffered a governor’s veto. Table 2 also clearly reveals that the top legislative priority throughout the period is employment, which is not surprising in light of federal legislation that explicitly provides room for state laws regarding business licenses. Courts, most recently in Chamber of Commerce v. Whiting (2011), have interpreted this power broadly to allow state laws punishing employers for hiring unauthorised immigrants. The power of states to take regulatory action regarding hiring of persons without legal status was established even earlier, in De Canas v. Bica (1976). Not all laws in this area, however, are unfavourable to immigrants. Employment is one


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of the areas in which some states have protected unauthorised immigrants, i.e., by ensuring their access to workman’s compensation, or by prohibiting municipalities from requiring employers to use E Verify, the federal employment verification programme. The legislation most favourable to unauthorised immigrants mostly attempts to limit federal enforcement initiatives: Employment (vis the federal E Verify program); Law enforcement (vis the federal 287(g) Program and the more comprehensive Secure Communities Program); Driver’s licenses (vis the Congressional REAL ID Act); Health and public benefits (vis PRWORA, the 1996 federal law that reduced immigrant welfare assistance); Education (vis federal law forbidding in-state tuition benefits for unauthorised students without state legislative authorisation). State laws of this type, by attempting to create safe havens for unauthorised immigrants, risk litigation from the federal government claiming that the matter is pre-empted by federal law (Zota, 2008). State laws that are unfavourable to unauthorised immigrants typically reinforce federal measures already in place, or create new restrictions based on state regulatory laws. As Table 2 indicates, these include statutes that require proof of legal status, e.g., for opening a new business; laws that restrict firearms ownership to legal residents; and legislation that requires proof of citizenship to vote. Omnibus laws, which began to appear in 2008, are also uniformly restrictive of immigrant rights. They are distinctive in their blunderbuss approach, covering areas that bear only a slight relationship to each other. Thus, Nebraska in 2010 adopted a law that required verification of legal status for employment, public assistance, and retirement benefits. Arizona’s SB 1070, enacted the same year, was more comprehensive, containing ten provisions, including restrictions on employment solicitation and transportation of unauthorised immigrants. SB 1070 also challenged federal authority by making failure to carry registration papers and being employed without legal status state crimes, and by requiring local police officers to take on immigration-enforcement duties that have in the past been under federal control. In a decision announced on June 25, 2012, the U.S. Supreme Court rejected the new state-created crimes as beyond Arizona’s authority and placed restrictions on the power of local police to detain people they suspect of lacking legal status (Arizona v. U.S., 2012). The small number of statutes favourable to immigrants and the high frequency of gubernatorial vetoes remind one of the difficulties associated with deploying state law effectively for the benefit of unauthorised immigrants. The problem is not simply lack of public support at the state level. Also significant is the structural fact that the national government remains the major player in immigration policy-making and the final arbiter of deportability. When the federal government decides to emphasise enforcement, deportation numbers will increase, regardless of state legislation. In recent years, in an effort to show that it is


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serious about immigration enforcement, the federal government has deported unprecedented numbers of people each year, reaching almost 400,000 in 2011. The overall trends at the state level are no more favourable to unauthorised immigrants. Over 80 percent of the laws enacted in the three years examined here restrict immigrant rights. Governors vetoed six of the twenty-five statutes that offered protection for unauthorized immigrants. States are also moving toward more comprehensive restrictions. Thus voting and identification requirements are giving way to laws that strike more centrally at the lives of immigrants: employment, education, and the ability to circulate freely in the community without surveillance by local police. The more specific provisions concerning policing and criminal justice, e.g., eligibility for bail for felons, are giving way to omnibus laws that affect the day-to-day lives of many immigrants. A small counter-trend can be observed at the municipal level. A few cities with liberal leadership – San Francisco, California; New Haven, Connecticut; Tacoma, Washington – have adopted municipal identification cards (De Graaw, 2008). Many more accept the matricula consular, an identification card issued by the Mexican government (Decker et al., 2009). A few places have constructed day labour centres. Non-citizen voting is also allowed in some school-board and other local elections. Another break from the pattern of more aggressive enforcement has been the treatment accorded young residents who lack legal status but wish to continue on to college or military service. For more than a decade, Congress has considered an exception for residents brought into the country as children, but in the meantime, thirteen states have taken action on their own, providing in-state tuition benefits to their undocumented students.2 The issue took on strongly partisan overtones when President Obama, in the throes of his 2012 re-election campaign, announced a plan to grant relief from deportation to unauthorized immigrants under the age of 31 who came as children. His executive action may affect as many as 1.76 million young people. However, for most of the 11 million (or possibly more) immigrants who live in the United States without legal authorisation, the screws are tightening around them. The federal government is well on the way to implementing Secure Communities, a programme that will link all jails to federal immigration databases. When it is fully implemented in 2013, the capacity of the federal government to track, detain, and deport immigrants will be significantly increased. State laws are moving in mostly the same direction and enhancing the possibility that an unauthorised immigrant will be caught in the widening net of federal

2

Oklahoma, later withdrew its support for these students (Morse & Bimback 2011).


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e nforcement, e.g., by prohibiting immigrants without legal status from acquiring drivers’ licenses. State laws also enter into the civil domain, restricting benefits and employment opportunities beyond even federal requirements. In this process, unauthorised immigrants have been reframed from their earlier quiet presence as workers, parents, and community members, to subjects whose most salient quality is their (lack of) legal status.

4

Reframing immigrants: Reframing rights

Unauthorised immigrants are losing rights that they once enjoyed as a matter of course. And communities are losing the ability to interact with immigrants as they once did. Immigrants and non-immigrants used to be connected through a web of legality accepted by everyone. The web included the right to buy and sell goods, to own real estate, to sign a long-term lease, to pay taxes, to have the garbage collected and the electricity connected. Within this context employers offered work and workers relied on their promises. In the past, people without legal status wrote wills, got married, and divorced, bought and rented cars, learned to drive and acquired driver’s licenses, all without incident. They negotiated settlements with neighbours and may even have sued for damages for injuries or to collect child support. Many observers have pointed out that the movement to reframe unauthorised immigrants as undesirables, or even quasi-criminals, is not driven by economic logic. Tearing apart a once-serviceable economic fabric to deport working, often long-settled, immigrants cannot make economic sense. The restrictionist logic is more like a moral crusade (Gusfield, 1986) based on an emotional aversion and fear of the demographic and economic changes that are occurring. This crusade has made violation of immigration laws, most often a civil offense under federal law, seem like a serious crime. With the emphasis on enforcement and harsher controls at the border has come a reduction in already spare procedural protections and greater resort to criminal prosecution with those who are detained (Stumpf, 2006). States and municipalities have extended this process with increased surveillance and their own restrictions, taking interior enforcement to a whole new level. Some critics suggest that governments at all levels should be marching in the opposite direction, developing innovative ways to allow civic participation by all who live in a place. Otherwise, government will in the long run lose legitimacy and valuable input from the governed (Benhabib 2005, Carens 2010). These critics see an increasingly transnational world in which governments are no longer unambiguously connected to their citizenry through the bounded territory of the nation state (Fitzgerald, 2009). Building on the work of Henri LeFebvre (1968, 1996), some have suggested a new ‘right to the city’ that builds on the growing cosmopolitanism that characterises many major metropolitan spaces (Purcel, 2003; Varsanyi, 2008; Smith & McQuarrie, 2012). The idea, in the


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words of one scholar, would be to develop a citizenship grounded in life in a community rather than bounded by the requirements of national citizenship laws (Varsanyi 2008, p. 239). Mark Purcell takes the concept a step further to argue that the destabilisation of citizenship and the rise of virtually unfettered capitalism demand a ‘right to the global city’ based on ‘a new politics in which inhabitance, not nationality, forms the basis for political community and decision-making authority’ (Purcell, 2003, p. 566). As attractive as these ideas are for imagining membership in urban society, they tend to downplay the historical connection transnational residents have always had to the communities in which they reside. Community here refers, not just to neighbourhoods, but also to cities, states, and nation. The connections of unauthorised immigrants with their (many) communities has been built on a framework of rights and legal obligations – otherwise common life would have been impossible. The need now, in an increasingly inter-connected world, is not to develop new rights based on an emergent cosmopolitan foundation, but to re-discover and re-implement old rights that unauthorised immigrants enjoyed as residents of the places in which they lived, worked, and died. This is not to say that unauthorised immigrants have enjoyed all of the rights that may be desirable or just. However, the past does provide a foundation of experience upon which to build: ‘Illegal alienage is not a natural or fixed condition but the product of positive law; it is contingent and at times it is unstable’ (Ngai 2004: 6). The new emphasis on legal status above every other dimension of membership is an unsustainable formula that leads to ‘bare life’ (Agamben 1995) for unauthorised immigrants and a diminished society for everyone else.

References Agamben, G. (1995). Homo sacer: Sovereign power and bare life. Stanford, CA: Stanford University Press. Benhabib, S. (2005). The rights of others: aliens, residents, and citizens. NYC: Cambridge University Press. Carens, J.H. (2010). Immigrants and the right to stay. Cambridge, MA: MIT Press. Chavez, J.M., & Provine D.M. (2009). Race and the response of state legislatures to unauthorized immigrants. Annals of the American Academy of Political and Social Sciences, 623, 78-92. Decker, S., Lewis, P., Provine D.M., & Varsanyi M. (2009). On the frontier of local law enforcement: Local police and federal immigration law. In W.F. McDonald (Ed.), Immigration, crime and justice, (261-276). NYC: Elsevier. De Graauw, E. (2008). Nonprofit organizations and the contemporary politics of immigrant incorporation in San Francisco. Ph.D. dissertation. University of California, Berkeley. Elmi, S. & McCabe, K. (2011). Immigration enforcement in the United States, Migration Information Source, Oct. 25, 2011, http://www.migrationinformation.org/usfocus/print.cfm?ID=858 [retrieved 6/1/12]. Filandra, A. & Kovacs, M. (2011). Analysing US state legislative resolutions on immigrants and immigration: The role of immigration federalism, International Migration, doi: 10.1111/j.14682345.2010.00658.x.


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Fitzgerald, D. (2009). A nation of emigrants: how Mexico manages its migration. Berkeley CA: University of California Press. Gusfield, J. (1986). Symbolic crusade: status politics and the American temperance movement, 2nd Ed. Urbana. IL: University of Illinois Press. Hopkins, D. J. (2010). Politicized places: Explaining where and when immigrants provoke local opposition, American Political Science Review, 104 (1): 40 – 60. Kanstroom, D. (2007). Deportation nation: Outsiders in American history. Cambridge MA: Harvard University Press. Lefebvre, H. (1968 [1996 edn]). The right to the city in E. Kofman and E. Lebas (eds.), Writings on cities. Cambridge MA: Blackwell. Martin, D. A. & Schuck, P.H. (eds.) (2005). Immigration stories. NYC: Foundation Press. Massey, D. S., Durand, J. & Malone, N.J. (2002). Beyond smoke and mirrors: Mexican immigration in an era of economic integration. NYC: Russell Sage. Morse, A. & Bimbach, K. (2011). In-state tuition and unauthorized immigrant students, National Conference of State Legislatures, Nov. 2011 http://www.ncsl.org/issues-research/immig/instate-tuition-and-unauthorized-immigrants.aspx [retrieved 5/31/12]. Nevins, J. (2002). Operation Gatekeeper: The rise of the “illegal alien” and the making of the U.S. – Mexico border. NYC: Routledge. Newton, L. (2012). Policy innovation or vertical integration? A view of immigration federalism from the states, Law & Policy 34(2): 113-37. Ngai, M. M. (2004). Impossible subjects: illegal aliens and the making of modern America. Princeton, NJ: Princeton University Press. Purcell, M. (2003). Citizenship and the right to the global city: reimagining the capitalist world order, International Journal of Urban and Regional Research, 27(3): 564-590. Ramakrishnan, S. K. & Wong, T. (2010). Partisanship, not Spanish: Explaining municipal ordinances affecting undocumented immigrants. In Taking Local Control: Immigration Policy Activism in U.S. Cities and States, edited by M. W. Varsanyi, ch. 4. Palo Alto, CA: Stanford University Press. Reich, G. & Barth, J. (2011). Explaining state activism on immigration policy: A comparative analysis of the power of the initiative process, paper presented for the annual meeting of the American Political Science Association, Seattle Washington, September 2011. Singer, A., Hardwick, S.W. & Brettell, C.B. (eds.) (2008) Twenty-first century gateways: immigrant incorporation in suburban America, Washington, DC: Brookings. Smith, M.P. & McQuarrie M. (eds.). (2012). Remaking urban citizenship: Organizations, institutions, and the right to the city. New Brunswick, NJ: Transaction Publishers. Stumpf, J. (2006). The Crimmigration crisis: Immigrants, crimes, and sovereign power American University Law Review, 56: 305. Tichenor, D. J. (2002). Dividing lines: The politics of immigration control in America, Princeton, NJ: Princeton University Press. Varsanyi, M. (2008). Immigration policing through the backdoor: city ordinances, the ‘right to the city’ and the exclusion of undocumented day laborers, Urban Geography. 29(1): 29 – 52. Walker, K. & Leitner, H. (2011). The variegated landscape of local immigration ordinances in the US, Urban Geography 32(2): 156-178. Zota, S. (2008). Do state and local immigration laws violate federal law? Local Government Law Bulletin, No. 117, July 2008 UNC School of Government.

Cases cited Arizona v. U.S., 567 U.S. (2012) Chamber of Commerce v. Whiting, 563 U.S. (2011) De Canas v. Bica, 424 U.S. 351, 96 S. Ct. 933 (1976). Fong Yue Ting v. United States, 149 U.S. 698, 13 S. Ct. 1016 (1893).


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The impact of immigration enforcement outsourcing on ice priorities

Michele Waslin

1 Introduction Scholars have addressed the role of states and localities in immigration enforcement, or ‘immigration federalism’ (Motomura, 1999, 2008; Spiro, 1997, 2001; Skerry, 1995; Schuck, 2007). The devolution of civil immigration law enforcement authority in particular, and the proliferation of partnerships between ICE and state and local law-enforcement agencies (LEAs), has been well documented (Coleman, 2007; Garcia & Manuel, 2010; Waslin, 2010). While some see this devolution as a crucial ‘force multiplier’ (Kobach, 2005), others see the potential for discrimination (Waslin, 2007; Wishnie, 2001), the erosion of community trust in the police (Chishti, 2002; Pham, 2004; Waslin, 2010), and misappropriation of local crime-fighting resources (Bolick, 2008). The majority of scholarship has examined the impact of immigration law enforcement devolution on local communities and LEAs, but much less attention has been given to the impact of devolution on the priorities and resources of the federal agencies responsible for immigration enforcement. Lydgate (2010) examined the federal government’s focus on apprehending and prosecuting border crossers along the Southwest border and found that increased attention on nonviolent border crossers was associated with fewer resources being devoted to investigating smuggling operations and other violent crimes. Similarly, a report from the Transactional Records Access Clearinghouse (2009) shows that federal immigration prosecutions rose to record levels during fiscal year 2009, and the increase in immigration prosecutions was associated with a significant decrease in prosecutions for drug and weapons violations and other crimes. However, the relationship between US Immigration and Customs Enforcement (ICE) partnerships with local police and ICE’s own priority-setting has not been thoroughly examined. These two examples do not provide details about the complex processes taking place in order to achieve enforcement results. Immigration enforcement is not a single process, but rather involves multiple actors and a series of d ecision


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points, all within a political environment. In order to understand ICE’s priority-setting and priority-achievement, one must disaggregate the various components of the immigration enforcement process and analyse them within the current national context. US Immigration and Customs Enforcement (ICE) has stated that budget realities make it impossible to remove everyone who is in the country illegally or who is otherwise deportable, and has therefore prioritised the identification, arrest, detention, and removal of immigrants who pose a threat to public safety and national security (Morton, 2010b). However, their definition and operationalisation of stated priorities leaves much space for enforcement resources to be allocated to non-priority cases. At the same time, ICE has, in effect, outsourced the identification of immigrants for enforcement actions to local law enforcement agencies (LEAs) and jails, through its partnerships such as 287(g) and Secure Communities. The costs of this ‘outsourcing’ are similar to those documented in business management literature (Barthélemy, 2001; Earl, 1996; McCray, 2008). The objective of outsourcing is generally cost cutting; however, there may be considerable costs involved in the recruitment and contracting, transitioning, and management of outsourcing. Weak management, unclear contract terms, and inexperienced or unskilled service providers can doom an outsourcing project and undermine a company’s objectives. In the case of immigration enforcement outsourcing, ICE’s stated enforcement priorities are compromised because the terms of the contract between the ‘subcontractor’ LEAs and ICE are unclear, subcontractors have their own priorities, and there is limited oversight. Programmes such as 287(g) and Secure Communities merge the federal immigration enforcement system with state criminal justice systems. Through these programmes, non-citizens are made known to ICE when LEAs share information about persons who are charged with, or convicted of, non-immigrationrelated offences. The 287(g) programme does this by delegating certain immigration powers to local police through negotiated memoranda of agreement (MOAs, 2010), (US Customs and Immigration Enforcement, 2010). Deputised officers are authorised to screen individuals for immigration violations and issue detainers (‘ICE holds’). Secure Communities employs technology to share information with immigration authorities which can be used to identify immigrants who may be deportable. Fingerprints routinely taken by LEAs at the point of booking are submitted to federal immigration databases, in addition to the federal criminal databases to which they are normally submitted. ICE and the LEA are notified if there is a database ‘hit,’ meaning that the arrested person is matched to an immigration record. This database hit may indicate an immigration violation, but may also be a record of some other transaction such as a visa petition or, even, naturalisation. ICE then evaluates each case to determine the individual’s immigra-


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tion status and take appropriate enforcement action (US Customs and Immigration Enforcement). This generally entails issuing a detainer, requesting the local authorities to keep the individual in custody until ICE assumes custody. Whereas state or local jurisdictions must request a 287(g) partnership with ICE, Secure Communities is not optional, according to ICE, and is expected to be activated in every jurisdiction in the US by 2013. An immigration detainer is an official request from ICE to another LEA – such as a state or local jail – that the LEA notify ICE prior to releasing an individual from local custody so that ICE can arrange to take over custody within a designated 48-hour time period, during which the LEA can continue to detain him.1 In other words, detainers are the lynchpin between local law-enforcement agencies and ICE through programmes such as 287(g) and Secure Communities; once a LEA has a person in custody and ICE determines that the person may be deportable, the detainer is the method for holding the person until ICE takes custody. The stated objective of both 287(g) and Secure Communities is to target dangerous criminals and persons who pose a threat to the community, and ICE credits these programmes with the increase in deportations of criminal aliens in FY2010 (Department of Homeland Security, 2010). However, Secure Communities and 287(g) undermine ICE’s stated priorities because they are designed and implemented in a way that results in the deportation of immigrants with minor criminal offences, or no criminal history at all. Despite the stated priorities of the programmes, they have the potential to cast a wide net, resulting in the identification and deportation of persons charged with, or convicted of, lowlevel crimes, or those who have no criminal history at all. ICE has stated its priorities, but relies on programmes that are designed and implemented in a way that disregards those priorities. This raises questions regarding ICE’s level of seriousness with respect to implementing its stated enforcement priorities. In addition to the national implications, the failure to prioritise is felt at the local level because local communities must pay the costs associated with arresting and detaining low-level offenders; and may experience a decline in public safety if immigrants are fearful of reporting crimes or if police redirect resources toward immigration enforcement and away from other priorities.

1

8 CFR 287.7(a) and 8 CFR 287.7(d).


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2


ICE’s priorities

While some observers had expected that the Obama administration would focus on immigration reform, it has instead emphasised immigration enforcement and deportation, taking credit for increasing the number of annual deportations from the previous administration (DHS, 2010). However, there has been an effort to shift enforcement resources toward clearly defined targets and away from large-scale workplace raids and broad sweeps. Toward this end, ICE has issued several memos announcing new priorities for worksite enforcement (US Department of Homeland Security, (DHS), 2009a) and Fugitive Operations (Morton, 2010a), and made changes to the 287(g) MOA: clarifying that the purpose of the programme is to identify and remove immigrants who pose a threat to public safety, or a danger to the community, and putting into place other measures to ensure compliance with ICE priorities (DHS, 2009b). The most pointed statement of new priorities was a June 30, 2010 memo entitled ‘Civil immigration enforcement: Priorities for the apprehension, detention, and removal of aliens,’ which set forth new enforcement prioritisation objectives (Morton, 2010b). The memo makes it clear that prioritisation is necessary due to resource constraints: “In addition to our important criminal investigative responsibilities, ICE is charged with enforcing the nation’s civil immigration laws. This is a critical mission and one with direct significance for our national security, public safety, and the integrity of our border and immigration controls. ICE, however, only has resources to remove approximately 400,000 aliens per year, less than 4 percent of the estimated illegal alien population in the United States. In light of the large number of administrative violations the agency is charged with addressing and the limited enforcement resources the agency has available, ICE must prioritise the use of its enforcement personnel, detention space, and removal resources to ensure that the removals the agency does conduct promote the agency’s highest enforcement priorities, namely national security, public safety, and border security.”

The memo outlines civil immigration enforcement priorities as they relate to the apprehension, detention, and removal of immigrants and sets forth a new three-tiered priority system: 1) Non-citizens who pose a danger to national security or a risk to public safety, including those suspected of terrorism, convicted of violent crimes, and gang members; 2) Non-citizens who recently entered the US illegally, or knowingly violated the terms of a visa or the visa waiver programme; and 3) Non-citizens who are subject to a final order of removal and abscond, fail to depart, or intentionally obstruct immigration controls. Priority 1 is further broken down into Levels 1, 2, and 3, and these levels are to be used to guide enforcement actions within ICE’s partnerships with LEAs.


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– Level 1 offenders: aliens convicted of ‘aggravated felonies,’ as defined in section 101(a) (43) of the Immigration and Nationality Act, or two or more crimes each punishable by more than one year, commonly referred to as ‘felonies’;2 – Level 2 offenders: aliens convicted of any felony or three or more crimes each punishable by less than one year, commonly referred to as ‘misdemeanours;’ and – Level 3 offenders: aliens convicted of crimes punishable by less than one year.3 ICE has made it clear that prioritisation does not mean that it will focus enforcement exclusively on the highest priorities, as the current political context would appear to dictate that ICE not ignore anyone who is in violation of immigration laws. It specifically states that ‘ICE special agents, officers, and attorneys may pursue the removal of any alien unlawfully in the United States.’ In other words, ICE policy remains such that it may identify, detain, and deport immigrants with no criminal histories. For example, in November 2010, the press reported on a woman who may have been deported after calling the police for domestic violence. An ICE spokesperson was quoted saying, ‘ICE cannot and will not turn a blind eye to those who violate federal immigration law. While ICE’s enforcement efforts prioritise convicted criminal aliens, ICE maintains the discretion to take action on any alien it encounters’ (Vedantum, 2010). According to ICE officials, prioritisation ultimately comes down to resources. ICE has stated that its ability to take custody of low-priority persons identified in local jails is conditioned by the resources available on the ground at the time. If ICE has the resources to pick up the immigrant, the priority level makes little difference. Priority levels come into play only when there is a shortage of personnel or bed space (Migration Policy Institute (MPI), 2011). ICE’s conflicting statements raise an important question regarding how ICE rationalises prioritisation. ICE’s official statements cite limited resources as the only reason to prioritise criminal over non-criminal aliens rather than an inherent benefit of prioritisation. Should resources be the motivation? Or should ICE prioritise national security, public safety, and border security regardless of funding levels? If Congress were to increase the level of appropriations for enforcement activities, would ICE still find it necessary to prioritise its efforts? In sum, ICE’s definition of and justification for prioritisation remain unclear.

2

3

ICE notes that the definition of aggravated felony includes serious, violent offences as well as less serious, non-violent offences, and that ICE personnel should prioritise the former within Level 1 offences. ICE notes that ‘some misdemeanors are relatively minor and do not warrant the same degree of focus as others. ICE agents and officers should exercise particular discretion when dealing with minor traffic offences such as driving without a license.’


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3


Enforcement Priorities and State and Local Partnerships

Partnerships are not targeting serious offenders

There is adequate evidence that, through its partnerships with LEAs, ICE is not strictly adhering to the priorities put forward in the June 30, 2010 memo. While the administration has touted an increasing proportion of deportations of ‘criminal aliens’, observers have noted that the 287(g) Secure Communities programmes have netted large numbers of non-criminals and individuals with relatively minor criminal offences. Many of their concerns are related to the interplay of ICE enforcement with the criminal justice system and the LEAs that are partnering with ICE. Concerns over the motivations behind jurisdictions requesting 287(g) MOAs and how they are being implemented by local jurisdictions and ICE field offices have been documented in reports from governmental (Government Accountability Office, 2009) and nongovernmental sources (American Civil Liberties Union of North Carolina (ACLU), 2009; Migration Policy Institute, 2011; Shahani & Greene, 2009; Waslin, 2010). The programme’s lack of clear priorities has been a key issue in the government’s own evaluations of 287(g). An April 2010 report by the DHS Office of Inspector General (US Department of Homeland Security Office of the Inspector General (OIG), 2010a) found that ICE and its local lawenforcement partners had not consistently stated the programme’s priorities: ICE’s primary performance measure for the 287(g) program is the number of aliens encountered by 287(g) officers. ICE also collects information on the number of aliens identified through the 287(g) program who are subsequently removed by ICE. However, with performance measures that do not focus on aliens who pose a threat to public safety or are a danger to the community, there is reduced assurance that the goal of the 287(g) program is being met. … Although ICE has developed priorities for alien arrest and detention efforts, it has not established a process to ensure that the emphasis of 287(g) efforts is placed on aliens that fall within the highest priority level.

In September 2010, the DHS Inspector General released an updated report on the Performance of 287(g) Agreements, which largely echoes the findings of the first report (US Department of Homeland Security OIG, 2010b). The new report contains additional recommendations to ensure that ICE establish a comprehensive approach for determining whether 287(g) programme goals for removing criminal aliens who pose a threat to public safety are being achieved. MPI (2011) found that, nationally, the 287(g) programme is not targeted toward serious offenders. Approximately half of the programme activity involves people who have committed felonies or other serious crimes, while the other half is people who have committed misdemeanours or traffic offences. There is much variation between the active jurisdictions, with some utilising a targeted model focused on serious criminals, while other jurisdictions utilise a more universal


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model, casting a wide net to arrest and detain large numbers of immigration violators. For example, in Cobb County, GA, a universal model is used and traffic offenders account for nearly 70 percent of 287(g) detainers; in Las Vegas, NV, a targeted model is used and traffic offenders account for 20 percent. Created in 2008, the Secure Communities has the potential to identify large numbers of non-citizens for deportation. By 2013, when the programme is scheduled to be active in every jurisdiction in the US, all fingerprints of everyone booked into jail will be run through DHS databases. Due to a lack of transparency surrounding the programme and its rapid rollout, the programme has raised many questions and has been subject to criticism. For example, Illinois attempted to terminate its participation in the Secure Communities programme, and other states and jurisdictions have expressed interest in opting out or modifying the programme’s implementation (Preston 2011). ICE has since clarified that the programme is mandatory (Waslin, 2011) Secure Communities prioritises the immigrants it identifies using the threelevel prioritisation system of the Morton (2010) memo.1 Examinations of ICE’s Secure Communities statistics reveals that those identified by Secure Communities include large numbers of individuals with no criminal history, individuals charged with (but not convicted of) crimes, and legal immigrants with prior convictions that make them deportable. According to DHS data, in FY 2011, 26% of all Secure Communities deportations were immigrants with Level 1 convictions; 19% of those deported had Level 2 convictions; and 29% were individuals convicted of Level 3 crimes (minor crimes resulting in sentences of less than one year). Twenty-six percent of those deported had immigration violations and no criminal convictions (US Immigration and Customs Enforcement, 2011). More over, ICE statistics show that some jurisdictions’ numbers for low level-offenders and non-criminal deportations are well above the national average. For example, between October 2008 and September 30, 2011, in Maricopa County, Arizona, 60% of those deported were Level 3 or non-criminals; in Alameda County, California, it was 64%; in Gwinnett County, Georgia, it was 66%; in Jefferson Parish, Louisiana, 87% were Level 3 or non-criminals (US Immigration and Customs Enforcement, 2011). ICE claims that people generally commit fewer Level 1 crimes than Level 2 or 3 crimes, and that the number of persons deported for Level 1 offences will likely diminish relative to Level 2 and 3 offenders (US Immigration and Customs Enforcement, 2010c). This is because most Secure Communities programmes have been in place for less than two years; serious criminal offenders serving lengthy sentences are likely still imprisoned, while those convicted of lesser

1

Prior to the 2010 prioritisation memo, Secure Communities worked from another definition of Levels 1-3. The crimes included under each Level were subject to several changes between the programme’s inception in 2008 and the 2010 memo. For more detail see Waslin, 2011.


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crimes serve shorter sentences and are removed more quickly. Nevertheless, the relatively large number of low-level criminals and non-criminals arrested and deported remains contrary to ICE’s limited resources justification for prioritisation. In summary, the data on the 287(g) and Secure Communities programmes indicates that large numbers of minor offenders and non-criminals continue to be identified and deported through these programmes. The impact of partnerships with LEAs on prioritisation ICE’s own memo about prioritisation makes it clear that, while they may prioritise certain persons over others, nothing prevents them from deporting anyone who is deportable. This helps to explain why relatively large numbers of low level offenders and non-criminals are being deported. However, despite the design and implementation of the partnerships with LEAs, there are other factors that impact the deportation statistics. As for the design of the programme, in both the 287(g) and Secure Communities programmes, immigrants may be identified and taken into custody by ICE for deportation pre-conviction. When an individual is arrested or booked into jail, that information is shared with ICE. In some cases, the immigrant will be prosecuted and convicted of the underlying crime and may serve time, after which he or she will be turned over to ICE for deportation proceedings.2 However, in other cases, the charges may be dropped or the person may be deemed innocent, but that person will still be turned over to ICE for deportation. This guarantees that persons who have never been convicted of a crime will be made available to ICE for deportation. In terms of implementation, there are issues regarding the actions and motivations of both the LEAs and ICE that may result in a failure to target high priority cases. As referenced above, the MPI (2011) report on 287(g) found that local jurisdictions may take either a universal or a targeted approach to implementing the programme, and the approach will determine the percentage of activity focused on high-level offenders. In addition to the overall approach taken, police officers with 287(g) MOAs or working in jurisdictions that have Secure Communities may have an incentive, or at least the ability, to make arrests based on race or ethnicity, or to make pretextual arrests of persons they suspect to be in violation of immigration laws, in order to have them run through immigration databases. Several studies have found that such jurisdictions may have increased numbers of individuals

2

In other cases, the person may be taken into custody by ICE and deported before the criminal trial can take place, in which case the immigrant cannot stand trial and may lose any bond that was posted.


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arrested for low-level offences, such as traffic offences, who are then identified for ICE enforcement action (ACLU, 2009; Gardner & Kohli, 2009; Guttin, 2010). Furthermore, while ICE does not encourage profiling (and claims that Secure Communities solves the problem by running all fingerprints through the system – not just those of immigrants – ICE claims it has limited ability to sanction LEAs for racial profiling or pretextual arrests or for otherwise arresting large numbers of individuals for the purpose of running them through immigration systems. The arrests (for non-immigration-related offences) are not within the scope of the 287(g) or Secure Communities programmes. While local police are responsible for making arrests and sharing information with ICE, ICE is ultimately responsible for deciding whether or not to take action in any given case. ICE could use discretion when issuing detainers and only place detainers on high priority non-citizens. However, as the use of detainers has increased with the expansion of the 287(g) and Secure Communities programmes, it has become clear that detainers are often issued to persons charged with crimes, but not convicted of crimes, and that detainers are issued regardless of the severity of the person’s criminal history (American Immigration Council, 2010). As part of the 287(g) MOA, ICE supervisors must sign off on each detainer that is issued, meaning that ICE does have a mechanism for enforcing stated ICE priorities. ICE may decide not to issue a detainer and take no further action on a low priority case. However, there is evidence that this oversight authority is not being used well. The Migration Policy Institute (2011) found that, while ICE does closely monitor and supervise local 287(g) officers, there is no evidence that ICE supervisors sanction LEAs that take enforcement actions against low enforcement priorities. In fact, ICE supervisors tend to support state and local approaches and priorities. In the case of Secure Communities, ICE has full discretion to issue a detainer when presented with a deportable individual. However, the data clearly indicate that detainers are being issued regardless of priority level. On August 1, 2010, ICE released a draft detainer policy and granted the public 60 days to comment on the draft (American Immigration Council, 2010; US Immigration and Customs Enforcement, 2010b). While the draft demonstrated an effort to clarify ICE’s detainer policies, it did not mention, nor reflect, the June 30, 2010 memo on ICE’s civil enforcement priorities, and it allowed for placing detainers on individuals following arrest, rather than conviction. In doing so, the document failed to acknowledge the significant role of detainers in the prioritisation process and ICE’s ability to advance its own enforcement priorities through its detainer policy. ICE eventually scrapped the detainer guidelines and, on June 17, 2011, ICE announced that it had revised the detainer form (Waslin, 2011).


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Surrounding these programmes is immigration law itself. Under current law, lawful immigrants face mandatory detention and deportation for having committed a growing number of low-level crimes. This ensures that the label ‘criminal aliens’ encompasses a wide collection of individuals, some of whom are violent or serious criminals, while many others have committed low-level, non-violent crimes and do not present a threat to the community. Of course, immigrants who lack legal status may be deported regardless of criminal conviction. In recent years there has been an increase in the number of state laws that essentially criminalise the day-to-day behaviour of migrants. Laws such as those that make unauthorised migrants ineligible for driver’s licenses – and therefore vulnerable to charges of driving without a license – further broaden the range of crimes for which immigrants will be drawn into the criminal justice system (Johnson, 2004). For these reasons, the universe of individuals identified through 287(g) and being run through the Secure Communities programme is much larger than those convicted of serious criminal offences. As long as local police have the ability to arrest – on minor charges – large numbers of persons they suspect may be deportable immigrants, and as long as ICE continues to respond to low-level ‘hits,’ the number of deportations of low-level and noncriminal immigrants will likely continue to be larger than the number of serious criminals removed.

4

ICE Priorities and State Legislation

As states and localities pass laws and ordinances aimed at controlling illegal immigration (National Conference of State Legislatures, 2011), these measures have the potential to further interfere with the federal government’s ability to implement its own enforcement priorities. For example, if fully implemented, Arizona’s SB1070, or Alabama’s HB56, would inundate DHS with requests to determine the immigration status of individuals arrested by the police for suspicion of being unlawfully present, thus impinging upon ICE’s ability to fulfil its mandate, set enforcement priorities, and allocate resources effectively. If ICE were to determine that the individual in question is, indeed, unlawfully present, ICE would be expected to take custody of him/her and place him/her in deportation proceedings. The law also creates new crimes, such as failure to carry proper immigration documents, which would likely fall into ICE’s lowest priority level. In essence, Arizona would be asking ICE to respond to all of Arizona’s requests and take custody of countless individuals who are not serious threats to the country and who have not committed serious crimes. Experts such as former INS Commissioner Doris Meissner (2010) have commented that this would mean that ICE would have fewer resources to deal with serious criminals, terrorists, and other priority individuals. As additional states consider SB1070 copycat legislation, the impact of such legislation on ICE enforcement priorities and capacity must be considered.


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A patchwork of state-level enforcement policies and priorities will severely undermine the administration’s ability to set its own enforcement priorities and take action against the highest priority cases.

5 Discussion There are approximately 11 million unauthorised immigrants residing in the US (Passel & Cohn, 2011), and other legal immigrants, smugglers, employers, and others who are subject to immigration enforcement, leaving ICE with an impossibly large number of persons subject to enforcement action. ICE has taken important steps toward defining its priorities and ensuring that ICE agents and officers act in line with the agency’s stated priorities. However, the definition and implementation of prioritisation remains unclear, and ICE’s own statements on its priorities leave plenty of space for them to deport immigrants charged with crimes but not convicted, immigrants convicted of minor crimes, and immigrants with no criminal history. Regardless, ICE’s prioritisation efforts can only go so far in terms of ensuring that ICE’s enforcement resources are directed toward identifying, detaining, and deporting non-citizens with serious criminal records. The nature of current immigration law and the expansive list of aggravated felonies and deportable offences mean that immigrants convicted of relatively minor and nonviolent crimes will be detained and deported; regardless of how many years they have lived in the United States or whether they have US citizen dependents. State laws that criminalise the activities of migrants, such as driver’s license laws, further widen the net for enforcement actions. Furthermore, by partnering with state and local police agencies, ICE has put non-ICE personnel at the front lines of immigration enforcement. While ICE can take steps toward greater supervision of these LEAs, ICE will always be limited in the authority it can exert over its state and local partners. Under this model, LEAs are responsible for channelling immigrants from the criminal justice system into the federal immigration enforcement system. Because LEAs have their own local interests and priorities, it is very likely that non-priority immigrants will continue to be subject to immigration enforcement actions. As long as ICE continues to outsource the identification and arrest of immigrants to LEAs and communities intent on ridding their jurisdiction of undocumented immigrants, ICE’s ability to truly focus on serious criminals is compromised. ICE clearly has the ability to pass on enforcement against identified low-priority immigrants, but generally chooses not to ignore them. Given the current level of politicisation of immigration enforcement, ICE would find itself publicly accountable if it was found unresponsive to local queries. These factors, together with new enforcement-oriented legislation at the state level, means that ICE resources are far from being focused exclusively on deporting serious criminals.


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If ICE partnerships were simply failing to match the priorities put forward by ICE, the question would be largely academic, focusing on whether current efforts reflect the best use of limited resources. However, the failure to prioritise has an impact that goes well beyond the internal processes and resource allocations of the federal government. Scholars, advocates, and police officials and associations have documented negative implications of immigration enforcement partnerships for LEAs and local communities that are related to the failure to target serious criminals. While few would question the wisdom of deporting serious criminal threats, some community members may not appreciate spending scarce resources on arresting and detaining traffic violators. Furthermore, the fact that a partnership could result in profiling and arrests for low level offences strikes fear in the heart of the immigrant community, and the lack of cooperation with that community poses a public safety threat to the larger community. The erosion of police-community relations, lower crime reporting rates by immigrant communities, high costs imposed on taxpayers, re-routing of enforcement resources toward immigration-related activities, and others have been examined in detail elsewhere (ACLU, 2009, 2011; Chishti, 2002; Lacayo, 2010; MPI, 2011; Shahini & Greene, 2009; Waslin, 2007, 2010; Wishnie, 2001). ICE could make changes to their partnerships with LEAs which would turn the focus of immigration enforcement toward serious criminals. Screening individuals post-conviction would be a critical first step. Re-writing ICE’s detainer guidelines to reflect the June 30 priorities memo and creating an oversight mechanism to ensure detainers are being placed on serious criminals would also be important steps. Yet these actions mean little if the administration remains intent on deporting ever-larger numbers of persons. Reaching deportation quotas or goals is inherently inconsistent with prioritisation. Finally, legalisation would be an enormous step toward true prioritisation. A pool of 11 million persons subject to deportation is not a good starting place. Legalising undocumented immigrants who do not pose a threat to public safety or national security, would allow DHS to focus its limited enforcement resources on unauthorised and legal immigrants with serious criminal convictions.

References American Immigration Council. (2010, October 5). Press Release: The American Immigration Council Addresses Problems with Draft Immigration Detainer Policy. Comments on U.S. Immigration and Customs Enforcement Draft Detainer Policy are available at: http://www. legalactioncenter.org/sites/default/files/docs/lac/NGO-DetainerCommentsFinal-10-1-2010. pdf Barthélemy J. (2001). The Hidden Costs of IT Outsourcing. MIT Sloan Management Review, 42(3), 60-69.


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Bolick, C. (2008). Mission Unaccomplished: The Misplaced Priorities of the Maricopa County Sheriff’s Office. Goldwater Institute Policy Report, No. 229. Retrieved from http://www.goldwaterinstitute.org/Common/Img/Mission%20Unaccomplished.pdf Capps, R., Rosenblum, M., Rodriguez, C., & Chishti, M. (2011). Delegation and Divergence: A Study of 287(g) State and Local Immigration Enforcement. Washington, DC: Migration Policy Institute. Chishti, M.A. ( 2002). The role of states in U.S. immigration policy. New York University Annual Survey of American Law 58, 371-376. Coleman, M. (2007). Immigration geopolitics beyond the Mexico-U.S. border. Antipode 39(1), 54-76 Earl, M. (1996). The Risks of Outsourcing IT. Sloan Management Review, Spring, 26-32. Garcia, M. J., & Manuel, K. (2010, September 17). Authority of State and Local Police to Enforce Federal Immigration Law. Congressional Research Service, 7-5700. Gardner, T. II, & Kohli, A, (2009). The CAP Effect: Racial Profiling in the ICE Criminal Alien Program. The Chief Justice Earl Warren Institute on Race, Ethnicity, & Diversity, Berkeley Law Center for Research and Administration. Retrieved from http://www.law.berkeley.edu/files/policybrief_irving_FINAL.pdf; Government Accountability Office, Immigration Enforcement: Better Controls Needed over Program Authorizing State and Local Enforcement of Federal Immigration Laws, GAO-09-109, Jan. 2009. Retrieved from http://www.gao.gov/new.items/d09109.pdf. Greenberg Delgado, A. & Harumi Mass, J. (2011). Costs and Consequences: The High Price of Policing Immigrant Communities. San Francisco: American Civil Liberties Union of Northern California, Retrieved from https://www.aclunc.org/docs/criminal_justice/police_practices/ costs_and_consequences.pdf. Guttin, A. (2010, February 17). The Criminal Alien Program: Immigration Enforcement in Travis County, TX. Washington, DC: Immigration Policy Center. Johnson, K. R. (2004-5). Driver’s Licenses and Undocumented Immigrants: The Future of Civil Rights Law. Nevada Law Journal, 5, 213. Keaney, M., & Friedland J. (2009, November). Overview of the Key ICE ACCESS Programs: 287(g), the Criminal Alien Program, and Secure Communities. Washington, DC: National Immigration Law Center. Kobach, K. (2005-6). The quintessential force multiplier: The inherent authority of local police to make immigration arrests. Albany Law Review 69. 179-235. Lacayo, A. E. (2010). The Impact of Section 287(g) of the Immigration and Nationality Act on the Latino Community. Washington, DC: National Council of La Raza. Lydgate, J. (2010). Assembly-Line Justice: A Review of Operation Streamline. Berkeley: The Chief Justice Earl Warren Institute on Race, Ethnicity & Diversity. Retrieved from http://www.law.berkeley. edu/files/Operation_Streamline_Policy_Brief.pdf. Shawn M. (2008). The Top 10 Problems With Outsourcing Implementations (And How to Overcome Them). Technology Partners International, Inc. Meissner, D. (2010). Declaration of Doris Meissner. Friendly House, et al. v. Whiting, et al. Morton, J. (2010, December 9). National Fugitive Operations Program: Priorities, Goals, and Expectations. Retrieved from http://www.ice.gov/doclib/detentionreform/pdf/nfop_priorities_ goals_expectatio s.pdf Morton, J. (2010, June 30). Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens. Retrieved from http://www.immilaw.com/FAQ/ICE%20 prosecution%20priorities%202010.pdf Motomura, H. (1999). Federalism, International Human Rights, and Immigration Exceptionalism, 70. U Colo. L. Rev. 1361. Motomura, H. 2008. Immigration Outside the Law, Columbia Law Review 108: 2037.


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National Conference of State Legislatures. (2011, January-June). 2011 Immigration Related Laws and Resolutions in the States. Retreived from http://www.ncsl.org/issues-research/immig/statelaws-related-to-immigration and-immigrants.aspx Passel, J., & Cohn, D. (2011, February 1). U.S. Unauthorized Immigrant Population: National and State Trends 2011. Washington, DC: Pew Hispanic Center. Retreived from http://www. pewhispanic.org/2011/02/01/unauthorized-immigrant-populationbrnational-and-statetrends-2010/ Pham, H. (2004). The inherent flaws in the inherent authority position: Why inviting local enforcement of immigration laws violates the constitution. Florida State University Law Review 31, 9651003. Preston, J. (2011, May 5). States Resisting Program Central to Obama’s Immigration Strategy. The New York Times. Retrieved from http://www.nytimes.com/2011/05/06/us/06immigration.html?_r=2 Schuck, P. S. (2007). Taking immigration federalism seriously. University of Chicago Legal Forum, 57-92. Shahani, A., & Greene J. (2009). Local Democracy on ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement. Justice Strategies. Retrieved from http://www.justicestrategies.org/sites/default/files/JS-Democracy-On-Ice.pdf Skerry, P. (1995). Many borders to cross: Is immigration the executive responsibility of the federal government? Publius, 25(3), 71-85. Spiro, P. J. (1997). Learning to Live with Immigration Federalism. Connecticut Law Review, 29, 16271646. Spiro, P. J. (2001). Federalism and immigration: Models and trends. International Social Science Journal 53(167), 67-73. Stumpf, J. (2006). The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power. 56 American University Law Review, 367. Transactional Records Access Clearinghouse. (2009, September 21). Immigration Prosecutions at Record Levels in FY 2009. Retrieved from. http://trac.syr.edu/immigration/reports/218/ U.S. Department of Homeland Security (2009, April 30). Fact Sheet: Worksite Enforcement Strategy. Retrieved from http://www.ice.gov/news/library/factsheets/worksite.htm U.S. Department of Homeland Security: Immigration and Customs Enforcement (2009, July 10). Pres Release: Secretary Napolitano Announces New Agreement for State and Local Immigration Enforcement Partnerships & Adds 11 New Agreements. Retrieved from http://www.ice. gov/news/library/factsheets/worksite.htm U. S. Department of Homeland Security: Immigration and Customs Enforcement (2010, October 8). DHS/ICE Reveal Highest Immigration Enforcement Numbers on Record in Fiscal Year 2010. Retrieved from http://www.ice.gov/news/library/factsheets/worksite.htm U.S. Department of Homeland Security: Immigration and Customs Enforcement. (2010, January 21). Fact Sheet: Delegation of Immigration Authority Section 287(g). Retrieved from http:// www.ice.gov/news/library/factsheets/287g.htm U.S. Department of Homeland Security: Immigration and Customs Enforcement. (2010, August 1). Draft Detainer Policy. Retrieved from http://cironline.org/sites/default/files/legacy/files/ ICEdetainerpolicy.PDF U.S. Department of Homeland Security: Immigration and Customs Enforcement. (2010, August 17). Setting the Record Straight. Memorandum (No longer available on ICE website). U.S. Department of Homeland Security: Immigration and Customs Enforcement. (2011). Secure Communities Nationwide Interoperability Statistics: Monthly Statistics through September 30, 2011. Retrieved from http://www.ice.gov/doclib/foia/sc-stats/nationwide_ interoperability_stats-fy2011 to-date.pdf


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U.S. Department of Homeland Security: Office of the Inspector General. (2010, March). The Performance of 287(g) Agreements, 8-9. Retrieved from http://www.oig.dhs.gov/assets/mgmt/ oig_10-63_mar10.pdf U.S. Department of Homeland Security: Office of the Inspector General. (2010, September). The Performance of 287(g) Agreements Report Update. Retrieved from http://www.oig.dhs.gov/assets/ mgmt/oig_11-119_sep11.pdf Vedantum, S. (2010, November 2). Destined for Deportation. The Washington Post. Retrieved from http://www.washingtonpost.com/wpdyn/content/article/2010/11/01/AR2010110 06661.html Waslin, M. (2007). Immigration Enforcement by local and state police: The impact on Latinos. Law Enforcement Executive Forum 7(7), 15-32. -- 2010. Immigration enforcement by local and state police: The impact on the enforcers and their communities. Taking Local Control: Immigration Policy Activism in U.S. Cities and States ed. Monica W. Varsanyi. Stanford: Stanford University Press Waslin, M. (2011). The Secure Communities Program: Unanswered Questions and Continuing Concerns. Washington, DC: Immigration Policy Center. Retrieved from http://www.immigrationpolicy. org/sites/default/files/docs/Secure_Communities_ 12911_updated.pdf Weissman, D. & Headen R (2009). The Policies and Politics of Local Immigration Enforcement Laws: 287(g) Program in North Carolina. Chapel Hill: American Civil Liberties Union of North Carolina Legal Foundation and Immigration & Human Rights Policy Clinic of the University of North Carolina at Chapel Hill. Retrieved from http://www.law.unc.edu/ documents/clinicalprograms/287gpolicyreview.pdf. Wishnie, M. (2001). Laboratories of bigotry? Devolution of the immigration power, equal protection, and federalism. New York University Law Review 76, 493-569.


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The Spirit of Crimmigration

António Pedro Dores

1 Introduction Crimmigration is a policy, according to Mucchielli (2011), a culture, according to Palidda (2011), an economy, according to Wacquant (2000), or a socialisation trait, according to Young (1999). Crimmigration is the result of pathological modes of social control, a substitution for slavery when it became impossible, in the opinion of Alexander (2010) and a degeneration of neo-colonialism in the opinion of Klahr (2006). What renders crimmigration an object of sociological study? Is it the confluence between the expertise of Criminology and Sociology of Migration, or maybe the fact that this is an emerging social phenomenon among Western societies in a context of profound crisis: a welfare crisis and a crisis involving the dominant concepts of life in society? A total social phenomenon, as proposed by Marcel Mauss (1923): something sufficiently diffuse to be found more or less everywhere in different shapes, assuming the form of institutions and individuals and conditioning the organisation and the processes of sociability? In the present paper I propose the hypothesis that crimmigration is a positive social fact, a real fact which can be defined and observed as such, as opposed to a theoretical construct among researchers trained in different sub-disciplines. Accordingly, can crimmigration be a stigmatising construction of political power generated by a democratic competition between demagogic arguments? Is it a consequence of political and administrative manipulation from State institutions, whose purpose is to frighten and divide the people? Is crimmigration a practical effect of social discrimination programmemed by repressive social policies under the guise, for example, of a war against drugs (exotic and foreign drugs, just like immigrants)? Is it a result of conformation of society to a dual labour market, where immigrants fill jobs left vacant by Europeans? Is it the result of a conservative and reactionary response to the success of social integration processes carried out in Europe and in the United States during the first decades of the post-war era?


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Does crimmigration correspond to a more or less conspiratorial and intentional practice whose purpose is to replace the dynamics of class struggle with different dynamics; where the dominant classes summon the nationals of each state as allies against foreigners, in a painful moment of globalisation implementation? Is the development of a social South in the geographic North (and a new social North, especially in emerging economies in, and until recently, the geographic South) an unexpected and unplanned consequence, or is it a ‘divide and rule’ construction? Crimmigration is the effect of multiple causes that require a separate and individual analysis. First, we need to establish a theoretical definition for the emergent positive configuration that we call the spirit of crimmigration. Without a definition it will be difficult to refine our observations and methods in order to identify – gradually, persistently and scientifically – the contours of this phenomenon, merged as it is with its own background.

2

The survival of Sociology and Society

How does one organise a scientific work around a groundbreaking hypothesis, grasping a notion, a preconception, and sharing it with other researchers? Should this notion be abandoned to the semantic dissonance that subjugates every expression, including the notion of society, a nuclear yet controversial and multi paradigmatic object of sociology?1 Or should one make an effort to engage in a conceptual definition open, not only to expert sociologists in each field but to every scientist that is interested and curious enough to become a pioneer in a field opened by a groundbreaking inspiration? What is at stake here is not only a matter of subjective taste, of working this way or that way. It is not a leftwing or rightwing epistemological option. We are living in times of uncertainty, characterised by radical political attacks against the very existence of social theory, (‘There is no such thing as society’, Mrs Thatcher ipse dixit), and against the social solidarity on which contemporary sociology was based and raised, namely the Social Welfare State. What is at stake here is social theory’s own survival as a cognitive process and its possible contribution to the desirable rupture of the suicidal social dynamics observed in Western countries, rooted in the context of the Western crisis and globalised capitalism.

1

This type of approach may include the acceptance of a classic or canonical definition as a starting point, registered as a questionable, intellectual property right, possibly replaceable but hardly shareable between creative researchers, except within their respective disciples. It is especially this pioneering and mimetic approach, with no room for creative expressiveness (the well-known sociological imagination) that is stimulated by the current organisation of social sciences, and namely their progression towards hyper-specialisation, denounced by Bernard Lahire (2012).


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Hence, the scientific construction of crimmigration – as a state of mind or a total social phenomenon – is a relevant test for the reorganisation of social science. It may denounce acts of anti-humanitarian discrimination and social opposition to the social hope for humanity grounded in the Universal Declaration of Human Rights. Although globalisation seems to have created objective conditions for the fulfilment of a civilization dream for humanisation – as the production of essential goods seems to have transcended every Malthusian barrier to democratic growth – the devastation of hunger and war still afflicts large numbers of people, owing to an absurdly dogmatic and violent lust for power which promotes and exploits contempt for the fellow being. Presumably, it is not possible to make criminological traditions and the study of migrations converge without noticing, on the one hand, its significance in our current framework of social experiences – crime itself may be decreasing – but the disgust towards crime, measured in the numbers pertaining to inmate populations, is increasing. These are societies where pacification (a real phenomenon) seems to be a mirage, because xenophobia and racism are mobilised by politicians and the media (Mucchielli, 2011). On the other hand, even in societies like Greece, Portugal and Ireland – which host large endemic Diasporas, that amalgamate ancestral waves of immigration and that suffer from the xenophobic attitudes of some of the other so-called most advanced European countries – everyday life and the political reality are still pervaded by securityrelated, moralising and xenophobic pretensions. The spirit of crimmigration, as a current phenomenon, should be sought in both ancestral and hypermodern forms of socialisation. It should be perceived as a natural expression of the human species in all times and as a specifically current and emergent phenomenon, shaped by the historical conditions of contemporary Western lives. In the modern context, the social appointment of scapegoats and the enforcement of social stigmas assume the form of a magical solution against unemployment and lack of access to basic resources, as in ancient times. The way it is presently implemented is modern, as criminal offences; through penitentiary systems, criminal justice, and the motivated manipulation of both of these, namely, the reinforcement of immigrant discrimination imposed by economic, cultural and social differences (Seabra & Santos, 2005), and the handling of administrative faults – such as the lack of bureaucratically updated papers.

