Crimmigration law, this blog’s readers know quite well, relies on a presumption that immigrants are especially prone to criminality. Reams of research suggest that’s not true (see, e.g., here and here. Numerous studies indicate that immigrant communities actually experience less crime than non-immigrant communities (see, e.g., here and here). This despite the fact that young men—the most likely people to engage in crime—are overrepresented in immigrant populations. What then explains the heavy reliance on criminal law enforcement practices to police immigration law that’s emblematic of crimmigration law?
Ian Haney López, a leading scholar of race at the University of California, Berkeley School of Law, offers an explanatory possibility in his latest book Dog Whistle Politics: How Coded Racial Appeals Have Reinvented Racism and Wrecked the Middle Class. As the book’s title suggests, Haney López is concerned about “coded talk centered on race,” which he labels “dog whistle racism” (page 4).
The bulk of his analysis centers on how Republican and Democratic politicians have used dog whistle racism to win elections and enact policies that hurt communities of color as well as working and middle class whites. Ronald Reagan’s decision to launch his presidential campaign in Philadelphia, Mississippi, for example, the city in which three civil rights workers had been lynched only 16 years earlier, was a way to signal to whites that he opposed much of the civil rights agenda without actually having to say so (58). Similarly, Bill Clinton “engag[ed] in his own racial pandering” during his 1992 presidential run by accepting a speaking invitation from the civil rights icon Jesse Jackson, then using the event to lambast the rapper Sister Souljah. “The intended audience,” Haney López writes, “was not in the room, but rather were the white voters whom Clinton hoped would see him ‘standing up’ to blacks by pushing away rather than embracing the Reverend [Jackson] and his supporters” (109).
Coded racial messaging arises in the immigration context as well. Unauthorized immigration, Haney López explains, has been viewed as a threat to the United States stretching to the 1980s (121). Reagan “warned that migrant workers from Mexico, as well as refugees from Central America, constituted a potentially traitorous group in the nation’s midst” (121). He didn’t need to explicitly describe these migrants as members of any particular race. The point was hard to miss: these brown-skinned traitorous newcomers from the south represented a danger to the way of life white voters longed for, and in defense of which they would cast their votes for the man who signaled he was on their side.
Haney López’s analysis of dog whistle politics as applied to immigration largely ends here, but I think his insight reaches much further. Framing migrants as dangerous allowed multiple presidential administrations, always with the support of Congress, to entangle criminal law and immigration law to create what we now know as crimmigration law by following a simple script: frame migrants as dangerous and strong-armed governmental responses as necessary to ameliorate that danger. And do so without ever explicitly uttering any racial hostility toward migrants.
Crimmigration law’s fascination with imprisonment is a key illustration of dog whistle politics in action. As I’ve chronicled in Immigration Detention As Punishment (forthcoming in the UCLA Law Review), during the 1980s and 1990s the Reagan, Bush, and Clinton Administrations responded to the perceived danger posed by migrants by turning to the state’s policing authority—in particular, its ability to imprison—as the preferred remedy for immigration law violations. Latina/os have borne the brunt of this detention practice—in fiscal year 2012, for example, at least 92.7% percent of civil immigration detainees were originally from Latin America—but these policies can pass as racially neutral and their proponents as racially agnostic.
Imprisonment, after all, appears to apply to everyone equally. Anyone who breaks the law is subject to confinement. What this misses, of course, is the racially skewed nature of immigration law breaking. It’s no surprise that people of color violate immigration law more frequently than whites and that Latina/os—especially Mexicans—do so in greater numbers than non-Latina/os. A decontextualized assessment of this situation suggests, as I’ve explained in Creating Crimmigration (BYU Law Review), that Latina/os are simply more immoral than others. Our disrespect for the law, the ahistorical argument goes, is evident in the fact that Latina/os constantly break the law. As Haney López puts it, “[b]y constantly drumming on the crises poses by ‘illegals,’ the right fuels a racial frenzy…” (123). Importantly, it does so without referring to race.
But this is not the end of the story. Much as Haney López has done for racially coded messaging intended to drive support for specific policies and politicians, understanding crimmigration law’s development requires appreciating historical context. Mexican migration to what is now the United States preceded creation of the border and has never stopped. In the early 1960s, upward of 200,000 Mexicans came to the United States annually with authorization to work. Then, in 1965, the option of coming to the United States with the government’s blessing all but ceased to exist for most Mexicans. Thanks to the Immigration Act of 1965 (often called the Hart-Celler Act), only 170,000 people from Western Hemisphere countries could be granted permission to enter the United States each year. Eleven years later Congress imposed a per-country cap on Western Hemisphere migration: only 20,000 migrants could come from any given country. Given the historical migration patterns from México, it’s no surprise that people kept coming to work or reunite with family—only now they did so in violation of immigration law. These policies, as legal historian Mae Ngai put it in her Impossible Subjects: Illegal Aliens and the Making of Modern America (Politics and Society in Twentieth-Century America), “recast Mexican migration as ‘illegal’” (Ngai at 261).
The moralized claim that unauthorized migrants lack respect for legal processes ignores this history. Instead of acknowledging the policy choices that created unauthorized immigration, immigration restrictionists focus on illegality. “Stressing illegality,” Haney López writes, “provides a way to seed racial fears without directly referencing race” (123). That is, the anti-immigrant cadre can point to the dangers posed by brown-skinned laborers without ever uttering the word “race.” This is dog whistle racism turned into dog whistle politics turned into action—getting white voters, afraid of these newcomers, into voting booths to support politicians who would crack down on immigration illegality.
And so voters have, electing politicians who repeatedly harp about the dangerous migrants pose while rarely resorting to blatant expressions of racial animus. Republican Representative Lamar Smith, for example, claimed in 1987, “Jamaicans, mostly illegal aliens, have developed a massive criminal organization that imports and distributes narcotics….” His Republican colleague Steve King followed suit in 2013 by claiming that unauthorized migrants (the so-called Dreamers) brought to the United States as children should not be allowed to regularize their status because “For every one who’s a valedictorian, there’s another 100 out there who weigh 130 pounds and they’ve got calves the size of cantaloupes because they’re hauling 75 pounds of marijuana across the desert.” Dog whistle politics, it seems, is alive and well, and thriving in the crimmigration context.
For this insight alone, Dog Whistle Politics is a great book. It is timely, highly readable, and a helpful conceptual tool for understanding why crimmigration law exists. By also placing other pressing issues of the day—from mass incarceration to growing inequality—into the context of coded racism, Haney López gives us much more to think about and contributes greatly to leftists’ ability to respond.
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