The Uneven Production of Illegality: A Response to The Daily’s ‘The Sheriff Bind’

The association of violent criminality with immigration crops up time and time again across the popular and political press. Last Monday’s coverage on the New York Times Daily, which focused on the bind sheriffs face when asked by ICE to impose detainers on “illegal immigrants,” unfortunately takes up this characterization.

Implicit is the assumption that somehow people are more criminal on account of their legal status.  Why not focus on what induces someone to commit a violent act? Surely there are more complex personal histories here unrelated to “illegality.”

Sergio Jose Martinez, for example, stands accused of sexual assault in Portland. He has a history of robbery and assault and 20 instances of deportation. Federal immigration officials used a civil detainer to compel the sheriff’s office to hold Martinez longer after a jail sentence, which is an unconstitutional practice for local officers to carry out. Without the legal basis for holding Martinez, the sheriff released him, faced with the prospect of legal challenge.

Martinez, described as “a criminal alien” and now the poster child for the hardening of US-Mexican borders, has had a long history of mental health issues–including bipolar, schizoaffective, and borderline personality disorder, combined with substance abuse. The report would have done better to expose not what Martinez’s recidivism says about the disconnect between our immigration enforcement and criminal justice systems, but of the ineffectiveness of our healthcare system – something which Martinez, like so many, would have been at pains to access.

Instead, we are faced with a spiraling prison population and a system that relies on mass incarceration as a solution for addressing deep mental health concerns, exasperating social inequality and structural racism. Immigration has become another pipeline for a swelling industrial system. Meanwhile, the hardening of immigration and border controls only worsens people’s mental health anxieties, where precarious cash-in-hand labor is the norm.

Conflating the immigrant and the criminal has become the populist trend, as a way for politicians to point the finger, all too often at people of color, to easily explain away socioeconomic disparities. We should unpick the reductiveness of these parallels, including popular representations of “the immigrant,” which are overwhelmingly racialized and gendered on the constructed Latino working class male.

It is by no means productive to suggest, as the report does, that the legal code “lags far behind,” and requires “retooling” federal immigration law into criminal law. Framing the narrative in this way runs the risk of perpetuating the link between immigration and crime, fostering deep rifts between communities that invariably only provide fodder for populist political campaigns.

“These lawless policies do more than shield individual criminal illegal aliens – they also shelter lethal gangs like the Latin Kings and MS-13,” confirmed Attorney General Jeff Sessions in Portland only last week as he lambasted sanctuary cities.  “I know that the Acting ICE Director, Tom Homan, will work tirelessly with his men and women to track down and find these criminal aliens—wherever they may be … Our duty to protect public safety and protect taxpayer dollars and I plan to fulfill that duty.”

Julia Morris is the Post-doctoral Fellow at The New School’s Zolberg Institute on Migration and Mobility. Her work takes a political economic approach to the extra-territorialization of asylum. Read more here.

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