3

Crimmigration is a social state of mind

Just as the atom existed in the mind of philosophers for centuries before the electronic microscope allowed its observation – and the immediate understanding of the atom as a construction composed of even smaller and specialised elements, even though it is still defined as the basic form of matter – crimmigration can (and should) be anticipated, foreseen and investigated as a scientific


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object, before it becomes ‘observable’ to the naked eye. As with the atom, we can hypothesise that crimmigration is an omnipresent phenomenon, a constituent of the social reality as a whole, without reducing it to crimmigration itself. The spirit of crimmigration is a social phenomenon, comparable to solidarity, order, collective conscience, revolutionary spirit or the spirit of capitalism. The anthill is a product of the sociability of ants, just as the hive is a product of the sociability of bees, and, similarly, the spirit of crimmigration is a product of human sociability, among other simultaneously incorporated and historically and socially imposed constructions. Crimmigration is an instinctive tool of social resistance to the decadence of societies, where the exacerbated stimulation of the strongest social identities tries to crush new identities. For instance, Greece – a privileged Eastern border for those who want to reach the heart of Western European countries – pressed by the European Union decision centres to contain these migration flows within its own territory (without having the practical conditions to do so), has combined severe fortress Europe policies with the laxity that is a characteristic of those who cannot, or will not, raise social conflict to a level that is incompatible with a society that respects fundamental human rights.2 This political tension with the European Union transformed Greece into an example of financial punishment and, in the elections of May 2012, the Greeks – victims of the Nazis seventy years ago – voted for nationalist and xenophobic parties (the Golden Dawn, with 7%), as the criticism towards the prejudice revealed by their European peers, especially the German leadership, increased in volume. Crimmigration, an emergent state of mind in Europe, reveals itself against and amidst the Greeks, precisely in an irrational and mimetic ideological spectrum which, just like military service, does not think but merely reproduces the desires of the dominant human beings: the European leaders occasionally acting as victims (nationalists), or persecutors (xenophobic and racist), as shown by Zimbardo (2007) and Milgram’s experiments. The instability that characterises Greek society, threatened by ‘democratic’ and financial xenophobia promotes, in a manner somewhat similar to the Stockholm syndrome, xenophobic reactions towards social groups that the Greeks perceive as being superior people. The scapegoats are, as they always have been, chosen from among the most vulnerable of human beings, and they are ideologically and magically transformed not only into guilty parties but into sacrificial targets, whose purpose is to satisfy an innate irrationality. Crimmigration already existed in Greece before the financial crisis and before the IMF/ECB/EU intervention. The phenomenon simply became more

2

But that does not prevent the existence of alleged slave labour in some fields located in the North of the country, or a particularly harsh prison system.


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instrumental and politically obvious after the aforementioned elections. Similarly, crimmigration exists in many Eastern European countries where immigration does not even exist (but where, for instance, gypsies and nomad communities in general assume that scapegoat role, according to the needs in question).

4

Crimmigration, law and social development

To the increase of non-nationals in European prisons, (Palidda, 2011), we should add the number of immigrant children who were born in the host country, but whose physical configuration is still associated – by state institutions and security forces – with the foreign nationality of their parents. These facts cannot be explained solely by the existence of xenophobic feelings in the police forces or political organisations, or by racist individuals who use their positions to express, with impunity, their political programmes, if they can be called such, of aggression against non-nationals. They can also be explained by the impunity (institutionally condoned, or even stimulated) that these actions carry inside the police and security forces, in the sense that these organisations benefit from a special state protection, according to legitimate violent monopolisation policies and their mobilisation for purposes of class struggle or the implementation and maintenance of class privileges. We are, for instance, referring to the differentiation between white-collar crimes and the crimes committed by the average citizen (for the most part criminal ‘trifles’, as they are called in legal slang) and also to the emergence of a phenomenon that Jakobs and Meliá (2003) baptised as enemy criminal law, that is, the discrimination of three types of population according to criminal procedures, namely: crimes without prison sentences, or economic crimes; crimes punishable with prison sentences, or non-economic crimes; enemy crimes, usually committed, or merely imagined, by foreigners who are perceived as terrorists to whom the law does not apply, and whose human condition is officially lost and unrecognised. The natural fear towards that which is strange, and its institutional exploitation for domination purposes, is part of the suicidal decadence problem observed in Western societies – for instance, in Portugal, where the current fertility rate of 1.3 is demographically unsustainable. To prevent Portugal from becoming a blocked society of very old people, even if future fertility rates rise, the entry of large waves of young immigrants is necessary in the next few decades. Social theory seems to be indifferent or even oblivious to the existence of this demographic abyss, when it should be raising social awareness of the need to review certain parameters of spontaneous social coexistence – which should be natural and instinctive – in order to minimise the obvious risk of losing sociability skills and the ability to rally energies that are fundamental to social cohesion. The Portuguese State has urged its youth to become a part of the solution for this demographic issue experienced by the wealthiest countries of the European Union, but this exacerbates the predicament of Portuguese society without offering any solutions to the core problem. The solution for the current


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financial crisis involves the creation of social and psychological dispositions that are capable of promoting social ties of integration between European host societies and immigrants, individuals who are willing to learn how to behave in a society whose injustices are, in their own eyes, significantly smaller than the ones experienced in their countries of origin (Dores, 2008). Contrary to what is often declared, it is our responsibility as sociologists to endorse Durkheim’s classic claim that social life is not governed by financial or economic devices (Durkheim 1960). Social life itself – the wide and ever-growing privileges of globalised classes, exempt from taxes and due respect for the laws – governs these financial and economic devices. It is also our responsibility to point out solidarity paths, such as a sensible distribution of incomes that allows for the well-being of every individual without creating significant discrepancies, independently of their merits (that should nevertheless be accounted for), a fundamental solution for the prevention of several social problems (Wilkinson & Pickett, 2009). Identifying the spirit of crimmigration in institutions and in each one of us, while demonstrating the necessity of fighting it and transforming it into cooperation dispositions, is a proposal that sociology must offer. Preferably showing in what way traditional charitable solutions, instead of offering every individual the possibility of personal and social transformation, capitalise power (wealth, prestige) and keep potential tensions under control (politically and institutionally), that is, dividing to rule.3

5

Epistemological risks in Sociology

This reminder of the redeeming potential of solidarity, one of the traditional callings of classical sociology, has been jeopardised for two reasons. First, sociology is currently extremely divided into closed sub-specialties and removed from other sciences, being therefore unable to observe basic phenomena that may not reinforce the internal powers established in each author’s field. Applied sociology, in this context, serves established powers that benefit from the current economic processes instead of contributing to the education of society by denominating and describing total social phenomena in emergence, independently of being politically positive or politically negative. The development of theory is experiencing the same suicidal syndrome observed in society, generally speaking. While focusing on financial flows, it ignores the inevitable necessity for social transformation.

3

Aristocratic power and its present religious, legal, political and military versions thrive from the exploitation of contradictions between the populations. But we will not address this issue here.


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Second, another difficulty connected with the sociological proposal that invites society to meditate on its own suicidal tendency lies in the fact that social theory cannot conceive of the radical degree of transformation that societies are capable of undergoing. Current social transformations, for instance, the relocation of the centres of power of European societies to closed European and American condominiums (and more recently – owing to a real globalisation process – to closed condominiums located in the Forbidden City and in the hands of new Indian Maharajas), will probably bear consequences whose emergent and effective cause will not be observed in the West because, for the first time in half a millennium, it is located elsewhere. It is important to bear in mind the natural human tendency to rush blindly towards a false sense of security offered by well-known practices, especially in situations of emergency. This helps us understand the irrationality of a society composed of intelligent beings who rush towards collapse and disintegration, abandoning the pursuit of a project involving the construction of -Humanity. Did this not take place during the Holocaust, when the German bureaucratic machines – Max Weber’s (1978) ‘iron cage’, Kafka’s (1964 and 1965) ‘castle’ and ‘process’, Hannah Arendt’s (1963) ‘banality of evil’ – and the industrial chemical sector found in the genocide of Jews, homosexuals, gypsies and disabled individuals, enabled a way of maintaining the continuation of their normal activities? For us to be able to reason about what is to come, routine must be broken, especially now that the conservation paths of an exhausted progress have been cut off. The same must happen in sociology. Collins (2005) concluded that the persistence of a philosophical and cognitive tradition in the intellectual memory of the human race requires six generations, almost two centuries, of continuity involving intellectual practices of a certain type, as in sociology. If the author is right, this is now the time to decide if social theory will, or will not, go down in the history of human philosophies. Will sociology be able to readapt itself to the likely collapse of the Welfare State and to the new society that will emerge from the profound crisis that is currently occurring in the Western world? Or will sociology continue to dissolve itself in micro-specialisations, more or less interdisciplinary, in the heart of a magma composed of more or less decadent and dilettante social sciences, merging into the dominant cognitive utilitarianism? What is the role of crimmigration in this context? Or, in other words, what is the most effective conception of crimmigration when we speak of the future of social theory? Is it an abstract and virtual conception imprisoned in social dimensions, classical dimensions like politics, economy, culture, or alternative dimensions focused on industrialist, capitalist, social control and military conflicts (Giddens, 1985); or a phenomenological conception, in which crimmigration is both a natural and an historical phenomenon that needs to be characterised, just like ethno-criminalisation, ideacriminalisation or narco-criminalisation?


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The advantages of humanisation when dealing with the possibility of collapse

If crimmigration theory succeeds, will it be the result of a sociological work that is identical to many other studies, work that does not in any way contribute to the progress of social theory? Or will it enable social theory to become more responsive and to embrace current and future social needs for change? If the latter is observed, crimmigration will denounce the economic error hyperbolised by monetarist policies and their respective ideologies. It will assert the ethical and social value of the priority given to the consciousness of individual and collective work, according to the hermeneutics of the subject (Foucault 2004), in order to face the present historic moment rather than succumbing to the instincts and the perversity of established powers. Ten years ago, for instance, it was important to underline the acceleration of social change processes, as an observable trait of the creative intervention of capitalism, especially in emergent sectors of the economy, the new economy including an industrial relocation and conditioning in Europe that favoured certain beacons of excellence that were already established. Nowadays, one is faced with the transition of solidarity to speculation over sovereign debts by industrialised countries, motivated by a need to externalise the banking crisis and maintain the privileges of the globally dominant classes. The disruption of production in the so-called fringe countries of the European Union – now dealing with an imposed financial crisis, imposed or at least heightened by Northern European state partners – is today widely acknowledged to have been an error. The old optimistic theme that highlighted economic growth as the simple and natural solution, as intrinsic linear acceleration of the economic process under capitalism – even when family incomes largely remained stagnant and the environmental and energy crisis kept growing – was replaced by the profound financial, social and long term crisis of capitalism. The lack of confidence in the financial markets, felt among its main actors, became social scepticism as far as the perspectives of development are concerned, and now the new generations will obviously lose the economic resources that their parents enjoyed. It is as if this is (again?) an inevitable destiny written in the sky of neo-liberal financial theory. Some authors go even further and speak of a collapse (Diamond, 2008). That is, a general and inevitable degradation of the populations’ living conditions, to a point of social and environmental suicide. Just as happened, on a different scale, on Easter Island, where a social measure of prestige which manifested itself in the carving of tree trunks, led, over time, to the depletion of the ecosystem and desertification with the uninterrupted killing of trees. Who chopped down the last tree? This question was raised by one of the author’s students. Whoever did that, did it after the desertification process had become irreversible and the ancestral social prestige was nothing but a memory. This memory


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has just recently been revived by archaeologists, who could only observe the devastation that followed.

7

Crimmigration, ethno migration and peasant migration

Crimmigration may well be a phenomenological effect of past memories held by Western people, especially of their colonial past, that transforms them into (instinctive and vengeful) archaeologists of their own memory. This is similar to the ethno-criminalisation phenomenon observed in the US, where the prison-industrial complex is composed of raw material, if we may call it that, that descends from the slaves; and in Western Europe, where Turks in Germany, Pakistanis in the UK, Africans and Brazilians in Portugal, Latin-Americans in Spain, and Northern-Africans in France, occupy a similar role. We can therefore declare that crimmigration is a current phenomenon that can be observed in certain parts of the world, especially in the Western world. But it is nonexistent or irrelevant in other parts of the planet – maybe the greater part of our planet -, especially and obviously in areas that do not attract immigrants. On the other hand, if we consider emergent economies, presently nurtured by mainly internal migration flows, will the classic criminalisation – involving migrants that move from the countryside to the city, that live in poor neighbourhoods and hunt for jobs to survive – contain in themselves the traits of crimmigration? Or is crimmigration an absolutely new phenomenon that follows the implementation of colonial occupation practices, rendered impracticable after the decolonisation of territories? To study this hypothesis we must first characterise the phenomenon and define it as a social fact. The thematisation of crimmigration may favour a scientific and social awareness towards the social effects introduced by a recession of the expectations placed in progress, a progress ideologically conveyed by capitalism. The development of capitalism is achieved by leaps and bounds, or through overproduction crises. Now feeding its strength with wealth and resources, not only material but social as well – like a proletarian backup army – and now organising the manufacturing of goods in a regime of private property. Each production cycle ends, inevitably, with a new crisis where force (expressed as social control, as Giddens (1985) observed), becomes once more a priority. Crimmigration can therefore be used as an example of a specific social phenomenon, motivated by a destructive and expropriating dynamic cycle (implicit in the human condition of a percentage of the population), that is characteristic of capitalism, both in historical conditions and current, post-colonial, globalising conditions. Its emergence follows an institutional and political channelling of natural human tendencies – the fear of the risks imposed by the unknown, for instance – through the construction and the control of scapegoats, whose existence serves the purpose of relieving social tensions and maintaining the decadent power of the dominant classes.


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The scapegoat fulfils a social function (Girard, 1978),4 to act as a substitute for the real cause of a certain misfortune. In this case, immigrants become, for the political public, the imaginary, unique and recognisable cause of the plight of the underpaid workforce. This enables private businessmen, bankers in particular, when faced with their market performance, to break the accountability rule. The spirit of crimmigration is a screening instrument that drives the attention away from practical and moral reasoning and focuses on a fanatical gullibility that accepts this unlikely and irrational cause-effect relationship.

8

Scapegoat’s politics

Trusting the computerised precision of the financial system no longer makes sense (to the extent that the banks themselves do not trust each other). But this fact is presented to us as an exception to the rule and, instead of liquidating the guilty party – bankrupted banks – we witness their salvation. The golden calf – the banking sector – has ceased to work on in our behalf. Someone needs to be sacrificed so we, as a human community, can be reassured of our continuity even if we have to sacrifice ourselves by, for instance, accepting significant income drops and certain dysfunctions in the social services in order to ‘pay these debts’. Not even the enthusiasm for democratic passion, observed by Tocqueville (2008) in his time, which brought discomfort to the aristocracy who were transformed into an early 19th century scapegoat; not even the spirit of capitalism, identified by Max Weber (1983) at the turn of the 19th to the 20th century, whose scapegoats were the protestant radicals sacrificed by history; not even the revolutionary and emancipatory spirit that stimulated social movements, especially labour and women’s movements, that transformed the employers and patriarchy into a scapegoat; none of these states of mind is presently effective, or sufficiently mobilising, to bring optimism back in these times. Who does not long for the existence of a new mobilising direction that is capable of bringing together the affection and the effectiveness of the masses in the construction of a solid conviction concerning their (our) own destiny, a destiny that should be built together? Political commentators frequently voice the complaint, and not always in an innocent tone, that it is impossible to trust current social movements to the extent that they do not agree on how to govern the States. Manuel Castels (2004)5 offers an interesting response to this. Looking at the effect of the changes brought about by the New Economy in more advanced (or, should one say, o utlived?)

4 5

Concerning the universal and social identity role of the scapegoat in humanity, see René Girard (1978). Manuel Castels offers an interesting response to this: Manuel Castels (2004).


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capitalist societies, we envision a networking society: an ideally structured society where anarchist ideals may succeed in practice. In other words, it is only natural that a decadent and destructive social configuration, inherent to the destructive side of the capitalism development cycle, gives way to the emergence of alternative ways of being and living – possibly less centralised, where respect is concerned – more concerned with the environment and more capable of ensuring human rights. That is, at least, the humanist perspective of a union against discrimination and, consequently, against selective criminalisation. (Is there another form of criminalisation?) According to Honneth (2007), the Frankfurt School updates its theoretical attention focus with the purpose of promoting emancipatory tendencies in the present historical circumstances, transferring it from the economy in Marx, from ethics and culture in Horkeimer and Adorno, from democracy and communication in Habermas, to the dignity and the respect for the person that underlie the human rights movements.

9

For a positive definition of crimmigration

Positivism is, simultaneously, the master standard in social theory and, just like every father figure, the object of all hatred, from the Oedipus complex to the stoning of the Devil, a ritual organised by the Muslims. Its influence is always present, even when denied. In a time of radicalisation, where the update of rational commands that define the social world is essential, courage is required to face the ghosts when old rational precepts fail. Social phenomena must be addressed as positive processes, different as they may be from chemical, physical, biological or astronomical phenomena, just as these phenomena are distinct from one another. As Comte (1982) observed, the difference between natural sciences lies in their devotion to the study of specific levels of reality; levels that can be infinitely small, as in atomic physics, or infinitely large, as in astronomy. But Comte was wrong when he suggested that sociology should be a cognitive (imperial) synthesis of all other sciences. Social theory is merely, and that is no small thing, the study of a group of reality levels that we call society (located above psychology and below spirituality). Levels that we need to learn how to define and differentiate, especially from biological levels (inferior, and treated as the mechanisms that form the basis of sociability, the social nature of human behaviour) and normative levels (superior, like Durkheim’s (1960) social coercion, that should be perceived as the environment in which social practices take place). We must ask, specifically, what is crimmigration, as an emergent phenomenon in societies with a high life expectancy; who are experiencing the inversion of the demographic pyramid, a depressive normative (the ‘crisis’), and an irrationally xenophobic environment? We will reply that it is a state of mind whose


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recognition requires, according to the scientific standards for a sociological knowledge opened to interdisciplinarity, its own positive identification. This involves the signs of its presence on a biological level, on the one hand, and on a normative level, on the other hand. If crimmigration is a positive phenomenon it can also be characterised by other sciences, including natural sciences. And this groundbreaking sociology, embodied by crimmigration sociology, may develop to offer lessons on solidarity and interdisciplinary rationality to sociologists, scientists in general and, maybe, to society, who knows? We must know how to answer this question: how can the Portuguese population accept, unnaturally, such a deviation from the minimal generational replacement levels? How can we deal with this in biological terms? And how can we deal with it in terms of customs? How can these customs be institutionally and economically mobilised? That is, how can a State possibly raise young people and encourage their immigration, reducing their already fragile potential to engage in productive activities and, at the same time, stigmatise, ostracise and avoid immigrants? It is not possible to ‘see’ crimmigration outside its social configuration frame, from which it emerges and is an intimate part. Sociological investigation should perceive itself as a specific contribution – according to its competence and location in an intermediate level between biology and normative or spiritual knowledge – connected to other contributions offered by different fields, whose lack of cooperation renders any scientific evaluation of a response impossible. That is, the scientific method should be compatible with the contemplation of social phenomena as positive facts. Not positive in the sense of being closed in on themselves, as Durkheim (wrongly) prescribed them but, rather, positive as in real and, therefore, observable on many levels of reality, and beyond the social sphere. On a social level, these states of mind, as total social phenomena, are a useful (albeit controversial) method of conceiving social analysis. The State is a closed system, or an attractant configuration (principle of order, the opposite of repulsive), reversible and designated, and therefore recognisable. The spirit is an inherent aspect of certain kinds of organisation of the active part, which are discernible in the course of time; it forms a chain with other events through messages, integrating distinct logical types.6

6

http://iscte.pt/~apad/estesp/estesp.htm is a website mainly written in Portuguese which compiles the main references used by the sociological programme on which this paper was based. One of the pages is written in English http://iscte.pt/~apad/estesp/english.htm


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10 Conclusion Crimmigration suggests different meanings and connotations depending on the epistemic perspective one adopts: is it a convergence of expert specialised knowledge or is it a social positive phenomena? Whenever one conceives of society and crimmigration as a set of relations between agents (in this case, relations between criminals, migrants and an exclusive society), whatever the research results are, they constitute a soft or hard, accumulation of stigmatic declarations. As a trap, sociology will always reinforce stigma, even it adopts a denial position. Factual denial of the link between crime and immigration refers to the incapacity of producing scientific evidence of the linkage. It cannot avoid the ideological presumption that the link some how exists and only the cooperation between politically correct scientists, magistrates and politicians is able to cover the truth. In order to avoid the trap one can conceive crimmigration as a social moral fact, using Durkheim’s approach to sociology. It is a perverse and irrational way of promoting inequality inside organic solidarity since, as Durkheim claims, creativity, innovation and new blood go with deviance and crime. Crimmigration would be, in this sense, an irrational way to avoid thinking about real, endemic, everyday social problems, such as the evasion of dominant political and social classes’ responsibilities towards dominated classes and society as a whole. It avoids thinking about the need to innovate at social level, building alternatives to routine practices. It justifies status quo order as well as conservative political and social control, and repression. Crimmigration, as a state of mind, is, hypothetically, an instinctive and secondary reaction to a fear induced by decadent social processes (financial, economic, democratic) in a privileged and protected population (especially when compared with people living in Third World countries). Victims of crimmigration are subordinate to a dominant class no longer interested in (or capable of) protecting its associated middle classes – an association motivated by nationality (globalisation oblige) – and which is demographically devoid of the necessary strength to imagine a new world measure encouraged by a hope placed in progress; a progress that fails. Crimmigration, the hyper sensibility to a (natural) repugnance towards unknown behaviour, has a parallel and a counterpoint in the resilience to humiliation, manifested in the lack of reaction expressed by Southern European countries to the dissemination of the acronym PIGS, a collective and xenophobic designation. The emergence of crimmigration is a symptom of trouble in the reproductive capabilities of the human species, of the way national institutions have ceased to represent the interests of their people and of the deterioration observed in contemporary affiliation forms, namely, the self-isolation imposed by contemporary individualism.


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References Alexander, M. (2010). The New Jim Crow – Mass Incarceration in the Age of Colorblindness, NY, The New Press. Arendt, H. (1963). Eichmann in Jerusalem: A Report on the Banality of Evil. Castels, M. (2004). A Galáxia Internet – Reflexões sobre a Internet, Negócios e Sociedade, Lisboa, FCG. Comte, A. (1982). Importância da filosofia positiva, Lisboa, Editorial Inquérito. Collins, R. (2005). Sociología de las filosofías – Una teoría global del cambio intelectual, Barcelona, Hacer. Diamond, J. (2008). Colapso – ascensão e queda das sociedades humanas, Lisboa, Gradiva. Durkheim, E. (1960). De la division de travail social, Paris, PUF. Foucault, M. (2004). A Hermenêutica do Sujeito, São Paulo, Martins Fontes. Giddens, A. (1985). The Nation-State and Violence – Vol II A Contemporary Critique of Historical Materialism, Cambridge, Polity. Girard, R. (1978). Des Choses Cachées Depuis la Fondation du Monde, Paris, Éditions Grasser et Fasquelle. Honneth, A. (2007/2000). Disrespect – The Normative Foundation of Critical Theory, Polity Press. Kafka, F. (1964). O Castelo, Lisboa, Livros do Brasil. Kafka, F. (1965). O Processo, Lisboa, Livros do Brasil. Klahr, M.L. (2006). Hoy te toca la muerte, México, Planeta. Lahire, B. (2012). Des effets délétères de la division scientifique du travail sur l’évolution de la sociologie, Sociologies [En ligne], Débats, La situation actuelle de la sociologie, mis en ligne le 27 janvier, consulté le 16 mai 2012. URL: http://sociologies.revues.org/3799. Mauss, M. (1923). Essai sur le don – forme et raison de l´échange dans les sociétés archaïques, Chicoutimi, Bibliothèque Paul-Émile- Boulet de lÚniversité du Québec. Mucchielli, L. (2011). Línvention de la violence, Paris, Fayard. Palidda, S. (ed.) (2011). Racial Criminalization of Migrants in the 21st Century, Ashgate. Seabra, H. M. and Santos, T. (2005). A Criminalidade de Estrangeiros em Portugal – um inquérito científico, Lisboa, Observatório da Imigração/ACIME. Tocqueville, A. de (2008). Da democracia na América, Lisboa, Relógio de Água. Wacquant, L. (2000). As Prisões da Miséria, Oeiras, Celta. Weber, M. (1978). Economy and society : an outline of interpretive sociology, Berkeley: University of California Press Weber, M. (1983). A ética protestante e o espírito do capitalismo, Lisboa, Presença. Wilkinson, R. and Pickett, K. (2009). The Spirit Level – why more equal societies almost always do better, Penguin. Young, J. (1999). The Exclusive Society, London, Sage. Zimbardo, P. (2007). The Lucifer Effect: understanding how good people turn evil, Random House.


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Crime and Immigration: The discourses of fear as a theoretical approach to critical evaluation.

Débora da Cunha Piacesi

The increase in immigration has been pointed to as one of the causes of rising crime and a direct connection is often made between these two themes in public opinion, political discourses and in the media. However, several pieces of work in various countries have focused on the deconstruction of this assumption with resources using both qualitative and quantitative analysis1. This article intends to address the issue from a theoretical perspective, proposing a review of some theories that point to the exaggerated perception of fear in the evaluation of contemporary societies as a possible way of unveiling the mechanisms by which ‘the other’ becomes perceived as criminal. The aim is to suggest the use of these discourses of fear as a way to critically evaluate, from a theoretical perspective, the connection that is made between the immigrant and the criminal act. This article also deals with the connection of much larger themes such as the role of law, justice, and citizenship in present-day society, which as a logical consequence affects the very concept of democracy. So, as pointed out before, as pointed out before, the article sets out to investigate the way in which a similar perception of the prevalence of fear, anxiety and insecurity in political speeches, in the media, in public opinion and in social relations is perceived and described by different authors. In this sense, the scientific contribution sought here lies in trying to achieve a dialogue between the theories that describe and discuss the discourses about the fear of crime and the fear of the criminal. As such, from a theoretical perspective, the first purpose is to describe and critically examine four theories that deal with the same phenomenon – the widespread feeling of insecurity and fear as a culture grown in the discursive reproduction of the media, as well as of the political power, and of certain sectors of the private

1

See: GUIA, Maria João. Imigração e Criminalidade Violenta: Mosaico da reclusão em Portugal. Coleção Migrações Século XXI. Lisboa, SEF, INCM, 2010. Also: SAMPSON, Robert J. Rethinking Immigration and Crime. Available at: http://contexts.org/articles/files/2008/01/ contexts_winter08_sampson.pdf. Access in: 04 december 2010.


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market and of public opinion – in its different nuances. This analysis is aimed at the construction of the concept of discourses of fear, which will be proposed as a theoretical approach for critical evaluation of the direct connection often made between crime and the immigrant. Thus a descriptive and comparative analysis is made between a few selected theories that evaluate social, political and media perceptions and reactions to issues related to deviance, violence and crime. So, the objects of discussion are the theory of culture of fear as described by Barry Glassner, Débora Pastana and Vera Malaguti Batista; the theory of Penal State as presented by Loic Wacquant and Zygmunt Bauman; the theory of Culture of Control constructed by David Garland; and the theory of Moral Panics as designed by Stanley Cohen and Jock Young. This theoretical approach also considers the importance of systematic knowledge about contemporary fears of crime, and points out similarities and differences between those theories. However, it is the homologous aspects that should be highlighted, rather than dissent or consensus between them. It should be noted that the study of the discourses of fear could allow various other methodological approaches such as the discussion of fear as a historical subject and of the culture of fear as one that can be activated in different ways over time and space. Thus it would be perfectly possible to analyse fear as a polysemic term, paying attention to its different meanings and guidelines so that term would be analysed in several ways. This epistemological observation having been made, however, it is important to clarify that the methodological choice here is to give the word “fear” a generic meaning that is adaptable both inductively and deductively, serving to cover diverse issues. One can understand the broad concept of discourses of fear and from that become aware that a particular case reflects the idea of the theory. It should also be possible to extrapolate from the idea of discourses of fear from a specific case or issue. So, the option is not to specify which particular fear is being cultivated, but to characterize it more generically as the political use of a social distance that is enhanced by fear and that legitimates the use of power and punishment. So much so, that when the theory is mentioned we may be talking about the issue of mass imprisonment of poor young black men in the United States (Wacquant, 2001), the corrosive false symbiosis that is made between Muslims and terrorists after 9/11 (Widgren, 2005, pp. 215-228.); the criminalization of poverty and of social movements in Latin America (Glass, 2009), or the issue of immigration. The latter subject can be addressed from various perspectives – the prejudices present in public opinion, the sensationalism in the media coverage, the lack of political incentive for social integration and so on (Solivetti, 2010) _ This is the main focus of discussion in this article, alongside, the justification as to why conceptualizing and discussing the discourses of fear may contribute specifically to the immigration debate. To understand the theory of culture of fear, four authors will be analyzed: two authors who use the term explicitly, the American sociologist Barry Glassner


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and the Brazilian sociologist Débora Pastana, and two authors who deal with the object of study without calling it explicitly Culture of Fear, namely, the Brazilian, Vera Malaguti Batista, who studies fear in the city of Rio de Janeiro, and Carla Machado, who analyzes the discourses of fear and images of ‘the other’ in Portugal. In American sociology, Glassner (2003, p. 75) calls the Culture of Fear all the aspects of society and of the media in the United States of America that lead its citizens to fear more and more what, according to the author, they should fear less, giving as examples the perception of crime, trafficking and drug abuse, youth at risk, scaremongering in the disclosure of new diseases, among other things. The author gives an account of the globalization of the culture of fear and of its wickedness, saying that Americans breed a lot of illegitimate fears as symbolic substitutes for emotional insecurities, since considerable power awaits those who manipulate the discourse and exploit such insecurities. The Theory of the Culture of Fear reveals some manipulation: a certain cultivation of fear in the way information is handled by the media, by politicians, by some scientists, which may be called pseudoscience. Thus ‘The heralds of fear make your panics even more believable, supporting claims of pseudo-experts with evidence given by people who the audience will find sympathetic’ (Glassner, 2003, p. 327) The author points out other trickery in the culture of fear, such as alarmist statements made by TV presenters, the use of emotive anecdotes rather than scientific evidence, treating isolated incidents as trends and the description of entire groups as being hazardous in nature. A group often included here is the one of immigrants. Moreover, in addition to the cultivation of fear through the means mentioned above, it is clear that the extent to which the belief in a certain hazard takes hold is directly related to deeper cultural anxieties in a given society. In Glassner’s view, such cultivated fears are indirect expressions of concerns about real problems which, through the illusion cultivated, are not directly addressed. ‘It is better to learn to question our overvalued fears before they destroy us. Valid fears have their reason for being: they give us tips about danger. False and exaggerated fears only cause trouble. Even concerns about real dangers, when extrapolated, may cause significant damage’ (Glassner, 2003, p. 24) It can be seen therefore that, for the author, cultural cultivation of fear can happen regarding different issues, but two points can be highlighted that are relevant to the fear of crime specifically. The first finding underscores the lack of a relation between increasing the punishment and reducing the number of crimes, and the second highlights the paradox that the greater the fear of crime is, the less is done to prevent its causes. It is important to stress that Glassner considers the analysis of media influence on the culture of fear essential. However, he also points out that it acts both to create fears and to expose and criticize unfounded panics. Furthermore, he


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calls the analysis that blames the media and ignores political and public discourse simplistic. Another important point made is about whether there is a direct relation between violence depicted on TV and an increase in actual violence. The author states that the more direct relation between TV and society – where crime is concerned – is in the increased sense of vulnerability and insecurity, which generates increased demand for protection, and not a relation between the violence portrayed and the violence committed. It is on this particular aspect of the change in perception of insecurity and fear that the theory of the Culture of fear allows us to understand how the phenomenon can affect social interactions – social distancing, buying of weapons that increase the statistics of violence, urban changes, higher walls, more alarms, among other things – and democratic interactions: demands for more repressive measures to prevent and suppress crime through stricter laws, more prisons, criminalization of new conduct, as in the case of the criminalization of illegal immigrants, for instance. The term ‘culture’ can be understood as the ‘set of practices, behaviour, actions and institutions through which humans relate with one another and with nature and can be distinguished of it. This group founds social organization and its transformation’ (Chauí, 2000). Thus the ideological-political use of fear and insecurity leads to a perceived social disorder in all these respects, in safety practices, with increased control in anti-social behaviour and in the demand for enforcement. In Brazil, Débora Pastana (2003, p. 41) undertook a study on the subject by defining the culture of fear as a ploy to legitimize the punitive paradigm because it suggests that criminal law is the solution to the problems of crime and public safety, while at the same time drawing the gaze of society away from any concrete attempt to find a solution to social problems. In this sense, the theory raises questions about criminal violence, social control and citizenship in the Brazilian context. The creation of this illusion seems to suit the economic interests of both a media unconcerned with the public interest, and of those in political power, who claim to ‘solve’ with symbolic laws social issues that remain unresolved. In some cases, it even serves the interests of some sectors of crime, such as organized crime, which gain power from the propagation of fear through media discourse. Fear as an instrument of social control is presented as a form of cultural manifestation that, intentionally or not, changes the values of a particular group, influencing the critical senses and allowing domination based on the way in which emotion is manipulated. The author stresses that the concern of the studies on the culture of fear is not related to an increase in crime – especially when considering the unreliability of crime statistics – but with the fear that the perception of increased crime


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raises in society and the cultural, social and democratic changes it allows. The concept of the culture of fear here is only related to violence and crime and not to other fears, unlike in the writings of American sociologist, Barry Glassner. A very important aspect analyses when applied to the Brazilian context is to identify the moment when fear began to be associated with violent crime in the collective imagination. The author points to the period of democratization – from 1985 – as one in which social alarm around criminal violence stood out. “As noted, until this point it was the State that was feared, namely, it was the authoritarian State that harassed and intimidated members of society, watching their actions and limiting their forms of expression. While the dictatorial regime made use of official violence to keep itself in power, fear was its guarantee: when this violence was no longer legitimate and sufficient, fear ... gained new contours and subjects.” Pastana (2003)

The institutional violence that once was rejected by the citizens came to be represented as the only form of protection, given the escalation of crime presented by the government and the press. Fear was shifted from the dictatorial State to the bandit. This form of speculation with fear becomes the base for a policy of repression and control. This observation is interesting when studying the relation between crime and immigration because a historic investigation of immigration processes in a given country or region may shed light on the demonization of immigrants. The culture of fear also influences the occupation of public space and encourages isolation. Fear of violence becomes so diffuse that the best alternative to a state that does not provide security is ‘self-imprisonment’. This feeling of fear in society bears little relation to the crime rates of a particular region (paradox of insecurity). According to Caldeira, ‘the sense of security does not depend so much on the absence of crime but on the social distance’ (Caldeira, 2009, p.19) The most crucial mediating instrument of fear in contemporary society is the media. Criminal acts are reported to the point of exhaustion, as if, indeed, they were present in the day-to-day life of every citizen, and as if every isolated incident happened every day in every city in the world. As Bauman states: The fear is scarier when diffuse, scattered, indistinct, unbound, unanchored, floating, without address or clear reasons, when it haunts us without apparent explanation, when the threat we shall fear can be glimpsed everywhere but nowhere can one actually see it. (Bauman, 2008) This mechanism of the news causes a large increase in fear, making criminal law the main force for combating violence. Thus society tries to make the State act in a more authoritarian fashion when creating laws. Citizens find themselves overwhelmed by fear and the stronger and more convincing the oppression is,


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the more vulnerable the oppressed will be to arbitrary actions and decisions by the State. Furthermore, an illusion is created that citizens are in this situation, not because someone is oppressing them, but because they live in a hostile and dangerous environment. To Pastana, this justifying ideology contributes to maintaining the status quo and to the adoption of more explicit and violent forms of social control (Pastana, 2003, p. 24). The attempt to create social policy through criminal policy has no backing in reality. A merely symbolic relationship is built that removes legitimacy from criminal justice interventions. Paradoxically, what happens is the creation of a vicious circle in which criminal justice enforcement is uneven and selective, respecting neither its own basic principles nor the concept of democracy. After all, society tends to position itself in a way that widens the gap between the ideal and real in democracy. At the conclusion of Pastana’s analysis – which defines the theory of the culture of fear based on the case of the city of São Paulo and demonstrates the paradox between fear and democracy in Brazil – some consequences of fear in terms of legal and social control are also outlined such as severe punishments and the proliferation of criminalization, while the strengthening of citizenship is considered as a form of resistance to the phenomenon. Another important piece of research for the culture of fear studies was undertaken by Vera Malaguti Batista in her discussion of fear in the city of Rio de Janeiro that was taken from a historical perspective. The author provides a parallel analysis between the discourses about security in the 1990´s in Rio de Janeiro and the ruptures and continuities already present in the nineteenth century, taking into account in particular a Muslim slave rebellion in Bahia in 1835, known as the Revolt of the Malês (Batista, 2003). As Loic Wacquant points out in the preface to the book by Vera Malaguti Batista, the author undertakes a cultural study of the history of fear and its more diffuse impact on the social and political life of Rio de Janeiro, showing that the collective fear of popular unrest, criminal activity fuelled by poverty, of slave uprisings, among other things, played a central role in forming Brazilian urban society after independence. Juridical disqualification law and aesthetics of slavery is also discussed because the deployment of liberalism in the country occurred without a rupture with slavery – and its root of exterminations. This is reflected in the fear of crime and urban violence today. From the standpoint of a historical sociology of slavery, its side effects in urban life and in the constructions of knowledge, and social hierarchies in that urban life, ‘Malaguti suggests that selective policing, judicial bias based on class and color, cruel treatment of offenders, routine disregard of fundamental rights and the indifference to the


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‘consumption of black bodies’2 that characterizes criminal justice in the Brazilian metropolis have their origin in the troubled imperial period, when positivism, patronage and racism met and merged into the intelligentsia and the State apparatus in Rio de Janeiro state’ (Wacquant, 2003). The study also presents itself as an anthropology of material and symbolic containment of the lower classes in the city, with emphasis on the central role played there by criminology and criminal policies. The timeframe here is midnineteenth century unlike in the analysis of Pastana, which discusses the displacement of the perceived enemy from the dictatorial State to the common criminal during the democratization period. Through the analysis of political, legal, criminal, medical and media speeches, Malaguti demonstrates how the combating of crime carried out as a crusade of law and order and the highlighting of a virtuous public order opposed to a delinquent chaos, among other effects, can be retrofitted to other periods, especially in regard to the criminalization of poverty and the black race. It is important to note that these are analyses showing that there are historical moments when fears are exacerbated. The crucial point, which relates the culture of fear to a criminal justice system with a strong discrepancy between theory and practice, is explained by the fact that in Brazil, the spread of fear of chaos and disorder has always served to trigger planned neutralizing and disciplining strategies. It is like that because rigidly hierarchical societies need the ceremony of death as a spectacle of law and order, fear being precisely the main gateway to genocidal policies of social control (Batista, 2003, p. 53). It is also interesting to note how this remark applies to immigration issues, if one looks back in history. Concluding the brief analysis of the work of Vera Batista, it can be seen that, discussing fear as a method, through the investigation of memory, of discourses in a historical diachronic perspective – of fear of slave revolt in the imperial court and the wave of panic in Rio de Janeiro in 1990 – the great social policy of contemporaneous neo-liberals is penal policy. “To any diminution of its power the means of mass communication take care of spreading law and order campaigns that terrorize the population and take the opportunity to retool for the “new times”. The mass media, especially television, is fundamental to the exercise of power in the entire criminal justice system, either through the manufacture of reality for the production of moral indignation, or by creating the criminal stereotype.” Batista (2003, p. 53)

One can take the case of political discourses conveyed by the Portuguese media in the year 2008 as an example of the fabrication of a criminal stereotype. In this

2

The term ‘consumption of black bodies’ is a literal translation of the quote. It refers to the notion that the black race is, systematically, more often selected by the criminal system.


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case, the Partido Nacional Renovador (National Reformer Party – PNR) launched a campaign to fight immigration. Their political party programme states: ‘Mass immigration, a phenomenon that Portugal has been the victim of, especially since the 90s, became a true invasion, which translates into a threat to the sovereignty, security and future survival of the Portuguese people.’3 While part of the media echoes those discourses4 another part uses sensationalist headlines such as: ‘Violent crimes: blame the immigrants’5 even when the content of the newspaper story is meant to criticize such a statement. In the Portuguese case, it is important to add that in 2004 immigrants represented 4.2 percent (Reis, 2010) of the population, which is far from being an overwhelming tide of immigrants. Could it be true that immigrants want to invade the country and have nothing to offer in return? Santos (2008). In Portugal, Carla Machado (2004) researched crime and insecurity through the lens of the discourse of fear and images of the other, concluding that the discourse of fear is the dominant ideology about crime and that it produces ‘a dichotomized universe between simplistic representations of Good and Evil’. This research took as a specific reference the city of Porto, and sought a theoretical rationale for understanding the sense of insecurity, by discussing the separation of the objects of study ‘aggravation of crime’ and ‘fear of crime’; by analysing who is afraid; by searching the circumstances that worsen fear and by unravelling fear as a metaphor for other forms of ill-being; by questioning who benefits from the discourse of fear; and by studying how this discourse is constructed and run. She reaffirms the falsity of the statement that fear of crime increases with the increase of crime. Although related, the real risk of being a victim of a crime and the fear of it are two different phenomena. In her work, Machado attempts to discover who the fearful subject is. Some data point to gender as a category of analysis, placing women as more fearful; others point to age as a category, sometimes considering the elderly, sometimes young people as the more fearful, depending on the class of crimes; other categories are also present such as social class and ethnicity, which indicate those with low incomes and ethnic minorities as subjects of fear. However, what should be emphasized from this analysis, besides the variety of categories, is that the crucial point in the research into these social groups

3 4 5

Political Program of PNR. Available at: http://gladio.blogspot.com/2005_02_01_archive. html. Access in: 20 november 2010. As in: Imigração, crime e as soluções do PNR. Available at: http://politicaportugal.wordpress.com/2009/02/25/imigracao-crime-e-as-solucoes-do-pnr/ Access in: 17 november 2010. Crime violento: culpa é dos imigrantes. Available at: http://diario.iol.pt/sociedade/crimeviolento-iol-leonel-carvalho-imigrantes-ultimas-noticias-mai/995237-4071.html. Access in: 10 november 2010.


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that have more fear of crime is to understand what leads these groups to have a perception of vulnerability at a given moment (Machado, 2004, p. 57). The question of the circumstances that aggravate the fear can be answered in the same way, which is that one cannot view fear as simply a static internal phenomenon. It is necessary to discuss the socio-cultural context of fear. The discussion of fear as a metaphor for other forms of ill-being coincides with the conclusions of Glassner, Pastana and Batista. ‘What we found was an unavoidable suggestion that the staging of danger and diffusion of fear may serve as a pretext to call for more socially conservative policies and more repressive criminal answers, as well as for the restoration of security and order by identification of scapegoats for social malaise’ (Machado, 2004, p. 100). Once again, it is possible to apply the idea to the fear of the immigrant, even when there is research saying that the presence of immigrants in a certain area may reduce crime instead of increasing it.6 Machado is also clear that there is consensus in the scientific community about the political advantages that the manipulation of fear represents, but there are at least two main hypotheses about the issue. The first involves the discursive dimension of fear and insecurity as a form of expression and management of the social crisis; Machado sees the fear of crime as a form of manipulation used by the elite, aimed at maintaining the status quo and social inequalities. If the emergence of fear can be taken as more or less spontaneous, given the social crisis, the discussion about the culture of fear – and the discourses of fear – are situated in the field of analysis of the genesis of fear by the more or less intentional action of the political elites, since the hypothesis of analysis is the danger to social interactions and democracy of a cultivated fear which clouds the choices and opinions in these two fields. Anyway, there ‘is nevertheless a consensus on any of these proposals that the genesis of the phenomena of fear ... is inseparable from the way it is currently constructed the arena of public discussion on crime and insecurity’ (Machado, 2004, p. 106). One important idea that emerges here is that of the diversity of discourses, languages, goals and possible placements with regard to fear of crime. So fear as discursive production points to the fact that feeling fear means taking a position discursively constructed in relation to conditions of social life. This discursive construction is a social process that involves subjective, cultural and intersubjective aspects. For the precedence – not consensus – of the discourses of fear, Machado offers a grid of hypotheses: the accessibility of the discourse of fear, because of its historical roots, that constitutes it as common sense; the absence of ‘counter-definitions’ on crime which could allow a politicized debate about the criminal phenomenon and of the social system; and the function of main-

6

Sampson, R. J. Rethinking Immigration and Crime. Available at: http://contexts.org/articles/files/2008/01/contexts_winter08_sampson.pdf. Access in: 04 december 2010.


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taining the status quo and legitimating the exclusion of groups perceived as threatening, which dichotomize the gap between good and evil, us and them, we and the others. Beyond the symbolic effects, some material consequences are emphasized, namely, the hardening of penal policies, the spread of surveillance technologies and the reconfiguration of urban space (Machado, 2004). The group’s second theory that stresses the importance of the evaluation of fear in society nowadays is the theory of the Penal State. The two main authors chosen here, that work with the concept of the Penal State, are Loic Wacquant and Zygmunt Bauman. Both of them diagnose a change between the previous Social State to the present Penal State, that is, a change from the welfare state to the Penal State, initiated during the 70s and characterized, among other things, by globalization followed by a consuming bust in the North versus a deep sense of despair and exclusion in a large part of the world. This would be the moment of collapse in which the criminal is no longer referred to as the citizen in need of support, but is instead represented as a dangerous figure. The concept of the Penal State, constructed by Loic Wacquant, implies a redefinition of the mission of the State that retreats in the economic arena while advancing in the law enforcement, making a change from the welfare state to the penal State by enlargement and strengthening of judicial intervention. The penal state is the picture that emerges from the statistical analysis of the growth of prisons, initially in the United States (Wacquant, 2003)7. In order to solve the puzzle of why the incarceration rate, in this context, has increased so much while there was no increase in the crime rate, and why there was an increase in specific criminalization of blacks, it was necessary to think of the prison as a political institution. This thorough investigation of prisoners then entails the political concept of the penal state – which cannot be the neutral concept of a State which uses criminal law to intervene in the lives of its citizens because this could be virtually any state – as a ‘result of a policy of criminalization of poverty that responds to increased social insecurity and to the collapse of the ghetto with a mechanism of control of a doubly marginalized population at the material and symbolic level.’ (Wacquant, 2009, pp 101-129).

7

Analysis initially done in the United States of America of the last 3 decades of the twentieth century – that registered a fivefold increase in the total number of prisoners, reaching 2 million inmates in 2000 – later extended to Europe, and briefly, to Brazil. It is worth stressing that the author has had a fruitful scientific analysis of various social issues, but, in particular, in the investigation of Penal State. Therefore, see also: As prisões da miséria. Rio de Janeiro, Jorge Zahar Editor, (2001) A ascensão do estado penal nos EUA. In: Revista Discursos Sediciosos. Crime, Direito e Sociedade. Ano 7, número 11, 1 semestre de 2002. Rio de Janeiro, Revan, 2003, p. 15-41; A tentação penal na Europa. In: Revista Discursos Sediciosos. Crime, Direito e Sociedade. Ano 7, número 11, 1 semestre de 2002. Rio de Janeiro, Revan, 2003, p. 9-13. As duas faces do gueto. São Paulo: Boitempo Editorial, 2008.


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Central in the construction of the legitimacy of the Penal State is the handling of a discursive power that draws on such terms as ‘globalization’, ‘flexibility’, ‘insecurity’, ‘fragmentation’, etc.: terms seen as mechanisms of the cultural diffusion that harnesses crime to race (blacks in the United States), young people from slums (France), the poor in the favelas (Rio de Janeiro, Brazil) and of immigrants in various cases. That discursive assessment, by Wacquant in ‘Prisons of Poverty’ (Wacquant, 2001), culminates in the understanding that the new ‘criminal common sense aims to criminalize poverty while regulating employment based on insecurity, in what would be the internationalization of the American strategy, presented in the book ‘Punishing the Poor’.(Wacquant, 2003). The argument advanced by Charles Murray (Murray apud Wacquant, 2001, p. 22) was crucial in the characterization of which the author calls ‘vast transcontinental traffic of ideas and public policies to internalize the criminalization of poverty’, namely that there is a direct relationship between economic and social assistance for the poor and the escalation of poverty itself, since the public policies of the welfare state would encourage inactivity and moral decay, generating illegitimate unions and urban violence. It was on the strength of this false ideology propagated by the Manhattan Institute that Rudolph Giuliani, as mayor of New York, implemented the programme of ‘zero tolerance’ criminal policy, which meant a radical change in police repression focused on petty crime and on a high investment in the sector alongside cuts in funding of the social sector. It is important to note that reading such a policy as being responsible for crime reduction overlooks the fact that crime rates had been reduced before its implementation and that other cities in the United States achieved the same result without its deleterious consequences, in particular, the mass incarceration for petty crimes (Wacquant, 2001, p.29). This discomfort with the deviant, this rejection of the different towards whom there is no identity is the moment where the ‘other’ – poor, black, immigrant, Gypsy – gains visibility. They exist only when and because they disturb. It was exactly in the figure of the immigrant that the discourse of zero tolerance found its internationalizing echo, in what Wacquant calls the ‘rhetorical paradoxical pirouette’. Thus the author demonstrates, through examples of changes in the wake of the criminal policy of zero tolerance in several countries in Europe and Latin America, that this is the justifying discourse for the increase in punitive intervention by the State while it simultaneously retreats in regard to social protection. Zygmunt Bauman is the other representative of authors that work with the concept of the Penal State, understanding it as a moment of rupture in which the criminal is no longer referred to as the citizen who needs support but is instead represented as someone dangerous (Bauman, 2007, p 18). The Baumanian paradigm reflects the fact that, when analysing the time-space duality, it is time that is associated with change, flexibility, mobility, and, in general, a lightness that conforms the liquid society. There is also a major concern


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over the lack of space, of demarcation, which is usually tied to a defensive attitude toward ‘the other’, as exemplified by the strengthening of immigration control. The rate of change of information erodes the power of the territorial state, making the concept of State Power increasingly extraterritorial and linked to international law (Priban, 2007, p. 1). When considering the uncertainty and other liquid and modern fears, Bauman presents a puzzle – which can be traced to that of the wrong fears sensed by the Americans – that is, why is European society so afraid in such safe times? This discussion also applies to the more insecure context of Brazil, for example, where fears of the metropolis are echoed in safer medium-sized or small cities, or to Portugal, a country with a low crime rate according to Machado (2004). Four aspects can be shown to outline the theory of the penal state. The first aspect concerns the fact that modern States are no longer8 in a position to provide the social security once offered by social services. At this moment of transformation, the State looks, then, for spheres of activity which could demonstrate its sovereignty and the criminal law is an open field. This argument turns to the second aspect, which is the issue of alterity and identity, the way of seeing ‘the other’, the lack of identification by society towards the criminal, increasingly represented as the dangerous, the monstrous, and the enemy. This way of thinking has its apex in the legal discourse of criminal law for the enemy supported by Günther Jakobs (Jakobs, 2005, p. 49) which separates members of society into citizens versus enemies. So, if one cannot expect law-abiding behaviour from someone, their conduct is no longer considered that of a citizen whose deviant actions have meaning in society (hence needing to be countered by punishment) but instead will be considered the conduct of enemies, in which case the legal response will only express the function of eliminating the danger it represents. However, it is important to note that Jakobs argues that this differentiation between criminal law for the citizen and criminal law for the enemy is necessary with the argument that various laws have already addressed the citizen as an enemy and that a legal definition of the distinction would provide greater security, so that the criminal justice system as a whole would not be contaminated by the paradigm of criminal law for the enemy. Still, even bearing in mind the objective of the theory of criminal law for the enemy by Jakobs, the extension of the discussion on the topic seems to be having the opposite effect the effect of justifying the punishment of preparatory acts, the increase of crimes of abstract danger, the expansion of powers of intrusion and control of the authorities in alleged crime prevention, which means a restriction of rights of general applicability, and not just those rights facing the

8

Important here is the fact that the analysis of the change ‘Welfare State versus Penal State’ is valid only in those exact terms, for the set of countries that came to experience the so-called welfare state after the war.


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fluid figure of the ‘enemy’(Piacesi, 2006). In addition, there have been other negative effects, including the fact that undocumented immigrants have become identified as criminal (Leite, 2010), and that a relation between immigration control and control of terrorism has been established, for example (Santos, 2009). In this context, still concerning the second aspect of the Penal State, is the idea of the dual criterion of exclusion, which highlights the notion that the external exclusion criteria of immigrants are merely a replication of the internal exclusion criteria of the ‘Underclass’, because they demonstrate, tangibly, the inarticulate and painful feeling of how expendable they are too. Here one can also use the metaphor of waste – domestic and foreign – as a product of globalization that affects the environment and of human beings as garbage when they do not fit into the capitalist scheme, and which has prisons as its main dumping grounds (Bauman, 2007, pp. 17-36). The third aspect that characterizes the Penal State is the precariousness of work. The social security provided by the previous Social Welfare State was directly related to issues of work protection and regulation. Thus, Bauman also describes the instability of employment as one of the clear reasons for feelings of insecurity and fear. In such circumstances, discovering a new form of legitimacy for the authority of the State and its demand for discipline is an urgent need for all governments that must deal with the dismantling of the welfare state. While governments cannot accept to becoming the collateral damage of economic progress now controlled by the forces of the fluctuating global market, it is relatively simple to ‘sell’ the need for more security through electronic devices such as tags, x-ray machines, preventive arrests, in other words, more panopticism. The fourth and last aspect is the government of fear that carries a symbolic domination as well as turning this symbolic dominance of fear into state violence. It is important to realize that, for Bauman, the fear related to personal safety and possessions must be cultivated by the State, even though, once it is established, it learns to walk on its own legs. These terrors are painted in bright colours so that when they are not fully translated into reality this ‘accomplishment’ can be perceived as an excellent job done by the State. Both Bauman and Wacquant see the United States as the main example of a state which exports this new form of legitimating that gives security unquestionable priority over human rights. The danger of such concepts has been revealed on several occasions in the modern contemporary world. It has allowed the use by the United States government of the concept of preventive war, the existence of Guantanamo, the discussion of ‘legitimate torture’, etc (Bauman, 2007, pp.17-36). Penal State Theory, as its name implies, focuses its analysis on state action, while the theories of the culture of fear, as we saw, or the culture of control and moral panic, to be discussed below, cover a range of actions including state, social and cultural relations.


