Doubling Down on Racial Discrimination: The Racially Disparate Impacts of Crimmigration Law | Casetext

Prosecutorial discretion is a principal driver of disparities in law enforcement in the U.S.  But behind that is often police discretionary enforcement.  the U.S. Supreme Court has virtually blocked challenges based on racial or ethnic disparate impact absent rigorous proof of discriminatory intent.   Since Washington v. Davis(1976) more than "volition" or "awareness of consequences" is required to prove purposeful discrimination.

Dean Johnson therefore sees little reason to expect courts to address the racially disparate impacts of deportation enforcement which is driven for many reasons by the ordinary criminal justice process.  Legislators are more likely to be responsive, he suggests.  Is it unrealistic to hope that prosecutors and defenders could be drivers of a campaign to improve our record on the principle of treating like cases alike? Is RPC 8.4's command against "conduct prejudicial to the administration of justice"  a tool against discrimination?  Or is it limited to purposeful "bias" in the Washington v. Davis sense?  - gwc 
Doubling Down on Racial Discrimination: The Racially Disparate Impacts of Crimmigration Law | Casetext
by Kevin Johnson (Dean, UC Davis Law School)

The U.S. immigration removal system targets noncitizens who are involved in criminal activity.  Relying on state and local police action, which many claim is racially biased due to such practices as racial profiling, the U.S. government removes nearly 400,000 noncitizens a year, with more than 95 percent from Mexico and Latin America (even though the overall immigrant population is much more diverse).  State and local governments have resisted some of the federal government’s aggressive removal efforts through “sanctuary laws,” which are designed to build the trust in immigrant communities necessary for effective law enforcement by local police.  Reforms in the immigration laws are necessary to reduce the racially disparate impacts of reliance on the criminal justice system for immigration removals. 

The Modern Immigration Removal System

The Obama administration’s signature immigration enforcement program, Secure Communities, proved to be highly efficient at facilitating removals of large numbers of noncitizens, including lawful permanent residents as well as undocumented immigrants, arrested for minor, as well as more serious, crimes.  Indeed, the program was so effective that removals spiked to record highs in the neighborhood of 400,000 noncitizens a year.  

Total removals of noncitizens by the U.S. government reached an all-time high of 438,421 in 2013:  “Mexican nationals accounted for 72% of all aliens removed in 2013.  The next leading countries were Guatemala (11 percent), Honduras (8.3 percent), and El Salvador (4.7 percent).  These four countries accounted for 96 percent of all removals in 2012.” Dep’t of Homeland Security, Office of Immigration Statistics, Immigration Enforcement Actions:  2013, at 6 (Sept. 2014) (emphasis added). From 2003-13, men accounted for 91% of all deportees.  These statistics are consistent with an immigration removal system that relies primarily on the criminal justice system and its racial profiling of Latino males by state and local police.

Simultaneous with ending Secure Communities, the Obama Administration announced the creation of the “Priority Enforcement Program” (PEP) with the stated intent of re-focusing removal efforts on serious criminal offenders; PEP changed federal policy to restrict requests for immigration “holds” to noncitizens actually convicted of crimes rather than merely arrested for them.  Memorandum dated November 20, 2014 to Thomas S. Winkowski, Acting Director, U.S. Immigration and Customs Enforcement, Megan Mack, Officer Office of Civil Rights and Civil Liberties, Philip A. McNamara, Assistant Secretary for Intergovernmental Affairs, from Jeh Charles Johnson, Secretary, U.S. Department of Homeland Security, at 2-3.  PEP continues to target “criminal aliens” for removal.

One commentator aptly summarized contemporary developments in American immigration enforcement as in effect creating “a criminal removal system.”  Ingrid V. Eagly, Criminal Justice for Noncitizens:  An Analysis of Variation in Local Enforcement, 88 NYU L. Rev. 1126, 1128 (2013). Police in traffic stops and other law enforcement activities rely on race.  And, because immigration enforcement today relies increasingly on state and local criminal arrests, removals have fallen overwhelmingly on Latina/o immigrants. 

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