When students learn the areas of the law, the first division they are taught to make is between criminal and civil law. And that’s for good reason: They operate very differently. Criminal law often results in imprisonment and requires a high threshold for guilt; civil law almost never results in imprisonment and requires a low threshold for liability. Criminal law pits the state against a transgressor and necessitates a vast enforcement apparatus; civil law pits private parties against one another and generally does not have its own police force. Unfortunately, the line dividing these two regions of our legal system is being blurred, leading to injustices such as racial profiling and the separation of migrant families. This phenomenon is clearly manifest in immigration enforcement and pretext stop searches.
Prosecuting Undocumented Immigrants
In early April 2018, Attorney General Jeff Sessions issued a memorandum to all US attorneys along the US-Mexico border, directing them to adopt a “zero-tolerance policy” toward unlawful entry into the US. The document called on attorneys to use their powers to prosecute those apprehended attempting to cross the border illegally.
This blending of civil and criminal law is clear in the language of Sessions’s original memorandum. He directs “each United States Attorney’s Office along the Southwest Border to work with the Department of Homeland Security to develop guidelines for prosecuting offenses under 8 U.S.C. § 1325(a).” The statute Sessions is referring to encompasses illegal entry into the United States. Immigration violations are generally civil matters, and while illegal entry is technically criminal, the standard consequence has been deportation, which is not a criminal punishment. This contrasts with Sessions’s directive, which recommends prosecution, a criminal punishment.
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This memorandum has translated to increased prosecutions: Courts in hotspots like San Diego have seen double the number of criminal charges for unlawful entry since Sessions’s April announcement. If the Trump administration decides to put more resources into this effort, prosecutions could further increase in volume; if every person apprehended attempting to cross at the Southern California border were prosecuted, attorneys would have to process 300 more cases per day.
This administration’s choice to prosecute and imprison undocumented immigrants has led it to propose particularly draconian methods for maintaining pretrial detention. It has argued that, in order to maintain detainment for prosecution and remain within the bounds of judicial precedent, the only possible routes are family separation and indefinite detention. Without utilizing the civil solutions (which have their own problems) of deportation, housing on military bases or release into community while awaiting trial, this administration has inflicted trauma on many families undergoing prosecution.
Granting Law Enforcement Power to Enforce Civil Immigration Violations
While the zero-tolerance policy has operated at the border, the fusion of civil and criminal enforcement extends to internal immigration enforcement. The federal agency tasked with this job, which includes deportation and civil detention, is the US Immigration and Customs Enforcement (ICE). ICE, however, has one foot in civil law and the other in criminal law. The agency has two branches: Enforcement and Removal Operations (ERO), which deports and detains undocumented immigrants (civil), and Homeland Security Investigations (HSI), which counters everything from drug trafficking to money laundering (criminal). However, the agency does not segregate criminal and civil law very well.
The failure to separate the two areas of our legal system can be attributed in part to ICE’s directors, who oversee criminal and civil operations. And it is easy to see why they’d allow for crossover: they have backgrounds in the criminal legal system. Former Director John T. Morton was a prosecutor. Former Assistant Secretary John P. Torres was involved in “riot control” in Los Angeles after Rodney King’s beating. Current Director Thomas D. Homan has a degree in criminal justice.
The ERO manifests this in ways large and small. For example, ERO officers tasked with combating “unlawful presence” are issued the same weapons as HSI officers tasked with fighting international terrorism. As such, ERO officers are given a SIG Sauer P229R, a .40 caliber pistol. Occasionally, they can be upgraded to a Colt M4 Carbine or a Koch MP5 submachine gun.
The real criminal-civil fusion, however, comes not from HSI-ERO crossover, but from partnerships between ERO and local or state law enforcement. This blending is sanctioned in the 287(g) delegated authority program. This initiative trains local and state law enforcement officials to function as ERO officials; they can arrest and detain people unlawfully present in the United States. Simply put, 287(g) allows cops to enforce civil immigration violations.
This program’s problems are most evident in Maricopa County, Arizona. There, former Sheriff Joe Arpaio used the program to let his subordinates reign terror on the Phoenix immigrant community. His deputized immigration enforcers were notorious for their racial profiling, stopping motorists for their brown skin, looking for someone to detain and deport.
When cops are deputized to double as immigration enforcement, it widens the gulf of mistrust that already exists between immigrant communities and police. Undocumented people, who are more likely to be victimized than to commit crimes, are wary of reporting offenses to police because they are afraid a cop will use their newly acquired powers to deport them.
Stopping and Searching Drivers of Color
This problematic fusion of civil and criminal enforcement is also evident in police searches. Mixed judicial interpretations of Fourth Amendment rights have allowed police departments across the US to employ pretextual searches. Effectively, police, in the absence of “reasonable suspicion” to search for drugs or weapons, are pulling over motorists for traffic violations, aiming to quickly find contraband or pressure the motorist into consenting to a search of their car. And a cop can use almost any traffic violation to initiate a pretext stop, including making an illegal U-turn, entering an intersection at a yellow light and even hanging an air-freshener from a rear-view mirror. These kinds of stops are becoming painfully commonplace: In 2011, one in 33 traffic stops led to a search of the driver.
The application of this civil-as-justification-for-criminal enforcement has, again, lent itself to the targeting of communities of color. People of color are more likely to be stopped while driving, even though they are not more likely to commit crimes emphasized by police in pretext stops. This points to the larger, underlying issue of implicit bias against people of color among law enforcement. Additionally, the bias extends further into the stop: The Bureau of Justice Statistics estimates that once stopped, Black and Latinx motorists are at least three times more likely to be searched than white motorists. These searches are a manifestation of the disproportionate enforcement of drug and weapons laws on people of color that drive the mass incarceration of Black and Brown people. Allowing police officers to wield their civil traffic duties as a means for criminal enforcement creates a space for police officers’ implicit biases to gain a foothold.
Criminal and civil law do not belong in the same spaces. Police officers should not use the latter to justify investigation into the former. Civil immigration penalties should not give way to criminal detention. And police officers should not be granted the civil power to detain and deport. But as long as they continue to do so, the most vulnerable among us will pay the greatest price.