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Thus the concept of the Penal State points to a reading of the modern State as one with a strong emphasis on the punitive function and restriction of rights, whether of general applicability, as in the reduction of freedom, association and privacy rights, or of those directed specifically against the suspects, accused and convicted, like the example of the criminal law for the enemy or the acceptance of torture as a means of obtaining evidence. Furthermore, it is a State sponsor of a very large spread of the stain of criminalization, with the increase of crimes of abstract danger, punishment of preparatory acts, predictions of universal jurisdiction, among others. Finally, what matters for the analysis of homologies of discourses of fear is the fact that the theory of the Penal State also comes from the assumption that, in such a configuration of the State, fear and uncertainty are used as legitimating factors in an intervention that puts fear as the main enemy of freedom and democracy. The third theory to be considered in the study of discourses of fear is the Theory of Culture of Control. This analysis, by the sociologist David Garland (2008, p.31) on the relation between crime and social order in contemporary society from the realities of the United States of America and Britain, leads him to propose the concept of the culture of control. One of the key aspects that defines the culture of control is the statement of overcoming penal welfarism, which was accompanied by the idea of the function of punishment as specific deterrence – that is, as rehabilitation – a model that abandons this goal, and recommends increasing control. The author sees this change in orientation in penal practices as occurring from the late 1970s onwards – the same period that Wacquant claims the change from welfare state to penal state took place. Garland works with the following aspects to demonstrate the structural change in crime policy (2008, p. 49): the gradual abandonment of rehabilitation; the resurgence of purely retributive and expressive sanctions; the changes in the emotional tone of crime policy; the strengthening of the fear of crime; the victim’s return to centre stage; the rhetoric of protection of public interest; the politicization of the issue (in the sense of appropriation of the subject by politicians for electoral purposes); the reinvention of prison as punishment; the transformation of criminological thought (law and order, zero tolerance, the broken window theory); the expansion of the infrastructure of crime prevention and community safety; the commercialization of crime control in civil society; the new styles of management of the prison system; and a perpetual sense of crisis. It is possible to observe that the mere description of Garland’s reading on recent changes in criminal policy already allows us to assert, as noted in the study of the theories of Culture of Fear and Penal State, the crucial role of the discourses of fear to understanding the landscape of crime in the contemporary social order and its influence on the legislation. A recent case that touches the boundaries


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of citizenship, political control and police control (Baubok, 2006) occurred in the United States with the enactment of new anti-immigration law in Arizona, SB 1070, enacted on April 21, 2010, which transforms illegal immigration into criminal conduct in that state. In consequence state officials are now allowed to check and control those who ‘look’ suspicious. ‘Absolutely subjective, the law, in the way it has been edited, legitimizes the discretion of agents and can generate the victimization of all the Hispanic population that lives in the state (it constitutes 30% of the total population and 12% of the electorate)’ (Leite, 2010). In 2005, Widgren (2005, pp. 215-228) warned of the risk of changes in the paradigms of European security in the wake of the terrorist attack in Madrid on 11 March, 2004, taking into account the results of the war on terror imposed by the US government Post-9/11. The author argued it was necessary to escape unilateral solutions and that a new paradigm to deal with the multiple dimensions of national security in Europe should be balanced and comprehensive. Despite the fact that the author’s remark directly addressed the Muslim issue, its warning serves the theme of the relation between immigration and crime in general because it is in the moments of greatest fear, especially when that fear is pervasive, that States are more inclined to reach for immediate answers, which assist in the maintenance of prejudices and social isolation, and which may even lead to self-fulfilling prophecies. However, the yield of the theory of the Culture of Control is situated on a wider plateau, which looks at the field more broadly, seeking to identify trends and common characteristics and to understand specific changes in the light of more general aspects. Garland (2008) draws attention to the rhetoric of political actors as a form of action itself. Thus the central focus of the theory of the Culture of Control is what the author calls the ‘official criminology’ as opposed to a possible history of criminological ideas. The important analytical focus is the cultural and institutional history of criminological categories, the way in which actors and agencies operationalize in practice issues of social control. It is worth stressing here the appeal to the complexity of this analysis that reveals various trends acting at the same time and not a dualism marked by the overcoming of one thought for another. The author concludes that ‘the strategies of crime control and the criminological ideas are not adopted because of their ability to solve problems. Evidence disappears well before their effects are perceived with some clarity. These strategies are adopted, and manage to succeed, because they characterize problems and identify solutions in a manner consistent with the dominant culture and power structure on which it resides’(Garland, 2008). The fourth and last theory to be presented in order to determine the presence and effects of the discourses of fear in contemporary society is the Theory of Moral Panics. Defining something as a moral panic (Cohen, 2002) does not imply


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the absence of a given issue or a hysterical reaction to it, but it is important to take into account two assumptions with regard to the moral panic: the first is that the allocation of the label of moral panic to something implies that the extent and significance of it was exaggerated in itself compared to other, more valid, reliable and objective sources or in comparison with other, more serious problems. The notion of the mass invasion of immigrants is an example of this. Cohen (2002) cites as characteristics of moral panics the fact that they are about new invisible dangers, but at the same time older versions of existing dangers; the fact that they are about dangers in themselves, but also warnings of a danger far more profound; the fact that they are transparent, but require the help of experts to decode the hidden dangers. The main objects of moral panics revolve around seven major issues of social identity: young men and violent workers; school violence (bullying and shootings); the wrong drugs used by the wrong people in the wrong places; child abuse, satanic rituals and paedophiles; sex, violence and blaming of the media; social welfare fraud of social policies and single mothers; and refugees and asylum seekers. One can also insert here also other issues involving immigrants. During moral panics and media frenzies, the atypical case is compressed into general categories of social control of crime. The explanatory theory ends up based on very few cases and the injustice comes from the application of this theory to a much broader range of situations (Thompson, 1998). This is what happens when the discovery that a violent crime was committed by an immigrant leads to victimization in areas inhabited by immigrants, for example.9 The necessary elements for building a moral panic are: the existence of a suitable enemy who is an easy target with little political power of response; the existence of a suitable victim, someone with whom society identifies itself; and the existence of a consensus that the denounced beliefs or actions are not isolated entities, but widespread unless ‘something is done.’ Typical features of moral panic are concern (instead of fear) with danger: hostility to the actors; consensus on the risk: disproportion between concern and actual danger, and volatility (the panics appear and vanish suddenly) (Cohen, 2002). The role of the media in the construction of moral panics appears in three main forms: to set the agenda, that is, the object of discussion which will be presented as an immediate danger; to transmit images; and to break the silence, making its own denunciation. The point is that in moral panics what matters is the representation of a given phenomenon, a representation that generates fear, worry or a sense of danger – and not the issues, real or imaginary (Ben-Yehuda, 2009, p. 19). Regarding the media, it is important to realize that the main indication that a moral panic is taking place is the stereotypical way in which the subject is treated in the press. Regarding public opinion, it is necessary that the media

9

SAMPSON, Robert J. Rethinking Immigration and Crime. Available at: http://contexts.org/ articles/files/2008/01/contexts_winter08_sampson.pdf. Access in: 04 december 2010


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reaches a latent concern or fear in society, as a moral panic is not only created by the exaggerated coverage of an event, but also by how the public reacts to such coverage (Critcher, 2006). Regarding the participation of agencies of social control or law enforcement such as the police, two processes to increase awareness of the potential risk deserve attention; They are called diffusion and escalation, through which the link between the agencies is strengthened in both length and intensity, generating increasingly disproportionate responses, including the suspension of rights and freedoms. For politicians, it is crucial that they demonstrate a reaction that aligns them with the good, through symbolic associations that also mark moral panics. The recognition of a moral panic allows the normative contours and moral boundaries in the society in which it occurs to be clarified, thus demonstrating the limits to the amount of diversity that can be tolerated by a given society (Ben-Yehuda & Goode, 2009, p. 30). In this sense, moral panics are a matter of cultural politics and power struggles, where all the disproportionality is serving a quite clear purpose: to protect or de-legitimize a particular cultural representation. So the analysis of those four theories – culture of fear, penal state, culture of control and moral panics – allow us to state there is a strong overestimation of risks, danger and fear in contemporary society. Those signs can be seen globally and locally – in Europe, in the United States of America and in Brazil. The concept of discourses of fear refers both to the existence of a number of theories that highlight this aspect, and also to the fear discourses conveyed by the media, by political actors, and by public opinion. In this sense, this article was punctuated with examples of application of the theory to the immigration debate. We argue that taking the discourses of fear into consideration to investigate immigration and crime is a step towards the deconstruction of this myth. In this context, it is important to attend to the warning of Boaventura de Sousa Santos, which is that the global danger of the rise of fascism as a social system – a pluralistic fascism that coexists well with the democratic state at the local, national and global levels – is ‘... a set of social processes by which large segments of populations are maintained, in a irreversible way, outside any kind of social contract.’10 It is relevant in this dialogue to try to challenge the idea

10

For better understanding of those concepts, see: SANTOS, Boaventura de Sousa. A Crítica da razão indolente. Contra o desperdício da experiência. São Paulo: Cortez, 2001; SANTOS, Boaventura de Sousa. Renovar la teoría crítica y reinventar la emancipación social. Buenos Aires: Clacso Libros, 2006; SANTOS, Boaventura de Sousa. Los terceros mundos transnacionales: el derecho de la gente en movimiento. In: La Globalización del derecho. Los nuevos caminos de la regulación y de la emancipación. Bogotá: facultad de derecho, ciencias políticas y sociales, Instituto Latinoamericano de servicios Legales Alternativos, ILSA, 1998; SANTOS, Boaventura de Sousa. Conocer desde el Sur. Para una cultura política emancipatoria. Lima: Univerdad Mayor de San Marcos, 2006.


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of the irreversibility of social fascism with the disruption of the abyssal line, which would allow even a dialectic of emancipation through violence (symbolic as in the law as a space for discursive struggle) or real (social movements, NGOs, immigrants, ‘terrorists,’ the demonized other). Thus the paradoxical and ambiguous notion of a balance between power and discourse in the law, in the State, in the media, in society also avails itself, necessarily, of a diatopical hermeneutics as a mechanism that makes intelligible the voices of the world on the ecologies of knowledge. The issue of immigration touches, too, what Santos calls the sociology of absences and emergencies. Thus it is situated in the field of the ecology of recognition, producing absences in the logic of social classification, and insidious invisibilities, since they both have a potential for direct contempt, as the risk of the invisible to become visible only when appropriated or violent. Among the logics of absence, this is more focused on the disqualification of the agent than on its practices. The connection made between immigration and criminality through discourses of fear reaches its apex with the criminalization of the illegal immigrant – in Italy and Arizona, for instance – because it is precisely a case where the immigrant is no longer just regarded as more likely than a national citizen to commit a crime but he becomes a crime himself. As a conclusion, and in view of the role of postmodern science, it is important to emphasize here one of its corollaries, namely, the fact that all scientific knowledge aims to become common sense. ‘Left to itself, common sense is conservative and can legitimize oppression, but interpenetrated by scientific knowledge it may lead to a new rationality’ (Santos, 1996). This is the primary goal of the discussion on the discourses of fear and is also what justifies the suggestion of this theoretical approach to the deconstruction of the direct relationship between immigration and crime. This can only happen through a scientific attitude committed to change, able to contribute to the building of a reflexive common sense about the role of ‘the other’ in society.

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Cohen, Stanley. (2002). Folk Devils and Moral Panics. Third edition. London and new York: Routledge. Critcher, C. (Ed.). (2006). Critical readings: Moral Panic and the Media. Berkshire: Open University press. Garland, D. (2008). A Cultura do Controle. Crime e ordem social na sociedade contemporânea. Rio de Janeiro:Revan. Glass, V. (2009, july 4). Luta política é igualada a crime comum. Retrieved from: http://www.ciranda. net/spip/article1201.html. Glassner, B. (2003). Cultura do Medo. São Paulo: Francis, 2003. Jakobs, G.; Cancio Meliá, M. (2005). Direito Penal do Inimigo. Noções e Críticas. Organização e tradução André Luís Callegari e Nereu José Giacomolli. Porto Alegre: Livraria do Advogado. Leite, A.H.C. (2010). A criminalização do status de imigrante ilegal: uma análise sob a perspectiva da criminologia crítica e do direito internacional dos direitos humanos. Boletim IBCCRIM, ano 18, número 215, Outubro. Machado, C. (2004). Crime e Insegurança. Discursos do medo, imagens do outro. Lisboa: Notícias Editorial. Pastana, D.R. (2003). Cultura do Medo, Reflexões sobre violência criminal, controle social e cidadania no Brasil. São Paulo: Instituto Brasileiro de Ciências Criminais. Piacesi, D. da Cunha. (2006). Da Fundamentação da Pena: Uma Análise Descritivo-crítica da Função Preventiva Geral Positiva. Orientador: Juarez Tavares. Rio de Janeiro. Universidade Cândido Mendes, Mestrado em Direito. Priban, J. (2007). Introduction: Theorizing Liquid Modernity and Its Legal Context. In: ______. Liquid Society and its Law. Aldershot: Ashgate, 2007. Reis, J. et all. (2010). Imigrantes em Portugal. Economia, pessoas, qualificações e territórios. Série trabalho e sociedade. Coimbra. Santos, B. de Sousa. (1996). Um Discurso sobre as Ciências. Porto. Afrontamento. Santos, B. de Sousa. (2009). Para além do pensamento abissal: das linhas globais a uma ecologia de saberes. in SANTOS, B. S.; MENESES, M. P. (eds.), Epistemologias do Sul. Coimbra: Almedina, p. 23-71. Santos, C.M. (2008). Desconhecemos que por detrás estão as pessoas! In: Somos diferentes mas somos iguais: Diversidade, Cidadania e educação. AJPaz. Solivetti, L.M. (2010). M. Immigration, social integration and crime. London, Routledge. Thompson, K. (1998). Moral Panics. Key Ideas. London and New York: Routledge. Wacquant, L. (2001). As prisões da miséria. Rio de Janeiro, Jorge Zahar Editor. Wacquant, L (2003). Punir os Pobres. A nova gestão da miséria nos Estados Unidos. 2 edição. Rio de Janeiro, Revan. Wacquant, L. (2009). The Body, the Ghetto and the Penal State. In: Qual Sociol. p. 101-129. Widgren, J. et al. (2005). Inmigración y seguridad en Europa tras los atentados de Madrid. In: Revista Migraciones .Instituto Universitario de Estudios sobre Migraciones. Número 17, Junio de 2005. Madrid, Universidad Pontificia Comillas, p. 215-228.


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Recorded crime committed by migrant groups and native Dutch in the Netherlands

Roel Jennissen

1 Introduction In the period since the nineteen fifties, Dutch1 society has developed into one with a high degree of cultural diversity. The first groups of migrants to contribute to this development were the Indo-Europeans and Moluccans from the former Netherlands East Indies colony who had no wish to opt for a future in independent Indonesia. With a view to filling the shortages on the underside of the labour market which came about due to unprecedented economic growth in the post-war period, large numbers of low skilled employment migrants migrated to the Netherlands from Southern Europe, Turkey and Morocco. This migration of low skilled migrant workers ended with the recession of 1973. The Turkish and Moroccan presence became more permanent when labour migrants from Turkey and Morocco started bringing their families over to the Netherlands.2 Initially these were mainly instances of family reunification. From the middle of the nineteen eighties, family formation was the predominant type of family migration. In fact, a large proportion of the children of Turkish and Moroccan immigrant workers arranged for a partner to join them in the Netherlands from abroad. Post-colonial migration to the Netherlands took place, not only from Indonesia, but also from Suriname and the Netherlands Antilles.3 Post-colonial

1

2 3

The English word which is used to refer to the people, the language, and anything pertaining to the Netherlands is Dutch. This adjective is derived from the regional languages that were spoken in the area, which were commonly known as ‘Diets’. This is in contrast to the labour migrants from southern Europe, most of whom chose to return to their country of origin. From 1954 to 1986, the state of the Netherlands Antilles consisted of six Dutch islands in the Caribbean Sea (Aruba, Bonaire, Curaçao, St. Eustatius, St. Maarten and Saba) that acquired political autonomy within the Kingdom of the Netherlands. As from 1 January 1986, Aruba has no longer been part of the Dutch Antilles and, on that date, acquired the desired ‘status aparte’ within the Kingdom, as a result of which it no longer had to tolerate what was experienced by the Arubans as the overly dominant majority position of Curaçao.


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migration from Suriname primarily took place from 1974 to 1980 – in the period before and after – independence (1975). The fact that the citizens of (the states which originated from) the Netherlands Antilles have Dutch passports, means they can travel without restriction between the European and the Caribbean part of the kingdom. Unfavourable economic developments on the Antilles resulted in high emigration to the Netherlands from the nineteen eighties onwards. Despite the fact that this emigration was largely circular in nature, the net migration balance still tipped dramatically in favour of the Netherlands (Oostindie, 2010). This led to a substantial Antillean community in the Netherlands. From the nineteen eighties onwards, the Netherlands was the object of largescale asylum seeker migration. In addition, more and more highly skilled labour migrants started coming to the Netherlands. But it was primarily the asylum seekers, together with family migrants, that have determined the image of immigration in the period from the middle of the nineteen eighties to the present day. The history of migration outlined above forms the basis of the current Dutch multicultural society which consisted, on 1 January 2005, of 1,699,042 people with a non-western background (10.4%) and 1,423,675 people with a foreign western background (8.7%) in addition to 13,182,809 native Dutch (80.8% of the total population).4 Within the group of non-western people with ethnic minority backgrounds, Turks (358,846 people on 1 January 2005), Moroccans (315,821), Surinamese (329,430) and Antilleans (130,538), who are also referred to as the big four ‘classic’ migrant groups, are often treated separately in Dutch migration research. The same applies in this research. Up until the nineteen eighties, the dominance of the ideology of multiculturalism, in which the assumption was the equality of the coexistence of different cultural communities, hindered a scientific, social and political debate on the acculturation of people with a non-western background into Dutch society. The ‘cultural tolerance’, which was evident in large sections of Dutch society, and which was accompanied by multiculturalism, prevented any discussion of certain wrongs which occurred to a disproportionately high extent among migrant groups. Over time, however, the highly developed level of cultural tolerance that had existed in the Netherlands started to deteriorate through internal conflict.

4

The Netherlands Antilles, as a country, ceased to exist on 10 October 2010. Besides Aruba, the entities of Curaçao and St. Maarten then also became sovereign states within the Kingdom of the Netherlands. At the same time, Bonaire, St. Eustatius and Saba, once again, came under direct Dutch rule. Consequently, these days, the Kingdom of the Netherlands consists of four states: the Netherlands, Aruba, Curaçao, and St. Maarten. Source: Statistics Netherlands. See section 3 for information on how the different origin groups are differentiated.


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This was because people were confronted by particular cultural views held by certain ethnic minorities which were, in turn, intolerant and which were incommensurate with prevailing Dutch standards and values. Examples are inequality between men and women, honour killing, arranged marriages, or discrimination against homosexuals. In the nineteen nineties, criticism of multiculturalism increased, and there was greater attention for the problems which accompanied the lack of integration of certain groups with ethnic minority backgrounds. The increasing criticism of multiculturalism cumulated at the beginning of the 21st century in the broad popularity of the rightwing populist politician, Pim Fortuyn. Fortuyn placed the problems with the integration of certain groups of ethnic minorities at the top of the political agenda, and they have been there ever since. The integration issue covers a variety of dimensions. A distinction is often made between the economic, social, cultural and political dimensions (Entzinger & Biezeveld, 2003; Penninx, 2005; Jennissen, Leeuw & Kromhout 2007). These dimensions allude to the degree of participation of people with ethnic minority backgrounds in various areas of the society in which they reside. For example, the degree to which people with ethnic minority backgrounds participate on the labour market can be regarded as an indicator of their economic integration. The degree to which people with ethnic minority backgrounds have contacts with the native Dutch population, and the degree to which they use the active and passive right to vote are indicators, respectively, of their social and political integration. Despite the fact that crimes committed also interface with economic and social integration, this should primarily be seen as an indicator of inadequate cultural integration. The basic idea is that cultural integration goes hand in hand with conformity to standards of behaviour. These standards of behaviour are expressed in everyday unwritten rules and in the legislation and regulations of the receiving society. The relationship which an individual has the society determines the degree to which he will respect the rules and standards (Junger-Tas, 2001). The aim of this study is to show the degree to which the different origin groups resident in the Netherlands are (over) represented in the registered crime figures. To this end, our presentation of possible explanations for differences in delinquent behaviour between the various ethnic groups, and our clarification of the data files used, are followed by information on the percentage of the origin groups’ resident in the Netherlands which are registered as offenders. After that, we examine the extent to which origin groups differ as regards the chance of being registered as offenders taking account of differences in demographic and socio-economic background characteristics. In this way, we try to isolate, as effectively as possible, the factor of ‘origin’ as a proxy for ‘culture’.


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2


Possible explanations for differences in delinquent behaviour between origin groups

Readers of this chapter must be prepared for the fact that the explanations put forward in this section for differences in crime rate between various population groups are only differences in the degree to which risk factors occur that increase the chance of criminal behaviour being exhibited. We make the point that, in so far as we have been able to ascertain, in all cases only a minority of the members of a population group are suspected of committing crimes, even if numerous risk factors are present.5 We also want to draw attention to the fact that our intention in this section is only to put forward possible explanations for differences in delinquent behaviour between different migrant groups. We do not, by any means, pretend this to be a theoretical framework for explaining why individuals exhibit criminal behaviour. If this were our aim, we would have to focus on the so-called crimogenic factors at individual level. For example, research by Gendreau, Little & Goggin (1996) revealed that, among other things, problems in the field of stress, temperament, behaviour and personality (for example, susceptibility to addiction) are robust predictors of criminal behaviour. Measuring such factors is a difficult and lengthy process. Indeed, there are no data files available with information on such factors at integral population level. There are no indications that the origin groups resident in the Netherlands differ with regard to innate risk factors which increase the chance of criminal behaviour. It is going too far, however, to deem it impossible that such risk factors exist. All the same, we found very few indications in international literature of a possible link between ethnicity and innate risk factors which may increase the tendency to exhibit deviant behaviour. However, we did, for example, find studies which demonstrate that the different variants of the serotonin transporter gene can be distributed differently over various ethnic groups (Ng, Easteal, Tan, Schweitzer, Ho & Aziz, 2006; Noskova, Pivac, Nedic, Kazantseva, Gaysina, Faskhutdinova, Gareeva, Khalilova, Khusnutdinova, Kozaric Kovacic, Kovacic, Jokic & Muck Seler, 2008. Variations in this gene are associated with all kinds of psychological disorders, and with differences in personality traits and behavioural problems. The fact is, however, that the causal relationships are complicated. Although the serotonin

5

However, recent research based on longitudinal data shows that, in certain cases, we cannot automatically talk of a small minority when it comes to displaying criminal behaviour during a lifetime. For example, research carried out by Blokland, Grimbergen, Bernasco & Nieuwbeerta (2010) show that 54% of the second generation of Moroccans from the 1984 birth cohort have been in contact with the police at least once as offenders before they reach the age of 23.


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transporter gene does contribute to brain development, it does so in interaction with environmental factors. Brain development then contributes to the way in which information is cognitively and emotionally processed and that, in turn, affects the chance of aggression and antisocial behaviour. This, too, also takes place in combination with environmental factors. 2.1

Demographic, economic and social factors

Differences in offender percentages between the origin groups may well be due to differences in the demographic and socio-economic characteristics of these groups. Indeed, quite a lot of research has shown that people’s age, sex and socio-economic characteristics are linked to criminal behaviour. The origin groups resident in the Netherlands differ with regard to these characteristics. The demographic factors of sex and age are important determinants of criminal behaviour. More men than women are involved in crime. It is generally assumed that the chance of delinquent behaviour being exhibited increases until late adolescence or early adulthood, when it starts to recede (Hirschi & Gottfredson, 1983). We can assume that differences in the demographic structure of the individual origin groups lead to differences in the offender percentages of these groups. The need for material gain, as largely determined by the (relative) economic position of an individual or household, is also a key determinant of criminal behaviour and, particularly, of crimes against property, (Gould, Weinberg & Mustard, 2002). If a certain migrant group has a less favourable average economic position, this may also be a reason for people from the migrant group in question to feature more frequently, in relative terms, in crime statistics. The prospect of a better economic position (for example a higher income, or the prospect of a job) can have a tempering effect on the need to commit crimes against property. Possible indicators of this are whether someone is currently enrolled in an educational or training course and – if this is the case – what kind of course they are doing. The social environment is an umbrella term which alludes to various social contexts. One aspect of the social environment that could affect the ethnic dimension of crime rate is the living environment. For example, Borghans and Ter Weel (2003) identified a positive link between the number of shoppers, employed people and people engaged in leisure pursuits per resident in a certain municipality, and the theft of forms of motorised transport in the municipality in question. Individuals’ social capital can also have an influence on whether criminal behaviour is exhibited, or not. Research by Van de Rakt, Weerman and Need (2005), for instance, revealed that having delinquent friends has a positive effect, and having strong links with parents and the school has a negative effect, on criminal behaviour among students in pre-vocational secondary education. Of course, the family in which people grow up also affects whether


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delinquent behaviour is evidenced. A variety of studies (Coughlin & Vuchinich, 1996; Demuth & Brown, 2004) have demonstrated that children growing up in a one-parent family have a greater chance of committing crimes. As far as adults are concerned, having a partner and/or having children are presumed to be possible factors that reduce the tendency to commit crimes (Sampson, 1987; Laub & Sampson, 2003). Research carried out by Blokland and Nieuwbeerta (2005) revealed that, in this context, having a relationship is more important than having children. 2.2

Cultural explanations and hypotheses

The existence of possible cultural explanations of differences in criminal behaviour between various origin groups resident in the Netherlands, as discussed in the section below, has led us to formulate the following hypothesis: H1: Even if we allow for various demographic and socio-economic background variables, people with a non-western background feature more in the recorded crime statistics than native Dutch people. Following Driessen, Völker, Op den Kamp, Roest and Moolenaar (2002), we distinguish, in the case of the cultural explanations of differences in criminal behaviour between various origin groups, between ‘cultural deviation’ and ‘cultural dissonance’. Cultural deviation – the phenomenon that different views on the permissibility of certain behaviour can exist in other cultures – is a direct explanatory factor of a possible ethnic dimension in types of crime. Cultural dissonance refers to the phenomenon of migrants living between two very different cultures, namely, that of the country of origin (of their parents) and that of the country in which they currently reside. This can lead to conflicts and problematic behaviour, particularly among young people. Korf, Bookelman and De Haan (2001) tellingly sum up the ‘cultural deviation’ component of explanations of the different crime levels of the main four nonwestern migrant groups resident in the Netherlands by stating that, according to ethnographic studies, the Surinamese crime rate is largely the result of the so-called ‘hustle culture’ (doing jobs on the side legally and illegally in order to keep one’s head above water). The matrifocal structure of Antillean families, in which the woman fulfils a key role, is said to be the basis – in addition to the cocaine trade – for the violent crime this population group is involved in. Single Antillean mothers tend to dismiss violent behaviour by their sons as mischief. The matrifocal structure of Antillean families can also pave the way for crime at an older age. As a result, twenty and thirty-year-old male Antilleans often lack the tempering influence of the family when it comes to committing crimes. In addition, as Van San, De Boom & Van Wijk (2007) assert, this family structure is accompanied by complicated relations between men and women, with Antillean women continually putting men under pressure to earn money. This encourages and maintains the crime rate among Antillean men into early adulthood.


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Cultural deviation, among both Surinamese and Antilleans, probably plays a greater role among members of the first generation than members of the second generation. It is likely, for example, that the hustle culture among Surinamese, and the matrifocal family structure among Antilleans, is more prominently present among the first generation than the second generation who were born in the Netherlands, with some of them also growing up in a family with one native Dutch parent. Our second hypothesis is derived from the above considerations, and from the assumption that cultural dissonance is not that big an issue for second generation Surinamese and Antilleans: H2: F irst generation Surinamese and Antilleans are more liable to commit criminal offences than second generation individuals from these groups. According to Korf et al. (2001) Turks tend, by comparison, not to be tempted into committing crimes against property due to their moral disapproval of ‘loss of face’. However, they do get involved relatively frequently (for example within the framework of blood feuds and honour killing) with violent acts against members of their own group. Petty crime among Moroccan boys is said to be the result of ‘amoral familism’, with a primary focus on the exclusive defence of the family’s interests and, in contrast to Turks, is not regarded as leading to a ‘loss of face’. Many Moroccan parents believe that the police or school heads are more responsible for the behaviour of their children than they are. In connection with this we formulated the following hypothesis: H3: Moroccans are more liable to start committing criminal offences than Turks. As mentioned earlier in this section, cultural dissonance means the phenomenon of migrants living between two very different cultures. In effect, many migrants live in two different societies with different patterns of standards and values which both make demands on the loyalty of the migrants, or second generation people, with a foreign background. This situation – in the case of young people, in particular – can lead to identity-related problems which can, in turn, result in criminal behaviour because both the pattern of standards and values of the receiving society and that of the society of origin can be thrown overboard (Junger & Polder, 1991). The coexistence of two different systems of standards and values within one person means that the relativity of both systems becomes apparent to the individual in question. This makes it tempting to let go of one of these systems or, indeed, both; if this is beneficial in a material or psychological sense. The cultural dissonance of Turks and Moroccans is greater than that of Surinamese and Antilleans. The cultural deviation of second generation Turks and Moroccans is not much smaller than that existing among the first generation of these migrant groups. For example, probably more than 90 percent of second generation Turks and Moroccans are born into a family that is the product of a mono-


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ethnic marriage,6 and more than 90 percent of the second generation also marry a partner from the same migrant group.7 In our opinion, assumptions about differences in crime figures between the first and second generations of these migrant groups must, therefore, primarily be related to the different degree of cultural dissonance. The above forms the basis of the following hypothesis: H4: S econd generation Turks and Moroccans are more liable to commit criminal offences than first generation individuals from these groups.

3 Data This study uses data from the Police Recognition System (PRS) which are linked to, and therefore part of, the Social Statistical dataBase (SSB) of Statistics Netherlands (SN). The SSB contains details on demographic and socio-economic characteristics. This section includes a detailed description of these data files. However, first, an operationalisation is given of the term origin group, which is frequently used in this study. With a view to dividing the Dutch population into various origin groups, this research distinguishes between native Dutch and people with a foreign background. This distinction is based on SN definitions. According to SN, a native Dutch8 person is someone whose parents were both born in the Netherlands. A person with a foreign background is someone with at least one parent born abroad. Within the group of people with a foreign background, a distinction is made between the first and second generation. The first generation are those born abroad with at least one parent born abroad. The second generation are those born in the Netherlands with at least one parent born abroad.

6

7 8

This assumption is based on the percentage of second generation Turks (84.5%) and Moroccans (88.1%) aged twelve and older, whose parents were both born abroad (source: SN). The vast majority of the Turks and Moroccans whose parents were both born abroad grow up in a family in which both parents are of Turkish or Moroccan origin. In all probability a reasonable proportion of the families with just one parent who was born abroad is mono-ethnic in nature, for example, in the case of a second generation Turk or Moroccan who has a partner come over from Turkey or Morocco in order to start a family. It is, therefore, probable that more than 90% of Turks and Moroccans grow up in a family in which both the father and the mother are of Turkish or Moroccan origin. At any rate, around 5% of second generation Turks and around 10% of second generation Moroccans marry a native Dutch partner (Uiters, 2007). Actually, it is not completely appropriate to speak about ‘native Dutch’ here, as a person whose parents are both born in the Netherlands, but is born abroad is also considered to this category. The term ‘autochthonous people’ is used in official publications of SN and in the most other Dutch publications on migration and integration issues to indicate aforementioned persons. The term ‘allochthonous people’ is used in these publications to indicate the persons who have at least one parent who is born abroad.


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People with a foreign background can also be classified according to country of origin. In the first instance, this is done on the basis of their own native country. If the native country is the Netherlands (as in the case of the second generation), the mother’s native country is key. However, if the mother was also born in the Netherlands, the person in question is classified on the basis of the native country of their father. The country of origin can be used to classify people with a foreign background into people with a foreign western background, and people with a non-western background. According to the SN definition, people with a western foreign background have a country of origin in Europe (excluding Turkey but including the former Asian-Soviet republics), North America or Oceania. SN counts Indonesia and Japan as western countries.9 The non-western countries are regarded as the countries in Africa, Latin-America and Asia (with the exception of Indonesia, Japan and the former Asian Soviet republics), (Keij, 2000). 3.1

The Police Recognition System (PRS)

The PRS is a national system used by the various police forces to register all kinds of data. The current study uses data from the PRS relating to the official police reports filed on suspects of indictable offences. Suspects who have been acquitted, or who have had the charges against them dropped due to illegally acquired evidence are, in principle, removed from the PRS database. In this chapter it is therefore assumed that the 2005 PRS is now – after at least three years – a file of registered offenders. However, this has to be understood with caution. For example, people who are no longer being prosecuted by the Public Prosecutor due to a lack of lawful evidence, and people who have received policy dismissals, are still included in the PRS database. For instance, in 2003, such data represented between 2 and 3 percent of the total number of crimes in the PRS database. In addition, it is uncertain as to whether the deletion of cases of acquittal and dismissals due to unlawfully obtained evidence was always done with the necessary care. Lastly, we have to realise that people who accept a settlement do continue to be included in the PRS database, although they have not legally been found guilty. In reality these persons probably are, indeed, guilty in the majority of cases by far, although it is not, for example, inconceivable that individuals who are wrongfully suspected of a sexual offence opt for a settlement rather than painful judicial proceedings.

9

Indonesia is regarded as a western country because many people who, according to the SN definition, are of Indonesian origin, are (descendants of) Dutch colonists or Indo-Europeans born in the former colony of the Netherlands East Indies. Japan is regarded as a western country due to its high level of prosperity.


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Of course, the PRS database used here, containing crimes committed by known offenders, does not provide a complete description of the crime rate in the Netherlands. We are faced with a significant dark number of crimes which are not reported to the police at all, as well as reported crimes whereby the police appear to be unable to link the crime to an offender. In addition, the files of official police reports drawn up by special investigation services are not included in the PRS. It is not known whether the dark number differs for various origin groups. However, for the time being there are no indications that this could be the case. Furthermore, the reader of this chapter is at liberty only to compare the ethnic minority groups with each other, which will considerably exclude the impact of possible selectivity with respect to ethnicity in the actions of the police. Selectivity in police action, based on the assumption that the police are more alert to the activities of people with a non-western background, could lead to an over-representation of this population group in the PRS. As shown in an overview study by Rovers (1999), three studies were carried out in the nineteen seventies which indicate possible selectivity in police investigations, based on socio-economic status and/or ethnicity. However, the study also examines four studies which were carried out after the nineteen seventies, in the period that the multicultural Dutch society was starting to acquire shape. Three of these studies observed no direct selectivity in police decisions. The fourth study, which was carried out in 1997, did find indications for a class bias based on ethnicity, but commentators have doubts about the validity of the conclusion drawn. This is because the research in question compares findings from a self-report study with findings taken from registered crime figures. Data from self reports are only partially suitable for measuring differences in crime rate between different origin groups resident in the Netherlands. According to Bovenkerk (2003), problems with both the external and internal validity of self-reports cause an ethnic bias. The problem with the external validity is that the non-response among offenders is higher than among non-offenders. The result is that the differences referred to in the self reports between the origin groups as regards the percentage of offenders are smaller than in reality. The internal validity is an even bigger problem. For example, Junger (1990) has demonstrated that Moroccan and Turkish boys lie more often about their contacts with the police than their Dutch counterparts. Stevens, Pels, Bengi-Arslan, Verhulst, Vollebergh and Crijnen (2003) show that Moroccan adolescents and their parents indicate that they, or their children, are experiencing behavioural problems much less frequently than the teachers of these Moroccan adolescents. As regards Turkish and native Dutch adolescents, Stevens et al. found the reverse to be true: in these cases, the teachers usually identified fewer behaviour-related problems than the adolescents and their parents. Nevertheless, it is still far from inconceivable that native Dutch offenders may be under-represented in the PRS. The reasoning behind this is that the percentage


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of crimes solved in the case of certain types of crime, committed primarily by native Dutch offenders, may be relatively low. For example, it is quite probable that the number of crimes against property registered in the PRS that were committed by the highly educated – often native Dutch – section of the population, (referred to as ‘white collar crime’), is very small in comparison to other crimes against property. There are, however, also indications of an under-representation of people with a non-western background in the PRS. Research by Goudriaan, Nieuwbeerta and Wittebrood (2005), in fact, revealed that the willingness of people to file an official police report in socially and economically poor neighbourhoods, where there is little informal social control, is relatively low. Assuming that a relatively large number of people with a non-western background live in such neighbourhoods, and that a relatively large number of crimes are committed in the immediate vicinity, this could mean that native Dutch have a greater chance of their crimes being reported than people with a non-western background.10 3.2

The Social Statistical dataBase (SSB)

The SSB consists of a large number of registers which are linked, on the basis of a unique, personal number, to the municipal personal records database. The data come from, for example, municipalities, the tax authorities and various implementing agencies. This link means that the SSB provides individual data on all registered residents of the Netherlands on, for example, demographic characteristics, work, benefits and income. The files put together on behalf of this research relate to people who make up the (registered) population of the Netherlands on a particular day, namely, the last Friday of September in 2005.11 There are advantages and disadvantages to using registered data. The main advantage of registers is that they are integral. This means there are no sampling problems and no problems relating to selective non-responses. Unfortunately, the records are not always of sufficient quality. The quality of the information is increased within the SSB by comparing data from various sources.

10

11

Differences in the percentage of reported crimes solved between police regions can result in an over-representation or under-representation of people with a non-western background in the PRS. The percentages of crimes solved is, however, highest in highly urbanised areas (with relatively large numbers of people with a non-western background) and rural areas (with relatively few people with a non-western background), while the percentages of crimes solved in the areas in between are often the lowest (Vollaard, 2004). Therefore, differences in percentages of crimes solved between the police regions probably may only have a minor effect on the possible relative over-representation of offenders with a non-western background compared to native Dutch offenders in the PRS. SN compiles the SSB from a large number of registers and questionnaires containing private data. For that reason, SN pays a lot of attention to making sure that these data are properly protected.


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This enables errors to be detected and then corrected. Arts and Hoogteijling (2002) provide an overview of this method and the changes carried out.

4

Descriptive statistics

As a first step of this research, an assessment has been made whether there are differences in the degree to which members of the various origin groups are registered as offenders without adjusting for socio-economic background characteristics. This is done by comparing the number of crimes committed by men and women per origin group per 1,000 residents in the 12 to 60-age category (see figure 1). The registered number of crimes among men with a non-western background is significantly higher than among native Dutch men and men with a western foreign background. The registered crime rate for men with a non-western background is approximately three times higher. Of men with a non-western background, Antilleans have the highest crime rate (241 crimes per 1,000). They are followed by Moroccan men. Of the big four ‘classic’ non-western migrant groups, the lowest number of crimes in relative terms is registered among Turkish men. Nevertheless their crime rate (123 crimes per 1,000) is still twice as high as that of native Dutch men and men with a foreign western background. As regards crime rate, Antillean women are head and shoulders above the other origin groups. Their crime rate (on average 50 crimes per 1000 residents) is more than twice as high as the average of all women with a non-western background, and even slightly higher than that of native Dutch men. Surinamese women are, in terms of crime rate, also frequently registered as offenders. A Surinamese woman is three times more likely to be recorded as an offender in the PRS than the average female resident of the Netherlands. The registered crime rate among Moroccan and Turkish women is quite low in comparison with their male counterparts. Turkish women are registered as offenders, more or less, just as often as women with a foreign western background (11 crimes per 1000). Only native Dutch women have a lower crime rate, at 7 crimes per 1000 residents.


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Recorded crime committed by migrant groups and native Dutch in the Netherlands Figure 1

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Number of recorded offences by origin and sex, 12 to 60 year olds, 2005

per 1000 250

200

150

100

50

0

native Dutch

foreign non-western western background background

Turks

Men

5

Moroccans Surinamese Antillians other nonwestern background Women

Multivariate analyses

The differences described in registered crime figures between the origin groups are probably partially due to differences in socio-economic characteristics between the origin groups. Indeed, quite a lot of research has shown that people’s age, sex and socio-economic characteristics are linked to criminal behaviour (Glaser & Rice, 1959); Gove, 1985; Meyer, 2007; and Section 9.2.1). Earlier research has also established that the origin groups resident in the Netherlands differ considerably as regards their socio-economic characteristics (Dagevos & Gijsberts, 2009). In this section we use regression analysis to assess whether this is the case. In addition, the number of crimes which are attributable to individuals registered in the PRS is predicted on the basis of origin and a number of demographic and socio-economic background characteristics of the individuals in question. In this way we try to make optimal allowances for differences in background characteristics between the various origin groups and then isolate the origin factor as an indicator for ‘culture’. Clearly, given that no allowance is made for a number of key background variables (for example, the highest level of education attended and whether any educational/training courses are being attended, in the case of minors and young adults), we only partially succeed in achieving this objective. The effect of origin on whether or not a person is suspected of a crime is related not only to cultural factors, but also to differences


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in socio-economic background characteristics between the origin groups which could not be included in the regression models. In this current analysis, we estimate ordered logistical regression models and divide the number of registered crimes into four categories (no crime, one crime, two crimes and more than two crimes). We use this form of regression analysis despite the fact that the majority of the population was not registered as offenders at all in 2005, meaning that a zero-inflated Poisson or negative binomial regression model may well have been more sensible options. The reason we opt, nevertheless, for ordered logistical models is that it is quite simple to interpret the parameter estimates of these models. The price which we have to pay using cumulative logistical models is that we have to divide the number of registered crimes into the aforementioned four categories; as a result of which information on differences with regard to habitual offenders is lost. The parameter estimates shown in the regression table indicate the odds ratios for the independent variables of being classified in a higher category (that is, with more registered crimes). For the categorical variables the parameters are compared to a reference category. This reference category always has a value of ’1’ in the regression tables. The calculations only provide an indication of the individual importance of the background characteristics as, in some cases, it is not entirely clear what the cause and effect is (for example, people with a low income are said to be more liable to commit crimes, despite it also being possible for someone to have a lower income due to having exhibited criminal behaviour and thereby losing their job). Furthermore, we were not able to include the key background variable of level of education for minors, nor in any detail for adults, in the regression models, thus it is quite probable that the estimates of the effects of the other background characteristics are not entirely accurate. The multivariate analyses have been performed separately for adults (18 to 38 years old) and minors (12 to 18 years old). The results of two regression models are shown for both adults and minors (see Table 1).


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Recorded crime committed by migrant groups and native Dutch in the Netherlands Table 1

191

Results of ordered logistic regression analysisi to explain the number of recorded offences committed in 2005

Minors (12-17 years)

Model A

Native Dutch (ref.) Western minorities 1st generation 2nd generation Turks 1st generation 2nd generation Moroccans 1st generation 2nd generation Surinamese 1st generation 2nd generation Anillians 1st generation 2nd generation Other non-western minorities 1st generation 2nd generation Women (ref.) Men Age Age2 Living at home (ref.) Not living at home No disrupted family (ref.) Disrupted family Both parents no social benefit (ref.) At least one parent social benefit Incomeii parents < € 2.250,- (ref.) € 2.250,- to € 3.499,€ 3.500,- to € 4.549,€ 4.550,- to € 6.049,More than € 6.049,Not urban (ref.) Little urban Moderately urban Strongly urban Very strongly urban Nagelkerke’s R 2 N

Model B 1

1

1.75 1.50

1.22 1.23

2.71 2.69

1.61 1.63

5.42 6.07

3.30 3.73

3.42 3.25

1.85 1.77

8.17 4.33

3.78 2.65

2.69 2.17 1 4.34 35.70 0.90

1.56 1.38 1 4.46 37.43 0.90 1 1.55 1 1.7 1 1.48 1 0.78 0.66 0.58 0.45 1 1.19 1.29 1.52 1.46 0.14 1,202,098

1

0.11

Sources: National Police Agency and Statistics Netherlands i) In odds ratio’s. All odds ratio’s, except two of the odds ratios for t ii) Per month, classification based on quintiles.


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In the A models, only demographic characteristics (origin group, sex and age) have been included in the analysis. This provides an insight into the differences between origin groups, with adjustments only being made for the age distribution, generation and sex ratio of the population group. In the B models, adjustments are made for these three characteristics and for a number of socio-economic characteristics as well. As regards the 18 to 38 year olds, these are: being married or cohabiting, benefit dependence, household income, having attended higher education or not, and the level of urbanisation of the municipality of residence. The use of the higher education variable is the reason why we limited the regression analyses for adults to the age of 38. In fact, we only have information on whether someone is, or was, registered at a university or a school for higher vocational education in the period from 1986 onwards. Older people are assumed to have been able to attend higher education before 1986. The variable ‘whether someone has attended higher education’ is, of course, quite a rough indicator of whether someone has attended education and of the level of education eventually attained by 18 to 38 year olds. Incidentally, the split that this variable causes is closer to the median than would initially be assumed. In total, more than 36 percent of the people resident in the Netherlands in the 18 to 38 year age group have at some time been registered in the Netherlands with a higher education institution. In the case of 12 to 18 year olds, no assessment has been made of whether they were married or cohabiting, or whether a young person is still living with his parents, or whether the individual comes from a broken family. The analysis includes data on whether the individual’s parents are dependent on benefit, rather than data on whether the young person was dependent on benefit. The same applies to household income. Unfortunately, we do not have any information on the school type attended by the minor, nor do we have any information on a possible education or training that has been completed. All big four ‘classic’ non-western migrant groups, both the minors and the adults, have a greater chance of being registered as a suspect of one or more crimes than native Dutch people. The same applies to minors with a foreign western or a non-western background. If we add a number of socio-economic background characteristics, the link between ethnic background and the number of registered crimes becomes smaller. The chance of being classified in a higher category with more crimes is, however, still considerably greater for the big four ‘classic’ non-western migrant groups than for native Dutch people. This applies particularly to for second generation Moroccans and first generation Antilleans. Hypothesis 1 therefore appears to be verified, were it not that among adults, after adjustment for socio-economic circumstances, the first generation of remaining – i.e. not belonging to the big four ‘classic’ non-western migrant groups – people with a non-western background (just as, incidentally, the first generation of people with a foreign western background) are registered less


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frequently as offenders than native Dutch people. The odds ratios of Moroccans are significantly higher than the relative odds ratios of Turks in both age groups, of both generations and in both the model with, and the model without, socio-economic background variables. Hypothesis 3 is therefore supported by the results of the analyses. In the case of Moroccans and Turks, we see that the second generation is more strongly overrepresented in the crime figures than the first generation, while for Antilleans and Surinamese the reverse applies. Hypotheses 2 and 4 therefore appear to be substantiated. However, this conclusion needs to be qualified somewhat. For example – certainly after we have made adjustments for a number of socio-economic background variables (model B) – we see that underage first generation Surinamese are registered only slightly more often as offenders than their second generation counterparts. Incidentally, in the case of Turks and Moroccans, the differences between the two generations are smaller among minors than among adults. One possible cause is that a lot of underage first generation Surinamese, Turks and Moroccans came to the Netherlands at a very early age. It is often assumed that young people who relocated to the Netherlands before the age of six can be easily compared with the second generation of young people with a foreign background (Weijters & Scheepers, 2003). Of course, the pseudo-explained variance increases as more and more variables are added to the model. Nevertheless, model B also only explains 15 percent of the variance in the case of adults, and 14 percent of the variance in the case of minors. These analyses therefore show that part of the explanation of criminal behaviour has to be sought at a personal level (for example, stress, temperament and susceptibility to addiction) or comes about due to fortuitous circumstances. In addition, socio-economic background characteristics which are not included in the analyses can also play a role. Examples are the abovementioned highest qualification obtained by adults, and any education or training received by minors. The failure to check the presumed negative effect of educational qualifications, and being enrolled in any education or training courses, on the development of criminal behaviour does not detract from the value one can attach to assessing hypotheses 3 and 4. The level of education of Turkish people attending, and not attending, school differed barely from that of Moroccans (Turkenburg & Gijsberts, 2007). This means that the inclusion of this variable will not, or will scarcely, influence the relative differences in the odds ratios between both groups as regards people with a foreign background, and that, as a result, it is very unlikely that hypothesis 3 has been wrongly verified. Turkenburg and Gijsberts also demonstrate that the level of education of second generation Turks and Moroccans is higher, on average, than that of the first generation, and that native Dutch people have better qualifications than people with a non-western background. This means that hypothesis 4 could well have been wrongly


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rejected because education variables could not be included in the model. However, hypothesis 4 has been verified, despite the lack of education variables. The absence of education variables could have some effect on the assessment of hypotheses 1 and 2. As regards hypothesis 1, however, we can state that the estimated odds ratios of people with a non-western background are substantial in model B, with the exception of first generation Turks and remaining people with a non-western background. These effects probably would continue to apply, even if the qualifications obtained were included in the analyses. The assessment of hypothesis 2 is the most unconvincing assessment due to the lack of education variables. As regards Antilleans, the difference in odds ratios between the two generations is still quite considerable. However, in the case of Surinamese, they are so small that it would be unwise to bet on the verification of hypothesis 2.

6

Concluding observations

Crime can be regarded as an indicator of defective integration. In the first instance, it may be considered as a result of inadequate cultural integration. The basic idea is that cultural integration goes hand in hand with conformity to standards of behaviour. A comparison of the crime rates of native Dutch people and people with a foreign background does not paint a rosy picture of the crime aspect of the integration issue. In 2005, the police registered 43 crimes for every 1000 native Dutch men aged between 12 and 60. In the case of men with a non-western background, the rate was more than three time higher, at 150 crimes per 100. Moreover, in 2005, the crime rate of women with a non-western background was approximately three times higher than that of native Dutch women. Of the big four ‘classic’ non-western migrant groups, Antilleans were registered most often as offenders, and Turks the least. Even if an allowance is made for a number of demographic and socio-economic background variables, the chance of being suspected of a crime is still considerably bigger for the big four ‘classic’ non-western migrant groups. After allowing for these background characteristics, the effect of origin ought to relate largely to the cultural context of the individual. The cultural explanations of differences in criminal behaviour between various origin groups are divided in this study into explanations based on cultural deviation on the one hand, and cultural dissonance on the other. Cultural deviation is the phenomenon by which different views exist in different cultures regarding the permissibility of certain behaviour. Cultural dissonance means the phenomenon of migrants living between two very different cultures, which can lead to conflicts and problematic behaviour. Of the big four ‘classic’


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minority groups resident in the Netherlands, the cultural dissonance of Turks and Moroccans is greater than that of Surinamese and Antilleans. Cultural dissonance does not play a major role among people with a foreign background from areas which belong or belonged to the Kingdom of the Netherlands. After allowing for demographic and socio-economic background characteristics, the over-representation of Surinamese and Antilleans in the crime figures is then, probably and primarily, a result of their cultural deviation. The outcomes of the analyses performed during this study support this view, because first generation Surinamese and Antilleans are represented to a greater extent in the registered crime figures than their second generation peers. In fact, the cultural deviation of the first generation of people with a foreign background is, in all probability, greater than that of the second generation. First generation Turks and Moroccans often have a socio-economic life which is still strongly rooted in their own (transnational) migrant community and, as a result, and in contrast to the second generation, are less affected by the phenomenon of cultural dissonance. As regards cultural deviation there is not much difference between first and second generation Turks and Moroccans. The results of this research therefore show that second generation Turks and Moroccans appear more often in the registered crime figures in relative terms than Turks and Moroccans who were not born in the Netherlands. To sum up, we can state that, even after allowing for a number of demographic and socio-economic background characteristics, the (recorded) crime rate among people with a non-western background is not favourable when compared with that of the native Dutch population. The most striking aspect is the substantial over-representation of second generation Moroccans and first generation Antilleans. However, there is also a positive aspect. Adult first generation Turks and the remaining adults – i.e. not belonging to the big four ‘classic’ non-western migrant groups – with a non-western background have crime rates which are quite low and comparable to those of the native Dutch. After allowing for demographic and socio-economic background characteristics, the share of remaining first generation people with a non-western background registered as offenders is even lower than the share of native Dutch persons recorded as offenders.

References Arts, C.H., & Hoogteijling, E.M.J. (2002). Het Sociaal Statistisch Bestand 1998 en 1999. Sociaal-economische Maandstatistiek, 2002, 13-21. Blokland, A., Grimbergen, K., Bernasco, W., & Nieuwbeerta, P. (2010). Criminaliteit en etniciteit: Criminele carrières van autochtone en allochtone jongeren uit het geboortecohort 1984. Tijdschrift voor Criminologie, 52, 122-152. Blokland, A.A.J., & Nieuwbeerta, P. (2005). The effects of life circumstances on longitudinal trajectories of offending. Criminology, 43, 1203-1240.


