This was made clear this week when an ACLU lawsuit finally produced a memo that the Bush administration appears to be relying on in its enforcement policies. As the ACLU release puts it:
- The Department had repeatedly invoked the memo to justify a radical shift in immigration enforcement policy that has generated considerable controversy among state and local police, immigrant advocates, and others, but refused to release it until ordered to by a federal Court of Appeals.
That shift, in essence, puts the burden of enforcing federal immigration laws on local and state police and law enforcement officials -- a stark shift that is bound to generate a world of problems for everyone involved.
It's the Bush version of trickle-down theory: Cut back on federal responsibilities so that the burden of necessities falls upon local and state entities. We've seen it everywhere, particularly in the areas of traditional social safety nets, but also in other areas of law enforcement. In other words, an unfunded mandate created through the back door.
As the ACLU explains:
- The federal government's longstanding policy used to be that state and local police should not, and legally could not (absent special circumstances), attempt to enforce the non-criminal provisions of the immigration laws. Suddenly, in 2002, then-Attorney General John Ashcroft announced that the federal government was now asking state and local police to make certain civil immigration arrests. He pointed to a new Office of Legal Counsel (OLC) memo as legal justification.
Ashcroft's announcement caused immediate alarm in many quarters. Immigrant advocates and many law enforcement officials believe that state and local police should not engage in immigration enforcement because immigrants will be afraid to report crime or interact with the police. Further, immigration enforcement will take police resources away from important public-safety missions; state and local police, who lack specialized training, will fail to properly evaluate whether individuals are in compliance with the highly technical immigration laws, and increased racial profiling, discrimination and costly litigation will result.
Moreover, it appears that the Justice Department -- evidently continuing Ashcroft's policy under Alberto Gonzales -- has been justifying this policy on the basis of a Justice Department memo whose contents are, at best, questionable:
- The memo claims that state and local police have the "inherent authority" to enforce all federal laws, including immigration laws. The ACLU says that the legal memo is filled with legal errors and that the opinion by Jay Bybee, Assistant Attorney General:
-- Selectively reads case law in order to conclude that the federal government has not preempted local authority to enforce complicated, multi-layered immigration law;
-- Misconstrues decisions in cases where police assisted in criminal enforcement to extend them authority to enforce civil laws as well; and
-- Repeatedly ignores instances in which Congress authorized police to assist in immigration enforcement under specific situations, even when the Congressional Record reflects the fact that lawmakers intended such provisions to grant new authority that police did not already possess.
You can read the memo itself here, and a critique of it here. [Both PDF files.]
By way of illustrating the broad ramifications of the policy for law enforcement, consider if you will, its near-certain effect on hate-crime enforcement: That is, it will almost certainly increase the numbers of unreported hate crimes.
This is already a considerable problem, since it's been estimated that only a quarter of all the hate crimes committed in this country are reported, and a substantial portion of those crimes go unprosecuted altogether. These crimes only widen and deepen the nation's racial and cultural divides, as does the massive failure to respond adequately to them.
Part of the problem lies with the system of reportage itself. As I explain in Death on the Fourth of July: The Story of a Killing, a Trial, and Hate Crime in America, in Chapter 13:
- Initiated in 1990 with the passage of the Hate Crimes Statistics Act, the project [for collecting hate-crime statistics] under the care of the FBI was largely understood in its early years to be nascent and problematic at the outset, for a variety of reasons: many law-enforcement agencies were slow to participate; the initial numbers of hate crimes were likely to be skewed by the sharp increase certain to result from increased awareness of the crimes; and uncertainty and confusion reigned regarding the need to report and how to do it. It was hoped that, given enough time, the reporting system's flaws would self-correct and begin providing a clearer picture of the phenomenon. That was largely what happened. As already noted, by 1996 the wild fluctuations in numbers that occurred early on had largely disappeared, and the statistics began indicating a fairly stable phenomenon indicating about 8,000 bias crimes reported annually, and largely stable percentages of the kinds of the different kinds of hate crimes.
However, what closer examination -- particularly the Department of Justice study [titled "Improving the Quality and Accuracy of Hate Crime Reporting, conducted by the Justice Research and Statistics Association released and coauthored by Northeastern University's Center for Criminal Justice Policy Research] -- revealed was a reporting system that was deeply flawed, with statistics distorted by widespread failures to report the crimes and moreover, confusion about the differences between the absence of a report and the active reporting of zero hate crimes. The DOJ study, which surveyed 2,657 law-enforcement agencies, reported a "major information gap" in the data: It estimated that some 37 percent of the agencies that did not submit reports nevertheless had at least one hate crime. Worse yet, roughly 31 percent of the agencies that reported zero hate crimes did, in fact, have at least one; about 6,000 law-enforcement agencies (or one-third of the total of participants) likely dealt with at least one unreported bias crime. All told, the Southern Poverty Law Center estimates that the total number of hate crimes committed annually in America is closer to 50,000 than the 8,000 found in statistics.
