From job applications to the voting booth, we live in a society that treats criminal convictions as a stigma that never fades.
Yes, we have seen some positive shifts in attitudes around criminal justice reform: Bill and Hillary Clinton now repudiate the “tough on crime” laws they supported (and in Bill’s case, signed) in the 1990s. The Department of Justice no longer uses the “unnecessarily disparaging” terms “felon” and “convict” to describe released prisoners. President Obama has commuted more prison sentences than the previous nine presidents combined. Politicians from both parties concede that a lot of drug sentences are way too harsh.
But as we move culturally and politically to address reform solutions, we need to ensure that the fight for justice and fairness for all really means for all. That means we need to fight for a vast population that is too often left out of proposed solutions: immigrants with convictions.
In recent years, the immigration and criminal justice systems have become more and more intertwined, as immigration policy has become ever more punitive. Record numbers of immigrants have been deported because of criminal involvement, or punished through the criminal justice system for civil immigration offense. Local cops have become increasingly involved in immigration enforcement, traditionally a federal (and civil) domain, spreading additional fear and distrust through communities. Meanwhile, the government has stripped immigrants of key due-process protections, making it much harder for them to defend themselves against deportation.
The result has been an explosion in the numbers of immigrants arrested, detained, and deported—from 70,000 in 1996 to roughly 400,000 annually in recent years. Millions of families have been torn apart, communities hollowed out, and lives destroyed.
How did we get here? Twenty years ago today, the Clinton administration passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), which radically remade U.S. immigration policy. The IIRAIRA came just months after the passage of another major immigration law, the Antiterrorism and Effective Death Penalty Act.
The 1996 laws made detention and deportation mandatory for green-card holders and undocumented people who have any of a long list of convictions, including those for shoplifting, forgery and drug possession, even if the offense occurred decades before.
The laws expanded the range of immigration offenses that could be prosecuted criminally and made more immigrants subject to the most severe criminal penalties for violations of immigration law.
The IIRIRA also created the framework for local-federal collaboration in immigration enforcement, allowing the feds to use cops to round up potentially deportable immigrants.
At the same time, the laws also denied many immigrants the right to have their cases heard by a judge, and to have their individual circumstances such as family and community ties, length of residence in the U.S. or evidence of rehabilitation, taken into account. Other provisions paved the way for today’s massive system of immigration detention, an American gulag where hundreds of thousands of immigrants languish behind bars for months, if not years, with limited access to family members or lawyers, and without the ability to post bond.
Like the infamous crime bill of 1994, the ’96 immigration legislation grew out of a toxic political narrative that blurred race and criminality and hyped up fears of crime to justify punitive policies. Also, like the crime bill, the immigration laws exacted their heaviest toll on communities of color. “Tough on crime” policies unleashed on these communities hyper-aggressive policing, leading to the profiling, arrest, prosecution and incarceration of ever greater numbers of Black and Brown people. Immigrants, overwhelmingly people of color, were caught up in the dragnet, and thanks to the ‘96 laws, many were now subject to detention and deportation as a result of their convictions.
Today, mainstream America is waking up to the fact that that the criminal justice policies of the past few decades are racially biased and disproportionately harsh—and is having to confront its own hypocrisy in tolerating these policies while claiming devotion to justice and fairness, due process and equal protection. We all need to turn the same, unsparing scrutiny on the immigration laws of the same period.
In more than 20 years defending the rights of immigrants facing deportation for criminal convictions, we have learned that courts cannot provide meaningful solutions when the laws themselves are deeply flawed.
We need to roll back the 1996 laws and dismantle the machinery of deportation, dehumanization and pain they created. Congress and the next administration need to shorten the long list of drug and other offenses that trigger mandatory deportation based on, in some cases, decades-old convictions. They must end mandatory detention and mass deportation. And they must get police out of the business of deportation.
If we are truly pursuing a vision of a more just society where everyone has the opportunity to reach their full potential, free from racial discrimination and demonization, then we must fight for justice for all, including immigrants with criminal convictions.
The Immigrant Justice Network is a collaboration between the Immigrant Defense Project,the Immigrant Legal Resource Center and the National Immigration Project of the National Lawyers Guild.Since the 1980s, our organizations have protected, defended and expanded the rights of noncitizens in the U.S. impacted by mass incarceration and deportation. Visit www.immigrantjusticenetwork.org for more information.