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Borghans, L., & Ter Weel, B. (2003). Criminaliteit en etniciteit. Economisch Statistische Berichten, 88, 548-550. Bovenkerk, F. (2003). Over de oorzaken van allochtone misdaad. In F. Bovenkerk, M. Komen & Y. Yeşilgöz (Eds.), Multiculturaliteit in de strafrechtspleging (pp. 29-58). The Hague: BJu. Coughlin, C., & Vuchinich, S. (1996). Family experience in preadolescence and the development of male delinquency. Journal of Marriage and Family, 58, 491-501. Dagevos, J., & Gijsberts, M. (2009). Jaarrapport integratie 2009. The Hague: SCP. Demuth, S., & Brown, S.L. (2004). Family structure, family processes, and adolescent delinquency: The significance of parental absence versus parental gender. Journal of Research in Crime and Delinquency, 41, 58-81. Driessen, F.M.H.M., Völker, B.G.M., Op den Kamp, H.M., Roest, A.M.C., & Moolenaar, R.J.M. (2002). Zeg me wie je vrienden zijn. Allochtone jongeren en criminaliteit. Zeist: Kerckebosch. Entzinger, H., & Biezeveld, R. (2003). Benchmarking in immigrant integration. Rotterdam: Erasmus Universiteit. Gendreau, P., Little, T., & Goggin, C. (1996). A meta-analysis of the predictors of adult offender recidivism: What works! Criminology, 34, 575-607. Glaser, D., & Rice, K. (1959). Crime, age, and employment. American Sociological Review, 24 (5), 679686. Goudriaan, H., Nieuwbeerta, P., & Wittebrood, K. (2005). Overzicht van onderzoek naar determinanten van aangifte doen bij de politie. Theorieën, empirische bevindingen, tekortkomingen en aanbevelingen. Tijdschrift voor Veiligheid en Veiligheidszorg, 4, 27-48. Gould, E.D., Weinberg, B.A., & Mustard, D.B. (2002). Crime rates and local labor market opportunities in the United States. The Review of Economics and Statistics, 84, 45-61. Gove, W. (1985). The effect of age and gender on deviant behaviour: A biopsychosocial perspective. In: A. Rossi (Ed.), Gender and the life course (pp. 115-144). Hawthorne (NY): Aldine. Hirschi, T., & Gottfredson, M. (1983). Age and the explanation of crime. American Journal of Sociology, 89, 552-584. Jennissen, R.P.W., Leeuw, F.L., & Kromhout, M.H.C. (2007). Achtergronden van de Integratiekaart. In R.P.W. Jennissen & J. Oudhof (Eds.), Ontwikkelingen in de maatschappelijke participatie van allochtonen (pp. 11-22). The Hague: BJu. Junger, M. (1990). Delinquency and ethnicity. An investigation on social factors relating to delinquency among Moroccan, Turkish, Surinamese and Dutch boys. Deventer: Kluwer. Junger, M., & Polder, W. (1991). Achtergronden van delinquent gedrag onder jongens uit etnische minderheden. Arnhem: Gouda Quint. Junger-Tas, J. (2001). Ethnic minorities, social integration and crime. European Journal on Criminal Policy and Research, 9, 5-29. Keij, I. (2000). Hoe doet het CBS dat nou? Standaarddefinitie allochtonen. Index: Feiten en Cijfers over onze Samenleving, 10, 24-25. Korf, D.J., Bookelman, G.W., & De Haan, T. (2001). Diversiteit in criminaliteit: Allochtone arrestanten in de Amsterdamse politiestatistiek. Tijdschrift voor Criminologie, 43, 230-259. Laub, J.H., & Sampson, R.J. (2003). Shared beginnings, different lives: Delinquent boys to age 70. Cambridge: Harvard University Press. Meyer, S. (2007). Sozialkapital und Delinquenz: Eine empirische Untersuchung für Deutschland. Darmstadt: Technische Universität Darmstadt. Ng, C.H., Easteal, S., Tan, S., Schweitzer, I., Ho., B.K.W., & Aziz, S. (2006). Serotonin transporter polymorphisms and clinical response to sertraline across ethnicities. Progress in Neuro-Psychopharmacology and Biological Psychiatry, 30, 953-957. Noskova, T., Pivac, N., Nedic, G., Kazantseva, A., Gaysina, D., Faskhutdinova, E., Gareeva, A., Khalilova, Z., Khusnutdinova, E., Kozaric Kovacic, D., Kovacic, Z., Jokic, M., & Muck Seler, D. (2008). Ethnic differences in the serotonin transporter polymorphism (5-HTTLPR) in several European populations. Progress in Neuro-Psychopharmacology and Biological Psychiatry, 32, 1735-1739.


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Oostindie, G. (2010). Postkoloniaal Nederland: Vijfenzestig jaar vergeten, herdenken, verdringen. Amsterdam: Uitgeverij Bert Bakker. Penninx, R. (2005). Integration of migrants: Economic, social, cultural and political dimensions. In M. Macura, A.L. MacDonald & W. Haug (Eds.), The new demographic regime: Population challenges and policy responses (pp. 137-151). Geneva: UNECE. Rovers, B. (1999). Klassenjustitie: Overzicht naar selectiviteit in de Nederlandse strafrechtsketen. Rotterdam: Erasmus Universiteit. Sampson, R.J. (1987). Urban black violence: The effect of male joblessness and family disruption. The American Journal of Sociology, 93, 348-382. Stevens, G.W.J.M., Pels, T., Bengi-Arslan, L., Verhulst, F.C., Vollebergh, W.A.M., & Crijnen, A.A.M. (2003). Parent, teacher and self-reported problem behavior in The Netherlands. Social Psychiatry and Psychiatric Epidemiology, 38, 576-585. Turkenburg, M., & Gijsberts, M. (2007). Opleidingsniveau en beheersing van de Nederlandse taal. In J. Dagevos & M. Gijsberts (Eds.), Jaarrapport Integratie 2007 (pp. 72-101). The Hague: SCP. Uiters, E. (2007). Contacten tussen allochtonen en autochtonen. In R.P.W. Jennissen & J. Oudhof (Eds.), Ontwikkelingen in de maatschappelijke participatie van allochtonen (pp. 103-114). The Hague: BJu. Van de Rakt, M., Weerman, F., & Need, A. (2005). Delinquent gedrag van jongens en meisjes: Het (anti)sociale kapitaal van vriendschapsrelaties. Mens & Maatschappij, 80, 328-352. Van San, M., De Boom, J., & Van Wijk, A. (2007). Verslaafd aan een flitsende levensstijl: Criminaliteit van Antilliaanse Rotterdammers. Rotterdam: RISBO. Vollaard, B. (2004). Gelijke beschikbaarheid, ongelijke handhaving? Een onderzoek naar de consequenties van de regionale verdeling van het politiebudget. The Hague: CPB. Weijters, G., & Scheepers, P. (2003). Verschillen in sociale integratie tussen etnische groepen: Beschrijving en verklaring. Mens & Maatschappij, 78, 144-157.


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10

The foreign-born in the Canadian federal correctional population

Derrick Thomas *

1 Introduction Canada like virtually every other country is increasingly influenced by forces operating on a world scale. There is a general inclination toward the freer movement of goods and people and the global organisation of markets. Increasingly Canada’s population and labour force is sustained by migrants from outside the country. These migrants, moreover, are increasingly more likely to originate in countries beyond the traditional homelands in North-Western Europe. The result has been a growing diversity in terms of the identities, cultures and values of the Canadian people. Diversity and globalisation in turn imply challenges for Canadian society and its institutions. Canada has always been a country of many cultures. Continued immigration has necessitated an adjustment of the historical accommodation, however. A more general solution has been sought through the Canadian Multiculturalism Act. This legislation commits federal institutions to enhance the ability of individuals and communities to contribute to the continuing evolution of Canada and to carry on activities in a manner that is sensitive and responsive to the multicultural reality of Canada. The constitutionally enshrined Canadian Charter of Rights and Freedoms moreover guarantees equality before the law regardless of race or ethnicity The criminal justice system, especially, must maintain a perception of fairness and equal treatment in this context of diversity. There is perhaps no clearer indication of problems in the integration of immigrants than disproportionate levels of involvement with the criminal justice system among newcomers in

*

The paper is based on work done under contract to Correctional Services Canada. The analysis, interpretation and opinions presented are exclusively those of the author and do not reflect the opinions or interpretation of Statistics Canada or of Correctional Services Canada.


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general or among certain groups. The corrections or prison system in particular represents society’s final recourse in dealing with those who break the law. This paper looks at people institutionalised for serious crime in Canada. It profiles a cross-section of all persons under the jurisdiction of the Canadian federal prison authorities as of 9 April 2006. The focus is on federal offenders in terms of their country of birth, citizenship and immigration status. It is in part a replication of a similar analysis conducted fifteen years ago and based on the federal offender population as of 1 June 1991 (Thomas & Borowski, 1996). While definitive answers may not be possible this research is designed to address several questions: 1. Are the foreign-born over- or underrepresented among those held for serious crime in Canada? 2. Has the rate of incarceration among the foreign-born increased or decreased over the past 15 years? 3. Are there specific birthplace groups that may require intervention or special programmes on the part of prison authorities or other parties? 4. How are characteristics like education, language ability, employment and income related to incarceration across groups?

2 Background Incarceration must be viewed as the culmination of a number of processes each of which has a social dimension. Each society defines for itself what constitutes criminal activity. To some extent these definitions differ across countries and cultures. The expectations and norms of immigrants may differ from those of people in their host country. Also, discretion is exercised in enforcing the rules. Popular or political views about where surveillance is required reflect themselves in the allocation of police resources by type of crime, geographic location and community. Some also feel that police are more likely to take action against persons who lack the knowledge and resources to enforce their rights or to file complaints. Accusations of racial bias have been levelled at police and courts in Canada and there is some evidence that the Canadian law enforcement and justice systems treat black defendants differently, for instance (Roberts & & Doob, 1997). The dispositions of charges and sentences received may differ across groups for many reasons. For their part some newcomers and immigrant communities may not trust the authorities and may not come forward or confide in police. In short, representation in the corrections system is not a direct indicator of the criminality of any group. It is impossible to completely control for differences in surveillance and enforcement or biases at various stages of the justice process. As mentioned, however, disproportionate representation may betoken problems of social integration.


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Natives have long looked with suspicion on newcomers whom they may view as competitors for economic opportunities and public goods. Canadians, Americans and no doubt people in other immigrant receiving countries have often associated immigrants with crime (Moehling & Morrison Piehl, 2009). Often criminality has been invoked as a way to halt or limit immigration (Samuel & Faustino-Santos, 1991). There are many theories that attempt to explain the criminality or incarceration of immigrants and minority group members. One perspective looks at the incarceration of newcomers as essentially a matter of persecution. Politicians may exploit nativist backlashes against immigrants in order to gain or maintain power (Tonry, 2008). ‘Moral panics’ around alcohol and drugs, for instance, have been associated with the repression and control of immigrant communities (Chambliss, 1995; Hagan, 1984). Other perspectives look more specifically at the experiences or circumstances of immigrants themselves. Faced with barriers in terms of language and human capital imperfectly adapted to the host country market, some migrants may innovate or adopt criminal means in order to achieve the material success apparently valued in the host culture (Agnew, 1992; Cloward & Ohlin, 1960; Merton, 1949). Alternately or additionally, the migration process may lead to disruptions to families and social networks. The low rent areas where many immigrants tend to settle may be characterised by high levels of social disorganisation (Jacob, 2006; Krivo, Peterson & Kuhl, 2009). Newcomers, and especially immigrant youth, may experience a form of anomy or normlessness leading to delinquency and crime (Samson & Wilson, 1995; Shaw, 1969; Shaw & Mckay, 1942). Some associate immigrant or ethnic crime with organised crime (Canadian Association of Chiefs of Police, 1991). Street gangs and criminal organisations arguably provide order, a sense of protection and belonging in a relatively disordered environment. Organised crime also provides employment and may even take on some of the social welfare functions of the State, particularly for migrants who lack legal status. Immigrants are sometimes able to use international connections to import goods and serve illicit or black markets. Groups make political alliances and eventually move into more legitimate occupations only to be succeeded by new groups. Francis Ianni has pointed out how organised crime in the US has in turn been dominated by the Irish, Jews, Italians, blacks and Asians (Ianni, 1973). The function of ethnic organisations has often been misunderstood and, even where criminal conspiracies exist, the degree of organisation has been exaggerated (Sacco, 1980). Virtually every empirical study of this issue in Canada, or in any of the major immigrant receiving countries, has found that the foreign-born are underrepresented among those incarcerated for serious offences (Savitz, 1960; Thomas & Borowski, 1996; Vallee & Schwartz, 1961). This has been true for decades in Canada, the US and Australia (Moehling & Morrison Piehl, 2009). The same thing has moreover been found at the provincial level in Canada (Gordon & Nelson,


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2000). Immigrants select themselves based on conditions in their country of origin and what they perceive are the opportunities that await them abroad. People with the information, skills and resources to succeed are perhaps more likely to assume the costs and risks of migration. In today’s world, moreover, many immigrants are selected or screened by receiving countries. Empirical work in the US suggests that these selection processes may explain why they are less likely to be incarcerated for crime. (Butcher & Morrison Piehl, 2007).

3

Data and methods

The primary dataset for this study is a cross-section of the relatively serious criminals sentenced to 2 years or more and hence under the jurisdiction of the federal prison authorities.1 The data reflect Correctional Services of Canada’s (CSC) on register population as of 9 April 2006: the closest practical date to the Canadian census taken on 16 May 2006 for which a snapshot could be reconstructed. Most of the fields came from the Offender Intake Assessment. The cross-section includes offenders who were incarcerated, those on conditional release and those at large.2 It also includes persons who, while they were deported at the point where they would normally have been paroled, had not completed their full sentence. Overall 21,924 federal offenders are in the dataset. The information collected includes for each offender: the major offence for which they are serving time, sentence length, age, sex, marital status, place of birth, immigration status, year of arrival, citizenship, race and religion. It also includes information on the pre-arrest employment status, education level, literacy, family history and mental health status. Broadly speaking the data are internally consistent. It is, however, administrative data captured over a broad span of time from respondents who may be uncooperative. There are some inconsistencies and some missing information. As with any administrative data system, data are not always complete and this may affect the representativeness of the results. Due to changes in the way intake data were collected and recorded, the 20% of persons in the system for 12 years or more, for instance, are consistently missing information on education, employment and mental health (see Brown & Motiuk, 2005).

1

2

The incarceration rates reported in this paper include as part of the numerator those housed in a prison and those on conditional release. Incarceration rates perhaps more typically consider only those physically in prison. Offenders at large include those who may have missed an appointment with a parole officer as well as persons who have escaped or evaded authorities well past what would have been the expiration of their sentence. Until they are apprehended and serve their term, those at large are not removed from the CSC Offender Management System. Some may well be dead. Numbers tend to accumulate. The foreign-born are overrepresented in this population, perhaps because some have fled Canada.


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The approach was to examine the intake data from CSC in the light of denominators based on data collected in the aforementioned 2006 Canadian census of the population. The study presents a comparatively simple analysis of contingency tables. Reference is made to age standardisation techniques and ecological or group level information from the census. A small number of variables available in correctional data have analogues in the census database. By standardising information it was possible to conduct a limited multivariate analysis. A logistic regression model is used to examine the odds of incarceration among various birthplace groups, controlling for factors such as age, gender, education, employment and language spoken at home. This research focuses on the foreign-born and categorises persons by birthplace rather than by race or ethnicity. Race and ethnicity are not scientific constructs and the classification of persons is always problematic. Studies of representation rely typically on denominators from the census of the entire population of Canada. Prison and census information are collected and compiled in different ways, however. The Canadian census is conducted only once every five years. The data are cross-sectional and collected from everyone at one point in time. While the corrections data are a cross-section of the federal offender population as of 9 April 2006, it resembles flow data in that it was collected over time from offenders as they entered the prison system. Concerns, questions and categories change with the result that records for different inmates may have differing types of information. Law enforcement and prison admission officials interview offenders and may record the race and ethnicity of subjects without reference to the opinions of prisoners themselves. Only one ‘race’, moreover, is recorded for each person. Census respondents, in contrast, self-identify without the intervention of an interviewer. They are not asked explicitly about their ‘race’. The ‘population group’ question to which they respond does, however, ask them to check off one or more of a number of clearly racial categories. They are also permitted to write in more than one ethnic ancestry based on a set of examples provided. We know that ethnic, and perhaps to a lesser extent racial, responses are malleable and vary depending on time and context for the same group or individual. It is probable that ethnic and racial lines harden with exposure to the criminal justice system. To the degree that they do define themselves in racial or ethnic terms, offenders may do so in ways that differ from the way in which they would have before their arrest, trial and incarceration. Social psychologists have found that group identity can increase under stress, threat or conflict (Grant & Brown, 1995). This would also affect studies of representation. International boundaries do shift and countries break up or otherwise change names, but in comparison with race or ethnicity, the place of birth is an objective and stable attribute. It can be, and often is, verified via legal documents. Some coding issues aside, it is essentially the same whether self-reported in the census or collected by corrections staff. Place of birth is not the same as race,


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ethnicity or culture. In some cases, cultural minorities in the country of origin make up a large part of the immigrant movement from that country. The Chinese from Vietnam and Indonesia are an example. Place of birth also leaves out of consideration the Canadian-born children of immigrants. Some have argued that it is among this second generation that criminality surfaces (Eisenstadt, 1952). While there is a coincidence, the foreign-born population is not the same as the immigrant population. A considerable and increasing proportion of the foreign-born population in Canada consists of non-permanent residents. They are in the country on a time-limited permit as temporary workers, foreign students or refugee claimants. Such persons are represented in the census and are included in the denominators used below. Still others are undocumented tourists, persons in transit or indeed illegal migrants. They typically do not complete a census return and their numbers are unknown. All in all, however, place of birth is less problematic than race or ethnicity. Foreign-born in the federal corrections system While the population of Canada increased by almost 16% between 1991 and 2006, the number of offenders under federal jurisdiction expanded by only about 7%. This is consistent with data showing that the overall crime rate has fallen steadily since 1991 and by 2006 had reached its lowest level in over a quarter of a century (Silver, 2007). On 9 April 2006 there were about 22,000 federal offenders in the correctional system. Just over 3,100 were foreign-born.3 On the whole, it is clear that the foreign-born remain underrepresented among those serving time for serious crime in Canada. The number of foreign-born offenders has increased and they do make up a larger proportion of the offender population. However, this is in the context of relatively high immigration levels and an increase in the proportion of foreign-born persons in the general Canadian population.

3

There are a number of fields in CSC’s offender database which address the issue of birthplace, immigration and citizenship status. They are broadly consistent but sometimes disagree. Canadians born in Canada frequently have blanks in these fields. For the purposes of this paper, any case where another country of birth has been identified is considered a foreign-born case. In addition persons explicitly described as ‘aliens’, ‘immigrants’, ‘nonpermanent residents’, ‘non-Canadians’, ‘visitors’, ‘refugees’ or as having ‘no status’ in one of the other fields are considered foreign-born.


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The foreign-born in the Canadian federal correctional population Figure 1

25

Proportion of foreign-born in the Canadian population over 15 and in the Correctional population 23.7

Canadian population Correctional population 20.2

20

14.8

15

%

11.9 10

5

0

1991

2006 Census Year

Source: Census of Canada & CSC data

Foreign-born persons made up almost 12% of the federal correctional population in 1991. In 2006 they made up 14.8%.4 Additional immigrants and non- permanent residents who arrived in Canada between 1991 and 2006 have tended to reduce the mean age and the age structure of the foreign-born population in comparison to the Canadian-born population. Since crime is more common among young adults, the crime rate among the foreign-born may have been expected to increase somewhat. The foreign-born are still far underrepresented among those held or under supervision for serious offences in Canada, however. This underrepresentation moreover applies in almost all regions of the country. Only in the Atlantic Provinces were the foreign-born represented at about the expected rate in the correctional population. In general the representation of the foreign-born seems to fall as one moves from east to west. There are again a number of possible explanations having little to do with the criminality of

4

The analysis based on 1991 data used the Canadian population 15 years of age and over. For the purposes of comparison the proportion reported above (23.7 percent) for 2006 is also for those 15 and over. The foreign-born made up 24.5percent of the population 18 and over in 2006. Because their children are often Canadian-born the foreign-born in Canada tend to have an older age structure than the Canadian-born population. Very few offenders in the federal system are under 18.


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the international migrants per se. First, the age structure of the Canadian-born population is older in the east. There has been a good deal of migration among young Canadian-born adults from east to west. Immigrants arriving in eastern Canada join an older population less disposed to the risky behaviour associated with crime. Second, the younger and more frequently incarcerated aboriginal population is larger in the west. Figure 2

Representation of foreign-born in the Canadian population and in the federal correctional population (2006)

40 In Canada 35

In correctional system

% Foreign-born

30 25 20 15 10 5 0

Canada

Atlantic

Quebec

Ontario

Prairies

British Columbia

Region Source: Census of Canada, 2006 & CSC

Legal status in Canada It seems that most (58%) of the foreign-born persons in the Correctional system as of April 2006 were in fact Canadian citizens.5 They had fulfilled the residency and other requirements, had applied for and been granted Canadian citizenship. They are not deportable for any reason. The remaining 42% of foreignborn inmates were without citizenship. This is about the same proportion as in 1991. Approximately half of the non-citizens, or around 20% of those born

5

A number of fields in the offender database address the issue of citizenship. They sometimes contain inconsistent information. Essentially, for the purposes of this paper, any person who is not foreign-born is considered a Canadian citizen. Foreign-born inmates identified as ‘Canadian citizens’ are considered naturalised Canadians. Dual citizens who hold Canadian and another citizenship are classified as Canadian citizens. Those identified as ‘landed immigrants’ or ‘permanent residents’ are classified as such, and all other foreign-born are considered non-permanent residents.


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outside Canada, were permanent residents with the right to remain in Canada but subject to deportation for criminality. About the same proportion were temporary or non-permanent residents (holders of student, work or visitor visas, refugee claimants, or persons with no status whatsoever). Temporary residents are permitted to stay in Canada only for a fixed period. They are also subject to deportation for criminality. Figure 3

Correctional population in 2006 by their legal status in Canada

Citizens 58.4% of FB Canadian born

85.2% 14.8%

Foreign born Permanent residents 20.8% of FB Non-permanent residents 20.8% of FB

Source: CSC offender data

A plurality of the temporary residents in the prison system was born in the US. Many were also born in Jamaica, Western Europe and China. Temporary or non-permanent residents and persons without status make up almost half of the incarcerated Americans, almost one third of the incarcerated Chinese and almost one fifth of the Jamaicans in prison. Age and sex The mean age of our cross-section of offenders was about 32 at the commencement of their current federal prison term. Their average age as of April 2006 was about 39. This is well below the average age of the Canadian population as reflected in the 2006 census of Canada (45). Incarceration and, one may infer, criminal behaviour is apparently more common among young adults.


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Age

Figure 4

Age/sex composition of the Canadian and the federal correctional populations

95+ 90 -94 85 -89 80 -84 75 -79 70 -74 65 -69 60 -64 55 -59 50 -54 45 -49 40 -44 35 -39 30 -34 25 -29 20 -24 18 -19

Male

Female

Prison Canadian

15

10

5

0

5

10

15

% Source: Census of Canada & CSC data

The general pattern of representation by age group underscores the need to consider different age structures when comparisons are made between birthplace groups. As we can see the highest rates are observed among those between 25 and 39 years of age. The graph below presents age specific rates of involvement in the federal corrections population. In general, the foreign-born correctional population is a little older and more evenly distributed with a larger proportion of offenders in the oldest and youngest groups. The foreign-born remain underrepresented in almost every age group.


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Age specific rates of involvement in the Canadian federal corrections system

85 -89 75 -79 Foreign born

Age group

65 -69

Canadian born 55 -59 45 -49 35 -39 25 -29 18 -19 0

50

100

150

200

Rate of involvement/100,000 population Source: Census of Canada & CSC data

The vast majority of persons in the federal corrections system in Canada are males. This holds among both the Canadian-born and foreign-born populations. The incarceration rates6 for males are about 200 per 100,000 and 104 per 100,000 among the Canadian and foreign-born respectively. The corresponding rates for females are 8.3 and 4.8. The gap between Canadian and foreignborn is proportionately a little smaller for women. Canadian-born males are almost 25 times more likely than Canadian-born females to be in the federal Corrections population. Foreign-born males are a little over 20 times as likely as foreign-born females. Place of Birth The overwhelming majority (over 85%) of persons federally incarcerated or supervised for serious offences in Canada are Canadian-born. Among the foreign-born, there were comparatively large numbers of persons from Jamaica, the US, Vietnam, the UK and China in federal prison. Many of these groups are also well represented in the Canadian population and rates must be calculated and age-standardised before comparisons can be made or groups experiencing problems can be identified.

6

The incarceration rates reported in this paper include both those in an institution and those on conditional release. As described above, the numerator also includes smaller numbers at large or returned to their country of origin before the expiration of their sentence.


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Age-standardised rates indicate that the foreign-born and most birthplace groups are underrepresented relative to the Canadian-born. Figure 6

Age standardized rates of involvement in the Federal Correctional system for males Age standardized rate/100,000

Place of Birth

0

100

200

300

400

500

600

Jamaica Haiti Vietnam USA Caribbean (NEC) Canada South America (NEC) Mexico/Central America All Foreign Born West Asia (NEC) Africa (NEC) West Europe (NEC) UK Italy East Europe (NEC) China India South Asia (NEC) East Asia (NEC)

Source: Census of Canada, CSC

The rate of involvement in the federal corrections system for foreign-born males, when the population is standardised to the age structure of the Canadian-born population, is about 111 per 100,000. The above chart shows age-standardised rates by country or place of birth for males. The pattern is much the same for females. Incarceration rates have been calculated only for individual countries where at least 100 persons are found in the prison population. The data for the other countries have been grouped by world region. All of the groups are significantly different from the Canadian-born except the ‘Caribbean (not elsewhere classified)’ group. Persons from the Caribbean Islands not elsewhere classified are incarcerated at essentially the same rate as the Canadian-born. The pattern is very reminiscent of the one observed with respect to birthplace groups in 1991 (Thomas, 1993).7 The incarceration rate for persons born in Vietnam has, however, increased dramatically. Rates for Latin Americans fell a little.

7

The rates in the 1993 paper are reported per 10,000 for both males and females. Rates per 100,000 are more common in the literature. The rates above are per 100,000 for males only. The rate for males and females together (larger denominator) is usually just over half the rate for males. The rates are for persons on conditional release as well as those who were actually incarcerated close to census day 2006.


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The same pattern is also reflected in the odds ratios based on a logistic regression model (see Appendix I). Age at arrival We have the date of arrival for only 207 foreign-born inmates in the corrections system, but where the information is available it seems that a good many arrived when comparatively young.8 The average age at which foreign-born offenders came to Canada seems to be around 19, while on average the immigrants who were 18 or over on census day 2006 had arrived in Canada aged 26. Approximately 61% of foreign-born offenders incarcerated or supervised in the federal system came to Canada at age 20 or under, while this was so for only about one third of adult immigrants captured in the census. Figure 7

Age at arrival in Canada for immigrant population of Canada (aged 18+ on census day 2006) and the foreign born correctional population

7 6 Immigrants in Canada Foreign-born offenders

5 4

% 3 2 1

75

72

69

66

63

57 60

51 54

48

45

42

39

36

33

30

27

24

21

18

15

9

12

6

3

0

0 Age at arrival in Canada Source: Census of Canada & CSC data

8

Statistical testing indicates that the probability of randomly drawing a sample of 207 persons with the observed distribution on age at arrival from the census foreign-born population is less than 1 in 100. The results are, in short, statistically significant and it appears that the 207 inmates with information differ from the adult foreign-born population of Canada. The sample of the correctional population that has an arrival date is no doubt biased in many unknown ways. It seems likely, however, that persons who arrived as adults would more readily recall their year of arrival, biasing the data against the conclusion drawn.


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Census information seems to corroborate the information in the offender database. According to the census of the general population, every group represented in the corrections system at rates which exceed those of the Canadianborn contains comparatively more people who arrived when young. More than 41 percent of Jamaicans who were 18 or over and in Canada at the 2006 census had arrived at age 20 or younger. This was true for 34% of Haitians, 50% of Americans and 37% of Vietnamese. It was true, by contrast, for only 19% of Chinese and 23% of people born in India. It appears that many federally incarcerated or supervised immigrants (27 percent) arrived between the ages of 10 and 15. Prison outcomes may well be connected to difficulties in adjusting at this particularly vulnerable age. Problems in adjusting to high school in a new country may well account for criminal behaviour in youth and ultimate incarceration among some immigrants. Family relationships It has been so often confirmed by research that it is now part of popular wisdom that people who come from ‘broken’ homes are at greater risk of delinquency in youth and criminality in adulthood (Apel & Kaukinen, 2008). Correctional Service’s intake assessment involves a consideration of each inmate’s and/or parolee’s family background and family relationships. A variety of information is available and some of it is suggestive of weak family ties among offenders. Clearly persons who were single or who lived in a common-law relationship before their confinement are overrepresented in the federal correctional population. This is true for both Canadian-born and foreign-born but is less true of the foreign-born. The foreign-born were more likely to be legally married.


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Marital status of the foreign born in the federal Corrections population and in the Canadianpopulation (2006)

70

60 In Corrections In Canada

50

40

% 30

20

10

0 Single (never married)

Widowed

Divorced

Common Law

Legally Married

Marital status at prison admission and on census day Source: Census of Canada & CSC

Over 60% of foreign-born adults in the broader Canadian population were married at the time the census was taken but less than one quarter of foreign-born offenders were married when they went to federal prison. On the whole foreign-born persons in Canada more often live in ‘intact’ families. Common-law relationships are comparatively rare among immigrants in Canada but were the arrangements of about 23% of offenders when they entered the corrections system. Marriage, like offending, tends to occur at a particular stage in the life cycle. Married persons tend to be older than single ones. Even if, however, marriage rates are age-standardised it is clear that people entering the federal corrections system are less likely to be legally married. There is also corroborating information at the group level. Birthplace groups with higher age-standardised rates of incarceration have lower age-standardised rates of marriage.


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Conversely, rates of involvement in common-law relationships are higher among groups more often admitted to the corrections system. Again all rates are age-standardised. The groups below are ranked in order of their rate of representation in the Corrections system for males (reflected by the line graph). The bars show the age-standardised rates of involvement in common-law relationships for those in the Corrections system and for those in the Canadian population for each birthplace group. Common-law relationships are more common among the groups with the highest rates of representation in the federal correctional system

40

600

% (age standardized)

35

Canadian population Corrections population Incarceration rate

30

500 400

25 20

300

15

200

10 100

5

t V ie i tn am

ai

ai

H

m Ja

C ar ib be U an SA So (N u M th E ex A C C) a ic m o/ er na C ica da en tr (NE al A A C) ll m Fo er re ic W ig a n es B tA or n sia ( W Afr NE ic es C ) tE a( ur NE op C ) e (N EC ) Ea U st K Eu It ro pe aly (N EC C ) hi So na ut h A Ind s Ea i i st a (N a A si EC a (N ) EC )

0 ca

0

Males incarcerated/100,000 (age standardized)

Figure 9

Place of Birth Source: Census of Canada & CSC data

No comparable information is available in the census but family history information collected as inmates enter the corrections system indicates that for a comparatively large proportion at least one parent was absent during their upbringing. Many had no mother; even more had no fathers growing up.


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215

C ar ib be U an SA So (N EC M uth ex ) A C ic an m o/ e ad C rica a en tr (N al EC A W m ) es t A eri ca si a W A (N E es fri t E ca C) ur (N op EC e (N ) EC ) Ea U st K Eu Ita ro pe ly (N EC ) C hi So na ut h In A s d Ea ia ( ia N st E A C si ) a (N EC )

ti V ie tn am

ai H

Ja

m

ai

ca

% of inmates

No mother growing up No Father growing up Incarceration rate

Male incarceration rate/100,000

Figure 10 Absence of a parent growing up and the age-standardised incarceration rate

Place of Birth

Source: CSC data

Weak family arrangements may account for some of the propensity to incarceration. Looking exclusively at census data, the proportion of households in each birthplace group where a female pays most of the bills is apparently correlated with the incarceration/supervision rate for males. Given that females typically earn less and often leave the workforce to bear and raise children, their assumption of the role of principal maintainer is arguably an indicator of weak family ties and absent fathers.9

9

The male incarceration/supervision rate is not so high as to account by itself for the prevalence of female-headed households.


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% household heads female

60.0

600.00 % HH heads female Incarcerated/100,000

50.0

500.00

40.0

400.00

30.0

300.00

20.0

200.00

10.0

100.00 0.00

Ja m ai ca H ai t V ie i tn C am ar ib be U an S So (N A M uth EC ex ic Am Can ) o/ e ad C ric a en a ( tr N A al A EC ll F m ) W ore eric es ign a tA B sia or n ( W A N EC es fri t E ca ) ur (N op EC e (N ) EC ) Ea U st K Eu It ro pe aly (N EC ) C hi So na ut h A Ind ia Ea sia st ( A NE si a C) (N EC )

0.0

Age standardized incarceration rate/100.000

Figure 11 Proportion of household maintainers who are female according to the census of the general population and the incarceration rate for males by place of birth

Place of birth

Source: Census of Canada & CSC data

Some birthplace groups do not fit the mould. The Vietnamese, for instance, seem to have comparatively intact families but high rates of involvement in the corrections system. Education Data is missing for the 20% of offenders who entered the correctional system before the implementation of the current Offender Intake Assessment system, but the administrative data held by Corrections Canada clearly show that many persons in the corrections system are poorly educated. Less than 25% of the offenders where information is present had completed high school. In contrast, in the Canadian population 18 years of age and over in 2006, almost 80% had completed high school. The corrections population is disproportionately drawn from among societies least well educated. The foreign-born in the corrections system seem to be better educated than the Canadian-born but they more often have language, literacy and communications problems. Almost 60% of the Vietnamese and half of the Jamaicans in the corrections system have problems reading and writing, compared to about one third of the Canadian-born in the system. The highest rate of illiteracy is, however, observed among Chinese inmates. It is just a little above the Vietnamese rate. South Asians in prison are also frequently illiterate.


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The foreign-born in the Canadian federal correctional population Figure 12 The foreign-born in the correctional population seem to enjoy educational advantages but lack literacy/language skills 90 80 Canadian-born Foreign-born

70 60

%

50 40 30 20 10 0

Poor Oral Communication

Reading Problem

Writing Problem

< Grade 8

< Grade 10

No HS diploma

Education Source: CSC data

Rates of high school graduation are lower among the correctional population for all birthplace groups but differing education levels do not appear to explain group differences with respect to incarceration. Census data aggregated at the group level seems to confirm what is observed in the corrections population. Over 60% of Jamaican and Haitian youth aged 15 to 20 were not attending school at the time of the 2006 census. This was true for 54 percent of their Canadian-born counterparts. Employment history Employment information in the census reflects the situation of each person in the ‘Census Reference Week’ preceding the 2006 collection. Employment information in CRC’s administrative data reflects the situation of each offender at their arrest. Some caution in making comparisons is obviously warranted and we must be circumspect in interpretation. As with education, information on employment status at arrest is also missing for the 20% of the offender population who had been incarcerated for over 12 years at the time the cross-section was drawn. Analysis and computed rates are confined to the 80% for whom there is information. Unemployment was more prevalent among the correctional population than among the Canadian population generally and within most birthplace groups.


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The correctional information does not distinguish between unemployment and non-participation. Statistics Canada describes as unemployed those who are ready, willing and available to work but who are not able to find a job. Nonparticipants include those who are retired, in school, working without pay as homemakers or who are otherwise not available for work. Some European groups with older age structures have high rates of non-participation in the Canadian population generally. It appears from correctional information alone that unemployment or non-participation is not as closely associated with incarceration among the foreign-born. Figure 13 A history of unemployment is less characteristic of the foreign-born in the correctional population 70

60 Canadian-born Foreign-born

50

40

% 30

20

10

0

Never Employed

Unemployed 90% of time Unemployed 50% of time

Unemployed at Arrest

Employment History Source: CSC data

It also appears, according to data collected at corrections intake, that foreignborn offenders are less likely to be dependent on social assistance, are less likely to have trouble with bills and are less likely to be in tenuous accommodation. According to census data, moreover, there seems to be little correlation between rates of low income and rates of involvement in the corrections system at the level of birthplace groups.10

10

Statistics Canada’s low income cut-off is that level of income at which the average family of the same size in a similarly sized community spends more than 50% of its income on food, clothing and housing.


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Mental health Information on mental health is available for most of the 80percent of offenders assessed under the current intake system. Among the information available in the corrections data is an indication as to whether there was a diagnosed mental problem at admission and an indication of whether there was one in the past. About 10% had a problem at intake and 15% had been diagnosed in the past. Overall about 17% of offenders had a diagnosed mental problem at some point. No comparable information is collected in the census and it would be difficult to find comparable information for the Canadian population. The incidence of mental health problems was twice as high among the Canadian-born as among the foreign-born (18.7% vs 8.7%). Curiously the proportion is highest for persons-born in Canada, the US, the UK and Western Europe, this despite the adjustment challenges faced by refugees and international migrants from other countries. Perhaps mental health issues are more difficult to assess among persons from more widely differing cultures. Alternately, the foreign-born may adopt criminal behaviour or be incarcerated for reasons having less to do with their mental health. Figure 14

Inmates from Canada, the US and the UK are more likely to have been diagnosed with psychological problems

16 14 12

%

10 8 6 4 2

So ut In h A di a Ea sia (N st A EC si ) a (N EC )

K

ur I op taly e (N EC ) C hi na

U

Ea st E

SA

(N So EC u ) M th C A ex a m na ic da o/ eri c C en a (N tr EC al ) W A m es er tA i c sia a (N A EC fr W ic es ) a tE (N ur EC op ) e (N EC )

an

U

C

ar ib

be

H ai ti V ie tn am

Ja m ai ca

0

Place of Birth


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4


Multivariate consideration of the factors associated with incarceration

A logistic regression model was used to look at the incarceration rates of differing birthplace groups in conjunction with other factors often thought to be associated with involvement in the criminal justice system. Variables such as employment and membership in a visible minority are not strictly comparable but an effort was made to sensibly standardise response categories between census and CRC’s administrative data. The standardised offender records were appended to the standardised census information and a logistic model was estimated. The model is no doubt underspecified and additional information would be useful. It is clear, however, that the model results are consistent with the age-standardised incarceration rated as presented above (page 10 and Model 2 of Appendix I). The odds of being incarcerated or under supervision in Canada are over twice as high for persons born in Jamaica as for those born in Canada (odds ratios of 2.7 vs .1). Migrants from Haiti and Vietnam also have an odds ratio greater than 1, as do thoseborn in the US once age is controlled for. We can also see that the odds of incarceration fall with each year of age beyond 18. It is also clear, however, that other factors are more important than country of birth in predicting incarceration. Males had 21 times the odds of females and those who did not finish high school had 7.5 times the odds of incarceration as graduates. Those not employed had 3.6 times the odds of the employed. Married people were least likely to be federally incarcerated or supervised in Canada. Persons in common-law relationships have much higher odds. All else being equal, members of Canada’s visible minority groups were more likely to be in the federal prison system. Conversely, those who spoke a language other than one of Canada’s official languages in their home were less likely to be incarcerated. The odds of incarceration for Jamaicans and Haitians were somewhat lower when the other factors held constant. This suggests that incarceration among these groups is at least partially attributable to, for instance, lower levels of high school completion, higher rates of unemployment and less formal partnerships. Controlling for education, employment, marital status, race and language, at least insofar as we were able to measure them, does not entirely explain differing incarceration rates across groups. It does, however, identify some predictors of incarceration that are more important than place of birth or race. Offence patterns Some notion of the types of crime that inmates are involved in can be gleaned from the offence for which they received the longest sentence in their current prison term. There are some important caveats, however. It is possible, for


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instance, that persons imprisoned for murder have also been convicted of drug trafficking offences but unfortunately only the most serious offence for each offender is available for the purposes of this research. This means that we have a relatively reliable indicator of involvement in serious crimes, like murder, that typically draw long sentences and a less reliable indicator of involvement in less serious crime. There have also been changes to the criminal code over time, which renders comparisons difficult. In general the most common offences for which inmates of the federal corrections system received their longest sentences are: ‘robbery’ (not armed), ‘second-degree murder’, ‘breaking and entering’, ‘sexual assault’, and ‘possessing drugs for the purposes of trafficking’. The top 20 offences for which foreign-born persons are held are listed in order of frequency in the chart below. They include many of the same crimes. Breaking and entering is a notable exception. Figure 15 Proportion of offenders incarcerated for various offences

Top 20 offences for foreign-born

0 Second degree murder Conspire to commit ind off Poss schedule i/ii subst for purp traff Robbery - all others First degree murder Import/export sched i/ii subst Traffic in schedule i/ii substance Sexual assault Aggravated assault Manslaughter - all others Break & enter Robbery Forcible confinement Non capital murder Import/export narcotic Traffic in narcotic Possess narcotic for purp trafficking Manslaughter Att murder - all others Attempt murder

2

4

6

8

10

12

14

16

%

Canadian-born Foreign-born

Source: CSC data

Many of the offences seem to be equally if not more popular with Canadianborn offenders. The foreign-born are more likely to be held for murder and attempted murder but not dramatically so. They are far more likely to be held for conspiracy and for drug importing and trafficking, however. The foreign-born, for instance, account for a majority of those held for importing or exporting narcotics. Considering only offences for which 50 or more persons are held, they make up more than half of the persons incarcerated for


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four criminal code offences. Two of the offences have to do with moving drugs across borders and two with trafficking in Canada. Of the top twenty offences, in terms of the representation of the foreign-born, eight are drug-related. Figure 16

Representation of foreign-born among those incarcerated for offences for which 50 or more are held %

Top 20 offences in terms of representation

0 Import/export narcotic Traffic in narcotic Possess narcotic for purp trafficking Import/export sched i/ii subst Conspire to commit ind off Att murder - all others Attempt murder Att murder - use firearm Production of cannabis Traffic in schedule i/ii substance Poss schedule i/ii subst for purp traff Poss sched iii subst for purp traff Forcible confinement First degree murder Sexual assault w/weapon - all others Manslaughter Incest Fraud over Armed robbery Agg. Sexual assault - all others Second degree murder

10

20

30

40

50

60

70

80

90

100

23.7% (foreign-born in Canadian population)

Source: CSC data

The pattern is arguably one of involvement in illicit markets and organised crime. While comparatively few persons are in prison for these crimes, the foreign-born are also more likely than Canadian-born to be held for kidnapping, forcible confinement and extortion. Indeed the foreign-born are more likely to be identified as members or affiliates of criminal gangs. Almost 10% are thought to have gang affiliations as compared to less than 8% for the Canadianborn. Those identified as gang members are more likely to be born in Italy, Haiti and China (more than 1 in 5 offenders in each case). Gang affiliation seems to be associated with sentence length and presumably with the seriousness of the offences for which inmates are held.


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Figure 17 Gang involvement and sentence length for the corrections population by birthplace 25.00

8.0

% in Gang

20.00

7.0 6.0 5.0

15.00

4.0 10.00

3.0

Mean sentence in years

% in Gang Mean sentence (years)

2.0

5.00

1.0

So ut h

U

A m

er

ic a

C

hi

K

0.0 na (N EC So ) ut h Ita W A ly es si tE a( N ur E Ea ope C) st (N A si EC W a ) es t A (NE sia C) (N EC ) In di M a Ja ex m ic ai o/ c C en Vie a t tr al nam A m er ic C a ar ib be Ha iti an (N A EC fr ic ) a (N Ea EC st Eu Ca ) ro nad pe a (N EC ) U SA

0.00

Birthplace Source: CSC data

The foreign-born do seem to draw longer sentences. This may have to do with differing offence patterns. On average they are serving about 5 years in comparison to 4.3 years for the Canadian-born. There is some variation by place of birth. On average the shortest sentences are being served by persons born in the UK, the US, Eastern Europe and Canada. The longest sentences are being served by the Chinese-born (7.3 years on average), South American-born (6.5 years) and Italian-born (6 years). Although they are all underrepresented in the federal prison system, the offenders in the latter three birthplace groups are more often involved with gangs or organised crime. They are also frequently held for drugrelated offences. The Italians, moreover, are disproportionately held for murder. As demonstrated below, a substantial proportion held in particular for offences involving the import and export of drugs are temporary residents in Canada. A number are visitors or have no status whatsoever. Some may be drug carriers in transit who happen to have been apprehended in Canada, but who form no part of Canada’s foreign-born population. Even if non-permanent residents were removed from consideration, however, the foreign-born would still be overrepresented among persons held in federal prisons for drug-related crime.


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Figure 18 Offences for which foreign born are most stongly represented by status in Canada

Top 20 in terms of representation

0 Import/export narcotic Traffic in narcotic Possess narcotic for purp trafficking Import/export sched i/ii subst Conspire to commit ind off Att murder - all others Attempt murder Att murder - use firearm Production of cannabis Traffic in schedule i/ii substance Poss schedule i/ii subst for purp traff Poss sched iii subst for purp traff Forcible confinement First degree murder Sexual assault w/weapon - all others Manslaughter Incest Fraud over Armed robbery Agg. Sexual assault - all others

10

20

30

40

% 50

60

70

80

90

100

Non-permanent resident Permanent Resident Naturalized Canadian citizen

Source: CSC data

The foreign-born are less likely to be recidivists. Over 85% of them are serving their first federal term. This is true for only 64% of the Canadian-born. Holding aside those foreign-born offenders who are deported before the expiration of their sentences, it also seems that access to parole or conditional release is about equal between the foreign-born and Canadian-born. Race and ethnicity Bearing in mind that ethnic and racial identity are rather fluid and may be affected by involvement with the criminal justice process, there are apparent differences across groups. There is little question that persons described as aboriginal are overrepresented in the federal corrections population (Roberts & Doob, 1997). Due in part to the way people identify themselves in the census, the aboriginal population has grown to about 3.2% of all Canadians 15 years old or over. They make up 16.6% of federal prison population, however. Other visible minority groups make up about 15% of the Canadian adult population and 14% of the correctional population. They are slightly underrepresented. Different groups are represented at different rates, however. Blacks are represented at about 3 times the expected rate (6.4% vs 2.3%). South-east Asians are also overrepresented (1.2% vs .8%). All other groups are underrepresented. Some, such as South Asians and Chinese, are far underrepresented. It seems that the black population should be disaggregated in these types of studies. Africans, who are predominantly black, are not overrepresented while Jamaicans and


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Haitians, also predominantly black, are overrepresented. This would seem to somewhat undercut explanations based on race or discrimination, and favour explanations based on other characteristics like culture or social conditions in the country of origin or in Canada. Birthplace is not a good predictor of incarceration As mentioned above, in searching for explanations for why some persons become involved with the criminal corrections system, other avenues show more promise than country of birth. If we assume that the 20% of offenders who entered the federal corrections system before the implementation of the new Offender Intake System are distributed approximately as the observed population with respect to education and employment, it is clear that higher rates of involvement are associated with those factors rather than with country of birth. Unemployment and the failure to complete high school are plainly more predictive of incarceration. Figure 19 Age-standardised incarceration rates for males by place of birth, education and employment status at arrest

0

100

200

300

rate/100,000 400 500

600

700

800

Place of Birth/Education & Employment

Did not complete high school Unemployed at arrest Jamaica Haiti Vietnam USA Caribbean (NEC) Canada South America (NEC) Mexico/Central America All foreign born West Asia (NEC) Employed at arrest Africa (NEC) West Europe (NEC) UK Italy East Europe (NEC) China India High School Grad South Asia (NEC) East Asia (NEC)

Source: Census of Canada & CSC

Other social and economic correlates may account for differing incarceration rates across birthplace groups. The set of explanatory variables may differ across birthplace groups, however. In many immigrant-receiving countries the question has been posed as to why some groups are incarcerated at higher rates than others who are equally if not more under-privileged (Tonry, 1997). It indeed seems that no one socioeconomic factor can account for differing incarceration rates. Weak family ties and low levels of education appear to be


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part of the explanation for some groups. Some commonly incarcerated groups do not fit the pattern, however. International migrants come to Canada for many reasons and, while Canada operates a screening system, immigrants to a large extent select themselves. The factors which cause them to move are a combination of circumstances in the country of origin and in Canada. In short, the characteristics of immigrants in Canada reflect conditions in the country of origin which precipitated their migration. Refugees perhaps represent one end of a continuum. They often flee for their very lives with little regard as to what they might find in Canada. Conditions in Canada and the welcome extended to newcomers are also changeable. The factors which contribute to involvement in the Canadian corrections systems may well vary from group to group and change over time with different waves of migrants. Each group may well warrant its own study. Conclusions The foreign-born clearly remain underrepresented in Canada’s federal corrections system. The situation has not changed in any major way since 1991. Most foreign-born persons now in prison or under supervision are naturalised but about 40% are non-citizens subject to deportation at the end of their prison term. As in 1991 immigrants born in certain countries are imprisoned at rates which exceed that of the Canadian-born. Those born in Jamaica, Haiti, Vietnam and the US have the highest rates. The Jamaicans, Haitians and Americans all had relatively high rates in 1991 but the Vietnamese rate has climbed from one of the lowest to one of the highest. As in 1991, the foreign-born were disproportionately imprisoned for the import, export and trafficking of drugs. They were also more often imprisoned for conspiracy to commit an offence. Foreign-born offenders in the prison system appear more likely to have been involved in gangs and organised crime. Low education and unemployment are far better predictors of incarceration than place of birth or race. Barriers related to education and employment are more closely associated with imprisonment than is membership in any birthplace group. Education and unemployment do not, however, appear to explain differences in incarceration rates across birthplace groups. Social disorganisation, as evidenced by weak family structures and broken homes, seems to offer an explanation for why groups differ. At the time of incarceration offenders were more likely to be unmarried or in common-law relationships than were other Canadians. Many in the most frequently incarcerated groups came from homes where one parent was absent.


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References Agnew, R. (1992). Foundation for a general strain theory of crime and delinquency. Criminology. 30, 1. Apel, R., & Kaukinen C. (2008). On the relationship between family structure and antisocial behaviour: Parental cohabitation and blended households. Criminology. 46, 1. Borowski, A. & Thomas, D.. (1996). Immigration and Crime in Australia and Canada. in Adelman, Borowski, Burstein & Foster editors. Immigration and Refugee Policy: Australia and Canada Compared. Melbourne: University of Melbourne Press. Brown, S.L., & Motiuk, L.L. (2005). The Dynamic Factors Identification and Analysis Component of the Offender Intake Assessment Process: A Meta-Analytic, Psychometric and Consultative Review. Research Branch, Correctional Service of Canada. Butcher, K.F., & Morrison Piehl, A. (2007). Why Are Immigrants’ Incarceration Rates so Low? Evidence on Selective Immigration, Deterrence, and Deportation. NBER Working Paper Series. National Bureau of Economic Research. Cambridge MA. Working Paper 13229. Canadian Association of Chiefs of Police. (1991). Organised Crime Committee Report. Chambliss, W.J. (1995). Crime Control and Ethnic Minorities: Legitimizing Racial Oppression by Creating Moral Panics. In D. F. Hawkins (Ed.), Ethnicity, Race and Crime: Perspectives across Time & Place. State University of New York Press. Cloward, A. and Ohlin L. E. (1960). Delinquency and Opportunity: A Theory of Delinquent Gangs. New York: The Free Press. Eisenstadt, S. N. (1951-52). Delinquent Group-formation Among Immigrant Youth. British Journal of Delinquency. 2, 34-45. Grant, P.R. & Brown, R. (1995). From ethnocentrism to collective protest: Responses to relative deprivation and threats to social identity. Social Psychology Quarterly. 58, 3 Gordon, R. M. & Nelson, J. (2000). Crime, Ethnicity, and Immigration. Chpt 19. in Silverman, R. A., James J. Teevan & Vincent F. Sacco. Crime in Canadian Society. Sixth edition. Toronto: Harcourt Brace. Hagan, J. (1984). The Disreputable Pleasures: Crime and Deviance in Canada. Second Edition. Toronto: McGraw-Hill Ryerson. Ianni, F. A. J. (1973). A Family Business: Kinship and Social Control in Organized Crime. New York: Mentor. Krivo, L. J., Peterson, R. D. & Kuhl, D. C. (2009). Segregation, Racial Structure, and Neighborhood Violent Crime. American Journal or Sociology. 114, 6. Jacob, J. C. (2006). Male and Female Youth Crime in Canadian Communities: Assessing the Applicability of Social Disorganisation Theory. Canadian Journal of Criminology and Criminal Justice. January. Merton, R. K. (1968). Social Theory and Social Structure. New York: Free Press. Moehling, C. and Morrison Piehl, A. (2009). Immigration, Crime, and Incarceration in Early Twentieth-Century America. Demography, Volume 46, Number 4. Roberts, J. V. & Doob A. N. (1997). Race, Ethnicity, and Criminal Justice in Canada in Michael Tonry editor. ‘Ethnicity, Crime and Immigration: Comparative and Cross-national Perspectives.’ Crime and Justice. Vol. 21. Sacco, V. F. 1980. An Approach to The Study of Organised Crime, in Crime and Canadian Society. 2nd edition. Edited by R. A. Silverman and J. J. Teevan. Toronto: Butterworths. Samuel, T. J. & Faustino-Santos R. (1991) Canadian Immigrants and Criminality, International Migration, XXIX, 1. Savitz, L. D. (1960). Delinquency and Migration. Phd. Dissertation in Sociology, University of Pennsylvania.


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Shaw, C. R. (1969). Juvenile delinquency and urban areas: a study of rates of delinquency in relation to differential characteristics of local communities in American cities. Chicago: University of Chicago Press. Shaw, C. R. & McKay, H. D. (1942). Juvenile Delinquency and Urban Areas. Chicago: University of Chicago Press. Silver, W. (2007). Canadian Crime Statistics: 2006. Juristat. 27. no. 5. Canadian Centre for Justice Statistics. Statistics Canada. #85-002XIE. Tonry, M. (2008). Crime and Human Rights – How Political Paranoia, Protestant Fundamentalism, and Constitutional Obsolescence Combined to Devastate Black America: The American Society of Criminology 2007 Presidential Address. Criminology. 46, 1. Vallee, F. G. & Schwartz, M. 1961. Report on Criminality Among the Foreign Born in Canada, in Canadian Society edited by H. R. Blishen. Toronto: Macmillan.