"The overall numbers are worthless," says hate-crime expert Donald P. Green, a Yale University professor whose work includes debunking the notion that tough economic times increase the likelihood of hate crimes. Green says that bias crimes are especially likely to arise when minorities, for a variety of economic reasons, begin moving into communities that were previously homogeneous (that is, for the most part, predominantly white, such as the Midwestern communities that are currently experiencing a large influx of Hispanics); or when previously oppressed minorities, such as homosexuals, begin asserting themselves in public fashion.
Forcing local and state police to enforce federal immigration laws will immediately create a barrier between them and local immigrant communities, which remain among the most vulnerable to hate crimes. As I explain later in the same chapter:
- Of all the factors that cause law-enforcement officers to fail to identify and investigate bias crimes, the most significant, the DOJ study's authors found, was the gap between the victims and the police. The less trust that exists between minorities and their local law enforcement, the greater the likelihood that hate crimes will go unresolved.
The Filipino family that encountered Chris Kinison and his friends in Ocean Shores was a textbook example of how hate crimes can go unresolved this way. Many of the victims spoke poor English and had difficulty communicating with the police officers who came to their rescue; even though some of them later reported that they had wanted to pursue harassment charges against the men, the officers either failed or refused to register this. And the officers, little trained in dealing with hate crimes, clearly did not recognize that they had come upon the scene of a felony, which in most other such cases would require a careful and serious investigation and specialized handling of the victims.
By seeming eager to simply break up the potential violence and send everyone on their respective ways -- and particularly by escorting the family to the town's borders -- the officers communicated to the victims the message that the harassment they had endured was insignificant. This in turn feeds the distrust that any outsider (particularly a minority) in a strange town is likely to feel.
Moreover, the incident vividly illustrates that the problem of letting hate crimes go unresolved extends well beyond the mere statistical issues, and that the stakes can be very high indeed, especially for small towns. The result, as it was in Ocean Shores, was that these crimes can escalate from simple harassment to outright violence. Perpetrators, as some studies have observed, see their escape from the arm of the law almost as an invitation to step things up.
Other studies have likewise observed that the most common cause of this cascade of crime is the failure of police to proactively bridge the gap between themselves and the victims. The JRSA's Joan Weiss, in earlier research, found that the reluctance of victims to report crimes was significantly higher for hate crimes than for other crimes. The DOJ study reiterates this point: "For a multitude of reasons, hate crime victims are a population that is leery of reporting crimes -- bias or otherwise -- to law enforcement agencies."
Most hate-crime victims are minorities in the communities where the crimes occur. In many cases, they have poor English skills and have difficulty asking for assistance; in others, they may simply be unaware that what has happened to them is a serious crime. This is particularly true for immigrants, who may be reluctant to even contact police because of their experience with law enforcement in their homelands, where corruption and indifference to such crimes are not uncommon. Likewise, hate-crime victims may be confused about or unaware of the bias motivation involved, interpreting a threat or assault as a random act when other evidence suggests it was not. At other times, they may be reluctant to tell police about the bias aspects of the acts against them, fearing the police won't believe them or that they simply won't do anything about it anyway. And in the case of gays and lesbians, many are reluctant to report the crimes out of fear they will be forced to reveal their own identities as homosexuals; many more fear (sometimes with good reason) that they will wind up being humiliated and victimized further by police.
Likewise, many minorities in certain communities -- blacks in the South or Hispanics in the Southwest, for example -- have long histories of built-up distrust of law enforcement in their communities, and may simply refuse to participate in an investigation without proactive efforts on the part of police to bridge that gap. Indeed, this level of involvement was almost unanimously the chief factor reported by advocacy groups when queried by the authors of the DOJ study about what most affected hate-crime victims' decision to call or cooperate with police.
Putting local police in charge of immigration law enforcement will only create a massive amount of distrust of these forces in the immigrant communities, whether legal or not. It's a policy bound to produce myriad personal tragedies.
This is only one facet of what will no doubt be a multi-faceted problem created by this policy. Here's hoping the ACLU wins this one.