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The foreign-born in the Canadian federal correctional population Appendix I Odds or involvement in the Canadian Federal Corrections system associated with various characteristics Odds Ratios

Country of Birth

Model 1

Model 2

0.00496 *

0.01446 *

0.000033 *

4.647 *

4.731 *

3.213 *

USA

1.068

1.194 *

1.718 *

Mexico/Central America

0.843

0.741 *

0.972

Caribbean (NEC)

1.030

1.093

1.100

Intercept Other/unknown

Haiti

1.746 *

1.765 *

1.557 *

Jamaica

2.483 *

2.667 *

2.391 *

South America (NEC)

1.161

0.832 *

0.828 *

West Europe (NEC)

0.352 *

0.469 *

0.672 *

UK

0.295 *

0.407 *

0.880

Italy

0.419 *

0.679 *

0.728 *

East Europe (NEC)

0.279 *

0.315 *

0.731 *

Africa (NEC)

0.519 *

0.492 *

0.718 * 0.668 *

West Asia (NEC)

0.549 *

0.502 *

South Asia (NEC)

0.258 *

0.234 *

0.447 *

India

0.275 *

0.276 *

0.623 *

East Asia (NEC)

0.204 *

0.198 *

0.386 *

China

0.302 *

0.316 *

0.590 *

Vietnam

1.534 *

1.522 *

2.046 *

Canada Age Education

For each additional year Did not finsih high school

Employment

Graduated from high school Not employed

†

Employed Gender

Model 3

Male

† 0.975 *

† 0.970 * 7.541 * † 3.660 * † 20.858 *

Female

†

Marital

Single

4.182 *

Status

Widowed

1.858 *

Separated/Divorced

5.552 *

Common-law

9.273 *

Legally Married

†

Visible Minority

Member of a Vis. Minority

1.755 *

(Race)

Aboriginal

2.399 *

Not in a Vis. Min. (White) Language at Home

Other Language

† 1.694 *

English or French Source: census of Canada 2006 & OMS † Reference Group (Odds R. is 1.00)), * Significantly different from reference at the .05 level


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The Impact of Safety on Levels of Ethnocentrism

Tuba Bircan

1 Introduction In many advanced democracies, concerns about anti-immigrant sentiment and the costs of crime are high and sometimes overlapping. Thus crime and political controversies about immigrants are high on the political and policy agendas of many countries. The findings of several attitudinal studies (Ceobanu, 2011; Coenders; Lubbers & Scheepers, 2005; Hjerm, 2007; Schneider, 2008; Semyonov, Rajman & Gorodzeisky, 2008; Sides & Citrin, 2007) provide empirical evidence that many natives of Europe perceive immigration as a serious problem, one with deep implications for the future of their societies. The host community often perceives immigrants as failing to share the fundamental law-abiding values of the native population and thus may be perceived as shirking the law (McLaren & Johnson, 2007). Immigrants are typically the first to be held responsible for societal problems despite their contributions to the formal and informal sectors of national labour markets (Ceobanu, 2011; Craig, 2007). Large numbers of immigrants have come to Europe during the past few decades (Hainmueller & Hiscox, 2007; Pettigrew, 1998; Pichler, 2010). Thus, the presence of sizeable ethnic minority groups in many European countries is a fact (Castles & Miller, 2003; Hooghe, Trappers, Meuleman & Reeskens, 2008). As a result, starting in the late 1980s, European researchers began to ask survey questions with respect to outgroup attitudes (Meuleman, Davidov and Billiet., 2009). As is discussed in the previous chapters, the concentration of immigrants in a community (both actual presence and perceived size of immigrant groups) and economic factors are found to be important determinants of ethnocentric attitudes (e.g., Coenders & Scheepers, 2003; Meuleman, Davidov and Billiet., 2009; Quillian, 1995; Scheepers, Gijsberts & Coenders, 2002; Schneider, 2008; Semyonov, Raijman & Gorodzeisky, 2006, 2008; Sides & Citrin, 2007). The overall power of the media in modern societies is unarguable. In ethnocentrism research, many researchers consider the media to be an important player because of their significant role in influencing public opinion about ethnic


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minorities (Cottle, 2000; Hall, 1995). Media presentations of immigration-relevant issues can be an important bias. Many European and American studies confirm a continuous bias in the representation of ethnic minorities in the media: negative stereotyping, broad generalisations, and lack of background information (Blommaert & Verschueren, 1998; Devroe & Saeys, 2002; Law, 2002; Ter Wal, 2002). One other dimension that has attracted less attention is the implication of safety and the attitude toward immigrants. Even so, this aspect is one of the most important when evaluating European natives’ attitudes towards immigrants (Boeri, 2009; Card, Dustmann & Preston, 2009) as some research shows that individuals associate the presence of minorities with the presence of crime (Chiricos, McEntire & Gertz, 2001; Quillian & Pager, 2001). Neighbourhood safety may also be linked to anti-immigrant sentiment because immigrants introduce an element of uncertainty into society and, consequently, many of society’s problems may be attributed to their presence. A lack of feeling of safety in one’s neighbourhood may be correlated with natives attributing higher levels of violence or crime to immigrants (Rustenbach, 2010). Nevertheless, the results of relevant research are not always unanimous. Chandler & Tsai (2001) find a weak positive relationship between individuals feeling that their personal safety is threatened and anti-immigrant attitudes. However, as Sniderman, Hagendoorn, and Prior (2004) find in the case of the Netherlands, perceived threats to the safety of individuals and the group as a whole are only very weakly related to anti-immigrant hostility. Policy and other macro-societal influences and host community responses to immigrants and immigration need more attention and, hence, the need for a more comprehensive understanding of the sources of these anti-minority attitudes has become more urgent. In order to address the underlying issue of why people demonstrate anti-immigrant attitudes, it is essential to investigate which factors can be used to explain ethnocentrism. Equally important is answering the question of whether these sources are more structural or more psychological in nature. ‘Fear’ and ‘safety’ are often investigated separately (LaGrange, Ferraro & Supancic., 1992). Therefore, it is important to investigate both structural safety measures and the individual’s feelings of safety and fear of crime. As the relationship between safety and ethnocentrism is our main point of interest, in our study we specifically want to know whether ethnocentrism can be explained by individual-level characteristics (e.g., background characteristics, personality traits, fear of crime), or by community-level characteristics (e.g., the crime rate). This research employs group threat theory (Blalock, 1967; Blumer, 1958; Brewer, 2001; Duckitt, 2000, 2003; Hardin, 1995; Pichler, 2010; Semyonov, Raijman & Gorodzeisky, 2008; Sides & Citrin, 2007) to investigate the individual-level and contextual correlates of punitive attitudes. Group threat theory posits that


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prejudice and inter-group hostility are largely reactions to perceived threats by subordinate groups. Blumer’s (1958) concept of group threat suggests that dominant groups seek to preserve their advantageous position in society, and view gains in power by subordinate groups as threatening. ‘The greater the sense of threat to [the dominant group’s] prerogatives, the more likely are members of the dominant group to express prejudice against threatening outsiders.’ (Quillian, 1995, p. 588). Dominant groups fear that subordinate groups will upset existing social arrangements, thus spurring feelings of prejudice and outgroup hostility (Branscombe, Ellemers, Spears, & Doosje, 1999; Citrin & Sides, 2008; King & Wheelock, 2007; Stephan & Stephan, 2000). Many researchers have investigated the factors that determine the fear of crime. It is defined as the fear of becoming a crime victim as opposed to the actual probability of being a crime victim (Ditton & Farrall, 2000; Hale, 1996; Jackson & Stafford, 2009). With this paper we aim to extend the literature by investigating the relationship the other way around. The impact of crime and the fear of crime will be examined in order to explain ethnocentric attitudes since we want to investigate the role of safety risks (both objective and subjective) on ethnocentrism in depth.

2

Ethnocentrism in the Context of Group Conflict Theory

This study addresses ethnocentrism by testing propositions that can be derived from group conflict theory. Theoretical arguments about ethnocentrism and group conflict theory will be presented respectively. Group hostility towards outsiders can be particularly well captured by measurements of ethnocentrism which indicate how well otherness is respected and accepted (Levine & Campbell, 1972). As discussed in the theoretical chapter in detail, in this research ethnocentrism is defined as a basic attitude expressing the belief that one’s own ethnic group or one’s own culture is superior to other ethnic groups or cultures, and that one’s cultural standards can be applied in a universal manner (Hooghe, 2008). ‘Ethnic’ refers to cultural heritage, and ‘centrism’ refers to the central starting point. Therefore, ethnocentrism basically refers to judging other groups from one’s own cultural point of view. The common definition of ethnocentrism mentions two elements: ‘a positive attitude toward one’s own group’ which includes positive prejudice about the ingroup, and ‘a negative attitude toward other ethnic groups’ which contains negative prejudice about outgroups (Billiet, Eisinga & Scheepers, 1996). Moreover, the concept of ethnocentrism tends to be viewed as ‘the synonym for general antipathy towards all outgroups’ where it shows ‘a lack of acceptance of cultural diversity, a general intolerance for outgroups and a relative preference for one’s ingroup over most outgroups’ (Berry & Kalin, 1995, p. 303). This lack of acceptance of cultural diversity has a strong tendency to lead to negative stereotypes


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toward other cultural/ethnic groups, negative prejudice and thus negative attitudes against these group members. The term ethnocentrism was first used by the American sociologist William Graham Sumner (1840–1910) to describe a cultural narrowness in which the ‘ethnically-centred’ individual rigidly accepted those who were culturally alike while just as rigidly rejecting those who were culturally different. Sumner claimed that ‘ethnocentrism leads a people to exaggerate and intensify everything in their own folkways which is peculiar and which differentiates them from others. It, therefore, strengthens the folkways’ (1906, p. 13). Almost fifty years after Sumner, the main study in social psychology examining the reasons for ethnocentric behaviour, entitled The Authoritarian Personality, was carried out by Adorno, Frenkel-Brunswick, Levinson, and Sanford, (1950). In this classic study, they proposed that prejudice is deeply rooted in personality, arguing that ‘the central theme of the work is a relatively new concept – the rise of an ‘anthropological’ species we call the authoritarian type of man’ (p. xi). Additionally, ethnocentrism referred to ‘group relations generally; it had to do not only with numerous groups toward which the individual has hostile opinions and attitudes but, equally important, with groups toward which he is positively disposed’ (Adorno, Frenkel-Brunswik, Levinson, & Nevitt Sanford, 1950, p. 102). The literature contains numerous studies that attempt to gain a deeper understanding of anti-immigration feelings and negative outgroup attitudes. Most studies suggest a significant relation between ethnocentric attitudes and educational level (Coenders & Scheepers, 2003; Hagendoorn & Nekuee, 1999; Hainmueller & Hiscox, 2010), religiosity (Billiet & De Witte 1995; McFarland, 1989), generalized trust (Hooghe et al., 2008; Putnam, 2007), media use (Hall, 1995; Cottle, 2000), perceived threat (Scheepers, Gijsberts & Coenders, 2002; Semyonov, Raijman, Yom Tov & Schmidt., 2004) and the size of the immigrant population (Quillian, 1995; Schneider, 2008; Semyonov, Raijman & Gorodzeisky, 2008). In addition to these factors, Palmer (1996), McLaren and Johnson (2007), Sniderman & Hagendoorn (2007) and Sniderman, Hagendoorn & Prior (2004) considered the impact of fear of crime when exploring the grounds of anti-immigrant sentiment. For instance, Canetti-Nisim & Halperin (2008) also conceptualize a security threat as an instance of realistic threat. Some socio-psychological research on ethnocentrism provides evidence for a structural threat interpretation of crime concerns and concludes that ethnocentric prejudice is fundamentally rooted in fear (Stephan & Stephan, 2000). In addition, Nunziata’s (2010) findings suggest that crime perception is an important driver of the attitude towards immigration, with higher fear of crime being related to a worse evaluation of the immigration phenomenon by European citizens. Apparently, ethnocentrism studies have increased our understanding of the individual-level causes of ethnic prejudice whereas they have made a very limited contribution to identifying group-level sources of ethnocentrism. Focusing on individual-level causes and neglecting the collective processes that


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lead to prejudice obscures the real nature of prejudice. (Blumer, 1958). Existing work largely operationalizes ‘threat’ using aggregate-level measures and relies heavily on inferences and assumptions about individual perceptions of racial minorities as threatening. To borrow Coleman’s (1990, p. 19) terminology, empirical work on group threat and social control largely neglects the ‘macro to micro transition’. The main purpose of this chapter is to consider both objective and subjective measures of safety. Consequently, we will investigate the relationship between neighbourhood safety (crime rates) and perceived safety risks, namely, fear of crime and ethnocentrism. Fear of crime levels are not always positively correlated with actual crime rates Lewis and Maxfield (1980), Walklate (1998, 2001) and Ferraro (1995) posit that feelings of fear and a sense of safety can coexist. Leaning on previous research, we want to test whether crime occurrence in the community (objective safety risk) or fear of crime (perceived safety risk) explains ethnocentrism better. Earlier research has suggested that community-level characteristics, particularly those related to social disorganisation and the breakdown of informal social control, may lead to increased perceptions of risk and fear of crime (Lee & Ulmer, 2000). For this reason, the present study includes measures of the violent crime rate and property crime rate, both of which have been linked to social disorganisation (Bursik & Grasmick, 1993; Sampson & Groves, 1989; Skogan & Maxfield, 1981). Moreover, past research and a fair share of theoretical work indicate that immigration may influence property crime rates to a greater extent than violent crime rates (Hagan & Palloni, 1998; Reid, Weiss, Adelman & Jaret, 2005). In this research, we intend to contribute a clearer picture of the relationship between aggregate crime, both violent and property crime, and negative attitudes toward immigrants across municipalities. Group conflict theory, which was one of the first theories to approach ethnocentric prejudice and hostility at the group level, was originally pioneered by the sociologist Herbert Blumer (1958) who argued that perceived threat was necessary for prejudice. Blumer states that a majority group is likely to develop prejudice toward outgroups when it feels threatened by these outgroups, whether the source of threat is real or perceived. In the 1980s, Blumer’s work was further developed under the name of realistic conflict theory by Lawrence Bobo (1983) who examined the impact of group threat on whites’ attitudes toward bussing. Bobo (1983, p. 1197) claims that the subordinate group is ‘a threat to real resources and accepted practices’ of the dominant group. In practice, however, empirical research has demonstrated quite convincingly that even groups whose position is not threatened by ethnic competition still develop ethnocentric prejudice. In short, conflict theory suggests that negative attitudes toward outgroups essentially stem from the view that certain prerogatives of one’s own group are threatened by other groups (Coenders, Lubbers, Scheepers & Verkuyten, 2008). Moreover, both structural and perceived threats have been shown to be important determinants of ethnocentrism (Allport, 1954; Esses,


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Jackson & Armstrong, 1998; Esses, Dovido, Jackson & Amstrong, 2001; Hjerm, 2007; Stephan & Renfro, 2003; Stephan & Stephan, 2000). In group conflict theory, negative attitudes toward outgroups essentially stem from the view that certain prerogatives of one’s own group are threatened by other groups. Thus, structural threats increase ethnocentrism (Blumer, 1958; Blalock, 1967; Bobo, 2000; Quillian, 1995; Taylor, 1995). In addition, connected to the notion of group conflict, is the notion that immigrants and minorities are associated with criminal activity. However, not many scholars have tested the effect of a (perceived) safety threat on immigration attitudes. Studies conducted in Canada, the UK, the US, Germany and France all reveal common themes: that the native-born perceive that immigrants pose a crime threat (Palmer, 1996). To be more specific, Palmer (1996), in his analysis of Canadian data, provides the only empirical evidence for a relationship between fear of crime and anti-immigration attitudes. He demonstrates that the belief that crime rates will rise as a result of immigration causes Canadians to favour more restrictive admission policies. As Sniderman & Hagendoorn (2007) and Sniderman, Hagendoorn & Prior (2004) find in the case of the Netherlands, perceived threats to the safety of the individual and to the group as a whole are only very weakly related to anti-immigrant hostility. In a similar manner, Fitzgerald, Curtis, and Corliss (2009) argue that fear of crime is a predictor of attitudes towards immigration in Germany. In relation to the threat perspectives outlined above, it is unclear how to interpret the crime angle and what the actual drivers of these fears are. Thus, this paper will assume that any connection between expressions of fear of increased criminal activity and immigration is likely to be mostly symbolic in nature (Sniderman & Hagendoorn, 2007; Sniderman, Hagendoorn & Prior, 2004; McLaren & Johnson, 2007). 2.1

Ethnocentrism and Feeling of Safety

Haubert and Fussell (2006) state that ethnocentrism correlates with beliefs about the likely negative impacts of immigration on crime, employment, and culture. These relationships emerge in models that control for group conflict, geographic context, and individual characteristics (Lu & Nicholson-Crotty, 2010). Furthermore, fear is found to increase respondents’ reliance and generally leads to less tolerance (Marcus, Sullivan, Theiss-Morse & Stevens, 2005). Empirical research draws on this body of theory to argue that an increase in the sense of threat leads to hostility, discrimination, and negative sentiment toward the minority population (Taylor, 1995; Quillian, 1995; Scheepers, Gijsberts & Coenders, 2002; Semyonov, Raijman & Gorodseisky, 2006). Immigrants are often blamed for the rise of crime and violence and it was previously suggested that negative views toward immigrants’ impact on crime and violence are premised on the assumption that immigrants are more likely to engage in criminal activities than natives (e.g., Ceobanu, 2011; O’Kane, 1992; Pettigrew, 1998, Reid, Weiss, Adelman & Jaret, 2005;). Yet most empirical research


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in Europe has resulted in opposite findings. However, studies on immigration in urban sociology literature suggest that, in the contemporary context, large immigrant populations may have beneficial effects on cities, leading to fewer social problems, including crime (Lee, Martinez Jr. & Rosenfeld, 2001; Portes & Mooney, 2002). More specifically, it was demonstrated that many immigrant groups have a lower propensity for crime than natives (e.g., Ferracuti, 1968; Mears, 2001; Tonry, 1997; Yeager, 1997) and data for the US further suggest that crime rates are not strongly associated with migration rates (Ousey & Kubrin, 2009). To sum up, previous research on immigration and crime suggests that individual immigrants are no more likely to commit violent crimes than other individuals. Personal experience with crime is not always the only reason for fear of crime (Taylor, 1995; Taylor & Covington, 1993; Nunziata, 2010). On one hand, citizens may be subject to cognitive bias in their representation of the amount of crime experienced in their local area. On the other, Bursik and Grasmick (1993) argue that safety measures articulate perceptions of crime rather than an assessment of emotions related to fear of crime. Neighbourhood safety is a salient matter for people even if they have never been personally victimized (Aneshensel & Sucoff, 1996; Ross & Mirowsky, 2009; Ross, Mirowsky & Pribesh, 2001). Moreover, several studies demonstrate that even small crimes are associated with a larger sense of insecurity regardless of whether one has been personally victimized, or not (Chiricos, 2001; Ross & Mirowsky, 2009). It is possible to experience crime directly, indirectly through contact with people who have been victimised, and indirectly through the media (Carcach et al., 1995; Dull & Wint, 1997; Fisher et al., 2004). Hence, the role of the media on the texture of people’s perception of immigrants and fear of crime is notable. Ceobanu (2011) emphasizes that the stories of various media outlets (such as alarmist portrayals of the riots in France’s suburbs during the fall months of 2005) use the image of the criminal immigrant to reiterate the purported differences between native-born and foreigners. The purpose of this paper is to investigate ethnocentric attitudes among natives and safety matters in the community. Several studies demonstrate that fear of criminal victimisation often exceeds actual crime rates, and that actual crime rates cannot fully explain fear of victimisation (Liska, Lawrence & Sanchirico, 1982; Quillian & Pager, 2001). Thus, we consider safety both in subjective and objective terms. Perceptions may be less about crime and more about feelings of insecurity due to perceived job displacement, territorial invasion, inadequate integration of newly arriving immigrants, interethnic confrontation, and a threat to native identity (Avramov & Cliquet, 2007; El Yamani, Jutaeu & M cAndrew, 1993). The news and popular media have exploited and exacerbated these fears (Casella & Massari, 2007; El Yamani, Jutaeu & McAndrew, 1993). Consequently, to cover both aspects, neighbourhood safety is considered in two ways in our study: perceived safety (fear of crime) and crime occurrences in the community.


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3 Hypotheses The main idea of this research is to concentrate on both perceived safety (fear of crime) and recorded crime rates in the community, in addition to individuallevel predictors such as socio-economic status and generalized trust, in order to describe ethnocentric prejudice in Flanders. In order to answer the research question ‘What is the impact of crime on ethnocentrism?’ We attempt to test the following two hypotheses: H1: Recorded crime rates in one’s community lead to higher levels of ethnocentrism. H2: Collective representations of perceived safety risks (fear of crime) have a stronger impact on ethnocentrism than real-life crime rates.

4

Data and Methods

Our hypotheses assume that community-level variables have an effect on the ethnocentrism level of the individual. Therefore, we need a dataset that allows us to connect community-level indicators with individual responses on an ethnocentrism scale. First, for the attitudinal indicators and socio-demographic control variables we will use the results of the Social Cohesion Indicators in Flanders (SCIF) survey which was conducted in 2009 among a representative sample of the population of the Flemish Region of Belgium aged 18 and over, by means of 2,080 uniform face-to-face interviews. With respect to group conflict theory, it is assumed that the size of the minority population, which is a community-level variable, has an effect on the ethnocentrism of the individual. To put it differently, our first hypothesis assumes the existence of an impact of community diversity indicators on individuals’ antiimmigrant sentiments. In order to test our hypothesis, we need a dataset that allows us to connect community-level indicators with individual responses on ethnocentrism. We therefore use multilevel data in which the unit of analysis is the individual, and characteristics of the respondents’ community are linked to individual survey data, while controlling for individual-level attributes. For individual-level data (n=1,910), we will use the measures from the Social Cohesion Indicators in Flanders (SCIF) Survey conducted in the Flemish region of Belgium in 2009. As the concept of ‘neighbourhood’ is not precise, defining geographic neighbourhoods is always difficult (Furstenberg & Hughes, 1997). Ideally, neighbourhoods should be measured in relatively small geographic units. The structural variables which are available for the smallest geographic unit data in Belgium are at the municipal level. Given the fact that the average community in the Flemish region has some 20,000 inhabitants, this can still be considered a real neighbourhood. Thus, we will use the community-level statistical data (n=40) of Flanders (source: National Institute of Statistics, Belgium) which are collected directly at the municipal level.


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4.1

239

Concepts and Measurement

Independent variables are derived from the SCIF Survey and communitylevel economic indicators are collected from the National Statistical Office of Belgium. Available measures, fully documented in the appendix, are listed in Table 1. Contextual-level variables are used for 2006 as this is the most recent data for the official crime records of the municipalities. The ethnic concentration of immigrants was included in models as an additional control variable, but revealed no significant effect. Table 1

Measures included in the analysis

Individual level:

Contextual level:

- Age - Gender - Education level - Income - Religious attendance - Generalized trust factor scale - TV channel preference - Perceived risk of victimisation factor scale - Fear of crime factor scale

- Violent Crime Rate (2006) - Property Crime Rate (2006)

4.1.1 Ethnocentrism Scale Ethnocentrism will be explored based on the individual-level data collected by the Social Cohesion Indicators in Flanders (SCIF) Survey. The sample size (n=1,910) is sufficiently high and 40 municipalities are an adequate number for the second-level factor to explain contextual-level (random) effects in multilevel models. 170 of 2,080 respondents of the survey, however, were themselves part of an ethnic minority since they were born outside Belgium. As such, their feeling of ethnocentrism could be totally different from the ethnocentrism pattern that we wanted to measure, and we excluded them from the analysis. Therefore, we only included Belgian-born respondents to investigate ethnocentrism (n=1,910). Ethnocentrism rating scale is exclusively explained in chapter 8. The three items proved to be a one-dimensional scale, with one factor, Eigen Value 1.96, which explained variance 65.48 percent. The scale is internally coherent with Cronbach’s alpha of 0.73. 4.1.2 Safety Measures The concept of safety in our study is a compound of perceived (subjective) and objective measures. Perceived safety is measured by fear of crime (avoidance behaviour) and self-victimisation risks of individuals. The objective measures are the violent and property crime rates of the municipality. Feelings of safety or fear of crime (avoidance behaviour) is measured by a valid factor scale (Cronbach’s alpha=0.613) consisting of three Likert items, and perceived risk of vic-


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timisation is measured by a valid factor scale (Cronbach’s alpha=0.756) consisting of three Likert items: Table 2

Characteristics of the fear of crime factor scale

Items

I avoid certain areas in my neighbourhood because I think they are not safe I avoid opening the door for strangers because I think it is not safe I avoid leaving home after dark because I think it is not safe Cronbach’s alpha

Factor loading Cronbach’s alpha if deleted 0.548 0.691 0.775 0.540 0.681 0.593

Extraction method: Principle Component Analysis. Source: SCIF Survey 2009; N=2,080.

Table 3

Characteristics of the perceived risk of victimisation factor scale

Items

How do you perceive the risk of your household being the victim of burglary? How do you perceive your personal risk of becoming a victim of physical violence? How do you perceive your risk of becoming a victim of theft from your car? Cronbach’s alpha

Factor loading Cronbach’s alpha if deleted 0.741 0.655 0.720

0.673

0.686

0.694

Extraction method: Principle Component Analysis. Source: SCIF Survey 2009; N=2,080.

Figure 1

Perceived risk of victimisation scale

Data Source: SCIF Survey, 2009


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The Impact of Safety on Levels of Ethnocentrism Figure 2

241

Fear of crime (avoidance behaviour) scale

Data Source: SCIF Survey, 2009

Representations of these two subjective safety measures are illustrated graphically in the maps (Figures 1 and 2) above. There exists a weak positive correlation between perceived risk of victimisation and fear of crime (rho=0.161). Figures 1 and 2 support the statement as the aggregate levels of these two subjective safety measures do not illustrate a strong association. This conclusion is consistent with previously discussed literature which states that people attach great importance to neighbourhood safety and may be afraid of crime even if they have never been personally victimized (Chiricos, 2001; Ross & Mirowsky, 2009; Ross, Mirowsky & Pribesh 2001). Figure 3

Recorded rates of violent crime

Data Source: Belgian Federal Police, 2001-2006


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242 Figure 4

Social Control and Justice Recorded rates of property crime

Data Source: Belgian Federal Police, 2001-2006

In order to measure objective safety, we used the recorded violent and property crime rates of the municipality. In Belgium, crime figures have been recorded by the Belgian Federal Police since 2001 and have been used very few times for academic research, starting with the SCIF Survey. Although these two crime measurements are correlated both theoretically and empirically, it makes sense to distinguish them in the analysis (Byrne 1986; Wikstrom, 1991). Violent crime is measured by a factor scale (Cronbach’s alpha=0.571) consisting of two items: Intentional assault and battery. Destruction and damage. Property crime is measured by a factor scale (Cronbach’s alpha=0.820) consisting of four items: Theft from motor vehicles. Motor vehicle theft. Vandalism (whether aimed at cars or other material goods). Burglary. Figures 3 and 4 show recorded violent and property crime rates in the 40 municipalities of Flanders in which the SCIF Survey was conducted. As a last remark about safety measures, there was no correlation between individual safety measures (perceived victimisation risk and fear of crime) and


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recorded crime rates (violent and property crime).1 We again confirm previous research where there was no significant relationship between actual crime rates and fear of crime (Liska, Lawrence & Sanchirico, 1982; Quillian & Pager, 2001). 4.1.3 Control Variables In addition to adding a safety dimension to the literature reviewed above, we also consider the mechanisms through which anti-immigrant sentiments become linked to crime in people’s minds. Therefore, in the estimations of attitudes, we control for individual-level variables: age, gender, generalized trust and television channel preference. Age tends to be positively associated with ethnocentrism (Citrin, Green, Muste & Wong, 1997; Dustmann & Preston, 2001; Gang, Riviera-Batiz & Yun, 2002). Generalized trust has been the focus of the social capital school and much of the related work on civic attitudes and behaviours (Fukuyama, 1995; Putnam, 2000). In the social sphere, generalized trust facilitates life in diverse societies, fosters acts of tolerance, and promotes acceptance of otherness. Researchers sometimes disagree about the meaning of trust, but they all seem to agree that it has important consequences for the functioning of society (Cook, 2001). Trust tends to promote tolerance and empathy toward others (Putnam, 2000, p. 289) while reducing the transaction costs associated with daily social interactions (Putnam, 2000, p. 288). One of the significant effects of generalized trust is that trust and ethnocentrism are strongly related in that, the more trusting a society, the lower its level of ethnocentrism (Hooghe, Reeskens & Stolle, 2007). Moreover, while the explicit and implicit bias of media coverage of crime and minority groups has been extensively documented, its actual influence on the viewer remains less well substantiated. The role of the media, particularly television, has attracted specific interest (Chiricos, Eschholz & Gertz, 1997; Taylor, 1996; Taylor, Evans & Fraser, 1996; Verma, 1992). These authors observe that mass media do not determine attitudes directly, but they do structure and select information we may use on which to base decisions about what attitude is appropriate. An area in which the impact of the media and, particularly, television, on the attitudes of the viewers has been extensively researched, is ‘fear of crime’ (Chiricos, McEntire & Gertz, 2001; Elchardus & Smits, 2003; Lowry, Nio & Leitner, 2003; Romer et al., 2003; Vergeer, Lubbers & Scheepers, 2000). Researchers have suggested that the representation of minority groups and their cultures generally expanded in recent decades (Fleras, 1995). Nevertheless, how they are represented in the media is a different matter. Media researchers have pointed to the negative depictions of ethnic minorities (Fleras, 1995; Ungerleider, 1991). In line with the literature, commercial channels are different

1

Perceived risk of victimisation-Violent crime rate: Rho=0.024 Perceived risk of victimisation-Property crime rate: Rho=0.066 Fear of crime-Violent crime rate: Rho=0.034 Fear of crime-Violent crime rate: Rho=0.004


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from public television channels (Hooghe, 2002). In short, the negative role of television is charged to commercial stations as a contributor to the cultivation of a less civic-minded value pattern among their viewers by providing easy entertainment and offering simple formulas (Hooghe, 2002). We made a distinction between commercial media channels and others when controlling for the impact of the respondents’ selection of TV channels on their ethnocentric attitudes. Because of non-normality, a log transformation of some independent variables was used to more closely approximate a normal distribution. 4.2

Statistical Analyses: Multilevel Models

The nested structure of the SCIF Survey research design is addressed by using hierarchical linear models (HLM) and thus the data will be analysed using multilevel regressions (Hox, 2002; Snijders & Bosker, 1999; Raudenbush & Bryk, 2002). Hierarchical, or nested, data present several problems for analysis. First, people in hierarchies tend to be more similar to each other than people randomly sampled from the entire population. Evolving out of ANOVA methods for analysing experiments with random effects (Searle, Casella & McCulloch, 1992), HLM recognizes that individuals may not supply independent observations because people within a particular group/community are likely to be more similar to each other than to individuals in other groups/communities. The HLM procedures described in Bryk and Raudenbush (1992) were used to simultaneously estimate within-municipality and between-municipalities. Hox and Kreft (1994, pp. 285-6) clarify the connection between random effects and multilevel data, and state that multilevel models assume a hierarchicallystructured population with random sampling of both groups and individuals within groups. Consequently, multilevel analysis models must incorporate random effects. The hierarchical linear model is adapted for the analysis of clustered sample data where the independent variables are found on at least two levels of analysis. In this case, standard OLS-regressions can lead to biased estimates of standard errors and, therefore, to wrong conclusions (Hox, 2002; Snijders & Bosker, 1999). With multilevel modelling, variance due to attributes of the context and variance due to attributes of the individual are separable, and standard errors are estimated correctly. Contextual and individual effects as well as interaction effects between contextual and individual variables are modelled simultaneously. A context effect reveals the influence of country characteristics on mean outcomes. A cross-level interaction effect means that a context effect is moderated by individual factors, or vice versa. Briefly, HLM simultaneously estimate two models by performing regressions of regressions in order to model both within-level and between-level relationships (Hofmann, 1996). Moreover, multilevel modelling serves group conflict theory such that we are able to draw conclusions at this level of analysis in order to avoid ecological


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(interpreting aggregated data on an individual level) and atomistic (interpreting individual data on a higher level) fallacies (Hjerm, 2007). Due to the many advantages and the appropriateness mentioned above, we will use a hierarchical linear model which is effectively a multiple regression analysis that can handle nested sources of variability, like individuals in communities. Concisely, a random intercept multilevel model is used to model our data. The first level consists of individual-level characteristics and attitudes such as socioeconomic indicators (age, gender, education level, income), generalized trust, religious attendance and, importantly, subjective perception of non-nationals. The second level consists of municipal-level diversity (non-Belgian rate, aggregate level of estimation of non-Belgians, migration inflow rate, asylum seeker rate, etc.).

5 Results As a starting point, the baseline model of the multilevel regression analysis fitted where the analysis in Table 4 showed that 2.56 percent of the variability in ethnocentrism can be attributed to the community level. Table 4

Multilevel regression null model for ethnocentrism (40 communities, N = 1,910) Parameter

t-value

Fixed part Intercept

0.011

0.335

0.710*** 0.018**

30.59 2.43

Random part Level 1. Individuals (residual variance) Level 2. Communities (intercept variance) Intra-class correlation = 2.56% Sign: * p < 0.05; ** p < 0.01; *** p < 0.001. Source: SCIF Survey, 2009.

Although this percentage is not as high, multilevel analysis is the appropriate technique to investigate both micro- and macro-level effects on ethnocentrism. The 2.56 percent of intra-class correlation allows us to assume that communitylevel indicators explain at least some of the variation with regard to ethnocentrism. Four different models are fitted to explain ethnocentrism, with a focus on safety measures. The first two models include only the individual variables. The significance of individual characteristics is kept for all four models. As expected, based on the literature, older, less educated and less trusting people tend to have higher negative attitudes toward immigrants. Moreover, TV channel preferences appear to be significant, as people who prefer to watch commercial


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television channels are found to be more ethnocentric than the audiences of other channels. Gender, individual economic status and religious attendance revealed no significant association with anti-immigrant sentiments. It is worth noting that perceived risk of victimisation has no effect on ethnocentric attitudes, whereas a significant relation between fear of crime and ethnocentrism is observed. In other words, regardless of the perceived risk of personal victimisation, people’s fear of crime is linked with their negative attitudes toward immigrants. The third model introduces a contextual-level safety measure of the actual amount of violent crime rate in the community. The effect of the fear of crime remains significant. However, the impact of actual crime is found to be negatively associated with ethnocentrism. The higher the violent crime rate in the community; the lower is the ethnocentric attitude of the natives. We also conclude that fear or crime is independent of structural safety threats. The fourth and last model uses property crime rates as the objective safety measure. The result is similar to the conclusions of Model 3. Even in communities with lower property crime rates, people tend to be afraid of crime and have more anti-immigrant attitudes. Table 5

Multilevel regression (random intercept) model for ethnocentrism (40 municipalities, N = 1,910) Model 1

Fixed part Intercept Age Gender Low Educational level Income (log) Religious attendance

TV channel preference

Generalized trust Perceived risk of victimisation Fear of crime


Model 2

Model 3

Model 4

Parameter Parameter Parameter Parameter (s.e) (s.e) (s.e) (s.e) -0.012 -0.013 -0.002 -0.003 ** (0.029) (0.030) (0.027) (0.027) 0.165 *** 0.148 *** 0.146 ** 0.145 *** (0.023) (0.023) (0.024) (0.024) Reference: male -0.008 -0.031 -0.031 -0.033 Female (0.022) (0.022) (0.022) (0.022) Reference: 0.108 *** 0.103 *** 0.103 *** 0.103 *** other Lower (0.022) (0.022) (0.022) (0.023) 0.033 0.036 0.031 0.032 (0.022) (0.022) (0.022) (0.022) Reference: Not -0.001 -0.005 -0.007 -0.001 attending (0.022) (0.022) (0.046) (0.022) Attending Reference: 0.182 *** 0.180 *** 0.179 *** 0.175 *** Other Commer(0.022) (0.022) (0.042) (0.022) cial TV -0.350 *** -0.334 *** -0.335 *** -0.332 *** (0.021) (0.023) (0.023) (0.022) -0.003 (0.020) 0.094 0.105 0.101 *** (0.024) (0.024) (0.024)

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The Impact of Safety on Levels of Ethnocentrism Model 1

Model 2

Model 3

Model 4

Community-Level Parameters Recorded violent crime rate (log) Recorded property crime rate (log) Random part Level 1. Individuals (residual variance) Level 2. Municipalities (intercept variance) Intra-class correlation

-0.096 *** (0.028) -0.095 *** (0.028) 0.5371 *** 0.01162 * 2.12%

0.5312 *** 0.5352 *** 0.01335 * 0.004270 2.45% 0.79%

0.5314 *** 0.00750 1.39%

Entries are the result of a multilevel regression analysis, with the ethnocentrism factor scale as a dependent variable. Sign: * p < 0.05; ** p < 0.01; *** p < 0.001 Source: SCIF Survey, 2009; NIS, 2008.

6 Discussion The purpose of this chapter was to extend the literature by concentrating on both perceived safety (fear of crime) and recorded crime rates in the community, in addition to individual-level predictors such as socio-economic status and generalized trust, in order to describe ethnocentric prejudice in Flanders. In order to answer the research question ‘What is the impact of crime on ethnocentrism?’ we considered both perceived safety measures, such as the perceived risk of victimisation, and fear of crime (avoidance behaviour). We begin our chapter with a brief theoretical discussion, pointing out possible reasons that may lead different people to have different ethnocentrism levels. We then present a descriptive overview of different indicators measuring feelings of safety, such as the aggregate level of perceived risk of victimisation and fear of crime, and compare these to the recorded violent crime rates in the communities. Finally, we analyse how ethnocentrism differs according to individual characteristics including age, gender, education, income level, generalized trust, religious attitudes, and TV channel preference. We find a strong relation between lower education and more negative attitudes toward immigrants. We also show a tendency for older people to be more ethnocentric. The income level of individuals appears to have no significant effect on attitudes toward immigrants: however, people who trust others more are found to demonstrate less ethnocentric attitudes. TV channel preference revealed the importance of the media effect. People who prefer to watch commercial channels tend to have more negative attitudes toward immigrants. Therefore, the impact of commercial TV channels, and thus of their broadcasting policies, are strongly related to the anti-immigrant sentiments of individuals. On the other hand, there are factors such as crime, which is both an economic and non-economic issue, which can also affect attitudes towards immigrants. This would be the case if there is evidence and/or a belief that crime levels


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are related to immigrants (Nielsen & Smyth, 2008). As mentioned above, the findings from our analysis confirm theoretical discussions emphasised in the literature review. Our results reveal that the subjective motives for the feeling of safety, and especially fear of crime, are strongly related to ethnocentric attitudes. It is the fear of crime, and not the perceived victimisation risk, that is positively related to ethnocentric attitudes. This means that, regardless of the risk of personal victimisation, people still have fear of crime and negative attitudes toward immigrants. ‘Real’ crime levels are not associated with higher levels of ethnocentrism, but ‘fear of crime’ is. Both the perceived threat (fear of crime) and structural threat (violent and property crime rate) are linked to an ethnic prejudice in the majority. The negative relationship between the occurrences of crime in the community and ethnocentric attitudes should be interpreted carefully. One reason underlying this negative association may be that people living in areas with higher violent crime rates tend to become more familiar with the concept of ‘crime’. As the crime occurs in their community, they may have substantial knowledge about the nature of the crime and fail to link the occurrences of crime with immigrants. The widespread concerns among natives that immigrants increase crime rates are another key determinant of attitudes towards immigration. Mayda (2006) and other studies find that a key determinant of negative attitudes towards migration is the perception that immigrants are more likely than natives to be involved in crimes. When it is possible to break this assumed link in people’s minds, it is more likely that there will be objective ideas about the major reasons for crime rates in communities. For further research, it is worth investigating patterns of perceptions about the feeling of safety as one of the important determinants of anti-immigrant attitudes. Furthermore, the media effect is another topic that requires more thorough examination in terms of anti-immigrant sentiments and the feeling of safety. As we discussed before, there are several studies on the effect of the media in creating and maintaining public attitudes toward social groups (Armstrong et al., 1992; Entman & Rojeck, 2000; Fujioka, 2011). The issues of immigration and immigrants are often framed in the media in the context of national sovereignty and, hence, intergroup conflict and problems (Demo, 2005). The representation of immigrants in the media may establish an alleged link between the occurrence of crime and immigrants thus creating a greater feeling of threat among natives which can lead to more ethnocentric sentiments. Therefore, the factors in the media and society that have an impact on the perception of immigrants should be part of further scientific and policy investigations since the subjective motives are found to be significant aspects of anti-immigrant attitudes among natives.


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Appendix I.

249

Variables used in analyses (in alphabetical order)

Age: Age of the respondent. Range: -30.59 – 36.41. (Source: SCIF Survey 2009) Education Level: If the person is has a low education level (with a secondary school level diploma or less) or not. (Source: SCIF Survey 2009) Ethnocentrism: Factor scale of ethnocentrism by measures of ‘effect to economy’, ‘effect to cultural life’, and ‘effect to living place’ by Principal Component Analysis with Cronbach’s alpha 0.735. Range: -2.61 – 2.21. (Source: SCIF Survey 2009) Fear of crime: Factor scale of avoidance behaviour. Range: -1.96 – 10.04 (Source: SCIF Survey 2009) Gender: Gender of the respondent. (Source: SCIF Survey 2009) Generalized Trust: Standardized sum scale of generalized trust by measures of ‘trust’, ‘taking advantage of others’ and ‘selfishness’ by Principal Component Analysis with Cronbach’s alpha 0.749. Range: -2.61 – 2.21. (Source: SCIF Survey 2009) Income: Equivalent income which is derived from the household monthly income and calculated by the OECD modified equivalent scale (Atkinson et al, 2001): first adult = 1; other person aged 14 or above = 0.5; children below age 14 = 0.3 (1,000 EUR). Range: -1.58 – 31.75. (Source: SCIF Survey 2009) Perceived Risk of Victimisation: Factor scale of perceived risk of victimisation. Range: -1.91 – 7.09. (Source: SCIF Survey 2009) Property Crime Rate: Rate of the property crimes per 1000 inhabitants of the municipality 2001-2006. Source: Directorate of Operational Police Information of the Belgian Federal Police, Service Policy Information. Range: 2.2392.80. Natural log values were used in the analysis. Religious Attendance: If the respondent attending religious rituals. 1: Attending, 2: Not attending. (Source: SCIF Survey 2009) TV Channel Preference: Type of TV channel respondent prefers to watch. 1: Public TV channels, 2: Commercial TV channels, 3: Other TV channels. (Source: SCIF Survey 2009) Violent Crime Rate: Rate of the violent crimes per 1000 inhabitants of the municipality averaged for the years between 2001-2006. Source: Directorate of Operational Police Information of the Belgian Federal Police. 2.03- 35.85. Natural log values were used in the analysis.

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The control of irregular migrants and the Criminal Law of the Enemy Notes on the exclusion and inclusion in the field of penal policy in Spain

José Ángel Brandariz García

1 Introduction During the first decade of the 21st century, the Spanish legal system, following a common trend in all EU states, implemented a significant set of measures to fight irregular migration. In this realm of control policies, the (administrative) expulsion (Section 57 of the Spanish Immigration Act), and the internment in detention centres for migrants (Sections 62 et seq. Spanish Immigration Act) became central measures. In its respective field of criminal law, the enforcement of the penal expulsion (Section 89 Penal Code) was remarkably extended during this period, and any sort of cooperation with irregular migration was severely criminalised (Section 318bis Penal Code).Despite the introduction and enforcement of this set of control measures, Spain experienced during the first decade of the century a migration flow unparalleled in the entire EU. The foreign population increased almost six fold over the decade (from a percentage


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of 2.2 of the total population in 2000 to a percentage of 12.1 in 2010),1 exceeding the rates of foreign residents of other major EU countries. Evidently, such an important phenomenon entailed a vast amount of irregular migration; indeed, irregular migration remained a constant reality throughout the period. Despite several processes of regularisation, reliable studies estimate that by end of 2010 the number of irregular migrants in Spain was almost one million people. Given the actual enforcement of the measures of migrants’ control implemented during the period, it should be analyzed whether we really see here an expression of what in continental Europe is commonly named (Criminal) Law of the Enemy. To that end, we need to understand, from a perspective of the Political Economy of Punishment, the meaning of the complex relationship between the alleged exclusion/inclusion dichotomies in the context of the penal policies established in Spain against irregular migrants.

2

The control of irregular migrants as Law of the Enemy

A sector of the Spanish literature has pointed out that migrant control policies are based on the logic of exceptionality (Iglesias, 2008; Pérez Cepeda, 2006; Silveira Gorski, 2010). Moreover, several authors have pointed out that the administrative and criminal rules of control of these subjects are an expression of the so-called Law of the Enemy. (Cancio Meliá, 2005; Daunis Rodríguez, 2009; Pérez Cepeda, 2007; Portilla Contreras, 2007, p. 149). These perspectives are consistent with other analyses which have gained momentum in the recent past. In this regard, we should make mention of the metaphor of the non-person, coined by Dal Lago (2004). Moreover, it is necessary to take account of the renewal of the analysis on the State of exception made by Agamben (1998), based on concepts such as homo sacer or bare life. The Italian

1

All the data related to January the 1st each year, may be seen in the following table: Table 1: Foreign Population in Spain (2000-2011) Year Foreign Population (Total) Foreign Population Year-on-Year Evolution (Percentage of the total (Total amount) population) 2000 0.923 million 2.2% + 23.3% 2001 1.370 million 3.3% + 48.4% 2002 1.977 million 4.7% + 44.3% 2003 2.664 million 6.2% + 34.7% 2004 3.034 million 7.0% + 13.8% 2005 3.730 million 8.4% + 22.9% 2006 4.144 million 9.2% + 11.0% 2007 4.519 million 9.9% + 9.0% 2008 5.268 million 11.4% + 16.5% 2009 5.648 million 12.0% + 7.2% 2010 5.747 million 12.2% + 1.7% 2011 5.730 million 12.2% - 0.3%

Source: National Statistics Institute (INE)


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philosopher develops an appealing interpretation of internment centres for migrants as a contemporary expression of the concentration camp, as the place in which power and (bare) life are confronted, by suspending all legal mediation. Other authors have also developed this insight (Brighenti, 2009; Cuttitta, 2007; Zizek, 2009). This kind of perspective invites us to explore, in a more in-depth manner, the complex rationales underlying the control of migrants and, in particular, their expressions in the field of sanctions. This should be done, however, without losing sight of the recent criticisms expressed in relation to Agambenian exceptionalism. This approach has been criticised – appropriately – for an excess of one-dimensionality in the analysis of bare life, and in the relationship between power and homo sacer. (Butler & Spivak, 2007; Dean, 2007; Hardt & Negri, 2009; Rahola, 2010). From this point of view, we should pay particular attention to the several arguments made to support the conclusion that the rules concerning migrant control are an expression of the Law of the Enemy. Among them, it is necessary to mention the argument which points out that the responsibility of migrants seems to be based on ontological features, to the extent that the subject is not responsible for his behaviour, but for his own condition (Caputo, 2006). However, it needs to be highlighted that in this case, the juridical status of the migrant, which contributes towards labelling him or her as an enemy, is attributed to him or her by the state, which places the subject outside the social order (Daunis Rodríguez, 2009). In so being, this construction of the subject shows an operation of power certainly more complex than the one analyzed by Agamben’s theory (Butler & Spivak, 2007). Nonetheless, it seems particularly suitable to also analyze the existence of a Law of the Enemy from the perspective of the aims of the sanctions reserved for migrants under the regulations. Indeed, according to the theory of Jakobs (2006), one of the key elements which characterise the Law of the Enemy is the inability of communication between the state – and community – and the criminal enemy; therefore, the sanctions applied to him or her may only pursue a goal of exclusion and incapacitation. It is precisely from this standpoint that the thesis of the Law of the Enemy in relation to the field of migrant control may be challenged. However, the challenge is not apparent at all. Indeed, the sanctions established for migrants, such as (administrative and criminal) expulsion, internment or imprisonment followed by expulsion have incapacitation as their primary goal (Navarro Cardoso, 2006; Pérez Cepeda, 2006; Santoro, 2004; Portilla Contreras, 2007). In fact, what we may see in these sanctions, and especially in expulsion, is a paradigmatic expression of exclusion in contemporary criminal law, even more than imprisonment (Resta, 2006). Therefore, these sanctions can be analyzed as a way of treating of what is understood as human surplus; in other words, those


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subjects who are not socially useful, and who – in contrast to citizens – can be placed in a realm outside the social body.

3

Challenging the Law of the Enemy theory

3.1

Selective incapacitation

In order to interpret the functions of the policy of immigration control, and particularly the rationale which underlies (administrative and criminal) expulsion, it is crucial to understand that what we face in this point is just merely selective incapacitation (De Giorgi, 2000). It cannot be understood otherwise, since the experience of recent decades in Spain, and elsewhere in Europe, shows that, frequently, internment is not enforced, and (administrative and criminal) expulsion is not executed, even when it is enforced (Calavita, 2003). In the Spanish case, this situation is less apparent in the case of internment, in which selectivity is crucially determined by logistical reasons. Yet, to the extent that expulsions are commonly not carried out, internment has not tended to work as a pre-trial/pre-decision measure in this decade, but actually as a sanction (Martínez Escamilla, 2009). Nonetheless, the selective working of the sanction measures for migrants is apparent in the case of expulsion, as shown in the available data. As far as penal expulsion is concerned, even if the data show some growth over the past decade, it does remain an institution of very limited enforcement. In effect, in contradiction to the regulation of expulsion as an almost compulsory measure for irregular migrants sentenced to prison, its enforcement has been fairly marginal all throughout the last decade. For ease of reference, in recent years the expulsions actually enforced have just reached 5-6% of the prison sentences applied to non-EU migrants.2 The trend in relation to the effective execution of penal deportations seems to have changed in recent years. While its enforcement by the courts continues

2

The data is shown in the following table: Table 2: Prison sentences and (criminal) expulsion measures enforced against non-EU migrants (2007-2010) Year

2007 2008 2009 2010

Prison sentences

Criminal expulsion measures

25,663 27,915 30,073 28,928

1,393 1,919 1,953 1,951

Percentage of expulsions in relation to prison sentences 5.4% 6.8% 6.5% 6.7%

Source: INE (National Statistical Institute, Spain)


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to be limited, its effective execution has increased as a result of the creation of the Brigade for the expulsion of foreign criminals (BEDEX) within the National police. In this way, the latest available data show that even expulsions enforced years ago are now being executed. Consequently, criminal expulsions have increased notably in recent years.3 Nonetheless, the situation in the case of administrative expulsion is still more striking. While the data in this field are subject to official confidentiality (Calavita, 2003), some figures are known. First, the number of administrative expulsions remained fairly stable during the first half of the decade, but fell remarkably in the second half. Second, the number of executed administrative expulsions is insignificant in relation to any estimate of the numbers of the population of irregular migrants (Pajares, 2010; Romero, 2010). Moreover, what is most striking in this field is that executed expulsions never go far beyond 1/3 of those actually enforced (Monclús Masó, 2008; Terradillos Basoco, 2007), even less in relation to certain nationalities. Yet, this is not a Spanish exception, but a situation common to many EU countries (Palidda, 2008; Van Kalmthout, Hofstee-Van der Meulen & Dünkel , 2007). In short, these data show that the exclusionary rationale of the expulsion sanction actually works in a sharply selective way; selectivity manifested especially at the moment of sentencing in criminal expulsions, and at the moment of execution in administrative expulsions.

3

Criminal expulsions data for 2010 may be seen in the following table: Table 3: Criminal expulsion measures enforced in 2010 (by continent) Continent Prison sentences Criminal expulsion Percentage of expulsions measures in relation to prison sentences Non-EU Europe 1,327 83 6.2% America 12,595 559 4.4% Africa 13,594 1,156 8.5% Asia 1,178 106 9.0 % Australasia 234 47 20.0 % Source: INE (National Statistical Institute, Spain) The data of (administrative and criminal) expulsions actually executed in the last decade may be seen in the following table: Table 4: Executed expulsions (total and year-on-year evolution) Year

Total expulsions

2002 12,159 2003 14,104 2004 11,014 2005 11,002 2006 11,567 2007 9,467 2008 10,616 2009 13,278 2010 11,454 2011 11,358 Source: Spanish Home Office


Year-on-year evolution + 15.9 % - 21.9 % - 0.1 % + 5.1 % - 18.1 % + 12.1 % + 25% - 13.7% - 0.8%

Administrative expulsions ------5,052 5,687 3,258 2,244

Criminal expulsions ------5,564 7,591 8,196 9,114

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3.2


Explaining the selectivity of incapacitation

There are several motives that may explain this remarkable selectivity or, in other words, the apparent failure of the expulsion policy. As far as criminal expulsion is concerned, we should mention the generalised exclusion of the scope of its application to drug trafficking offences (García España, 2007). However, even taking this motive into account, the aforementioned data allow us to conclude that Spanish courts have been rather reluctant to enforce the sanction, even despite the fact that it is almost compulsory (Monclús Masó, 2008). However, the selectivity in this domain requires a more detailed explanation. In doing this, factual reasons should firstly be mentioned. In this regard, we must take account of the difficulties of identification, due to lack of documentation or concealment of identity (García España, 2007; Silveira Gorski, 2010). It is precisely to avoid these problems that the Schengen Information System (SIS II), as well as the Visa Information System (VIS) and Eurodac, have collected the data of millions of migrants and asylum-seekers (Guild, 2009; Piazza, 2008). Among the factual reasons, we could also include the lack of cooperation in the identification of the country of origin (Melossi, 2003). This circumstance, and the reluctance of the states of origin to accept deportations, cannot be disassociated from the political problems created for the governments of these countries by the acceptance of expulsions, due to their widespread social rejection (Romero, 2008). Migrations are certainly useful for these countries since they reduce social tensions and unemployment rates and, by the same token, they increase foreign exchange remittances (Cuttitta, 2008). Second, legal reasons should be included amongst the reasons for the shortcomings of the system of internment/prison-expulsion, basically embodied in the traditional lack of readmission agreements with countries of origin (Monclús Masó, 2008). This circumstance explains why migration policies of several EU states have focused on new and/or more extended agreements of readmission in the last five years. This has been also the case of Spain from the first Africa Plan (2006-2008), since development aid, technical assistance, quotas for regular migration and – to a certain extent – political and trade relations, have been conditional on the conclusion of agreements in the field of the fight against irregular immigration and the acceptance of deportations (Fernández Bessa & Manavella Suárez, 2010; Romero, 2008). Third, the practical unsustainability of the model aimed at making internment, prison and expulsion the only sanctions for the offences committed by irregular migrants is also due to logistical and financial reasons. Indeed, the high costs of internment/imprisonment and expulsion prevent their compulsory enforcement and execution, as established by the law (Díaz y García-Conlledo, 2007; García España, 2007).


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Since all these reasons, particularly those of a financial nature, are of great importance, it is likely that they are not able to comprehensively explain the prominent gap between policy design and practical reality in this domain. After all, we must remember that immigration control is a key public policy in Spain and other EU countries. Therefore, in order to understand this situation, and the actual entity of the exclusionary goals of this control system, an additional remark is needed. Thus, the interpretation of the situation should work as – metaphorically speaking – a certain hermeneutic of suspicion, which inquires into the meaning underlying the actual enforcement and execution of the sanctions of expulsion and internment. From this point of view, it could be claimed that what gives meaning to the analyzed dysfunction is the lack of willingness of the several field agents to strengthen the control of migrants, because this could lead to the risk of dramatically reducing migratory flows which have been performing economic and social functions of extraordinary prominence (Brighenti, 2009; Rodríguez, 2003; Romero, 2010). Some of these functions are substantially political, such as the legitimisation of state institutions, the enhancement of social cohesion, or the strengthening of alleged national identities. However, the seeking of these goals – as an expression of a neo-conservative criminal policy – has been offset by the pursuit of other socio-economic aims, which recommended softening control policies. Hence, the practical reality of control policies of migrants, in which apparent shortcomings in the enforcement and execution of exclusionary measures were manifested, has been fairly consistent with a neo-liberal and managerial criminal policy. Such policy recommends, in line with Law and Economics theories (Foucault, 2008; De Giorgi, 2000), prosecuting and punishing only to the extent that this continues to lead to greater benefits than costs. This seems to be precisely the case in the field of migrant control. A managerial criminal policy limits the severity of sanctioning, continuously at odds with the sovereign aims of border control. The first – and most obvious – key utility of the migratory phenomenon, irrespective of its regularity, is the demographic one (Aparicio Wilhelmi, 2010; Romero, 2010). The fall of the birth rate in Spain during the last decades of the 20th century brought about a severe slowdown in population growth and the consequent population aging, prompting concerns, at least as regards the future sustainability of the welfare system (González, Conde-Ruiz & Boldrin, 2009; Pajares, 2010; Pajares, 2010). Regarding this situation, the contribution of migration flows has been extraordinary. Indeed, the majority (4.785 million people) of the significant growth experienced by the resident population in Spain in the 2000-2010 decade (6.451 million people, equal to 15.9%) was accounted for by foreign nationals. This growth was even greater than the one that happened during the period of the second half of the 20th century known as the baby boom. The relevance of migration flows in Spain is not exhausted in terms of demographic utility. The functionality of the Spanish migratory experience of the past decade has also been extraordinary in terms of economic growth, a fall in


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unemployment and balancing the public budget, at least before the recession started in the second half of 2008. First, the economic growth experienced in Spain during the turn of the century was due, to a remarkable extent, to the arrival of major contingents of migrants – regular and irregular alike. In fact, it has been estimated that 38 per cent of the increase in GDP between 2000 and 2006 may be attributable to this arrival (Conde-Ruiz, García & Navarro, 2008). Moreover, in the absence of such migratory flow, Spanish per capita income would have declined markedly during the period (Servicio de Estudios de Caixa Catalunya, 2006). Second, the significant arrival of migrants did not lead to an increase in unemployment, but to a sharp decrease (from 15.2% in 1999 to 8.3 % in 2006), despite the prominent growth of the labour force (more than 5 million between 1999 and 2006) (Colectivo Ioé, 2008), and despite the fact that the employmentto-population rate of migrants is clearly higher than that of the Spaniards (Pajares, 2010). The arrival of migrants contributed to a drop in the unemployment rate because it provided the kind of workforce flexibility needed to produce economic growth and to increase the labour demand (Romero, 2010). This flexibility took the form of a very high rate of temporary jobs, wages far below those of Spanish workers, longer working hours, greater geographical mobility, the reinforcement of the productive sectors with labour shortages, and lower labour unrest – due to the vulnerability of the migrants (Calavita, 2003; Pajares, 2010). Furthermore, as regards flexibility and the rise of the labour demand, we should also mention the prominent presence of migrants in the different segments of the informal economy (Pajares, 2010). Third, the migratory flows led to a public budget surplus during the period, since they produced more revenues than expenses (Colectivo Ioé, 2008). The reason for this is twofold. On the one hand, as a result of high levels of irregularity and precariousness, migrants received fewer benefits linked to employment status (unemployment, disability, retirement). On the other hand, as a result of the youth of its demographic structure, but also of the irregularity, migrants used public health services to a lesser extent than Spaniards. All this demonstrates a context that is more complex than the one shaped by the theory which considers that migrants constitute a ‘reserve army of labour’ (Terradillos Basoco, 2006). Indeed, the intensive arrival of migrants, their effective insertion in terms of employment and, to a certain extent, the actually existing border policies, may only be understood from the perspective of the transformation of the Spanish economic system in line with the post-Fordist model (Boyer & Durand, 1998; Gorz, 1998). This model requires the availability of a flexible workforce; that is precisely why migrants become essential (Calavita, 2005; Rodríguez, 2003: Sassen, 2007). In short, there has been neither a mere substitution of Spanish workforce by the migrant workforce, nor a responsibility of the newcomers for the degradation of labour conditions, but a deep and


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comprehensive transformation of the production system which allowed for the massive economic insertion of migrants (Aparicio Wilhelmi, 2010). In the case of migrants, this economic insertion worked in line with the new workfare regime, which set up an ethnic segmentation of the labour market, as medium or high value-added activities tending to be reserved for the Spanish workforce (Calavita, 2005, Rodríguez, 2003). Spaniards are far better represented in sectors with better wages and working conditions, such as industry, public administration, education, health, or financial and real estate services. On the other hand, the representation of migrants is higher in services with lower quality jobs, such as domestic services, retail sales, catering or construction (Colectivo Ioé, 2008). As a result, the concentration of migrant workers in the lowest categories produced a clear upward mobility of Spanish workers (Pajares, 2010; Romero, 2010). From this analytical perspective, Spanish migration policy, including its features in terms of control, may be read as an outstanding apparatus of subjection, aimed first and foremost at the coercive subjugation of the migrant population to a barely attractive employment regime.

4

Conclusion: On exclusion and subordinate inclusion

In sum, this socio-economic analysis highlights the real complexity of the current migration policies and, in particular, of its disciplinary components. While the sovereign and neo-conservative model of border control promoted exclusionary policies, its practical application showed a more heterogeneous context. Thus, while sanctions as (administrative and criminal) expulsion, internment or imprisonment are aimed at incapacitation, the thorough rationale of the migrant control policy is certainly more complex. It includes elements of deterrence of a specific group (the migrants), and even aims of normalisation. In effect, as various scholars have pointed out in the recent past, the migrant control policy does not speak only of exclusion, and even less of the flat model of the Agambenian homo sacer (Mezzadra & Neilson, 2008; Rahola, 2010), but – above all – of differential and subordinate inclusion (Calavita, 2003; Mazzadra & Neilson, 2008; Rahola, 2010; Romero, 2010). Consequently, the claim of a solely exclusive immigration control policy is a flawed insight. The border actually works according to logic of selective filtering (Brighenti, 2009; Huysmans, 2006; Mezzadra & Neilson, 2008). Hence, migration policies are not aimed at putting an end to irregular migratory flows, but at managing them (Mezzadra, 2005; Romero, 2010); facilitating the mass utilisation of the migrant workforce in conditions of utmost flexibility, according to the requirements of an increasingly post-Fordist production system.


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In short, there are good reasons to state that Spanish statutes concerning immigration control constitute an expression of the (criminal and administrative) Law of the Enemy, given the exceptional forms that deal with migrants’ offences, the exclusive orientation of the sanctions and the shaping of a subjective pattern which, at least to a certain extent, can be labelled as non-person. However, the qualification of all this as an expression of the Law of the Enemy is, no doubt, insufficient. A more comprehensive analysis of migration policies and migrant control devices shows a less one-dimensional context. The overall sense of these policies and tools incorporates elements of normalisation, subjugating migrants to a condition of remarkable economic, social, cultural and political subordination. From that perspective, where normalisation operates primarily in the economic realm, a claim may be made, in Foucaultian terms, for the (neo)-disciplinary character of these control policies (Mezzadra, 2005; Palidda, 2008; Rodríguez, 2003). However, unlike disciplinary logic, the normalisation here does not operate as a form of reintegration of each individual. Far from it: the expulsion, internment or imprisonment of migrants is not aimed at the disciplining of the particular subject, but at the normalisation of the whole migrant population (Calavita, 2003; Cuttitta, 2007; Romero, 2010), in order to subjugate them to the conditions of subordinate inclusion. In this sense, recalling the Foucaultian distinction between disciplinary devices and bio-political power (Foucault, 1978), it may be stated that in the field of control and sanction of migrants what we may see, rather than an expression of the Law of the enemy, is a wide bio-political apparatus for the government of migrants’ lives, as a risk population group (Pérez Cepeda, 2007; Portilla Contreras, 2007; Dean, 2007; De Giorgi, 2002; Foucault, 2007; Rose, 1999; Valverde, 2008).

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Monclús Masó, M. (2008). La gestión penal de la inmigración. Buenos Aires: Del Puerto. Mosconi, G. (2010). La seguridad de la inseguridad. Retóricas y giros de la legislación italiana. In S. Palidda, J.A. Brandariz García, A. Iglesias Skulj & J.A. Ramos Vázquez (Eds.), Criminalización racista de los migrantes en Europa. Granada: Comares, pp. 321-344. Navarro Cardoso, F. (2006). Expulsión ‘penal’ de extranjeros: una simbiosis de Derecho penal ‘simbólico’ y Derecho penal del ‘enemigo’. Revista de Derecho Penal y Criminología, 17. Oficina económica del Presidente (2006). Inmigración y economía española: 1996-2006 (Working Paper). Pajares, M. (2010). Inmigración y mercado de trabajo. Informe 2010. Madrid: Ministerio de Trabajo e Inmigración. Palidda, S. (2008). Mobilità umane. Milano: Raffaelo Cortina. Pérez Cepeda, A.I. (2006). El Código Penal de la seguridad: una involución en la Política criminal de signo reaccionario. In Bernuz Beneitez, M.J. & Pérez Cepeda, A.I. (Eds.), La tensión entre libertad y seguridad. Una aproximación sociojurídica. Logroño: Univ. La Rioja, pp. 223-244. Pérez Cepeda, A.I. (2007). La seguridad como fundamento de la deriva del Derecho Penal postmoderno. Madrid: Iustel. Piazza, P. (2008). La biométrie: usages policiers et fantasmes technologiques. In Mucchielli, L. (Ed.), La frénésie sécuritaire. Paris: La Découverte, pp. 125-136. Portilla Contreras, G. (2007). El Derecho Penal entre el cosmopolitismo universalista y el relativismo posmodernista. Valencia: Tirant lo Blanch. Rahola, F. (2010). La máquina de captura. In S. Palidda, J.A. Brandariz García, A. Iglesias Skulj & J.A. Ramos Vázquez (Eds.), Criminalización racista de los migrantes en Europa. Granada: Comares, pp. 95-108. Resta, F. (2006). Enemigos y criminales: Las lógicas del control. In Cancio Meliá, M., & Gómez-Jara Díez, C. (Eds.), Derecho penal del enemigo. Vol. 2. Madrid/Montevideo: Edisofer/BdeF, pp. 735780. Rodríguez, E. (2003). El gobierno imposible. Madrid: Traficantes de Sueños. Romero, E. (2008). El Plan África, la política migratoria española de ‘nueva generación’ y la guerra contra los pobres. In VV.AA., Frontera Sur. Nuevas políticas de gestión y externalización del control de la inmigración en Europa. Barcelona: Virus, pp. 159-179. Romero, E. (2010). Un deseo apasionado de trabajo más barato y servicial. Migraciones, fronteras y capitalismo. Oviedo: Cambalache. Rose, N. (1999). Powers of Freedom. Cambridge: Cambridge University Press. Santoro, E. (2004). Carcere e società liberale (2nd edn). Torino: Giappichelli. Sassen, S. (2007). A Sociology of Globalization. New York: W.W. Norton. Servicio de Estudios de Caixa Catalunya (2006). Informe semestral I/2006. Economía española y contexto internacional (Working Paper). Silveira Gorski, H.C. (2010). Estados expulsores y semipersonas en la Unión Europea. In Fernández Bessa, C. et al. (Eds.), Contornos bélicos del Estado securitario. Control de la vida y procesos de exclusión social. Barcelona: Anthropos, pp. 133-159. Terradillos Basoco, J.M. (2006). La criminalidad de los migrantes. Aproximación criminológica. Revista galega de seguridade pública, 8. Terradillos Basoco, J.M. (2007). Inmigración, mafias y sistema penal. La estructura y la pátina. In P. Faraldo Cabana, L.M. Puente Aba & E. Souto García (Eds.). Derecho Penal de excepción. Valencia: Tirant lo Blanch, pp. 263-288. Valverde, M. (2008). Beyond Discipline and Punish: Foucault’s Challenge to Criminology. Carceral Notebooks, 4. Van Kalmthout, A., Hofstee-Van der Meulen, F. & Dünkel, F. (2007). Comparative oveview, Conclusions and Recommendations. In A.M. Van Kalmthout, F. Hofstee-Van der Meulen & F. Dünkel (Eds.), Foreigners in European Prisons. Volume I. Nijmegen: Wolf Legal Publishers, pp. 7-88. Žižek, S. (2009). First as tragedy, then as farce. London: Verso.


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13

Crime among irregular immigrants and the influence of crimmigration processes

Arjen Leerkes Joanne van der Leun Godfried Engbersen

1 Introduction Governments on both sides of the Atlantic are increasingly relying on practices of internal border control to discourage ‘unwanted’ migration (Andreas & Snyder, 2000; Guiraudon & Lahav, 2007; Lyon, 2005, Walters, 2006). This is true for various EU countries in particular, where the importance of national borders has diminished as a result of the Schengen agreement, and national governments began to look for alternatives to control migration. There has also been a marked expansion of migration control ‘to the inside’ in the US, both at the federal level and, especially since 2005, at state level (Varsanyi, 2010). Internal border control takes place within state territory and can be distinguished from external border control (patrolling of territorial borders, visa systems). There are two main (ideal-typical) types of internal control (Leerkes, Engbersen & Van San, 2007). The first type is aimed at excluding illegally residing or undocumented immigrants (hereafter: irregular immigrants) from society’s key institutions, such as the formal labour market, social security benefits, public education, the housing market, and health care. The second type pertains to all practices aimed at excluding irregular migrants from the territory by tracing, detaining and expelling them. This second form of internal control fits in with the process of crimmigration as Stumpf (2006) defined and described it. After all, immigration law and criminal law increasingly overlap; for instance when the State defines aspects of migration as crime, or when law makes it possible to reclassify criminal noncitizens into ‘illegal aliens’ or irregular migrants. The thresholds for non-citizen losing their residence permit after having been convicted of certain crimes is lowered and migrants involved are transferred to an immigration detention


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centre in order to be expelled (usually upon completion of the ‘regular’ period of imprisonment). In addition, we can also speak of internal controls when what Stumpf (2006, p. 381) calls the ‘second front’ of crimmigration takes place: when immigration enforcement comes to resemble criminal law enforcement. This is also visible in the Dutch case: when the Labour Inspectorate, for example, enforces administrative employer sanctions, they are usually assisted by the Aliens Police who then apprehend and detain all irregular immigrants who are identified during the action. This takes place without any suspicion of crimes taking place and usually without criminal law being put into force, but the consequences and the measures taken are very similar. Within Europe, the Netherlands was among the first countries to gradually build up a systematic policy of internal border control. Although aspects of crimmigration are certainly part of it, the policy up to date mainly rests on the exclusion of irregular immigrants from the labour market and public provisions, which was primarily achieved with the help of administrative rather than criminal law (Van der Leun, 2003, Van der Leun & Ilies, 2010). For example, in 1991, the government barred the use of social security numbers for irregular immigrants, which severely limited their opportunities to work in the formal labour market (Van der Leun & Kloosterman 2006). Later, in 1998, the ‘Linking Act’ was implemented, excluding irregular immigrants from a wide array of public services, including welfare, public housing, education, and (most) health care. Government and semi-government services, such as welfare departments and housing associations, became obliged to check whether their clients were lawfully residing and hence were entitled to certain services or benefits (Pluymen & Minderhoud, 2002; Van der Leun, 2003). Administrative fines for illegal labour were raised and more resources were put into enforcing employer sanctions. In 2005, it became a felony to house irregular migrants for purposes of profit. Since roughly 2002, the Dutch government has also laid more emphasis on the second type of internal control: tracing and attempting to expel irregular immigrants and taking away residence permits because of criminal involvement. In 2002, Dutch law was changed so that residence permits of convicted non-citizens could also be ended in case of less serious crimes and, although proactive immigrant surveillance is not (yet) taking place, several proposals in that direction have been made. Simultaneously, the period 1997 to 2003 was marked by an increase in the number of registered crime suspects and detainees without legal residence status. In 1997, 31 percent of all apprehensions by the police and controlling agencies involving irregular immigrants were related to crime rather than to immigration offences or misdemeanours (Leerkes, Van San, Engbersen, Cruyff & Van der Heijden, 2004). By April 2004, this share had increased to 49 percent (Boekhoorn, Speller & Kruijssen, 2004).


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There are good reasons to believe that the increase in internal border control and the rise in registered crime in which irregular migrants are involved are not unrelated. By terminating the legal stay of migrants convicted of crimes, the State deliberately contributes to rising number of criminal irregular migrants and, therefore, to a positive connection between criminality and illegal residence. This holds, in particular, when the migrants concerned do not leave the country. Internal control may also contribute to a higher prevalence of certain crimes in more unintended ways. Dutch research since the mid-1990s has found that, although irregular immigrants have a strong incentive to stay away from crime, they nonetheless risk being pushed towards subsistence crime and drug-related crime when their opportunities are limited. Therefore, the intensification of internal border control may have resulted in a higher prevalence of the types of crime that are sometimes labelled as survival crimes, as more irregular immigrants risk ending up in a marginalised position if they do not leave the country. And their marginal position in turn may spur criminal activities. So far, these assumptions have never been systematically put to the test. This chapter aims at doing so, by discerning and quantitatively testing five possible explanations for the rise in documented crime among irregular migrants. These explanations are taken from the literature and public debates. The analyses are based on a unique data set containing data on all irregular immigrants who have been apprehended by all relevant authorities in the Netherlands between January 1997 and October 2003. This period was taken because 1997 is the first year, and 2003 the most recent year, for which national police data have been made available for scientific research to date. As has been described above, most measures of internal border control were introduced in this period, or in the years just before it. Additionally, this apprehension data was combined with administrative data on all non-citizens who have lost their residence permit because of crimes. Finally, police figures on crime suspects with legal status were collected in order to enable comparison. With this chapter, we aim to contribute to the literature migration control in two main ways. First, we will examine whether internal border control, like all policies attempting to curb ‘unwanted’ migration, has side effects or even perverse effects. So far, most of these consequences, such as the rise in human smuggling, are discussed in relation to external border control (Carling, 2007; Carter & Merrill, 2007; Cornelius, 2001; Spijkerboer, 2007). Second, we will investigate whether, and how, practices of internal control influence migrant behaviour. The labelling perspective that seems to inform much of the crimmigration literature puts emphasis on the association between illegal residence and crime through speak. In short: immigrants are labelled and treated as criminals. Our main argument here is that practices of internal border control may also have consequences for the real involvement of irregular migrants in common crimes, such


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as theft and drug dealing. Not so much as a reaction to negative stigma, but rather as reaction to deprivation (cf. Merton, 1938).

2

Five possible explanations for the rise in crime

1. The marginalisation thesis Irregular migration and crime are often conflated in popular imagination (Hagan & Palloni 1999; Melossi 2003). On the whole, it can, nonetheless, be hypothesised that the involvement of irregular immigrants in crime is actually inhibited by their precarious societal position, in which detention and deportation are inherent risks. Particularly the findings of the early Dutch studies on irregular residence and crime supported this ‘deterrence thesis’: most irregular immigrants were found to refrain from criminal activities, and the involvement of irregular immigrants in expressive crimes, such as violence and vandalism, was found to be limited (Engbersen & Van der Leun, 1998, 2001; Leerkes et al., 2007). At the same time, there are indications that the crimes irregular immigrants commit are often a response to a marginal social position. The marginalisation thesis is based on empirical findings in a series of studies conducted in the Netherlands, briefly described below. First, substantial differences in criminal involvement were found across ethnic groups. In the early 1990s, 4 percent of irregular Turkish immigrants had come into contact with the Rotterdam police because of criminal activity. For Eastern Europeans, Algerians and Moroccans these percentages were 32, 54 and 65, respectively (Engbersen & Van der Leun, 1998). Based on qualitative fieldwork, this variation was attributed to differences among ethnic groups in social ties and social capital. Many irregular immigrants from Turkey were supported by well-established Turks who moderated the consequences of internal border control by increasing access to formal institutions in informal ways- (for instance, by sharing health insurance cards), as well as to informal institutions (for instance, by arranging informal employment in shops owned by co-nationals). To a large extent, the irregular migration of Turks had the characteristics of organised chain migration; many newcomers knew beforehand where they were going to reside and for whom they would work (Staring, 2001). Irregular immigrants who were involved in crime had more often migrated to the Netherlands in improvised ways, and were found to receive less support from established countrymen. Sometimes resourceful communities were lacking, sometimes ethnic solidarity was weak. These findings were corroborated in indepth interviews with 169 irregular immigrants from different backgrounds in Rotterdam (Burgers & Engbersen, 1999).


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In addition, a comprehensive study on asylum migration and crime (De Boom, Engbersen & Leerkes, 2006) found that the relative number of crime suspects among failed asylum seekers residing illegally in the Netherlands was several percent points higher than among officially recognised asylum seekers and asylum seekers still awaiting the conclusion of the procedure. Repeated in-depth interviews with twenty-six rejected asylum seekers, who had become irregular immigrants and were detained in the Aliens Custody after having committed crimes, showed that most men in this study had committed subsistence crime in order to meet various social standards that they could not, or believed they could not, realise in conventional ways (Leerkes, 2009). In sum, there are indications that deterrence as a consequence of fear for expulsion may increasingly have been outweighed by marginalisation effects, thereby increasing the push to criminal involvement. Suggestive evidence for the notion that irregular residence status depresses criminal involvement, unless marginalisation reaches a certain threshold, can be found in the scarce studies on irregular residence and crime that have been conducted in other countries: for the United States (McDonald, 1997; Hagan & Palloni, 1999); for Germany (Alt, 2003); for Belgium (Van Meeteren, Van San & Engbersen, 2008); and for Italy (Mastrobuoni & Pinotti, 2011). 2. Crimmigration through reclassification The second explanation takes the rise in registered crime as the outcome of changes in the way the Dutch state defines and classifies certain migrants as ‘irregular immigrants’, or changes in the official definition of what constitutes ‘crime’. This could be dubbed crimmigration through reclassification as these forms of crimmigration primarily involve changes in how persons and behaviour are constructed. Whereas the marginalisation thesis argues that irregular status may lead to crime involvement, the opposite can also be true: criminal involvement may lead to an irregular status. Legally residing immigrants can lose their legal status in case of crime, for instance, when they are declared ‘undesirable aliens’. In the Netherlands this may be done when a non-citizen has committed a crime for which three or more years of imprisonment can be inflicted. Continued residence in the Netherlands then becomes irregular and punishable as a crime for a period of up to ten years. A residence permit may be also be withdrawn or refused, without the immigrant being declared an undesirable alien, in case of deportable crimes that are somewhat less serious, or if a convict’s family is living in the Netherlands. The term ‘status reclassification’ will be used here for all forms of losing legal status due to criminal activities. Status reclassification may increase the number of crime suspects with irregular residence status in two ways. First, such migrants may re-enter or remain in the country. If ‘undesirable aliens’ are arrested they contribute, per definition,


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to the total number of crime suspects with irregular residence status. Second, it can be expected that additional offending will be relatively common among legal immigrants who have lost their legal status because of crimes. Past offending, after all, is the best known predictor of future offending (Gottfredson & Hirschi, 1990). Over time, status reclassification has become more common in the Netherlands: between 1997 and 2003 the annual prevalence of status reclassification involving non-EU citizens almost doubled from 769 to 1,555 cases. In these seven years, 5,580 non-EU citizens were declared ‘undesirable aliens’. One reason for this increase was the introduction of legislation in 2002 (and later in 2012) that made it easier for the Dutch state to terminate the legal stay of non-citizens who have been convicted of certain crimes. The most important change that took place in 2002 was that legally residing migrants became at risk of losing their residence permit for less serious crimes, at least in the case of short residence durations, i.e. up to five years. Additionally, the government made increased use of the existing legal possibilities to end residence rights of criminal non-citizens. These developments are in line with Stumpf’s observations about the merging of criminal law and immigration law: rather than being rehabilitated and re-integrated in Dutch society, non-citizen criminals are increasingly excluded with the help of immigration law (cf. Stumpf, 2006). Definitional changes with regards to what behaviour counts as ‘criminal’ cannot be a major explanation of the rise in the number of crime suspects under study. No such changes have occurred in the relevant time frame. It was already in 1994, i.e., before the research period (1997-2003), that the Netherlands introduced its amended Identification Act which may have had this effect. 3. Criminal migration and cross-border crime The third explanation attributes the rise in crime to changes in criminal migration and cross-border crime. Migrants may decide to cross borders in order to smuggle irregular goods, to seize criminal opportunities in the country of destination, or to escape criminal prosecution. Also, migrants with no further criminal intentions after settlement may use false documents to cross the border in response to external border controls (Kyle & Siracusa, 2005). In existing studies, the terms criminal migration and cross-border crime are often used to denote such phenomena. Although there are substantial differences among these forms of crime, they can all be contrasted with the marginalisation thesis: in these cases, offending is intended beforehand and cannot be a response to internal border control. Criminal migration and cross-border crime are under-researched in relation to irregular residence, but their prevalence may have increased in the Netherlands between 1997 and 2003, albeit for different reasons. On the one hand, it is likely that the use of false documents upon entry has become increasingly common,


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particularly among irregular immigrants who lack social ties in the European Union and have fewer opportunities to overstay tourist visas (Leerkes, 2009). Since the 1980s, the list of countries requiring a visa to enter the EU has been expanded (Bigo & Guild, 2005; Goodey, 2003). On the other hand, external border controls with respect to Eastern Europeans were eased considerably after the fall of the Iron curtain and the European Union’s Eastern enlargement. Visa requirements for short visits were already dropped for a number of countries such as Poland in the early 1990s. In 2001 this was done for the, at the time, future EU member states Bulgaria and Romania. It appears that the relaxation of external border controls for Eastern Europeans has facilitated an increase in ‘transnational brigandage’, in which Eastern European criminals increasingly started committing crimes in Western Europe, such as house burglary and car theft (Bort, 2000; Von Lampe, 2004). Although systematic insights are lacking, we do know that irregular immigrants are among them (Weenink & Huisman, 2003). 4. Policing The fourth explanation emphasises intensified and improved crime detection and crime recording by the Dutch police. Between 1999 and 2002, the police forces were expanded considerably, from 40,000 to 47,000 policemen (Ministry of Justice 2005, p. 27). The Dutch police have also become more active in recording crimes in these years (Wittebrood & Nieuwbeerta, 2006). Another possibility is that the police have paid more attention to immigrant crime between 1997 and 2003: police apprehensions are often suspected to be selective with respect to migrants (Waddington, Stenson & Don, 2004). So far, in the Netherlands, little evidence has been mustered for the proposition that the police differentially arrest by ‘foreign appearance’ (Boekhoorn, Speller & Kruijssen, 2004; Rovers, 1999). It must be noted, however, that recent sound research is lacking and that there are indications that selective attention is on the rise (Van der Leun & Van der Woude, 2011). An additional possibility is that the police have been giving a higher priority to detecting and/or the recording of offending by irregular immigrants. In order to explain this possibility, it is helpful to briefly describe how the policing of irregular migrants is organised and carried out in the Netherlands. The Netherlands (still) has a decentralised police organisation. Apart from a relatively small national police force (fte about 4,000 in 2003)1 and a Military Police force (fte 6,000), there are 25 local police forces (fte: 50,000). Each local police force has its own Aliens Police department, which is responsible for maintaining immigration law. Through the years, the regular police conduct about 55% of the apprehensions during regular policing activities. The Aliens Police are respon-

1

Full-time equivalent (fte) is a unit indicating the workload of employed individuals in a way that makes workloads comparable across various contexts.


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sible for about a quarter of the apprehensions, which mostly take place during work site checks, or checks on (the residential addresses of) migrants who are suspected of having overstayed their visas. About a fifth of all apprehensions are conducted by the Military Police, who are responsible for external border control (illegal entry, drug trafficking and so forth). Irregular migrants who are not involved in crimes are underrepresented in Dutch police data. This is, in part, due to legal stipulations that limit the possibilities for the police to stop persons just to check their residence status: as was mentioned in the section on status reclassification and redefinition the police must have a ‘concrete indication’ (since 2001: ‘reasonable suspicion’) of illegal residence to ask for ID. However, pragmatic and moral considerations of policemen are probably even more important than legal stipulations (Van der Leun, 2003). In 1996 and 1997, we interviewed 169 irregular migrants and 41 police officers working for the Police and the Aliens Departments in the cities of Amsterdam, Rotterdam, The Hague and Utrecht, and found that the police officers considered illegal residence a relatively minor infraction, certainly in comparison to other public safety problems. Many policemen also recognised that a tougher ‘fight against illegality’ would probably reduce the willingness on the part of the residents – both unauthorised residents and a larger group of legal migrants in which the former migrants are embedded – to co-operate with the police, for example by reporting crime. Moreover, police on the beat usually do not know in advance whether a suspect resides in the country legally, or not, which limits the possibilities for selective policing with respect to legal status (Van der Leun, 2003). Field research in later years allowed us to get an impression of eventual changes in apprehension practices and priorities. In 2000 we interviewed 156 irregular immigrants, and in 2003 and 2004 we again interviewed 65 irregular immigrants, as well as 45 landlords and 20 professionals, among whom were 8 policemen (Engbersen et al., 2002; Leerkes et al., 2004). These qualitative studies showed that two main developments were taking place that may have increased the number of crime suspects with irregular status. First, there were more efforts to detect identity fraud. For example, the number of work site checks rose, which would have led to a larger number of apprehensions for administrative reasons (‘illegal labour’), but also for false documents, as workers are asked for ID. Likewise, the Military Police had begun to deploy more personnel to trace false documents at the border. Second, the police had to some extent started to specifically target groups of criminal irregular immigrants, in particular, in the Amsterdam area where specialised teams have been formed since 2002 to arrest irregular immigrants who are believed to be heavily involved in criminal activities. In the period under study these teams apprehended approximately 400 (allegedly) criminal irregular immigrants. It has to be noted, however, that not every apprehension that occurs as a result of increased selectivity will lead to a higher number of crime suspects. In some


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cases it is easier to register the apprehension under Immigration law rather than under criminal law, and deport the arrestees on administrative grounds. These latter changes in policing are more in line with what Stumpf (2006, p. 381) calls the ‘second front’ on which crimmigration takes place, i.e., when immigration enforcement comes to resemble criminal law enforcement. 5. Demographic changes Finally, the rise in the number of crime suspects could be a side-effect of developments in the composition of the irregular population, or its size. For instance, involvement in crime usually strongly correlates with sex and age. It could be that the share of young males has grown between 1997 and 2003, or that the number of crime suspects merely increased proportionally to the size of the irregular population as a whole. All assumptions above will be tested using our quantitative database, which we will introduce below.

3

Data sources, analytical strategy and validity

Data sources

All data on apprehended irregular immigrants have been provided by the Dutch police forces. They are derived from the national VAS database in which all known irregular immigrants are documented. Entries include information on nationality, sex, age, arrival date in the Netherlands, date of apprehension, and the most serious reason for apprehension. Between January 1997 and October 2003, 107,322 apprehensions were registered. Of these, 93,030 concerned irregular immigrants from non-EU countries. This figure includes nationals of countries that have become EU member states after 2003. As was mentioned, most irregular immigrants in the database have been apprehended by the regular police. They were either suspected of crime or common misdemeanours (such as ignoring traffic lights) or fell into the hands of the police as ‘additional catch’, for instance, when they were asked to show ID during policing activities. Some irregular immigrants, for instance rejected asylum seekers, have resided legally in the Netherlands before becoming irregular immigrants. They have to report to the Aliens Police on a regular basis and may eventually be apprehended and expelled. Others are apprehended by or handed over to the Aliens Police after border controls, workplace checks or housing inspections in disadvantaged urban areas. Almost 70 percent of the apprehensions concern males between twenty and forty years of age, and they come from countries all over the world. The largest groups come from well- known source countries for immigration to the Netherlands, such as Turkey, Morocco and Surinam as well as Eastern European countries. For more details on the composition of the irregular population in the Netherlands see (Leerkes et al., 2004; Van der Leun & Ilies, 2010). Approxi-


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mately 15 percent are rejected asylum seekers, mostly from Sub-Saharan Africa, the Middle East and Central Asia. The Dutch Immigration and Nationalisation Service (IND), a special branch of the Ministry of Justice, provided us with additional information on status reclassification. They listed all persons who have been declared undesirable aliens and/or who lost their residence permit because of crimes during the period 1997-2003. On the basis of these data, we were able to identify reclassified (formerly legal) migrants by comparing unique ‘foreigner numbers’, administrative numbers, for foreigners both in VAS and IND data. In order to test the policing explanation, statistics on documented crime suspects among Dutch citizens and legally residing migrants have been used, and the demographic explanation was examined with the help of Cruyff and Van der Heijden’s (2004) estimations of the size of the undocumented population, which is the best estimate available. For a discussion, see Van der Heijden, Cruyff and Van Houwelingen, 2003. In the following section we will discuss our analytical methods and operationalisations. Analytical strategy In the Dutch context, irregular immigrants can be apprehended for the following reasons: (1) administrative infringements of the Aliens Act – such as irregular residence or working without a working permit – which are not, or only mildly, punishable; (2) common misdemeanours that are usually punished with a fine, such as fare dodging, driving under the influence of alcohol, and the like; (3) felonies such as shoplifting, car and house burglary, vandalism, staying in the country while being an undesirable alien, robbery, physical assault and several crimes mentioned in the Opium Law, which range from large-scale drug trafficking to petty dealing or drug possession. This article focuses on the third category, which represents about one third (36 percent) of the apprehensions; administrative infringements and common misdemeanours are generally not regarded as ‘criminal activities’ in Dutch society. The apprehensions for felonies were broken down into four types of crime: ‘property crimes’, ‘false documents’, ‘drugs’, and ‘other crimes’.2 The latter category mainly consists of violence against persons and goods and being in the Netherlands as an undesirable alien. This categorisation in four types of crime was chosen because previous research suggested that offending in response to marginalisation usually concerns subsistence crime and crimes to finance

2

The category ‘property crimes’ is taken as an indicator for subsistence crime and addictionrelated crime and is defined in a broad sense; it includes some property crimes with a violent component. It entails: ‘theft’, ‘theft with burglary’, ‘theft with violence’, ‘conning’, ‘extortion’, ‘receiving’, ‘counterfeiting’, and ‘embezzlement’. Theft and theft with burglary make up the large majority of the cases in this category (about 80 percent).


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drug use. These are usually property crimes, possession of false papers (working in the formal economy with somebody else’s papers), and drug possession and trafficking. On the basis of the theoretical framework, a rise in crime with respect to these three types of crime is expected when alternative explanations are controlled for, and not so much with respect to the category ‘other crimes’. For every year since 1997 – the first year for which reliable digital data were made available – the number of suspects for each of the four types of crime were totalled at the level of the individual. The analyses were limited to migrants from countries that were, at the time, non-EU countries, including Poland (EU member since 2004) and Bulgaria (EU member since 2007). The data for the first three quarters of 2003 were extrapolated to the year as a whole by multiplying all 2003 figures by 12/9. The method to control for alternative explanations is straightforward. When controlling for reclassification and criminal migration, all crime suspects with indications for status reclassification, or criminal migration, were excluded successively from the annual totals. The policing explanation was examined by comparing the trends on crime suspects with irregular residence status, to the general trends in documented crime in the Netherlands. The demographic thesis was examined by comparing the developments in the number of crime suspects with irregular residence status to the estimated size and composition of the irregular population as a whole. Operationalisations are dealt with below. Our indicator for status reclassification is the sum of all crime suspects in the VAS in the period 1997-2003; concerning persons (1) who have been declared undesirable aliens in these years, (2) who applied in vain for a residence permit and/or lost this permit in the period examined due to criminal activities, without being declared undesirable aliens, or (3) who have been apprehended as undesirable aliens in these years but were not declared undesirable aliens in this period (apparently they had been apprehended earlier). In about 55 percent of the entries on apprehended irregular immigrants, the police had registered an arrival date in the Netherlands. For persons who initially stayed legally in the Netherlands, the arrival date is often known because of previous contacts with the authorities. For persons who have been apprehended more than once as ‘irregular aliens’, the first apprehension date is often registered as the arrival date. In other instances the police rely on statements by the arrestee about the arrival date if these are deemed sufficiently reliable. A suspect was classified under criminal migration or cross-border crime, if that person committed at least one felony within three months after arrival in the Netherlands. The underlying assumption is that this type of offending takes place soon after arrival, while offending in response to marginalisation tends to develop more gradually.


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Validity Irregular immigration is an inherently difficult subject for empirical research (Cornelius, 1982). Over the years it has become clear that quantitative data sources can yield valuable results, particularly if the findings are supplemented with qualitative field research, as has been done in Dutch research since the 1990s. The VAS data used in the present article already provided valuable insights on the criminal involvement among irregular immigrants (Van der Leun, 2003; Van der Leun & Engbersen, 2001; Leerkes 2009; Leerkes et al., 2004) and on the spatial distribution of irregular residence in the Netherlands (Leerkes & Bernasco, 2010). It has often been argued that police data in general are problematic for scientific purposes. There is, for instance, a substantial quantity of crime that never shows up in police files. Two main sources of bias in police figures are relevant here. First, attention of law enforcers commonly concentrates on strategic sites, such as train stations or crime-ridden areas, as well as on lower-status neighbourhoods. As irregular immigrants tend to be concentrated in deprived urban neighbourhoods with elevated crime rates (Leerkes & Bernasco, 2010): they may have a higher likelihood of being stopped by the police if they engage in crime there. The second source of bias pertains to the possible selectivity of police data with respect to visible minorities and immigrants (Van der Leun & Van der Woude, 2011). Both biases may inflate the representation of irregular immigrants in documented crime in comparison with native and higher status groups. Although this is true, the implications of these biases were limited in this study because the development in the number of crime suspects within the irregular population over time is of primary interest here. Moreover, we were able to examine whether the police have become increasingly selective towards immigrants – regardless of legal status – by comparing the trend data on irregular immigrants with police data on legal immigrants with similar national backgrounds. In sum, police data have their drawbacks, but are nonetheless an important data source to study patterns of criminal activity among irregular immigrants, in particular when problems of selectivity and bias are taken into account as is attempted here (cf. Tonry, 1997). In the next section the results will be presented. Testing the alternative explanations In 1997, the police registered 3,170 crime suspects without a legal status (Table 1). In 2003, this figure had more than doubled to 7,337 (2003 index: 231). The table also includes figures on suspect rates, i.e. the percentage of the population that is registered as a suspect annually, both for irregular immigrants and for comparable immigrants with legal status. To calculate irregular immigrants’ suspect rate, Cruyff and Van der Heijden’s (2004) estimates of the total irregular population were used. Note that: during the 1990s the suspect rate among irregular immigrants was considerably lower than among legal non-Western


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immigrants, which confirms the deterrence thesis. In later years, however, it increasingly equals the suspect rate among legal migrants, particularly when compared to the first generation – suggesting that, indeed, the marginalisation thesis is becoming more important. Table 1.

Crime suspects among irregular migrants and (non-EU) legal immigrants (1997-2003) 1997

1998

1999

2000

2001

2002

2003

1,213

1,242

1,324

1,539

1,900

2,728

2,904

False documents

481

517

473

1,277

1,901

1,919

1,681

Drugs Other crimes ( including violence, vandalism)

668

667

584

645

904

1,272

1,239

Property crimes

Any crime Index Suspect rate irregular migrants a Suspect rate regular immigrantsa (1st generation) Suspect rate regular immigrantsa (2nd generation)

848

876

911

912

1,005

1,353

1,623

3,170

3,247

3,249

4,323

5,655

7,148

7,337

100

102

102

136

178

225

231

1.4-2.8%

1.5-2.7%

2.3-3.3%

2.6-3.9%

2.2-4.5%

4.1% b

4.3% b

3.3%

3.2%

3.3%

3.4%

3.7%

[no data]

[no data]

4.1%

3.8%

4.1%

4.0%

4.4%

3.2-5.5% 3.4-5.8% c

Notes: The figures in these rows do not include immigrants from Eastern Europe, because the estimations by Cruyff and Van der Heijden of the size of the total population are less reliable for this group [13] . b Calculated on the basis of [6, page 147]. These figures include a number of foreign suspects (~5%), probably mostly irregular migrants, who told the police they had residence in the Netherlands, while this was not the case according to the register of births, deaths and marriages. The police data for these years were not linked to this register (see also 1XX, 2004). c These figures are calculated, based on the assumption that the estimation by Cruyff and Van der Heijden for 2003 would be the same as for 2002 [13]. a

Sources: Vreemdelingen Administratie Systeem, 1997-October 2003, Statline (http://statline.cbs.nl; online data by the Dutch Central Bureau for Statistics (CBS), visited April 2007).

Table 2.

Crime suspects among irregular (non-EU) migrants controlling for alternative hypotheses (1997-2003) 1997

1998

1999

2000

2001

2002

2003

After control 1 (reclassification) 1,168 Property crimes

1,184

1,267

False documents

481

515

471

1,454

1,798

2,537

2,765

1,275

1,892

1,909

Drugs

658

650

1,677

528

478

629

1,022

Other crimes

796

1,171

811

817

801

823

1,058

1,295

3,069

3,115

3,048

3,970

5,098

6,443

6,840

100 101 Index After control 2 (criminal migration and crossborder crime) 936 925 Property crimes

99

129

166

210

223

939

1,043

1,220

1,817

2,069

204

495

688

841

715

Any crime

False documents


311

358

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Drugs

296

339

312

333

320

457

567

Other crimes

734

708

732

668

612

839

1,055

2,246

2,289

2,157

2,508

2,808

3,880

4,352

100

102

96

112

125

173

194 1,669

Any crime Index After control 3 (policing) Property crimes

936

925

930

1,033

1,162

1,594

False documents

311

358

202

490

655

738

577

Drugs

296

339

309

330

305

401

457

734

708

725

661

583

736

851

2,246

2,289

2,136

2,483

2,674

3,404

3,510

100

102

95

111

119

152

156

After control 4 (demographic developments) 936 974 Property crimes

1,257

1,215

1,107

1,398

1,464

Other crimes Any crime Index

False documents

311

377

273

576

624

647

506

Drugs

296

357

418

388

290

352

401

Other crimes

734

745

980

778

555

646

746

2,246

2,409

2,886

2,921

2,547

2,986

3,079

100

107

128

130

113

133

137

Any crime Index

Notes: Extrapolated figures on the basis of data until October 1 . b These figures are calculated, based on the assumption that Cruyff and Van der Heijden’s estimation for 2003 would be the same as for 2002. a

st

Sources: Vreemdelingen Administratie Systeem, 1997-October 2003; Immigration and Naturalisation Service Data (IND); CBS Statline (http://statline.cbs.nl; online data by the Dutch Central Bureau for Statistics (CBS) visited April 2007).

Reclassification Our cross check between VAS and IND data makes clear that a substantial number of reclassified immigrants are among the irregular immigrants apprehended from crimes: they represent about 3,300 crime suspects in the VAS data.3 In order to control for the effects of status reclassification, all cases involving ‘reclassified’ suspects were subtracted from the annual totals (Table 2, Control 1). In doing so, we found that the increase in status reclassification can explain about 6 percent of the rise in registered crime: whereas for all cases the crime index in 2003 was 231 (Table 1), it is 223 when only the non-reclassified cases are taken into consideration ((231-223)*100 / (231-100) ≈ 6 percent). Criminal migration and cross-border crime As to criminal migration, we found that in the period 1997 to 2003, 37 percent of all irregular immigrants apprehended for crimes were suspected of committing at least one crime within three months of arrival (Table 3).

3

It appears that about one third of these pertain to status reclassification before 1997: these suspects were apprehended as an undesirable alien between 1997 and 2003, but were not reclassified in these years.


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Table 3. Crime suspects without legal status (non-EU), apprehended before three months after arrival, 1997-2003.a Aggravated Other Property property crimes crimes N

%b

N

False Drugdocuments trafficking

%b N

%b

N

%b

Drugs other N

Other crimes %b N

Any crime

%b

N

%b

1997

136

20

98

17

170

35

16

50

346

54

77

9

840

26

1998

151

23

112

19

157

30

19

33

295

48

111

13

840

26

1999

180

26

163

24

269

57

22

48

224

42

99

11

943

29

2000

220

30

210

25

780

61

6

55

252

40

153

17

1,609

37

2001

338

35

267

28 1,209

64

30

58

498

58

256

25

2,578

46

2002

437

31

332

24 1,069

56

504

90

238

33

267

20

2,816

39

2003b

373

26

339

22

964

57

376

85

257

32

272

17

2,555

35

81 2,054

45

1,213

17 11,844

37

1997-2003b of which: Europe (non-EU) Africa Asia (incl. Turkey) Latin-American Other nonEU countries

1,717

29 1,436

24 4,600

56

973

1,358

40

990

32 1,342

56

75

75

303

26

520

26

4,616

40

189

12

263

14 1,654

53

273

74

679

33

386

13

3,333

30

81

17

126

19 1,099

57

70

87

224

40

223

15

1,802

36

60

16

48

12

493

67

524

85

778

64

61

12

1,943

52

2

7

9

19

-

-

31

100

70

74

23

30

146

49

Figures for 2003 were extrapolated on the basis of data until October 1st . The cells in these columns indicate which percentage of the suspects of this crime type have been suspected of committing at least one crime within three months of stay (not necessarily the same crime or type of crime). a

b

Source: Vreemdelingen Administratie Systeem, 1997-October 2003.

The proportion of criminal migration and cross-border crime differs per type of crime as specified in Table 3. Three types of crimes stand out: drug-trafficking, false documents, and aggravated property crimes. Of all suspects of drug trafficking, 81 percent have been suspected of committing a crime (drug-trafficking or any other type of crime) within three months of arrival. For false documents this percentage is 56. The share of criminal migration and cross-border crime is also somewhat elevated among property crimes with burglary or violence, particularly among Eastern Europeans (40 percent). To what extent do criminal migration and cross-border crime explain the rise in the number of crime suspects with irregular status? This was investigated by subtracting all crime suspects who have been suspected of committing a crime before three months of stay from the annual totals that have remained after control 1. As a result, the crime index for 2003 dropped further from 223 to 194 (Table 2), suggesting that criminal migration and cross-border crime may explain about 22 percent of the total increase ((223-194)*100 / (231-100)=22 per-


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cent). It has to be noted, however, that part of this 22 percent probably also reflects increased policing of false documents at the border. Policing According to Statistics Netherlands, the number of crime suspects in the legal population (citizens and legal non-citizens) increased to 24 percent between 1997 and 2003.4 Between 1997 and 2003, the Dutch population grew by approximately 5 percent. Thus, it is not unlikely that the number of criminals may actually have increased in the legal population. Yet, in order to subject the marginalisation thesis to a critical test, it was assumed that the increase in the number of crime suspects with legal status has only been caused by changes in policing. Therefore, the crime indexes for irregular immigrants were recalculated so that possible general developments in policing are kept constant. This was done by dividing the relative number of irregular crime suspects for a given year by the relative number of legal crime suspects for that year compared to 1997. In other words, the number of suspects in 1997 who remained after control 2 was divided by one, the number of suspects in 2001 by 1.05 (between 1997 and 2001 the number of suspects increased with 5 percent), the number of suspects for 2003 by 1.24, and so on. As a result of this third control, the 2003 crime index for irregular immigrants dropped further from 196 to 156. Thus, although general developments in policing may account for a significant part of the rise in registered crime among irregular immigrants (about 29 percent), the rise in the number of ‘illegal’ crime suspects is still considerably steeper than in the legal population. It is possible that the police have paid more attention to ethnic minorities and immigrants between 1997 and 2003. Yet, this is not confirmed by the data that have already been presented in Table 1. If there had been a question of increased selectivity towards ethnic minorities, a rise in the suspect rate among immigrants would be expected, regardless of legal status. This is, however, not the case: the suspect rate among legal migrants has not increased between 1997 and 2003. Finally, the police may have deployed more resources over time to trace identity fraud by irregular immigrants and to target criminal irregular immigrants, for instance in Amsterdam. To control for this, all known cases concerning false documents were excluded – not just the cases that were already excluded in the second control. Due to this additional control, the crime index for 2003 only dropped marginally from 156 to 154 (figures not in Table). When the apprehensions in Amsterdam were excluded in addition, the crime index for 2003 actually increased somewhat.

4

Source: CBS Statline (http://statline.cbs.nl, visited April 2007).


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In conclusion, the rise in crime under study does not appear to be due to changes in how the police dealt with immigrants, in general, and irregular immigrants, in particular – apart from increased tracing of false documents at the border –, but 29 percent may be linked with general changes in policing in the Netherlands. Demographic changes Finally, the rise in the number of crime suspects may have been caused by changes in the composition and size of the irregular population. Some idea about the possible impact of the composition of the irregular population can be obtained by looking at the demographic characteristics of all apprehended irregular immigrants, including migrants who have been apprehended for non-criminal reasons. We find that the rise in crime does not appear to be the result of a steep rise in the number of illegally residing males or youngsters. The share of males increased only marginally from 79 percent in 1997 to 81 percent in 2003, and the average age rose from 28.8 to 29.7 in this period. Finally, the rise in the number of crime suspects with irregular status may be related to developments in the size of the irregular population in the Netherlands. Figure 1 shows the development of the estimated size of the irregular population since 1997, using Cruyff and Van der Heijden’s (2004) calculations, which include separate estimations for Europeans and non-Europeans. The estimations for 1997 have been set at 100. Whereas the number of non-European irregular immigrants was more or less stable or decreasing somewhat, the estimated number of irregular immigrants from Eastern Europe has increased. After 2001, there may have been a small net increase in the total irregular population, i.e. Europeans and non-Europeans combined. Still, this increase is clearly less substantial than the increase in the number of crime suspects that remained after control 3. The figures in Table 2 after control 3 were adjusted for the estimated changes in the size of the irregular population in the same way as was done for control 3. The number of non-European crime suspects for 2002 was, for example, divided by 0.83, whereas the number of European crime suspects was divided by 1.55. (The estimations for 2002 were used to adjust the figures for 2003, because no estimation for 2003 was available).5 As a result, the suspect rate for 2003 dropped somewhat further from 156 to 137, which is still considerably higher than 100 (Table 2). Note also that the results after control 4 show an increase in property crimes, false documents and drugs – i.e. the indicators for subsistence and

5

The number of non-European crime suspects for 2002 was, for example, divided by 0.83, whereas the number of European crime suspects was divided by 1.55. The estimations for 2002 were used to adjust the figures for 2003, because no estimation for 2003 was available.


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drug-related crimes – but not for the category ‘other crimes’. This constitutes additional evidence for the marginalisation thesis. Figure 1

Relative developments in the estimated undocumentedpopulation from Eastern Europe and other non-EU countries.

180 160 140 120 Estimated non-Europeans total

100

Estimated Europeans total Estimated total

80 60 40 20 0

1997

1998

1999

2000

2001

2002

Notes: Cruyff and Van der Heijden’s estimations of the size of the irregular European population include (a minority) of irregular Western-Europeans who have been declared undesirable aliens. Sources: Vreemdelingen Administratie Systeem, 1997-2002; Estimations taken from [13, pp. 38-39].

Conclusion In this chapter we described and tested five explanations for the substantial rise in documented crime among irregular immigrants in the Netherlands. It becomes clear that a combination of factors has contributed to this phenomenon. We found that general developments in policing and police registration may account for 29 percent of the increase, whereas criminal migration and cross-border crime account for 22 percent. Demographic growth (15 percent) and crimmigration processes in the form of status reclassification (6 percent) appear to have been less influential. In our analysis, marginalisation effects are responsible for the remaining part, i.e. 28 percent of the increase.6

6

The relative increase between 1997 and 2003 is 131 (231-100). Of this, status reclassification explains 8 (231-223), criminal migration 29 (223-194), general developments in crime finding and registration 38 (194-156), and demographic growth 19 (156-137)). These figures are


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The main conclusion is, therefore, that the increase in internal border control by means of excluding irregular immigrants from the formal labour market and public provisions has heightened criminal involvement as an unintended side-effect, predominantly in the form of fostering subsistence crime and drugrelated crime, and, at least in this particular case and time frame, has more explanatory power than processes of crimmigration by reclassification. A theoretical implication of the findings is that in order to understand immigrant crime today, researchers should pay attention to the ways in which states exclude migrants. Intensified regulation constitutes, more or less by definition, new forms of illegality, such as entering a country without valid papers or not reporting to the Aliens Police after arrival. Our findings are in line with the tenor of the literature on crimmigration: the expansion of border control brings about a stronger association between illegal residence and crime. We also agree that this association is partly the result of policies and practices of redefinition, reclassification, and policing. Yet, we have tried to go a step further by showing that constructivist approaches risk missing an important part of the picture: it is not only discourse, law and behaviour of law enforcement agencies that may change, but also the behaviour of migrants themselves. Our research stresses the complex relations between internal border control and ‘conventional’ crime such as theft and violence. While the threat of exclusion from the national territory may depress suspect rates via the criminological mechanism of deterrence and social control, exclusion from the labour market and public provisions seems to increase the likelihood of certain criminal responses via the criminological mechanism of strain. The latter type of internal control incites certain criminal responses as it increases the likelihood of migrants being unable to support themselves in conventional ways (Merton, 1957; Agnew, 1992). Second, from a constructivist perspective, the criminalisation of migrants is predominantly viewed as (latently) intended by governments, as it performs various positive functions for the State, such as legitimising the introduction of new surveillance techniques, or upholding popular support in the face of increased socio-economic uncertainly. Yet, by and large, the rise in crime among irregular migrants in the Netherlands seems to have been an unintended and undesired – as well as largely ignored – side effect of state intervention. It is not unlikely that this very rise in registered crime may, in the future, lead to further criminalisation because rising crime figures are commonly not associated with strict policies but rather with intentions of migrants and a lack of strict policies. Recent proposals to de jure criminalise illegal residence, the final step of crimmigration, are already in hand in the Netherlands. Therefore our main message would be that researchers in this field should pay more attention to the complex and unintended interplay between policies and migrant behav-

approximations also because the order of the controls influences the outcomes to some extent.


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iour and illuminate unintended and even perverse outcomes. Crimmigration policies may backfire.

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Leerkes, A., M. Van San, G. Engbersen, M. Cruyff & P. van der Heijden (2004). Wijken voor illegalen: Over ruimtelijke spreiding, huisvesting en leefbaarheid. The Hague: SdU. Leerkes, A., G. Engbersen & M. Van San (2007). Shadow places: Patterns of spatial concentration and incorporation of irregular immigrants in the Netherlands, Urban Studies, 44 (8), 1491-1516. Leerkes, A. (2009). Illegal residence and public safety in the Netherlands. Amsterdam: Amsterdam University Press. Leerkes, A. & W. Bernasco (2010). The spatial concentration of illegal residence and neighborhood safety, Journal of Urban Affairs, 32 (3) 367-392. Lyon, D. (2005). The border is everywhere: ID cards, surveillance, and the other. In E. Zureik & M. Salter (Eds.), Global surveillance and policing: Borders, security, identity (pp. 66-82). Mastrobuoni, G., & Pinotti, P. (2011). Migration restrictions and criminal behavior: Evidence from a natural experiment, paper presented in London at the Norface Conference on migration. Also available as Carlo Alberti working paper at: McDonald, W. (1997). Illegal immigration: Crime, ramifications and control (the American experience) In W. McDonald (Ed.), Crime and law enforcement in the global village (pp. 65-86). Cincinnati: Anderson Publishing Company. Melossi, D. (2003). “In a Peaceful Life”: Migration and Crime of Modernity in Europe/Italy. Punishment & Society, 5, 371-397. Merton, R. (1938). Social structure and anomie. American Sociological Review, 3, 672-682. Ministry of Justice (2005). Criminaliteit en rechtshandhaving 2004: Ontwikkelingen en samenhangen. The Hague: WODC. Pluymen, M., & Minderhoud, P. (2002). Access to public services as an instrument of migration policy in the Netherlands. Tolley’s Journal of Immigration, Asylum and Nationality Law 16 (4), 208-223. Rovers, B. (1999). Klassenjustitie: Een overzicht van onderzoek naar selectiviteit in de Nederlandse strafrechtsketen. Rotterdam: Erasmus University Rotterdam. Spijkerboer, T. (2007). The human costs of border control. European Journal of Migration and Law, 9, 147-161. Staring, R. (2001). Reizen onder regie: Het migratieproces van illegale Turken in Nederland. Amsterdam: Het Spinhuis. Stumpf, J. (2006). The crimmigration crisis: Immigrants, crime, and sovereign power. American University Law Review, Vol. 56(367), Lewis & Clark Law School Legal Research Paper Series Paper No. 2007 – 2. Tonry, M. (Ed.). (1997). Ethnicity, crime and immigration: Comparative and cross-national perspectives. Chicago/London: University of Chicago Press. Van der Heijden, P., Cruyff, M., & Van Houwelingen, H. (2003). Estimating the size of a criminal population from police records using the truncated poisson regression Model. Statistica Neerlandica, 57, 289-304. Van der Leun (2003). Looking for loopholes: Processes of incorporation of illegal immigrants in the Netherlands. Amsterdam: Amsterdam University Press. Van der Leun, J. & Kloosterman, R. (2006). Going underground: The labour market position of undocumented immigrants in the Netherlands’, Tijdschrift voor Economische en Sociale Geografie / Journal of Economic and Social Geography Volume 97(1): 59-68. Van der Leun, J. & M. Ilies (2010). The Netherlands: Assessing the irregular population in a restrictive setting. In A. Triandafyllidou, Irregular migration in Europe: Myths and realities, Farnham: Ashgate, 187-206. Van der Leun, J.P., van der & Woude, M.A.H., (2011). Ethnic profiling in the Netherlands? A reflection on expanding preventive powers, ethnic profiling and a changing social and political context. Policing and Society, 21 (4), pp. 444-455.


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Van Meeteren, M., Van San, M., & G. Engbersen (2008). ‘Zonder papieren’: Over de positie van irreguliere migranten en de rol van het vreemdelingenbeleid in België. Leuven: Acco. Varsanyi, M., (Ed.) (2010). Taking local control: Immigration policy activism in U.S. cities and states, Stanfort: Stanfort University Press. Von Lampe, K. (2004). Making the second step before the first: Assessing organised crime. Crime, Law and Social Change, 42, 227-259. Waddington, J., Stenson, K., & Don, D. (2004). In proportion: Race, and police stops and search. The British Journal of Criminology, 44, 889-914. Walters, W. (2006). Border/Control. European Journal of Social Theory. Vol. 9 (2), 187-203. Weenink, A., & Huisman, S. (2003). Poolse bendes in Nederland; voorlopige bevindingen. Justitiële verkenningen, 29, 81-91. Wittebrood, K., & Nieuwbeerta, P. (2006). Een kwart eeuw stijging in geregistreerde criminaliteit. Tijdschrift voor Criminologie, 48, 227-242.

Acknowledgements Part of this study was supported by the Amsterdam School for Social Science Research and a VENI grant by the Netherlands Organisation for Scientific Research (NWO).


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The wide scope of immigration in the Azores and its relationship with crime

Maria da Graça Borges Castanho

1 Introduction In recent years, the Azores have undergone a transition from a land of emigration to an immigrant destination. Moreover, this phenomenon has changed the ethnic, cultural, religious homogeneity and social practices which characterised the Azores and contributed to a scenario of cultural diversity and human enrichment never before experienced on the islands. There are more than 5,000 individuals of 86 different nationalities living in the Azores today. These numbers are evidence that the islands are nowadays a host territory desired by many foreigners, including US military, civilians and their relatives who work and live on the island of Terceira, more specifically in the Lajes’ US Air Base. International literature on the subject highlights the need for an objective and in-depth study of the relationship between the presence of immigrant populations and crime in host countries. Presented here is a testimony on the specific situation of the Azores. Because it is a set of small islands, with few resources to deal with high levels of crime which can rapidly change the daily quality of life of the population, it is important to investigate what is really happening in the Azores in regards to this issue. In compliance with our proposal, our work will be organised in different sections. Beyond this brief introduction, we conduct a literature review on the subject of crimmigration by: dwelling on the characterisation of immigration in the Azores and the need to include deportees in the total number of immigrants (since deportees constitute a large number of individuals arriving from the US and Canada); analysing the available data on the presence of immigrants and deportees in the Azores; examining the perception of a sample of college students and staff that work at associations that help immigrants and deportees; and finally, by presenting a conclusion, in which we describe some activi-


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ties developed by the Regional Department for the Communities in favour of immigrants and deportees living in the Azores.

2

Theoretical Background

Mariani (2010) states that ‘the concern about the propensity of immigrants to become involved in criminal activities is almost as old as migration itself.’ There are many authors who, in different parts of the world, have linked the presence of immigrant populations with the increase of criminal practices in host countries (Bankston, 1998; Chilton, Teske & Arnold 1995; Sellin, 1938; Shaw & McKay, 1942; Short, 1997). Many citizens of immigrant-receiving countries believe that immigration boosts crime. Public opinion polls show that a majority of Western Europeans make this connection, as do large numbers of people in the United States, Austria, Japan, South Africa, Canada, etc. The cognitive tie between issues of immigration and crime is strong. However, valid research demonstrates the opposite. In Germany, first-generation guest workers are no more likely than natives to engage in crime, though second and third-generation descendents of foreigners are overrepresented in crime statistics (Albrecht, 1997). This reflects the potential self-selection effect that the most ambitious and well-intentioned individuals tend to emigrate away from in the first place (Tonry, 1997). Neighbourhoodlevel studies in the US find that study areas with high concentration of Latinos especially do not have higher homicide rates (Lee, Martinez & Rosenfeld, 2001). And New Time series’ analyses show that immigration is actually associated with fewer homicides and robberies across US cities (Stowell, Messner, McGeever & Raffalovich, 2009). Since the results of recent research show that there is no direct connection between crime and immigration, the question is: Why are most natives convinced that there is? Most explanations point to the dissemination of information about these issues by the elite. Politicians in many countries have publically linked immigration and crime. Anti-immigrant radical right parties also state that these issues are linked. For example, an Italian poster form the popular protest in support of the Lega Nord reads: ‘Immigration = Crime’ (Baker, 2002); in Spain, Zapatero targeted immigrant communities by referring to October terrorists and gang members (Id.); in 2005, Sarkozy seized headlines with his vow to clean out the criminal rubbish in immigrant neighbourhoods and ascended to the presidency partly on promises to tackle crime and immigration (Chrisafis, 2009); British conservative David Davis linked immigration to violent crime in public statements (Morris, 2007); the far right German national party, in a 2008 demonstration, defended ‘against excessive immigration, Islamisation and criminality’ (Keitsch, J.,2008); the former leader of Australia’s One Nation


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party claimed ‘you can’t bring people into the country who are incompatible with our way of life and culture. They get around in gangs and there is escalating crime that is happening’ (Rehn & Watts 2007); and Berlusconi’s speeches defend ‘popular crackdowns on crime and immigration’ (Nadeau, 2009). Besides politicians, media is also serving the purpose of spreading the idea that immigration equals crime. In 2007, security cameras documented an assault of two young immigrants on a native German retiree on the Munich subway. The event was highly publicised, spurring popular immigration reform and demands for harsher penalties for foreign criminals. Chancellor Angela Merkel supported this perspective, pointing out that nearly half of criminal offenders younger than 21 are ‘foreign youngsters’ (Kulish, 2008). The elite and the media seem to have framed and effectively bundled race and crime in people’s minds (Hurwitz & Peffley, 1997; Valentino, 1999). Sensational coverage of violent crimes by immigrants increases individuals’ perception of threat (Burns & Gimpel, 2000) and people adopt messages from the elite and the media that identify immigration as threatening. Besides this, police action toward the immigrant population seems not to be helping. In 1996, Weitzer stated that “… the existence of police prejudice toward minorities should not be surprising. American police officers live in a society with a long history of racism, and frequently come into contact with persons in high crime, minority neighbourhoods. Over time, the officers working in these places typify the trend of these neighbourhoods being troublesome, belligerent or anti-police. When this happens, police lose sight of the fact that many residents of these communities are law-abiding and positively disposed toward the police.”

Recent immigration theories argue against the proposition that increased immigration leads to heightened crime rates (Reid, Weiss, Adelman & Jaret, 2005). Like many others, these authors state that “… immigration may not be adding to the criminal populations. Rather, immigration might reshape urban demographic and economic structures in ways that increase the criminality of native-born persons... . Immigrant populations in larger metropolitan areas may invigorate the local economies leading to the redevelopment of the stagnating economies of the urban core of metropolitan areas. The causal process by which the size of the immigrant population could lessen crime is through job growth (both for immigrants and the native-born); business development in previously economically depressed areas; and the repopulation of the urban core.”

Butcher and Morrison (1998) convey the same opinion by stating that ‘an analysis of individual-level data shows that immigrants are less likely than the nativeborn to report committing any crime. When these estimates are adjusted using


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demographic characteristics, the difference increases between immigrants and natives’. Social disorganisation seems to play a crucial role in crime. Powell, Harris & Perreira (2010, in a study on Trajectories of delinquency from adolescence to adulthood, considered that to the extent that Americanization is associated with adopting a more individualistic orientation, delinquency rates would be expected to increase among immigrant generations. At a community level, social control theory suggests that individual delinquency will be highest in communities with high social disorganization and low social bonding. If social control is higher in more ethnically concentrated versus more ethnically mixed communities, then high co-ethnic concentrations should be associated with lower delinquency rates among adolescents. Crutchfield and Pettinicchio (2009) reinforce the idea that ‘the number of social problems are produced by persistent poverty, which exists not because of perverted values among the poor, but rather because of values in the larger society that are accepting of social inequality’. Neighbourhoods can accomplish collective goals, including crime control, through common mechanisms of informal social control, such as local institutions, social networks and shared expectations regarding behavioural regulations (Sampson, Raudenbush & Earls Felton, 1997). Often arriving with few financial resources and limited job prospects, immigrants already tend to live in disadvantaged areas (Sampson, 2008). Immigrants leave these areas as soon as they get better material resources, and they are followed by other immigrant groups (Shaw & McKay, 1942).The population turnover caused by the influx and outflow of immigrants destabilises these areas, especially when there is a lack of social support and infrastructures to help newcomers. To protect themselves, immigrant communities cultivate closer ties and social networks, and promote cultural perpetuation and aid in the maintenance of long-established norms and principles. It has been suggested this is why immigrants may place a greater emphasis on marriage and families (Ousey & Kubrin, 2009). The simplistic image of socially isolated immigrants, with little education and limited employment, living in disadvantaged neighbourhoods is becoming out of touch with reality. The late 20th century immigrant flows have been marked by greater diversity in education, job skills and access to employment networks (Wadsworth, 2010). These changes in the profile of immigrants have forced a re-conceptualisation of the connection between immigration and crime. Rather than serving to increase crime rates, there are a number of ways in which immigration could instead be a protective factor on crime reduction. Wadsworth (id.) stated that immigrants are among the most highly motivated individuals with the lowest propensity toward criminal behaviour. On the other hand, immigrants have different perspectives about their neighbourhoods and work conditions. Most


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of the time, these are still improvements compared to conditions in their home countries. A more detailed review of contemporary research studies found that the belief that immigration is related to increased crime rates is unjustifiable (Lee et al., 2001; Ousey & Kubrin, 2009; Reid et al., 2005; Tonry, 1997). However, with few exceptions immigration was either not connected with crimes or violent behaviour, or in fact reduced the intensity of violent behaviour. In Portugal, research has arrived at the same basic conclusions. Peixoto (2008) argues that ‘… in terms of discrimination, particularly against immigrants, in Portugal these individuals have lower overall incomes than the natives, work more hours, earn lower wages, and take on less skilled jobs – although they hold, on average, sufficient qualifications and skills to engage in other more qualified professional activities. African immigrants are an exception since they have on average lower education levels‘.

According to the same study, the highest rate of incarceration of foreigners/ immigrants means that the judicial system is harder, less flexible and more demanding on foreigners than on natives. Thus, although immigrants have high rates of imprisonment, the propensity for criminal practice among immigrants is lower than that of Portuguese natives. In addition to the difficulties already presented, it appears that ‘the fear of deportation (forced by the authorities), the legal requirements, and a unique set of socio-demographic characteristics, with particular emphasis on the average higher education levels of foreigners, are the main factors in the differences regarding criminal propensity’(id.) (Peixoto, 2008).

3

Immigration in the Azores

There are more than 5,000 foreign individuals living in the Azores today – out of a total of about 250,000 inhabitants. Immigration is a new phenomenon in the Azores, one that has followed a trend visible on the Portuguese mainland. The high number of Americans is mainly due to the military officials who work on the island of Terceira at the US Air Base. The US Air Base has 689 individuals in military service, 77 civilians and 997 relatives of US personnel.1 The other

1

The impact of the Lajes’ US Base deployment on the economy of the island of Terceira amounted to 113.9 million US Dollars over the past year. Of that total, 67 million US Dollars are accounted for as investments in construction projects such as the rebuilding of the port of Praia da Vitória with innovative technology being applied in the construction of the breakwater (37.9 million US Dollars).


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Americans who are not serving the Lajes Air Base are mostly Azorean emigrants returning from the US with an American passport, having obtained the relevant technical nationality. The group that follows is comprised of individuals from Portuguese-speaking countries (Brazil, Cape Verde, Guinea-Bissau) and most migrate to Azores due to linguistic and cultural affinity. Individuals from European countries, such as Germany, Spain, United Kingdom, France and Italy, show a special interest in the Azores, an alternative to the busy lifestyle of their homeland. From eastern countries, such as Ukraine and Romania, come a significant number of immigrant individuals, many of whom are dedicated to teaching at the music schools of the islands. The Azores are also a welcoming environment for individuals from China who work in trade and commerce, and for nationals of Canada, many of them Azorean emigrants who return to the islands with dual nationality – Portuguese and Canadian. In total there are individuals from 86 different nationalities living in the Azores. Table 1 shows, however, only the nationalities with the largest representation on the islands, according to data from the Foreigners and Borders Department. Table 1

Nationalities of Foreign Residents in the Azores

United states of America Brazil Cape Verde Germany Ukraine China Canada Spain United Kingdom France Italy Romania Guinea Bissau

2,258 836 381 333 251 174 159 131 107 80 61 57 52

The total number of immigrants should integrate with the population who, through deportation, arrived on the islands from the US and Canada and have no connection with the Azores since they do not speak Portuguese, and have no family, home, or friends on the islands. Most are individuals who emigrated as children and returned compulsorily as adults to the islands after serving a sentence or because they were illegal in the host country.2 With the compul-

2

It is important to note that Portuguese law is much more humane and respectful of human rights, especially because it prohibits the deportation of individual who have come to the country under 10 years of age.


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sory return to the Azores, these deportees feel as if they are in a foreign country and, thus, feel the need to be treated as immigrants. Since the tragic 9/11 terrorist attacks, the annual number of deportations of illegal aliens from the US has more than doubled. It rose from 165,000 deportations in 2002 to nearly 400,000 in 2009 (US Department of Homeland Security, 2010). This matter is particularly serious since we know that more and more individuals being deported are paying taxes, and are serious workers, fathers and mothers, who were identified due to minor crimes. For example, Marques (2011), from the Immigrant Assistance Center, reported evidence that there is considerable fear among community residents around the belief that police would deport them because of minor incidents. Referring to the Illegal Immigration Reform and Responsibility Act (IIRAIRA) of 1996, that changed dramatically the immigration laws of the US, Marques (id.) refers that: ‘this law is causing long time Legal Permanent Residents (green card holders) to be exiled to countries they have no connections with. They are being deported for misdemeanours or relatively minor crimes such as shoplifting, theft, burglary, possession of small amounts of marijuana regardless of how long ago these incidents took place’. Since the late 1980s more than 1,200 individuals in the US and Canada have already been deported to the Azorean islands, most of whom had never visited the Azores before, did not speak Portuguese or did not have any connection with it as a country of origin. If the hundreds of deportees were included on the list of immigrants who have arrived in recent decades, the situation and the challenges faced by the Azores would be viewed in a different manner. In general terms, both groups suffer from linguistic, cultural and social differences. And both groups are more vulnerable to discrimination and integration problems. The identity of a person is built from learning and experiences in the place where they have lived, and culture is assimilated through the language that one speaks. In this perspective it is necessary to rethink the group of deportees arriving on the island – and not only by the fact that they were born in the Azores. In soul and body, they are like all other immigrants who come from abroad. It is very demanding on the individual who leaves the host country; it is very demanding on the country of origin which receives an individual who returns after decades of absence; and it is very demanding on the families who stay in the host country (often without any type of support, without a way of subsistence, hence, abandoned and dependant on welfare). In light of these facts, we express two concerns: – the need to rethink the status and the rights of deported citizens who do not speak the language and do not have family or a house when they arrive on the islands;


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– the need to review the current legal framework which, now more than ever, transfers minor and common offences to a crime category, thus promoting the return of millions of productive and responsible residents from the US and Canada to their societies of origin.

4

Immigrants and crime in the Azores

Since there are no studies that have been specifically conducted in the Azores on the relationship between crime and the population of immigrants, we conducted an investigative study with a sample of 25 college students majoring in Elementary School Education at the University of the Azores; 3 coordinators of associations which work with immigrant and deported populations and a coordinator of a prison in the Azores. On the Azorean islands, the degree of integration of immigrants is quite high. The majority of immigrants in the Azores hold a higher education level than the average native Azoreans and are very active in their contribution toward the development of the islands (Rocha, 2009). The people responsible for immigrant support centres in the Azores, stated that crime among immigrants on the islands is very minor and insignificant since immigrants are motivated to work, are good citizens, and avoid trouble with the law, the police and their neighbours and fellow workers. One coordinator for an immigrants’ association noted that ‘Not everything is rosy for the immigrants arriving in the Azores. We work with some people who are homeless, do not have a job, and have dependency problems (especially alcohol), though those cases are not frequent. When unemployment persists, immigrants seek other alternatives of subsistence. Immigrants leave their countries to work and not to live at the expense of host countries. Many even create their own businesses, thus escaping the seasonality of most jobs’. Another reason that immigrants stay away from crime relates to the fact that their children attend school in a very consistent manner. As stated by Peixoto (2008), ‘The education of the children of immigrants is an example of good practices, since among 240 students from 25 families from different nationalities, 92.1% have satisfactory attendance and 71.3% have successfully completed school’. We asked a sample of 25 students from the University of the Azores what perception they held on the relationship between immigration and the occurrence of crimes on the islands. Of the total, only three respondents mentioned that they perceived immigrants as people who were in a more unstable situation, had little money, had difficulties in finding a job, missed their family, and that all these factors could lead to problems with the police, including going to jail. All other respondents agreed that immigrants are valuable, good, hard-


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working people who have no propensity to commit crimes. One of the students stated that he knew an illegal immigrant who was arrested for drug trafficking. Nevertheless, he said that he knows dozens of others who do not cause any problem in the host communities. We asked our sample (25 students and 3 coordinators of associations working with immigrants and deportees) what they thought about the situation of deportees and crime in the Azores. There is some awareness among the respondents that the deportee population that has not been able to integrate in Azorean society (around 200 individuals from more than 1,000 who have already arrived from the US and Canada since the late 1980s) is more prone to conflict and crime. In fact, these respondents have conveyed, through their opinions, that there are more deportee prisoners than immigrant prisoners in the Azores. This reality is confirmed by the figures advanced by the prisons of the three Azorean cities that welcome these individuals: Ponta Delgada, Horta and Angra do Heroísmo (see Table 2). Table 2

Detained deportees or immigrants

Location of Prisons Ponta Delgada Angra do Heroísmo Horta Total

Deportees 19 3 0 22

Immigrants 3 7 2 12

Total 22 10 2 34

Table 2 shows us that immigrants, although in greater numbers compared with deportees, create far fewer problems and are much less prone to crime. The largest number of deportee arrests occurred in Ponta Delgada, since the island of São Miguel holds the vast majority of deportees. The prison coordinator recounted that the majority of deportee inmates belong to a group of individuals who have many problems in communicating in Portuguese and did not know the Azores before being deported. Most deportees arrive to the islands even thought they held American or Canadian permanent residency cards since they had lived in those host countries for many years. When asked about the status of deportees, the student sample showed great indignation when they realised that the US and Canada deport individuals who have lived a lifetime in those countries and returned them to the islands, often to become homeless since they are not able to speak Portuguese and have no family or cultural connections. This is considered an inhumane practice, which is disrespectful to the Azores in regards to the contributions made by Portuguese emigrants in those host countries. In this respect, the respondents believe that it would be good to ensure that these individuals receive more support in their integration, similar to that received by immigrants.


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The coordinators of the associations working with and for immigrants and returnees went even further, explaining that deportees should be ensured dual status. They should be treated as Portuguese nationals, since they never became naturalised Americans and Canadians, but also be granted the same advantages generally attributed to immigrants. Deportees who left a young age to go to the host country are Portuguese citizens and should be considered immigrants at the same time. There is a clear awareness on the part of professionals, in contact with the deportees who do not speak Portuguese and do not have any ties to the Azores, that this population acts and feels like authentic immigrants. They claim that the deported people consider themselves to be foreigners, completely outside the community on the islands. Most respondents called for better integration of deportees in the Azores, which is only accomplished if these individuals also enjoy the benefits granted to foreign citizens. Anticipating a situation that would benefit deportees if they were treated as immigrants, one respondent stated: “Let’s consider an example that justifies the need for this new vision. The issue of driving licenses is symptomatic of the need to rethink the rights of the deportees in the country of origin. For example, for those cases in which one has lost their driving license because it was removed from before leaving the U.SUS and Canada (through the deportation process), these individuals, according to Portuguese law, have to apply for their license and complete the exam in Portuguese because they are Portuguese citizens. But how can they obtain their license in Portuguese if they are not fluent in the language? However, it is possible, for example, for foreign citizens to get a driver’s license in their native language. Thus, deportees, unlike immigrants are forced to learn how to speak Portuguese.”

Given the difficulties experienced by both immigrants and deportees, it would not be surprising if a significant group of these individuals dedicated themselves to illicit or illegal practices. Despite all the vicissitudes and difficulties, the numbers demonstrate that this situation is not relevant in the Azores. The number of detainees is, in fact, very small.

5 Conclusion The issue of crime amongst immigrants is not a concern in the Azores. We believe that this positive outcome is the result of the support networks created in the Azores for both emigrants who return compulsorily and immigrants. Within this mind-set and context, the Government of the Azores, through the Regional Department for the Communities, has outlined and accomplished an action-oriented plan which encompasses the development of many projects, activities and events targeted specifically at promoting an adequate integration


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of individuals returning to the islands (both returnees and deportees). A few of the examples of the interventions carried out more recently by the Regional Department for the Communities include: the LEGAL Programme (Legalisation Effort of the Government of the Azores) that aims to prevent deportation and help Azorean people to get naturalised in the US and Canada as quickly as possible; the Annual Celebration of the Returnees’ Day; the Returnees’ Award (to those individuals who have demonstrated a significant contribution to the development of the islands or have done important things in their host countries); the Thanksgiving Celebration on the island of São Miguel in conjunction with the Detention Centre of Bristol County in 2011 and with the participation of hundreds of people (among them returnees, deportees, politicians, local government, immigrant families, etc.); the 2011 International Symposium on Human Rights and Quality of life of Portuguese-speaking Communities in the US and Canada (in Cambridge, MA); two thorough research studies on returnees and another on immigrants in the Azores, conducted by the University of the Azores and presented during the Metropolis´ Conference (which took place on the island of São Miguel in 2011) with the goal of gaining better knowledge on the reality of the return and immigration occurrences in order to develop better local policies towards the integration of these individuals; Between 2 Languages, a project that allows us to provide hundreds of books written in English to deportees who do not speak Portuguese; a Seal of Good Practices to distinguish companies who have developed good practices in working with returnees, immigrants and deportees and have integrated them in the job market; the preparation of Portuguese language courses to help returnees and immigrants to learn the language; the regular publication of advocacy- and information-oriented articles in different newspaper in Portugal and in our diaspora (the Regional Department for the Communities regularly writes about issues related to emigrants, immigrants and deportees and disseminates these texts among more than 5,000 contacts nationally and abroad); and the offer of access to public services to returnees, immigrants and deportees on all the islands of the Azores (includes help in filling out documents, obtaining visas, solving problems with the IRS, requesting for retirement, communicating with court houses, and solving legal issues regarding inheritance, property, etc.). Additionally, the Regional Department for the Communities has supported several other research studies, literary publications and films that portray the return and immigration process. The Regional Department for the Communities is furthermore taking advantage of the returnees’ and immigrants’ potential, in regards to their knowledge and experience, to organise projects in the islands and in the Portuguese diaspora. One such case is the organisation of an International Network of Social Service Organisations that includes more than 30 organisations that aims to help deportees and immigrants. Indeed the Government of the Azores has done much to support the integration of these social groups.


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The Government of the Azores also supports financially a substantial number of projects implemented by organisations that work in the Azores, helping immigrants and deportees who live in the Azores. We are sure that all these actions may lead to a sustainable development and growth and in harmony between all members of Azorean society. This is the pathway in attaining a positive and productive social and economic environment and in guaranteeing a sense of high quality of life, fairness and equality for all individuals visiting or living in the islands.

References Albrecht, H. (1997). Ethnic minorities, crime and criminal justice in Germany. Crime and Justice, 21, 31-99. Baker, S. (2002). Crime and politics: Suddenly, it’s the hottest of issues – and linked closely to immigration. Business Week. Retrieved from http:www.businessweek.com/magazine/ content/02_11/b3774059.htm Bankston, C.L. (1998). Youth gangs and the new second generation: a review essay. Aggression and Violent Behavior, 3, 35-45. Burns. P., & Gimpel, J. (2000). Economic insecurity, prejudicial stereotypes and public opinion on immigration policy. Political Science Quarterly, 115, 201-225. Butcher, K., & Morrison P.A. (1998). Cross-City Evidence on the relationship between immigration and crime. Journal of Policy Analysis and Management, 17(3), 457-493. Chilton, R., Teske, R., & Arnold, H. (1995). Ethnicity, race and crime: German and non-german suspects 1960-1990. In D. Hawkins (Ed.). Ethnicity, race and crime: Perspectives across time and space. Albany: Suny Press. Chrisafis. A. (2009). New stamping ground for French far right. Guardian, June 30. Retrieved from http://citation.allacademic.com/meta/p_mla_apa_research_citation/4/1/5/7/3/pages415731/ p415731-28.php . Crutchfield, R., & Pettinicchio, D. (2009). Cultures of inequality: Ethnicity, immigration, social welfare and imprisonment. Thousand Oaks, Ca: Sage Publications. Hurwitz, J. & Peffley, M. (1997). Public perceptions of race and crime: The role of racial stereotypes. American Journal of Political Science 41, 375-401. Keitsch, J. (2008). Braune Hetze Stoppen (stop the brown agitation). Bochumer Stadt & Studeirendenzeitung 762, 1-22. Kulish, N. (2008). Attack jolts Germany into fray on immigrant crime. New York Times. Retrieved from http://www.nytimes.com/2008/01/14/world/europe/14germany.html. Lee, M.; Martinez, R. & Rosenfeld, R. (2001). Does immigration increase homicide? Negative evidence from three border cities. Sociological Quartely 42, 559-580. Lewis, O. (1966). La Vida: A Puerto Rican family in the culture of poverty – San Juan and New York. New York: Random House. Mariani, F. (2010). Migration and crime. Bonn: Université Catholique de Louvain. Marques, H. (2011). Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Comunidades Serviço Social 1, 70-73. Ponta Delgada: Direção Regional das Comunidades. Martinez, R. (2006). Coming to America: The impact of the new immigration on crime. In Immigration and crime: Race, ethnicity and violence (Eds.) Ramiro Martinez Jr. and Abel Valenzuela. New York: New York University Press. Morris, N. (2007). Davis promises hard line on immigration and crime. Independent. Retrieved from http://www. independent.co.uk/news/uk/politics/davis-promises-hard-line-on-immigration-and-crime-394198.html


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Nadeau, B. (2009). Italy’s Teflon Don. Newsweek. Retrieved from Lexis-Nexis Academic database http://cps.sagepub.com/content/early/2012/01/27/0010414011421768 Ousey, G. C. & Kubrin, C.E. (2009). Exploring the connection between immigration and violent crime rates in US cities. Social Problems 56 (3), 447-73. Peixoto, A. (2008). Imigrantes em Portugal: Que propensão criminal?. Açores: Edições Macaronésia. Powell, D., Harris, K.M. & Perreira, K. (2010). Trajectories of Delinquency from Adolescent to Adulthood. Youth & Society. New York: Russel Sage Foundation. Rehn, A. & Watts. B. (2007). Hanson on African offensive. Daily Telegraph. Retrieved from http://www.dailytelegraph.com.au/news/national/hanson-on-african-offensive/storye6freuzr-1111114580719. Reid, L. W.; Weiss, H. E.; Adelman, R.M. & Jaret, C. (2005). The immigration-crime relationship: Evidence across US metropolitan areas. Social Science Research 34, 757-780. Rocha, G. (Coord.) (2009). Perfis e trajetórias dos imigrantes nos Açores. Ponta Delgada: Governo Regional dos Açores. Sampson, R. (2008). Rethinking crime and immigration. Contexts 7 (1), 28-33. Sampson, R.; Raudenbush, S. & Earls Felton (1997). Neighbourhoods and violent crime: A multilevel study of collective efficacy. Science 15, 918-24. Sellin, T. (1938). Culture and Conflict. Social Science Research Council. New York. Shaw, C.R & McKay, H.D. (1942). Juvenile delinquency in urban areas. University of Chicago Press: Chicago. Shaw, C.R & McKay, H.D. (1969). Juvenile delinquency in urban areas. University of Chicago Press: Chicago (revised edition). Short, J.F. (1997). Poverty, ethnicity and violent crime. Westview Press: Boulder. Stowell, J.; Messner, S.;McGeever, K.; & Raffalovich, L. (2009). Immigration and the recent violent crime drop in the United States. Criminology 47, 889-928. Tonry, M. (1997). Ethnicity, crime and immigration. Crime and Justice 21, 1-29. US Department of Homeland Security (DHS). (2010). Yearbook of immigration statistics. 2009. Washington DC. Available from http://www.dhs.gov/xlibrary/assets/statistics/ yearbook/2009/ ois_yb_2009.pdf. Valentino, N. (1999). Crime news and the priming of racial attitudes during evaluations of the president. The Public Opinion Quarterly 63 (3), 293-320. Wadsworth, T. (2010). Is immigration responsible for the crime drop? An assessment of the influence of immigration on changes in violent crime between 1990 and 2000. Social Science Quarterly 91 (2), 531-553. Weitzer, R. (1996). Racial discrimination in the criminal justice system: Findings and problems in the literature. Washington DC: George Washington University.


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Irregular immigrants and their Irish citizen children The limits of national citizenship

Alan Desmond

1 Introduction In The Citizen and the Alien Linda Bosniak notes that the literature addressing the normative question of how noncitizens should be treated in immigrantreceiving societies essentially asks to what extent noncitizens residing in the host State should be ‘insulated from the regulatory reach of the border and be subject to the (generally more protective) norms governing territorially present persons?’ (Bosniak, 2006, p. 122). Nowhere is the regulatory reach of the border more unrestricted than in the lives of irregular immigrants, their very presence rendering them deportable. This paper addresses the treatment by the Irish State of a discrete group of irregular immigrants whose subjection to State powers of immigration control was complicated by the fact that they were simultaneously the parents of Irish citizen children. Their situation highlights the tension between international human rights standards and State’s right to control immigration, and underscores the difficulty of insulating irregular immigrants from the regulatory reach of the border. Claims for protection from deportation for irregular immigrants in Ireland on the basis of parentage of Irish citizen children also strikingly reveal what citizenship means for those very citizen children whose parents’ removal is sought. If the cardinal value of citizenship for children is the enjoyment of the care and company of their parents within a family unit within the home country (Bhabha, 2004, p. 108), this is a value which the Irish State and judiciary have found may justifiably be made to take a back seat to the State’s right to control immigration.


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2 Fajujonu: A rare recognition of the importance of children’s citizenship The Irish courts have evinced a willingness to subordinate the fundamental rights invoked by non-nationals to the State’s right to immigration control, particularly following the transformation of Ireland from a country of net emigration to one of net immigration in the 1990s. The statist, exclusionary view, espoused in the mid-80s by Gannon Justice in the High Court case of Osheku v Ireland (1986) struck a note which would resonate in subsequent legislative and judicial discussion of immigrant rights. Noting that the State itself had fundamental rights, the protection of which may involve restrictions in circumstances of necessity on the fundamental rights of the citizen, (Osheku, p. 746) Gannon J attributed to the Aliens Act 1935 the ‘major unspoken premise’ that ‘aliens have, in general, no right to be on the national territory’ (Osheku, p. 745). Osheku concerned the residence rights of irregular immigrants with Irish citizen children, an issue which was before the courts again in Fajujonu v Minister for Justice (1990). In Fajujonu the husband and wife were, respectively, of Nigerian and Moroccan nationality. Once their presence in Ireland had come to the attention of the Minister for Justice they were directed to make arrangements to leave the State. The matter ultimately came before the Supreme Court, by which time the couple had been resident in Ireland for over 8 years and had three Irish citizen children. Indeed these two facts, a considerable period of residence and Irish citizen children, largely formed the basis of the irregular couple’s Supreme Court challenge to the Minister’s expulsion order. In light of the foregoing two factors, Chief Justice Finlay held that there was no question but that the Fajujonu children had a constitutional right to the company and care of their parents within a family unit and, furthermore, that the parents were entitled to assert a choice of residence on behalf of their children. Echoing the statist note struck by Gannon J in Osheku, however, the Chief Justice held that the State could, under any circumstances, force a family such as the Fajujonus to leave the country provided that the Minister was satisfied, after due and proper consideration, that the interests of the common good and the protection of the State justified such a measure. A ‘grave and substantial reason’ associated with the common good may therefore give rise to a legitimate restriction on the constitutional rights of Irish children citizens by justifying the deportation of their non-national parents. Walsh J placed even greater emphasis on the constitutionally protected rights of the family. He held that given the children’s tender age and the fact that the parents had not in any way been shown to be unfit, to expel them would be inconsistent with Article 41 of the Constitution which guarantees the integrity of the family (Irish Times, 1989).


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Fajujonu may thus be characterised as a partial triumph of inclusive, universalist membership commitments which in the instant case served to insulate the applicant family from the regulatory reach of the border, preventing deportation of the irregular immigrant parents. While the case established that nonnational parents are not, by reason of having Irish citizen children, unconditionally entitled to assert a constitutional claim to residence in the State (Irish Times, 1990), the years following the Supreme Court judgment saw the Minister for Justice exercise his discretion to routinely grant applications for residence from irregular immigrant parents. (Mullally, 2005, p. 583). Subsequent cases, however, evidenced continued judicial deference to the right of the State to control immigration. In Minister for Justice v. Wang Zhu Jie (1993) Costello J noted that the Aliens Act 1935 conferred on the authorities considerable powers over aliens, ‘powers which perhaps might not be thought to be desirable or necessary or legal against citizens’ while in P v. Minister for Justice, Equality and Law Reform (2002) the Supreme Court, while not denying that the protection of the institution of marriage in Article 41.3.1 of the Constitution extended to two non-nationals who married in the State, nonetheless held that the Minister was not prevented from deporting one spouse while the other’s application for permission to remain in the State was pending. Such judicial deference came to a head at the beginning of the century. The migration context in Ireland had changed drastically since the Fajujonu judgment with the number of non-national parents claiming residency on the basis of Irish citizen children increasing from about 1,500 in 1999 to over 6,000 in 2001 (Cullen, 2002). By the beginning of 2003 there were almost 12,000 such applications pending with the Ministry for Justice and political pressure had led the Minister to begin refusing and staying applications in late 2002 (Mullally, 2005, p. 583). Out of such refusals arose the Lobe & Osayende (2003) case which involved a challenge against deportation by two families of Czech Roma and Nigerian origin who had Irish citizen children. Invoking Fajujonu, Lobe and Osayende asserted a right to exercise a choice of residence on behalf of their Irish citizen children as well as claiming for their children the right to the company, care and parentage of their parents within the State. The majority of the Supreme Court, however, distinguished Fajujonu on the basis of the length of time the families had resided in the State as well as the changed context of immigration in Ireland since the earlier case. While the Court recognised the constitutionally protected rights of the citizen children and the family unit, there were echoes of the statist strain in the Fajujonu judgment with Denham J holding that ‘it does not flow from the rights of the child that the family or parents and siblings of Irish children have the right to reside in Ireland’ (para. 16). Keane CJ drew a distinction between the citizenship rights of children and adults noting, in the context of the former, that the right to choose to reside in Ireland ‘may reasonably be regarded as a right


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which does not vest in them until they reach an age at which they are capable of exercising it …’ (para. 35). Although the parents could assert a choice of residence on behalf of their citizen children, such a claim would be subject to the exigencies of the common good, an aspect of which was ‘the inherent power of Ireland as a sovereign State to expel or deport non-nationals’ (para. 50). Essentially then Lobe & Osayende saw the rights of Irish citizen children, and indeed the ‘inalienable and imprescriptible’ rights of the family, pushed aside in favour of the State’s right to control immigration, or ‘the overriding need to preserve respect for and the integrity of the asylum and immigration system’ (para. 16). The majority judgment in Lobe & Osayende is difficult to reconcile, both with the inalienable and imprescriptible status conferred by the Constitution on the rights of the family and with the general recognition by the Irish courts of the family unit as the natural primary and fundamental unit group of society (McGee v. Attorney-General, (1974)) next to which the State is relegated to a subordinate and subsidiary role (North Western Health Board v. HW and CW, (2001)). While the Supreme Court in Lobe & Osayende emphasised the fact that the practice of routinely granting residence to the irregular non-national parents of Irish citizen children could not be sustained, the judgment did not have the effect of stemming the immigration of men and women who travelled to Ireland and gave birth to children within the State (Mullally, 2005, p. 585).

3

The Citizenship Referendum: Citizenship as a means of exclusion

The government thus went a step further and proposed to deprive future members of this group of children of their very citizenship by holding a referendum on a constitutional amendment which would restrict the right to citizenship by birth where a child was born within the State to non-national parents. The Twenty-Seventh Amendment of the Constitution Bill 2004 proposed the addition of a new section to Article 9 of the Constitution which provided: ‘Notwithstanding any other provision of this Constitution, a person born in the island of Ireland, which includes its islands and seas, who does not have, at the time of the birth of that person, at least one parent who is an Irish citizen or entitled to be an Irish citizen is not entitled to Irish citizenship or nationality, unless provided for by law.’ The proposed amendment represented an attempt by the State to appropriate ever greater powers of immigration control, using citizenship laws to exclude a considerable swathe of people from formal membership of Irish society and from the regime of rights and privileges vested in every citizen.


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Although the Government’s proposal was noted for the striking absence of the perspective of the child, reflecting instead ‘an overriding concern with parental status and immigration control’ (Mullally, 2007, p. 36), the electorate endorsed it by a majority of almost four to one. The Irish Nationality and Citizenship (Amendment) Act 2004, enacted shortly afterwards, provided that children born to nonnational parents will acquire citizenship by birth only if one parent has been lawfully resident, or was so entitled, within the State or Northern Ireland for at least three years.

4

Migration in 21st century Ireland: An assertion of State powers of immigration control

Before the constitutional amendment came into effect on 1 January 2005, however, there were almost 11,500 applications for residence outstanding from the non-national parents of Irish citizen children. It was to decide the right to residency of these irregular non-national parents of Irish citizen children that the Irish Born Child Scheme (IBC Scheme) was introduced. The IBC Scheme, which ran from 15 January to 30 May 2005, has been categorised as a regularisation programme and has been described as forming part of the general provisions of Section 3 of the Immigration Act 1999, which outlines the discretion of the Minister for Justice to issue a deportation order, and the factors to be taken into consideration when determining whether such an order should be made. Of the 17,900 applicants to the Scheme, the principal countries of origin of whom were Nigeria, China and Romania, 16,693 were granted temporary, renewable permission to remain in Ireland with the right to work. Of the 1,207 applicants who failed to qualify for the Scheme, about 600 had their applications rejected because they had not been continuously resident in the State since their child’s birth (Baldwin-Edwards & Kraler, 2009, pp. 69 – 70). To succeed under the IBC Scheme applicants had to provide proof of noninvolvement in criminal activity, a willingness to commit to being economically viable and the aforementioned requirement of continuous residence in the State since the birth of the child. Applicants under the Scheme were also required to sign a declaration that they agreed that permission to remain in the State would not give rise to any right of family reunification (Bode v. Minister for Justice, (2007), para. 6).

5 The Bode case: Continued failure of the Irish courts to vindicate the rights of Irish citizen children and their irregular immigrant parents The unsuccessful applications of some non-national parents to the IBC Scheme in 2005 gave rise to a number of court cases which provided further occasion for the judiciary to endorse State powers of immigration control. One of the eight


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test cases taken against the State was that of Folajimi Bode, the father of an Irish citizen child who had failed to satisfactorily prove continuous residence in Ireland since the birth of his child, and thus failed to qualify for residence under the IBC Scheme. Finlay Geoghegan J in the High Court in Bode v. Minister for Justice, Equality and Law Reform and Others (2006) overturned the Minister’s refusal of permission for Bode to remain. She found that the Minister was required by Section 3 of the ECHR Act 2003 to consider the citizen child’s right to respect for private life under Article 8 ECHR but had failed to do so. Similarly, she held that the citizen child’s personal rights under Article 40.3.1 of the Constitution had been violated by the Minister’s failure to take into account the rights of the child while considering applications under the IBC Scheme. In the context of the Minister’s ECHR (European Convention on Human Rights) obligations, Finlay Geoghegan J noted that the ECtHR (European Court of Human Rights) had not exhaustively defined what constitutes private life and referred to the ECtHR decision in Sisojeva et al v. Latvia (2007) where it held that the applicants had developed ‘the personal, social and economic ties that make up the private life of every human being … within the meaning of Article 8 § 1 of the Convention’ (Sisojeva, para. 102). Finlay Geoghegan J thus concluded that each of the citizen children in the test cases who had lived in the State since birth had a private life in the State in the sense of the personal and social relationships which result from living in the State. In a further reference to Sisojeva, the High Court judge noted that Article 8 entails not just a negative obligation on the State to refrain from arbitrary interference with the right to private and family life, but also a positive obligation to ensure effective enjoyment of Article 8 rights. Thus the Grand Chamber in Sisojeva held that it is insufficient for the host State to ‘refrain from deporting the person concerned; it must also, by means of positive measures if necessary, afford him or her the opportunity to exercise the rights in question without interference’ (Sisojeva, para. 104). Finlay Geoghegan J held that all of the citizen children in the test cases were of such age that the practical and effective exercise of their right to a private life in Ireland was ‘dependant on their parents’ presence in the State and their parents’ ability to provide for them by inter alia working and creating a stable environment in which the children may develop.’ While ‘regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and … the State enjoys a certain margin of appreciation’ (Kutzner v. Germany, 2002), para. 62), Finlay Geoghegan J held that at the very least the Minister was obliged to determine whether the citizen child’s right to respect for his private life under Article 8 requires that the parent be given permission to remain in the State. When making that decision the Minister must seek to strike a fair balance between the rights of the individual child and the community. Thus while considering the application of the child’s father to reside in the State, the


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inister should have taken into account the child’s Article 8 right to private M life ‘in the sense of the constitutionally protected personal rights of the citizen child.’ Finlay Geoghegan J did acknowledge that a citizen child’s non-national parent could be expelled from the State ‘for good and sufficient reason, in the interests of the common good’ even if such expulsion would not be in the best interests of the child. Refusing the application of a parent under the IBC Scheme for permission to remain in the State should not, however, in the particular circumstances of the citizen child and parent, be ‘disproportionate to the ends sought to be achieved.’ Finlay Geoghegan J was, however, overruled by the Supreme Court which gave its stamp of approval to the Minister’s decision in Bode v. Minister for Justice, Equality and Law Reform and Others (2007). Denham J held that, as the Scheme was an administrative scheme wherein it was never intended that the Minister would consider the constitutional or ECHR rights of the applicants, the High Court erred in considering the application of the Scheme as an arena for decision making on constitutional and ECHR rights. She noted repeatedly that it was ‘a generous scheme’ and found that it left an unsuccessful applicant ‘in the same position as he was prior to applying under the IBC 05 Scheme…. The decision within the IBC 05 Scheme does not lead to his deportation.’ It was in the context of deportation, Denham J held, that the constitutional and Convention rights of unsuccessful IBC Scheme applicants would be considered by the Minister when he was deciding whether to make a deportation order under Section 3 of the Immigration Act 1999. It is unsurprising, given the conclusion that she reached, that Denham J struck a decidedly statist tone in her judgment, holding that the special role and fundamental power of the State to control foreigners is an aspect of the executive power to protect the integrity of the State. Drawing on the earlier case of Pok Sun Shin v. Ireland (1986) which trumpeted the necessity of State powers of immigration control, she noted that ‘the State, through its Ministry for Justice, must have very wide powers in the interest of the common good to control aliens, their entry into the State, their departure and their activities within the State’ (Pok Sun Shin, p. 599). It would seem possible in light of Denham J’s decision in Bode that such powers are so wide as to potentially relieve the Minister of his statutory duty under the ECHR Act 2003 to act in a manner compatible with the State’s obligations under the Convention (de Londras & Kelly, 2010, paras. 5 – 27).

6 Beyond Bode Another of the eight test cases, Oguekwe, equally important as an illustration of the divergent approaches of the High and Supreme Courts, differs from Bode in that the applicant, similarly unsuccessful under the IBC Scheme, had actually been issued with a deportation order under Section 3 of the Immigration Act


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1999. It was clear from Denham J’s ruling in Bode that the Minister was to take into account the ECHR and constitutional rights of an Irish citizen child when deciding whether to deport that child’s parent pursuant to Section 3. Finlay Geoghegan J in the High Court in Oguekwe v. Minster for Justice (2006) noted that the applicant’s demonstration of family or private life in the State such as engages Article 8 ECHR entails consideration of whether deportation would interfere with that right. Where interference is established, it is necessary to consider whether: the proposed decision is being taken in accordance with law; it pursues a legitimate aim, namely one of the matters specified in Article 8.2; the proposed interference is necessary in a democratic society, in other words, if it is in pursuit of a pressing social need and proportionate to the legitimate aim being pursued. Finlay Geoghegan J found that there had not been adequate consideration ‘of the facts and factors affecting the citizen child and his family in relation to his personal rights’ in accordance with the foregoing principles. There had been similarly inadequate consideration of the relevant facts relating to the personal rights of the citizen child protected by Article 40.3 of the Constitution. In a rare example of serious judicial consideration of the effect of deportation on children’s rights and best interests in immigration cases, it was noted that sufficient regard had not been given to ‘the welfare rights of the citizen child or the probable impact of the proposed decision to deport on such rights.’ The High Court rejected the Minister’s contention that he was required only to carry out only a cursory analysis of the rights of the citizen child. Noting that the Minister had failed to identify any ‘grave and substantial reason’ favouring deportation, Finlay Geoghegan J held that the decision to deport was invalid. The Supreme Court in Oguekwe v. Minister for Justice (2008) upheld the High Court decision to quash the deportation order on the basis that the Minister had not met the requirement, when making a deportation order under Section 3 of the Immigration Act 1999, to consider the constitutional and ECHR rights of the applicants, including ‘express consideration of, and a reasoned decision on, the rights of the Irish citizen child.’ While this was clearly a welcome outcome for the applicants, the Supreme Court took a more restrictive view than the High Court of the weight to be attached to the citizen child’s welfare in assessing the proportionality of a proposed deportation, thus broadening the possibilities in which the State might legitimately deport the non-national parents of Irish citizen children. In a striking example of the seriousness with which the State views its duties to citizen children – or at least the citizen children of non-nationals – the Supreme Court seemed to endorse the Minister’s contention that the High Court had attached too much significance to the rights of the Irish citizen child in the


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context of the Minister’s responsibility ‘in the formation, implementation and enforcement’ of the State’s immigration law and policy. The Minister contended that the High Court erred by requiring that, where Irish citizen children might accompany their deported parents to the country of return, the Minister must inquire into and take into account the educational facilities and other conditions and opportunities available to them in Ireland as compared to the country of return. While the Supreme Court endorsed the finding of the High Court that the nature of the consideration that the Minister must give to the facts relevant to the rights of the citizen child will vary from case to case, and that the consideration of the Minister should be fact specific to the individual child, Denham J held that the High Court had erred in requiring the Minister ‘to do a specific analysis of the educational and development opportunities that would be available … in the country of return.’ The Minister should merely ‘consider in a general fashion’ the situation in the country of return, save in an exceptional case. Denham J here is following a long line of ECHR jurisprudence where the Court looks to the length and depth of past connections with the expelling State, rather than future possible connections, a perspective which ‘privileges the existing connections sustained by adults or parents over the potentiality for future connections of babies or children’ (Bhabha, 2004, p. 99). Denham J concluded her judgment by setting out a non-exhaustive list of matters for the Minister to consider when making a decision to deport the parent of an Irish citizen child under Section 3 of the Immigration Act 1999. Thus each case is to be treated in the context of its own particular factual matrix and the Minister should consider, inter alia, whether there is a substantial reason associated with the common good which warrants deportation, and whether it would be reasonable to expect family members to accompany a deported parent to the country of return. Following the Supreme Court ruling in Oguekwe, the High Court found in both Alli v. Minister for Justice (2009) and O and Others v. Minister for Justice (2009) that the Minister had taken constitutional and Convention rights into account when making a decision as to deportation. Cooke J in O held that the consideration given to those matters in the case before him ‘is radically different in scope, depth and detail than appears to have been the case in the Oguekwe [case],’ with Clark J in Alli finding that the Minister had fully complied with the requirements set out in Oguekwe and, having conducted a fact-specific analysis, ‘identified a substantial reason associated with the common good which requires the deportation of Mr Alli.’ In both cases the applicants argued that the Minister had failed to identify a substantial reason associated with the common good which required the deportation. The Court in O noted that in light of Oguekwe it was clear that ‘a mere reiteration of the right of the State to control the entry, presence and exit of foreign nationals … is not of itself a substantial reason in any individual case.’ The High Court accepted in each case, however, that the State interest


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in maintaining the integrity of the immigration system could, following fact specific consideration of the applicants’ circumstances, constitute a substantial reason justifying deportation. The applicants’ argument that only a very compelling applicant-specific reason such as serious criminality or a threat to State security could justify deportation of the parent of an Irish citizen child, thereby abridging Convention and constitutional rights did not find favour with the Court. Similarly, in both cases it was found that there were no insurmountable obstacles to the Irish citizen children following their deported parents back to Nigeria and continuing family life there. In Alli the Court noted that the Minister ‘quite correctly found that the Alli twins, who were four years old, were “of an adaptable age”…. The family has only been in the State for four and a half years. The citizen children are very young and their siblings at nine and eleven are also at an adaptable age, particularly as it is suggested that they adapted readily to life in Ireland…’, with the High Court in O finding that there was no insurmountable obstacle to the family returning to Nigeria in the event of deportation as the prospective deportee had not taken up family responsibilities until almost four years after the birth of his stepson and over a year after the birth of his daughter, both of whom were Irish citizens. Here again we see the Courts focusing on the length and depth – or shortness and shallowness – of the Irish citizen children’s connection to Ireland, with the parent’s absence in O inexplicably proffered as evidence of the limited inconvenience that moving family life to Nigeria would occasion. The seriousness with which the Court treats the interests of the Irish citizen children at the centre of these cases is thus questionable. In O the Irish citizen stepson of the prospective deportee suffered from global development delay and speech delay but the Court nonetheless accepted the Minister’s contention that the interference with Article 8 rights would be in accordance with Irish law and pursues a pressing social need and a legitimate aim, namely, ‘the maintenance of control by the State over its borders and the regulation of a system for control, processing and monitoring of non-nationals within the State.’ While the UK Supreme Court in ZH (Tanzania) (FC) v. Secretary of State for the Home Department (2011), a case involving the proposed deportation of a nonnational parent of UK citizen children, found that in making the proportionality assessment under Article 8, the best interests of the child must be a primary consideration, there is little evidence that this is the approach taken by the Irish courts. The UK Supreme Court noted that while the best interests of the child ‘can, of course, be outweighed by the cumulative effect of other considerations’, it is difficult to resist the conclusion that the Irish courts take as their starting point the unassailable premise of the State right to control immigration, and engage in a perfunctory manner with factors which run counter to this status quo which is to be maintained at all costs.


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Furthermore, given the finite category of persons whose deportation would be precluded in the event of greater regard by the Irish courts for the human rights of those involved, it is difficult to discern the pressing social need that deportation serves. Indeed it is difficult to characterise the deportation of the parents of dependent Irish citizen children as proportionate to the legitimate aim of an orderly immigration system without stretching the word proportionate to its lexicographical snapping point.

7

Supranational citizenship to the rescue

Relief for those affected by the deference of the Irish judiciary to the State interest in immigration control came from an unexpected source in March 2011. The Court of Justice of the EU (CJEU) on 8 March 2011 delivered judgment in the case of Gerardo Ruiz Zambrano v. Office national de l’emploi (2011) which involved the irregular immigrant Colombian parents of Belgian citizens and the right of those parents to reside in Belgium, despite their irregular immigration status, given the Belgian, and hence EU, citizenship of their children. In a brief judgment which echoed the reasoning employed by Finlay Geoghegan J in the High Court in Bode, the CJEU held that Article 20 of the Treaty on the functioning of the EU (TFEU) precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred on them by their EU citizenship. Article 20 TFEU provides that EU citizens shall enjoy the rights provided for in the Treaties, including the right to move and reside freely within the territory of the Member States. On this basis the CJEU found that an EU Member State may, firstly, not refuse residence to the non-national parents of citizen children and, secondly, may not refuse to grant a work permit to such parents as either type of refusal may lead to a situation where those EU citizens would have to leave the territory of the Union in order to accompany their parents, and thus not be in a position to enjoy their rights as EU citizens. Shortly after the Zambrano judgment the Irish Minister for Justice outlined Ireland’s response in a statement, revealing that there was to be an urgent examination of all 120 or so cases before the courts involving Irish citizen children to which the Zambrano judgment may be relevant. There was to be a similar examination of cases in which the possibility of deportation of non-national parents of Irish citizen children was being considered by the Department of Justice, Equality and Law Reform. Finally, consideration was to be given to those cases of Irish citizen children who had already left the State with parents were refused permission to remain. As of January 2012 over 850 non-EU parents of Irish citizen children had been granted residency on the basis of Zambrano (Duncan, 2012).


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8 Conclusion It is clear then that the conditional insulation of the irregular immigrant parents of Irish citizen children from the regulatory reach of the border which Fajujonu sanctioned was an aberration in Irish jurisprudence. The reality is that the State is at pains to ensure that irregular immigrants in Irish society are not subject to the ‘(generally more protective) norms governing territorially present persons’ (Bosniak, 2006, p. 122), even when they are the parents of Irish citizen children. Failure to establish continuous residence in the State since the birth of the Irish citizen child provided sufficient grounds for the courts to uphold the State’s decision to deport, resulting either in separation from their citizen children or the forced departure of those children from the State. What makes the State’s insistence on the deportation of those who had unsuccessfully applied to the IBC Scheme even more difficult to understand is the small number of people who would have benefited from being allowed to remain in the country with their citizen children, particularly by comparison with the numbers of EU citizens who immigrated to Ireland following EU enlargement in 2004. It is difficult to see how the denial of residence to a finite number of parents of Irish citizen children is necessary or proportionate to the aim of maintaining the integrity of the immigration system. Perhaps the State’s flexing of its sovereign muscles in this context is thus best understood as ‘a reaction to state perceptions of a loss of control over policy initiatives in other areas’ (Dauvergne, 2008, p. 2). While the Zambrano judgment has had the effect of vindicating the right to family and private life in Ireland of Irish citizen children the effects of the judgment are likely to apply to a discrete category of persons, namely, the non-national parents of children who are both EU citizens and dependent on their parents. Ireland and other EU Member States are likely to interpret their obligations under Zambrano as restrictively as possible and other questions arising from the case will have to be addressed in further CJEU references such as whether, for example, a non-national guardian may gain rights under Zambrano and when exactly a child ceases to be dependent on its non-EU parents. Though Zambrano undoubtedly represents a victory for the EU citizen children to whom it is applicable, the Irish jurisprudence on the right to remain in Ireland of those who were unsuccessful IBC Scheme points up the fact that children’s citizenship was viewed as insufficient to secure the care and company of their parents within a family unit within their home country. Judicial treatment of the rights of the citizen child in the cases examined above may thus be read as supporting the view that advance of human rights jurisprudence has done little to impede states’ power to control immigration (Dauvergne, 2008, p. 163).


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References Aliens Act 1935 (Irl.). Alli v The Minister for Justice, Equality and Law Reform [2009] IEHC 595 (Irl.). Baldwin-Edwards, M., & Kraler, A. (Eds.). (2009). REGINE – Regularisations in Europe: Study on practices in the area of regularisation of illegally staying third-country nationals in the member states of the European union. Vienna: ICMPD. Bhabha, J. (2004). The ‘mere fortuity’ of birth? Are children citizens? Differences: A Journal of Feminist Cultural Studies, 15(2), 91 – 117. doi:10.1215/10407391-15-2-91 Bode v. Minister for Justice, Equality and Law Reform and Others [2006] IEHC 341 (Irl.). Bode (A Minor) v Minister for Justice, Equality and Law Reform and Others [2007] IESC 62 (Irl.). Bosniak, L. (2006). The Citizen and the alien: Dilemmas of contemporary membership. Princeton: Princeton University Press. Case C-34/09 Gerardo Ruiz Zambrano v. Office national de l’emploi, Judgment of the Court of Justice (Grand Chamber) of 8 March 2011 Cullen, P. (2002, 9 April). What’s to befall these Irish children? Irish Times, 4. Retrieved from http:www.irishtimes.com Dauvergne, C. (2008). Making people illegal: What globalization means for migration and law. New York: Cambridge University Press. de Londras, F., & Kelly, C. (2010). European convention on human rights act: Operation, impact and analysis. Dublin: Round Hall. Duncan, P. (2012, 24 January). Over 850 non-EU parents get residency. Irish Times. Retrieved from http//:www.irishtimes.com ECHR Act 2003 (Irl.). Fajujonu v. Minister for Justice [1990] 2 IR 151. (1990, 12 February). Guidelines on residence rights of partly alien family. Irish Times, 19. Retrieved from http://www.irishtimes.com Immigration Act 1999 (Irl.). Irish Nationality and Citizenship (Amendment) Act 2004 (Irl.). Kutzner v Germany, no. 46544/99 ECHR (2002) Lobe & Osayende v. Minister for Justice, Equality and Law Reform [2003] IESC 3 (Irl.). McGee v. Attorney-General [1974] IR 284 (Irl.). (1989, 9 December). Minister told he must reconsider family expulsion. Irish Times, 10. Retrieved from http://www.irishtimes.com Minister for Justice v. Wang Zhu Lie [1993] 1 IR 426 (Irl.). Mullally, S. (2007). Children, citizenship and constitutional change. In B. Fanning (Ed.), Immigration and social change in the republic of Ireland (pp. 27 – ). Manchester: Manchester University Press. Mullally, S. (2005). Citizenship and family life in Ireland: Asking the question ‘who belongs’? Legal Studies, 25(4) 578 – 600. DOI: 10.1111/j.1748-121X.2005.tb00685.x North Western Health Board v. HW and CW [2001] 3 IR 622 (Irl.). O v The Minister for Justice, Equality and Law Reform [2009] IEHC 448 (Irl.). Oguekwe v Minister for Justice, Equality and Law Reform [2006] IEHC 345 (Irl.). Oguekwe v Minister for Justice, Equality and Law Reform [2008] IESC 25 (Irl.). Osheku v. Ireland [1986] IR 733 (Irl.). P v. Minister for Justice, Equality and Law Reform [2002] 1 IR 164 (Irl.). Pok Sun Shun v Ireland [1986] ILRM 593 (Irl.). Sisojeva et al v. Latvia [GC], no. 60654/00, ECHR (2007) Statement by Minister for Justice, Equality and Defence, Mr Alan Shatter, TD, on the


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implications of the recent ruling of the Court of Justice of the European Union in the case of Ruiz Zambrano, 21 March 2011. (2011). Retrieved from http://www.merrionstreet.ie/index.php/2011/03/ statement-by-minister-for-justice-equality-and-defence-mr-alan-shatter-td-on-the-implications-of-the-recent-ruling-of-the-court-of-justice-of-the-european-union-in-the-case-of-ruizzambrano/ The Twenty-Seventh Amendment of the Constitution Bill 2004 (Irl.). ZH (Tanzania) (FC) v. Secretary of State for the Home Department [2011] UKSC 4 (UK).


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16

The Treaty of Prüm and unauthorised migration

João Pedro C. Alves de Campos

1 Introduction Even before the result of the referendums that would determine the end of the European constitutional model dream, the Treaty of Prüm was signed,1 taking into account the need to step up cooperation between Member States of the European Union in an area of freedom of movement of persons, with the aim of combating terrorism, cross-border crime and illegal immigration more effectively.2 The Treaty of Prüm did not attract any special public attention (Ziller, 2007) and, observing the academic legal production in Portugal,3 probably no one would say that it was a very important matter. Furthermore, despite recent developments – such as the incorporation of the main provisions of the Treaty of Prüm into the legal framework of the European Union, carried out by Decision

1

2 3

The Prüm Treaty was signed on 27th. May, 2005 in Prüm (Germany) by seven Member States (Belgium, Germany, France, Luxembourg, Netherlands, Austria and Spain) and came into force in Austria and in Spain on 1st. November, 2006 and in Germany on 23rd. November, 2006. Other Member States, although it is not possible to say exactly how many and what the exact status of the ratification process is, formally declared their intention to accede, as seems to be the case with Slovenia, Finland and Portugal (which has participated in all work groups). Italy adopted Prüm in a resolution of its Council of Ministers, authorising the President of the Republic to accede to the instrument and also on 30th. October, 2007, Hungary, Bulgaria and Romania signed declarations of intent. In the interim Hungary and Finland signed the Treaty at the end of 2007 (Bellanova, 2009). Article 50 of the Treaty stipulated that it would be perfected and come into force 90 days after the second ratification. The full text of the Treaty, in English, is available at: http://www.libertysecurity.org/ article368.html. In addition to João Davin, in Transnational Organised Crime (2007), there is only one academic reference text, by Inês Ferreira Leite: ‘The new database of DNA profiles’, published in the October/November, 2009 newsletter of the Institute of criminal law and Criminal Sciences at the Faculty of Law of the University of Lisbon, where the problem of Prüm is referred to.


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2008/615/JHA and Decision 2008/616/JHA of June 23, 20084 – Prüm represents to some, if not a step backwards in the process of police and judicial cooperation of the European Union in criminal matters, as well as in the European integration process itself, then, at least, three steps forward and two steps back (Geyer & Guild, 2006).5 Facing the impossibility of achieving consensus on most of the sensitive issues related to the inter-operability of databases and information, within the framework of pre-existing Europol and Sirene offices,6 the Treaty of Prüm is considered to be a form of pressure from a small group of Member States. When the violence of the first half of the 20th century gave way to a period of unprecedented peace and stability in European history, Europe had never been so prosperous, secure and free (Strategy, 2003). The need to increase the crossborder police co-operation emerged mainly in the integration process and the subsequent implementation of the single European market (Mitsilegas, 2009). Centrepiece of the European economic constitution (Machado, 2010); in an area without internal frontiers in which the free movement of goods, services, people and capital are structuring elements (Machado, 2006); guided by respect for fundamental rights and European citizenship, criminal activity seems to have been constituted as the fifth freedom. However, the September 11 terrorist attacks, and the attacks on European soil, of 11 March 11 2004 in Atocha station in Madrid, and on the London underground on 7 July 2005, placed the issue of combating terrorism at the top of the international and European agendas once again.7

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5

6

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Decision 2008/615/JHA of June 23, 2008 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, published in the Official Journal of the European Union L 210/1, August 6, 2008. This decision was operationalised by decision 2008/616/JHA of June 23, 2008 and extended its range of application to Iceland and Norway, by decision 2010/6482/EU of July 26, 2010. It could be worse if the course of development of this policy followed not the typical dance of Echternach (Luxembourg), as Geyer & Guild refer to, where at least we advance one step, but the Portuguese traditional dance, of ‘malhão’ where we take three steps forward and three steps back. In an interview with one of the Top Coordinators of the National Criminal Investigation Directorate of the Judicial Police, a reference was made to the impossibility of developing, in a timely manner, the most sensitive issues related to interoperability, within the framework of Europol and Sirene offices. Prüm was presented as a form of pressure, from one group of Member States, in relation to the others. The issue of interoperability of DNA profiles databases and fingerprints, is absolutely essential, but implies considerable technical and financial means, since the various authorities utilise different programs, either at national level or at European level. Additionally, some countries still have databases that are not fully operational. Immediately after the attack, high-level political reactions emerged, which included the Declaration on terrorism (SN 86/1/04 SEE 1, 25 March 2004) in which the European Council instructed the Council of Justice and Home Affairs to examine legislative measures with


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Transnational organised crime has become a growing threat in the post-cold war world, and the world of crime benefits, like no other, from the development of new technologies and sources of information and, above all, from the increasing mobility of people, goods and services in areas without border control, in a globalised economy (Brady, 2007). When the almost certain reformulation of Schengen is announced, increasing the control of people by constantly checking their documents – in response to new forms of organised crime and illegal immigration, as recently pointed out by the president of OSCOT8 (Lusa, 2011), it will be difficult to prevent the EU from implementing a new securitisation movement. As an example of a new surveillance system, the Treaty of Prüm – with the intention of improving co-operation in combating terrorism and as a way of fighting crime and illegal immigration – implemented the transnational exchange of DNA profiles (Prainsack & Toom, 2010). Although the initiative emerged as a multilateral agreement, a small group of Member States, led by Germany,9 managed to transform this Treaty into European Union law, under the third pillar, through a decision of the Council. The central issue of the Treaty of Prüm is the creation of a network of national databases. However, the new reality imposed by the Treaty of Prüm essentially raises three concerns: (1) whether the formula used for the strengthening of integration is the correct one (democratic control deficit), (2) the problems related to the lack of unified data protection mechanisms (data privacy and warranty information), and (3) the possibility given to other countries of gaining access to European database systems without the need to observe a general convention (scrutiny of the European Parliament).

8 9

a view to simplifying the exchange of information and intelligence between the judicial authorities of the Member States (Nunzi, 2007). (Lusa, 2011). On the occasion of the Joint Declaration ‘Live in Europe in security’ by the end of the German Presidency of the Council of the European Union (January-June 2007) the German Minister of the Interior, Dr. Wolfgang Schäuble, and the Minister of the Interior of Portugal, Dr. Rui Pereira, and the Slovenian Minister of the Interior, Dr. Dragutin Mate, at the end of the first phase of the Trio of Presidencies (January 2007 to June 2008), the German Minister said that the ‘overarching objective of the German Presidency was the effective reinforcement of police cooperation and intelligence-sharing. In the near future, the 27 Member States will have access to the DNA data and fingerprints retained by their European partners. Until today, the sharing of these data was limited to seven Member States signatories of the Treaty of Prüm. The implementation of this Treaty in the European legislation is an important step forward. ‘


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2


The European integration process

After the establishment of the European Economic Community (EEC), with the Treaty of Rome (1957), other international instruments symbolically marked the deepening of European integration (Machado, 2006). Within the framework of this study, it is particularly important to refer to the Treaty of Maastricht (1992), which established the European community construction over three fundamental pillars: the third being reserved for cooperation in matters regarding police and judicial cooperation, covering different fields like asylum, immigration, the fight against drug trafficking, fraud, judicial cooperation in civil and criminal matters, customs and police cooperation. Together with the second pillar, they were part of the institutionalised intergovernmental cooperation, without transference of sovereign prerogatives, fundamentally observing the unanimity rule in the decision-making process (Machado, 2010), and usually exempted from European jurisdiction or control (Machado, 2006). The Treaty of Amsterdam (1997), which came into force on 1 May 1999, refocused the efforts of European integration, concerning fundamental rights, within the framework of an area of freedom, security and justice. In addition to the reconstruction of the pillars, moving some substances from the third pillar to the Communitarian one (visas, asylum, immigration), the Treaty of Amsterdam symbolically proceeded to the incorporation of Schengen acquis10 within the framework of the EU, through a specific Protocol, although the right to challenge the Court of Justice of the European Communities (CJEC), directly, was not granted to individuals (Machado, 2006). Finally, closer cooperation in the EU and EC Treaties was also established, enabling the deepening of inter-governmental collaboration among a smaller number of Member States, only requiring the authorisation of the Council (Machado, 2006). But the European Union is also a community of values, law and principles, founded on respect for fundamental rights and for the principle of human dignity. These principles are inherent in all EU construction and activity (Machado, 2006).

10

The 1985 Schengen Agreement, concluded between France, Germany, and the Benelux countries, was an extra Community agreement, intended to establish a single policy regarding visas, combating illegal immigration, the creation of a common computer file (File System), asylum coordination and judicial, police and customs co-operation.


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There are basic principles specific to the EC legal construction but, in this study, and for the purpose of this study, we will focus on the principle of fairness and consistency of action. The current Article (Art.) 4. of the Treaty on the European Union (TEU), prior Art. 10. of the Treaty on the Functioning of the European Union (TFEU), for example, states that the Member States must meet the obligations arising from it and should abstain from any measure which could jeopardise the attainment of the objectives established by the Treaties (Machado, 2006, p. 731). However, it is, also, judicial cooperation in civil and criminal matters that contributes the most to the free movement of people within the territorial space of the Union. In consequence, the role played by the police and judicial cooperation has special relevance. This cooperation, germinating since 1987, was considerably strengthened with the Schengen Agreements, culminating in the integration of the acquis of Schengen, already referred to, into EU law by 2nd Protocol, annexed to the EU and EC Treaties, as enhanced cooperation. Another method of the cooperation has been the harmonising of the criminal laws of the various Member States under the third pillar. In this particular case, the Hague Programme- ‘Strengthening freedom, security and justice in the European Union’ – and the subsequent action plan, is a very important example. We cannot analyse European construction without referring to the integration process but, contrary to common opinion, it would be impossible, at least in the early stages, not to observe different rules within the Union and the communities. Nowadays, the acceptance of some differentiation is perceived, for example, by Jacques Delors, former President of the European Commission, as the ‘only possible solution to reconcile enlargement and extension’ (Delors, 2004). Thus, we can speak of ‘differentiated integration’ or, in a more expressive way, ‘multi-speed Europe’, ‘Europe of variable geometry’, ‘Europe à la carte’ or ‘Europe avant-garde’ (Dennewald, 2010). This inevitability, perhaps, is more easily observable in the construction of the European judicial area,11 with the development of various types of cooperation: informal ones, as, for example, with the creation of the TREVI Group (Terrorism, Extremism, Radicalism and Violence International) in 1975, and others of an inter-governmental nature, such as the ‘Pompidou Group’, at the level of the Council of Europe. The Treaty of Maastricht (1992) received all these matters in the third pillar, under the inter-governmental method.

11

Idea created by Valéry Giscard d’Estaing, President of the French Republic at the European Council in December 1977, covering police and judicial cooperation in civil matters, criminal matters and police cooperation.


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With the Treaty of Amsterdam (1997) and the Treaty of Nice (2001), the subjects of judicial cooperation in civil matters, were progressively communitised, with its transfer to the first pillar, and consequent subjection to the Community method (Dennewald, 2010). Thus, the third pillar was slowly built and rebuilt, in particular with regard to police and judicial cooperation, both at the level of legal instruments and concerning jurisdictional control. Whether we consider the Treaty of Lisbon (2009) as a possible institutional response to a Europe marked by heterogeneity, or as the consecration of the definitive collapse of the European dream, it was the culmination of an evolutionary process, imploding the pillars system, creating a single institutional framework with the application of the Community method to all matters (Dennewald, 2010). There are several types of differentiated integration, according to the vision that should be adopted to analyse this situation. Temporal differentiation, caused by the different times of entry into force of Community acts, as a result of differing internal procedures regarding reception of Union law; for example, as regards the transposition of directives, where the absence – until the Treaty of Lisbon – of a process of periodic assessment of transpositions, increased delays and gave rise to situations of non-transposition, due to political circumstances. This happened with the Schengen agreements, where many States were intentionally slower to fulfil the specific requirements necessary for the abolition of internal border checkpoints or, as with the European Arrest Warrant, where several Member States decided to apply its rules prior to the instrument coming into force. Or even with the invocation, in order not to apply it, of ‘force majeure’, as occurred in relation to Schengen, in particular, with regard to technical difficulties in the implementation of the Schengen information system (SIS II). Spatial differentiation is often used as a way to avoid a complete blockage of community integration, allowing some Member States to apply a particular procedure or agreement, as often occurs in the European judicial area, with specific systems, including exception clauses (opting-in or out). For example, a particular Member State can choose not to communitise a particular policy, by not participating in the instruments adopted within the framework of judicial cooperation in civil matters, criminal or police. Another form of spatial differentiation lies in extension clauses which, for example, make Community provisions applicable to third States or to non-community European territories, or even to non-European territories. Another factor involved in the deconstruction of the European judicial area and a cause of spatial differentiation, is close cooperation (we reserve the enhanced concept for what occurs within the framework of the EU) between certain


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Member States, held outside the framework of the EU, ignoring the rules of the treaties and, according to many, even acting in violation of its provisions.12 A leading example – and, by the success that the incorporation model had, likely to inspire future developments – are Schengen agreements, seen as a way to deepen European integration, outside the EU framework. It was the Treaty of Amsterdam that enshrined the idea of closer cooperation and, thus, the possibility of individual Member States participating, with varying rhythms, in the integration process itself. Obviously, this possibility was subject to restrictive conditions, in particular as regards the number of States required to initiate a procedure of enhanced cooperation, but the point of this juridical institute has been, with the Treaty of Nice and Lisbon, to progressively facilitate the extension of fields of activity. This requires that all other forms of cooperation have been exhausted when the matter is community-wide in nature; maintaining a minimum number of participants; and the possibility of other EU States acceding.13 With the treaty of Lisbon the principle of unanimity was limited to family law, criminal law and criminal procedure law, and a clause was introduced with a dual function: emergency brake and accelerator, which is nothing more than a softer formula to begin the procedure of enhanced cooperation. The possibility of regional cooperation, even within the framework of the European judicial area, ceased to exist with the Lisbon Treaty, and with the implosion, cited above, of the pillars system, and the consequent almost general communitisation of the third pillar. There are also cooperative relations established outside the framework of the treaties, in a formal or informal manner, with the aim of deepening European construction, outside of their own framework. They are of a strictly inter-governmental nature and arise for various reasons, sometimes because a community legal basis for development in a given and specific area did not pre-exist, or because a solution needs to be found in a fast and pragmatic way. Regarding cooperation between Member States in criminal and police matters, some authors, such as Morini, have argued that this has increased proportionately with the growth of the phenomenon of transnational crime, whether it be through cooperation in matters of extradition, recognition of judgments, foreign assistance and cooperation between criminal police bodies, or by c ombating

12 13

See, among others: The Treaty of Prüm and the Principle of Loyalty (art. 10 TEC), Center for European Policy Studies, 2006. Something like a ‘reserved area’ of free access, within a private club (Bellanova, 2009).


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specific types of crimes, such as international terrorism, drugs, weapons, and human trafficking, fraud and money laundering (Morini, 2008, p.182). As paradigmatic examples of cooperative relations established outside the framework of the Treaties, formal in nature, we have the Schengen agreements (1985) and the subject of our study, the Treaty of Prüm (2005). The Schengen Agreement,14 which has, as reference, the Agreement of Saarbrucken (1984), was signed initially by only five EU Member States. It is a treaty under international law, constructed outside the rules that were in place for enhanced cooperation, conducting a sui generis cooperation with a triple objective: the gradual abolition of internal frontiers in the space formed by the signatory States, the strengthening of external border control and the implementation of a common visa system. Compensatory safeguards and security measures have also been established, such as the implementation of cross-border observation, the Schengen information system (SIS) and police and judicial cooperation. After the participation of more than 15 States, what was known as the Schengen acquis was integrated, both to a normative and institutional level, within the Community framework, with the Treaty of Amsterdam (1997). Twenty years later, in a totally different stage of development of the Union, the Treaty of Prüm came about as an initiative of Germany and Luxembourg, repeating the experience of Schengen by acting outside the framework of the Union to, allegedly, meet EU objectives. In addition to the issues raised in the two treaties, a distinguishing mark between them is the way in which they became integrated into EU law. The Schengen agreements, as we have seen already, through the Treaty of Amsterdam, the Treaty of Prüm and through two Council decisions: Decision 2008/615/ JHA and 2008/616/JHA, were integrated under the old third pillar, except for subjects regarding the presence of security officers on board aircraft (air marshals), measures to be taken in the context of imminent danger, with the possibility of unauthorised entry into territory of another State, and measures to combat illegal migration. For all these matters the Treaty of Prüm remains in force, a reason cited by many as evidence of the incompatibility between the Treaty and European Union law.15

14 15

Schengen area covers today, 22 of the 27 EU Member States and another 3 countries (Iceland, Norway, Switzerland and the Principality of Liechtenstein). Fausto Correia, rapporteur for the working paper on the draft Council decision on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, of the Committee on Civil Liberties, Justice and Home Affairs, on April 10, 2007, said that Prüm was negotiated and adopted, with very little transparency and without effective


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There is yet another form of differentiated co-operation which is based on differences in terms of content, i.e. a particular State or group of States, in order to evade the enforcement of all, or part, of the obligations assumed by means of safeguard clauses,16 makes it possible for the Member State itself to decide on the application of a particular instrument. Regarding this, Ziller refers to the Treaty of Prüm as forming a ‘false enhanced cooperation’ (Ziller, 2007, p. 22).

3

From Schengen to Prüm: is history repeating itself in the area of freedom, security and justice construction?

Signed in June, 1985 between France, Germany, the Netherlands, Belgium and Luxembourg, in the city of Schengen, the Agreement, an international treaty, which became known by the name of the latter city, came into force on 2 March 1986. Its aim was a ‘gradual abolition of control of common borders,’ in followup to other international instruments already in force between some countries, as in the case of the Benelux Treaty (Belgium, Netherlands and Luxembourg) of 1960, which had as its main objectives: (1) the free movement of persons, goods, capital and services; (2) the coordination of economic, financial and social policies; and, (3) the creation of a common commercial policy for the three countries. Similarly, the Treaty of Saarbrücken was signed on 13 July 1984, between the Government of the French Republic and the Government of the German Republic, with a view to the ‘gradual abolition of border checkpoints’. The Senningen Memorandum is also a cooperation agreement in the area of judicial and police cooperation on immigration, concluded between the ministries of Justice of Belgium, the Netherlands and Luxembourg, and the Interior Ministers of Belgium and the Netherlands, and the Minister of defence of Luxembourg, on 4 June 1996. The Treaty of Enschede also deals with the same theme, having been agreed between the Netherlands and Germany, on 7 June 2006, However, it has not yet come into force (AIV, 2006). These inter-governmental instruments demonstrate that the police and judicial authorities see transnational cooperation as essential, but we should not just accept this without questioning whether the problems addressed could not have a more effective response within the framework of enhanced cooperation, within the legal framework of the European Union (AIV, 2006).

16

democratic controls taking place. Referring to specific measures of the draft decision, he said that the field left to the national legislation was too vast when we do not have a minimum framework regarding, for example, personal data protection (Correia, 2007). Optional character tools, reservations, declarations, clauses of opting-out, public order clauses [specific safeguard clauses], possibility of applying for national legislation or for a specific rule of a Member State.


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The construction of the area of freedom, security and justice, was, thus, made from the outside to the interior or inside, through the use of traditional multilateral instruments of international law outside the Community framework, thereby endangering fundamental principles, such as the principle of loyalty imposed by previous Art. 10. TEC, now Art. 4. TFEU (Balzacq, 2006). This system, developed outside the system of inter-governmental cooperation in the framework of the Treaty of Maastricht (7 February 1992), was a laboratorial experiment which should have been performed at Community level (Morini, 2008, p. 184). This system presented two great dangers. The first being the fact that it was established among just a few Member States of the EEC; the second being the fact that, the encouragement of an ever-greater freedom of movement of persons was done outside the framework of guarantees and protection of the EU – fundamentally, outside the ‘control’ of the European Parliament – and, therefore, lacking democratic legitimacy and effective judicial protection (Morini, 2008, p. 184). The Treaty of Amsterdam was responsible for the incorporation in Union law, of what became known as the Schengen acquis, an initiative considered an anomaly by many (Caggiano, 2007). Thus, the contents of the Treaty of Prüm certainly conflict with the EU Treaty. It was negotiated between some Member States with the stated objective of increasing cooperation, expressing the intention of transferring it to Union law – outside the rules established for enhanced cooperation – as had already happened with the cooperation provided by Schengen, before the Treaty of Amsterdam. What, indeed, started as an extraordinary revision of the TEU, of dubious legality, was finally institutionalised with the integration of the Treaty of Prüm current regulatory framework in secondary legislation, under Title VI TEU (Caggiano, 2007).

4

Unauthorised migration in Prüm

As already mentioned, the Treaty of Prüm aims to strengthen cross-border cooperation, particularly in combating terrorism, cross-border crime and illegal immigration. The first paragraph of the Treaty makes immediate reference to ‘the High Contracting Parties to this Convention, being Member States of the European Union ...’ Immediately a problem arises or, at least, is enhanced, by the freedom of movement of persons between Member States of the European Union.


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The Treaty also aims to develop European cooperation, especially with regard to improving the system of exchange of information, particularly in the fight against terrorism, cross-border crime and illegal immigration, stating that ‘the participation in such cooperation shall be open to all other Member States of the European Union’. The intention was also expressed by the contracting parties to bring the Treaty of Prüm acquis to the Union’s legal framework, as a mean of promoting the exchange of information within the EU: in particular, as regards the fight against terrorism, cross-border crime and illegal immigration, establishing all the legal and technical conditions to achieve this main goal. The Contracting Parties to this Treaty also mention several international legal instruments such as the Charter of Fundamental Rights of the European Union, the European Convention for the Protection of Human Rights and Fundamental Freedoms, and the constitutional traditions common to the States’ parties, particularly considering access to personal data which requires a very high level of protection. The possibility of effective judicial review is also referred to in the Treaty, in addition to the protection resulting from national laws. At the end of the preamble, the Member States also agree on the possibility of celebrating ‘implementation’ agreements, in particular, regarding the automatic databases search, insofar as it is necessary for the strengthening of cross-border co-operation. Chapter IV concerns measures to combat illegal immigration, among which the possibility of establishing teams of advisers in the fight against counterfeiting of documents in countries seen as source or transit countries for illegal immigration stands out. The problem of repatriation is also not forgotten, as a duty of assistance in repatriation has been created, not just a general duty, but an obligation to organise joint flights, removing illegal immigrants in two or more Member States, which had previously been under the individual order of expulsion pursuant to Directive 2003/110/EC of the Council of 6 December 2003, as well as the possibility of enforcing repatriation through the territory of another Contracting Party.

5

Prüm in the framework of the European security strategy

The incipient European security strategy is a milestone in the last 60 years of European history (Nunzi, 2007), and the creation of the European Union marks the beginning of an unprecedented period of peace and stability in Europe, changing the relations between Member States and between citizens.


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If disputes were resolved through diplomatic and other peaceful means, such as through joint institutions, the principles of the rule of law and democracy would strongly bond and make it possible for the 27 Member States to live together. This Union suffers, however, from threats to its security and it should be ready to share responsibility in the context of global security. The European security strategy (ESS) was adopted by the European Council, since the internal aspects of security are inextricably linked and the phenomena that brought freedom and prosperity for many, are also seen to cause frustration and injustice. ESS sets out four key threats affecting European security: terrorism; the proliferation of weapons of mass destruction; regional conflicts and organised crime. Since the Tampere European Council in 1999, the EU has gone on to pursue a policy for the area of Justice and Home Affairs in an integrated program that has made great progress, such as the establishment of guidelines for a common statute for asylum and immigration policy, the harmonisation of border control based on cooperation among the various police forces, and considerable advances in the principle of mutual recognition of judicial decisions. Five years after Tampere, and with the objective of outlining a new schedule for the area of freedom, security and justice, the EU adopted The Hague programme. The European Council considered that the strengthening of the area of freedom, security and justice was vital for the security of communities, mutual trust and for the rule of law throughout the EU and that the issue of freedom, justice, external borders, internal security and the prevention of terrorism should be under a unitary form of treatment across the EU. For that, the EU needed a concerted response, multidisciplinary on the part of the EU and at national level, between the competent security authorities. The establishment of the principle of availability was of extraordinary importance. As regards terrorism, the Hague programme reaffirms that a high level of information exchange between security services must be maintained, considering the principle of availability and with particular attention to special circumstances, such as for example, the methods of collecting information, the sources of information and the maintenance of confidentiality, even after the exchange of information. To make the Hague programme feasible and with regard to the priority of strengthening the cooperation and exchange of information, the Ministers of the Council of Justice and Internal Affairs agreed on a European criminal intelligence model, focused on gathering information. The need to share informa-


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tion between security agencies is often frustrated by technical and, or, legal obstacles which delay or prevent the implementation of the principle of availability. These, and other considerations, have led to the agreement of the Treaty of Prüm in 2005 by some EU Member States, as we have seen, outside the framework of the EU. Previously we can also refer to the Swedish initiative, a proposal by the Kingdom of Sweden to the European Union Council on 4 June 2004 (10215/04), which had as its objective the facilitation of the information and intelligence exchange between Member States’ security forces, primarily in relation to serious crimes and, in particular, terrorist acts. A second moment is the communication from the Commission to the Council and the European Parliament to provide access to information by the police forces through the EU Information Policy.17 This communication recommends that all Member States take the necessary measures to make all necessary data and information available to the security forces, to prevent and combat terrorism and other forms of serious crime, and that they should do it through the production and use of high-quality data and information, fostering confidence between Security agencies services of the compliant Member States. The information policy for all security forces, proposed by the Commission, was intended to improve information circulation between all security authorities, including police, customs, financial intelligence units, as well as other relevant public bodies. Shortly before the communication from the Commission, Sweden introduced a draft Framework Decision, with the intention of creating a common and simplified framework for the exchange of data and information between the competent security agencies of Member States in the course of an investigation of a crime or a research operation. In the foundations of this initiative is the assumption that the national competence to detect, prevent or investigate a crime or a criminal activity assigned to an entity by domestic legislation should be recognised by another Member State, and that there is also a right to request and obtain information and data available in another member State territory, without any other formal requirement.

17

Commission of the European communities, communication of 16 June 2004 (COM (2004) 429).


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After several years of negotiations, which included consultations with the European Parliament, the Council Framework Decision 2006/960/JHA of 18 December 2006 on simplifying the exchange of information and data between security forces of the Member States of the European Union, was approved. However, since The Hague programme, access to data and information has become the main issue and the real driving force of the area of freedom, security and justice. And the Treaty of Prüm is only a model for the development of future EU legislation. Some authors, such as Bellanova (2009), speak even of the existence of a ‘Prüm model’, with multi-level projection: relations between the institutions of the Union; process of Europeanisation; fundamental rights, and personal or sensitive data protection.

6

Implementation stage (Portugal overview)

Our analysis of the last two documents produced within the framework of the follow-up of the Prüm Decisions, as they are known, the decision 2008/615/JHA and 2008/616/JHA of 23 June 2008,18 in particular the conclusions of the Working Group on Exchange of information and data protection (RULER DAPYX) within the framework of the Prüm Decisions dated May 2011, and the draft of the EU Council conclusions on the implementation of the Prüm Decisions, revealed that the deadline to implement the provisions allowing for the automatic exchange of information was August, 2011. However, Portugal, has not yet even indicated the point of contact ‘for the purposes of prevention of criminal offences and in maintaining public order and safety, events with a cross-border dimension in particular sporting events or European Council meetings’ as referred to in Articles 13. and 15 of Chapter 3 of Decision 2008/615/JHA. Nor has Portugal yet stated, as stipulated in Article 36, paragraph 3 of the Decision, if it will respect the obligations of the Decision and if it will immediately apply the Decision in its relations with Member States which have granted the same notification. Having responded to the questionnaire (March, 2011) on the protection of the data, Portugal did not develop any kind of activity (besides a technical visit), either within the framework of legislation, nor with regard to the DNA base or implementation of lophoscopic tests. It was expected that the draft legislation would be ready by the end of August 2011 but, on a technical level, it was common sense that the August 2011 dead-line would not be respected. Concern-

18

By decision of the Council of July 26, 2010, the application of certain provisions of the Prüm decisions was agreed between the EU and Iceland and Norway.


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ing registration of vehicles, Portugal faces the same situation, with the law in exactly the same position as in the previous case but, on the technical level, the national system required is being restructured.

7

Tensions between freedom and security – Reflections

To Callejón, a supporter of the European Constitution, the Treaty of Prüm is a clear manifestation of the lights and shadows of the current decision-making process in the European Union, which commits States to follow extra EU procedures to continue to move forward in community (EU) matters. He considers that the process, regardless of the content of the decision, can work perfectly with the Member States, but certainly not for citizenship (Callejón, 2007). The space of freedom, security and justice, should ensure the mutual recognition of judicial decisions but, also, progressively lead to truly democratic control by the European Parliament, as well as effective judicial control. The process of gradual “communitarisation” of aspects regarding justice and internal affairs, with the entry into force of the Treaty of Amsterdam in 1999 and the programme approved at the European Council in Tampere, was ambitious as regards the establishment of a common regime in the areas of immigration and asylum law, but has not been accompanied by significant results. The Hague programme was intended to re-start a process of greater legal integration and greater convergence of policies in the area of freedom, security and justice. I think that we can always count on resistance when we enter into matters traditionally regarded as ‘reserve of State sovereignty’ and security issues are a good example. What we should never accept is the use of the European integration, responding to security consideration visions of third States as, for example, the USA does as it frequently concludes new agreements for exchange of personal information and technology; without any guarantee that the information collected in the framework of the Union will not be provided, or made accessible, to others. Prüm procedure, as well as Schengen, was born out of the inability of the Union itself to give a faster and immediate response, but efficiency cannot be achieved at the expense of democratic values or fundamental rights.


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References AIV (2006). Europe: A priority!, Advisory Council on International Affairs, No. 52. Balzacq, T. (2006). The Treaty of Prüm and the Principle of Loyalty, Briefing Paper – Centre for European Policy Studies, 2006. Bellanova, R. (2009). Prüm: A Model ‘Prêt-à-Exporter’? The 2008 German–US Agreement on Data Exchange, Paper – Centre for European Policy Studies, 2009. Brady, H. (2007). The EU and the fight against organised crime. London: CER. Caggiano, G. (2007). L’evoluzione dello Spazio di libertà, sicurezza e giustisia nella prospettiva di un’Unione basata sul diritto. Studi sull’integrazione europea (Rivista quadrimestrale di diritto dell’Unione europea), pp. 335-377. Callejón, F. B. (2007). Revista de Derecho Constitucional Europeu, n.º 7 Enero-Junio de 2007. Correia, F. (2007). Working Document on a Council Decision on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime. European Parliament – Committee on Civil Liberties, Justice and Home Affairs, PE 386.684v01-00. Delors, J. (2004). Mémoires. Plon (2004). Paris: Plon. Dennewald, J. (2010). L’espace judiciaire européen au lendemain du Traité de Lisbonne : état des lieux et perspectives de l’intégration différenciée. ERA Forum (2010) 11: 169–196. Geyer, F., & Guild, E. (2006). Getting local: Schengen, Prüm and the dancing procession of Echternach; Three paces forward and two back for EU police and judicial cooperation. CEPS Commentaries, 2006. [Policy Paper]. HRW (2003). Bilateral Immunity Agreements. Human Rights Watch, June 2003. LUSA (2011). Fronteiras: Imigração e segurança serão causas para revisão do tratado de Schengen – OSCOT. Agência Lusa . Machado, J. E. (2010). Direito da União Europeia. Coimbra: Coimbra Editora. Machado, J. E. (2006). Direito Internacional do Paradigma Clássico ao Pós-11 de Setembro. Coimbra: Coimbra Editora. Mitsilegas, V. (2009). EU Criminal Law. Oxford: Hart Publishing. Morini, C. (Janeiro de 2008). La Convenzione di Prüm sulla cooperazione transfrontaliera specialmente in materia di lotta al terrorismo, al crimine transnazionale e all’immigrazione illegale. Studi sulla integrazione europea, pp. 181-201. Nunzi, A. (2007). Exchange of Information and Intelligence Among Law Enforcement Authorities : a European Union Perspective. Revue Internationale de Droit Penal , 78, pp. 143-151. Prainsack, B., & Toom, V. (2010). The Prüm Regime: Situated Dis/Empowerment in Transnational DNA Profile Exchange. British Journal of Criminology: An International Review of Crime and Society, pp. 1117-1135. Strategy, E. S. (2003). A Secure Europe in a Better World. Brussels. Ziller, J. (Enero-Junio de 2007). El tratado de prüm. Revista de Derecho Constitucional Europeo.


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About the authors

José Ángel Brandariz – [email protected] José Ángel Brandariz García earned a PhD in Criminal Law from University of A Coruña, Spain in 1999, and he is currently reader in Criminal Law at the University of A Coruña. His current research focuses primarily on migration control policies, seeking to analyse the neo-liberal and sovereign rationales underlying the Spanish and European policies in this field. Tuba Bircan – [email protected] Tuba Bircan is a post-doc researcher and she is affiliated with both Research Centre of Public Economics and Institute for Political Research at the University of Leuven. Her research interests are immigration, crime, economic inequality, anti-immigrant attitudes, and statistical methods, in particular multilevel modelling. Tuba Bircan obtained a PhD in Political Science, while she also holds an MSc in Statistics. She has published mainly on immigration, crime and economic disadvantages. Her work has been published in international journals including European Journal of Criminology, and British Journal of Criminology. Débora da Cunha Piacesi – [email protected] Débora da Cunha Piacesi is a graduate of Federal University of Juiz de Fora, where she obtained a degree in law, followed by a specialisation on Criminal Law and Criminal Procedure at Estácio de Sá University and then by a master´s degree on criminal law and criminology at Cândido Mendes University, all located in Brazil. She is a member of the board of ISA Research Committee RC 29 (Deviance and Social Control). Presently, she is a PhD candidate at University of Coimbra, Portugal, in the field of sociology. Her thesis studies the influence of the discourse of fear on criminal legislative processes, comparing lawmaking processes in Brazil and Portugal. Alan Desmond – [email protected] Alan Desmond is a PhD candidate at the Faculty of Law in University College Cork, Ireland, where he is working on a dissertation on the right of irregular immigrants to a legal status. He has been a visiting researcher at the University of Warsaw, Harvard Law School and UCLA School of Law. From 2003 – 2007 he taught Irish at the Catholic University of Lublin in Poland and is the author of four Irish language books.


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Godfried Engbersen – [email protected] Godfried Engbersen is professor of Sociology at Erasmus University in Rotterdam. He writes about poverty, migration, and social theory. His current research activities focus on irregular migration, the relationship between restrictive migration regimes and crime, local and transnational citizenship as well as liquid migration from Central and Eastern Europe. Engbersen is the Dutch correspondent for the Continuous Reporting System on Migration (SOPEMI) of OECD and elected member of the Royal Netherlands Academy of Sciences (KNAW) since 2007. Maria da Graça Castanho – [email protected] Maria da Graça Borges Castanho is the current director of the Regional Department for the Communities (Government of the Azores) and also a professor at the University of the Azores. In 2007, she followed a post-doctoral programme at Harvard University, Cambridge, Massachusetts; in 2002 a doctoral programme from Universidade do Minho, Braga, Portugal; in 1998 a master’s degree from Lesley University, Cambridge, Massachusetts; and in 1985 a bachelor degree from Universidade dos Açores. Agustina Iglesias Skulj – [email protected] Agustina Iglesias Skulj earned a PhD in Criminal Law from University of Salamanca, Spain in 2009. She has been advisor in criminal law issues for the Argentinian and Bolivian governments, and she is currently research fellow in Criminal Law at the University of A Coruña. Her main research interest is the relation between migration and penal policy, especially the domain of sex trafficking and migrant sex work. Roel Jenninssen – [email protected] Roel Jennissen is researcher at the Research and Documentation Centre (WODC) of the Dutch Ministry of Security and Justice. He obtained a PhD in demography from the University of Groningen on the basis of the book Macro-economic determinants of international migration in Europe (2004). Currently, his main research interests are crime, international migration and historical demography. Maria João Guia – [email protected] Maria João Guia is currently finishing a PhD thesis on ‘Immigration, violent crime and crimmigration’ at the University of Coimbra, Portugal. She is Associate Researcher at the Center of Human Rights, at the Faculty of Law, University of Coimbra. She published two books on Immigration and Crime (2008 and 2010) and she is co-editor and editor of forthcoming publications. She was appointed in 2012 as a SYLFF Fellow for her leadership and organisational skills with a grant to develop academic projects. CINETS network (www.crimmigrationcontrol.com) has been one of her academic priorities. She organised and co-organised various panels, workshops, discussion groups and conferences under the same topics.


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Robert Koulish – [email protected] Robert Koulish (PhD) is a visiting associate professor at the University of Maryland, College Park, in the Government and Politics Department. He is also a senior research fellow at the UMD Center for American Politics and Citizenship (CAPC), and director of Undergraduate Studies in the Government and Politics Department. Robert has written extensively on immigration control, including the book, Immigration and American democracy: Subverting the Rule of Law, and numerous articles, book chapters and opinion pieces. Arjen Leerkes – [email protected] Arjen Leerkes is assistant professor of Sociology at the Erasmus University of Rotterdam and researcher at the Scientific and Documentation Centre (‘WODC’) of the Dutch Ministry of Security and Justice. In 2007 he obtained a PhD from the University of Amsterdam on the basis of the book Illegal residence and public safety in the Netherlands (published by Amsterdam University Press in 2009). His research focuses on the operation and societal consequences of immigration law in Europe and the United States. Recent publications include ‘Local Limits to Migration Control: Practices of Selective Migration Policing in a Restrictive National Policy Context’ (with M. Varsanyi and G. Engbersen) in Police Quarterly and ‘Borders Behind the Border. An Exploration of State-level Differences in Migration Control and their Effects on U.S. Migration Patterns’ (with M. Leach and J. Bachmeier) in the Journal of Ethnic and Migration Studies. Joanne van der Leun- [email protected] Joanne van der Leun is a professor of Criminology at Leiden Law School, the Netherlands. She co-ordinates the Criminology Curriculum at Leiden University, where she also teaches. In 2001 she received her PhD in Sociology from Erasmus University Rotterdam. Her dissertation Looking for loopholes. Processes of incorporation of illegal immigrants in the Netherlands was published in 2003. Her inaugural lecture dubbed Crimmigration (2010) was the starting point for new research into the melting of criminal law and migration policies. Her current research explores the interrelations between migration, crime and policies, including the role of the police. She is member of the Ministry of Justice Accreditation Committee for Behavioural Interventions and of the editorial board of the Social and Cultural sciences of the Amsterdam University Press. Valsamis Mitsilegas – [email protected] Valsamis Mitsilegas is professor of European Criminal Law and director of the Criminal Justice Centre at Queen Mary, University of London. A member of the management committee of the European Criminal Law Academic Network (ECLAN), he is also a regular consultant to parliamentary committees, governments, EU institutions and NGOs. His many publications in the field of EU Justice and Home Affairs law and policy include the monograph EU Criminal Law which was published in 2009.


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João Pedro Campos – [email protected] João Campos, received his Bachelor in Law with a specialisation in human rights and international law from the University of Coimbra, is former assistant professor at the University of Lisbon and at Bissau Law School, a legal adviser at the Post-Conflict Peace Building Support Office in Guinea-Bissau and at the UNDP, a junior researcher at the Centre for Social Studies in several projects, and is currently legal advisor at the International Affairs Department of the Portuguese Ministry of Justice. António Pedro Dores – [email protected] António Pedro Dores (PhD) is professor of Sociology at Instituto Universitário de Lisboa (ISCTE-IUL) and fellow researcher at CIES/ISCTE-IUL. Born in 1956, he is founder member of Human Rights NGO concerning prison issues, established by inmates in Portugal, 1997, ACED http://iscte.pt/~aced/ACED. He is author of several books about prisons and about social theory. URL: http://iscte.pt/~apad/novosite2007/ingles.html Doris Marie Provine – [email protected] Doris Marie Provine is a professor of Justice Studies at Arizona State University. Dr Provine has a law degree and a PhD in political science from Cornell University. Her current research focuses on policies toward unauthorised immigrants. She is currently principal investigator of a NSF-funded study of responses of local law-enforcement to opportunities to enforce federal immigration law. Juliet Stumpf – [email protected] Juliet Stumpf is a professor of Law at Lewis & Clark Law School in Portland, Oregon. Stumpf’s current research explores the intersection of immigration law with criminal law and other substantive areas including constitutional law, civil rights, and employment law. Her research is interdisciplinary, examining the insights that sociology, psychology, criminology, and political science bring to the study of immigration law. Derrick Thomas – [email protected] A graduate of Carleton University, Derrick Thomas has been a senior analyst with the Canadian Federal Statistical Agency for over 16 years. He has published a number of papers in Statistics Canada’s peer reviewed publications, most notably in Canadian Social Trends. Prior to his sojourn with Statistics Canada he was a senior researcher with the Strategic Planning section of the Immigration Policy Branch at Citizenship and Immigration Canada. In that capacity he provided advice to the Canadian Minister of Immigration. Michele Waslin – [email protected] Michele Waslin(PhD) is senior policy analyst at the Immigration Policy Center, a division of the American Immigration Council located in Washington, DC. She has authored several publications on immigration policy and post-9/11 immigration issues and appears regularly in English and Spanish language


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media. Previously she worked as director of Immigration Policy Research at the National Council of La Raza (NCLR) and policy coordinator at the Illinois Coalition for Immigrant and Refugee Rights. She received her PhD in 2002 in Government and International Studies from the University of Notre Dame. Maartje van der Woude – [email protected] Maartje van der Woude is an assistant professor of Criminology at Leiden Law School, the Netherlands. She is a graduate of Leiden University the Netherlands, where she obtained a degree in both criminal law (LLM) and criminology (MSc, cum laude). Her dissertation Legislation in a culture of control. The Drafting of Dutch counterterrorism legislation seen from a social and legal-political context was published in 2010. During her PhD, Maartje was a visiting scholar at the Center for the Study of Law and Society of the University of California in Berkeley. Her current research projects focus on the moral, legal and practical problems of profiling in the context of border control and the impact of a changing social and political context on the legislature and the legislative procedure. She was recently (2012) appointed as one of the organisers of the Law and Society Association’s Collaborative Research Network on Citizenship and Migration.


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CINETS group

This group of scholars was created in September 2011 after months of correspondence by email between Maria João Guia (University of Coimbra) and Juliet Stumpf (Lewis & Clark Law School, USA), who had coined the term crimmigration in 2006. Maria João Guia first mailed Juliet Stumpf after coming across her excellent papers during a literature search. After a lengthy exchange of views they decided to meet in person and initiate a wider dialogue on the subject in which they share a passionate interest: crimmigration. That was the point at which their plan began to take more solid shape. When a panel was set up during the American Law & Society Association conference in San Francisco (see past activities), they were joined by other scholars: Robert Koulish (University of Maryland, USA), Maartje van der Woude and Joanne van der Leun (both from Leiden University, the Netherlands). Luigi Solivetti (Sapienza University, Rome) did not participate in this conference, but became enthusiastic about the project when Maria João Guia visited him in Rome in February 2011 to talk about the issue and discuss European and North American views on the matter. Still at this early stage, Maria João Guia and Juliet Stumpf set up two more panels at the 16th Metropolis Conference in the Azores, in September 2011, where other distinguished academics entered the dialogue. These included Doris Marie Provine (Arizona University), Alan Desmond, Valsamis Mitsilegas (Queen Mary, University of London), João Pedro Campos (University of Coimbra) as well as representatives from Portuguese state departments: Duarte Miranda Mendes from the Portuguese High Commission for Immigration and Intercultural Dialogue (ACIDI) and André Costa Jorge from the Jesuit Refugee Service). Two other academics showed interest and joined them at the Metropolis conference: Leo Dana from New Zealand and Shahamak Rezae from Denmark. This marked the start of a project whose aim is to bring together scholars and develop comparative studies addressing the core subject of crimmigration and related issues. Maria João Guia then set up a web page naming the group members and presenting most of its past and future activities: www.crimmigrationcontrol.com. In this initial period Maria João Guia, Maartje van der Woude and Joanne van der Leun decided to head the organization of the first CINETS conference, to


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be held in Coimbra, Portugal (the image on the cover of this book), where the nucleus of this network was funded. They are co-editors of this book, which is intended to be the first of a series covering many studies in this field in the near future. The following book in the series will be presented at the next CINETS conference, to be held in Leiden, the Netherlands in 2014. We would be happy to hear from any other researchers wishing to participate in the further growth of this project. You can make contact via our web page or by mail at [email protected]


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Social Control and Justice

Social Control and Justice

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