In all these respects, police and prisons have replaced patrols and plantations as the means by which White society maintains its dominance over Black people.109
Racial Lines, National Borders
Of course the racial politics of policing are not simply Black and White. Over the last two decades immigration, like crime, has increasingly served as a coded proxy for race, a way of talking about it without saying it. Immigration enforcement, then, has operated as an ostensibly color-blind means of maintaining White supremacy, which has directed police attention toward those groups with a sizeable proportion of immigrants—the Latino community most of all.110
Until the mid-1990s immigration was treated as a strictly federal matter. Aside from notifying the Immigration and Naturalization Service when taking foreign nationals into custody, local and state police had little role to play in enforcement. In the last two decades, and especially since the terrorist attacks of September 11, 2001, local cops have increasingly been enlisted—sometimes eagerly, sometimes over their objections—to enforce immigration law.111 The new police duties came as a result of several major shifts occurring simultaneously, or in quick succession. Border enforcement has been increasingly militarized, incorporating the use of helicopters and drones, and sometimes involving marines and Army Special Forces.112 At the same time many immigration violations, which had previously been treated as administrative or civil matters, have now been criminalized; and the remaining administrative elements have become increasingly punitive.113 Enforcement has also come to focus more and more on the interior of the country, in cities and farm towns far from the border.114
The implications for civil liberties have been serious, and bad: Because immigration has historically been an administrative and civil (rather than criminal) matter, it has weaker safeguards and suspects enjoy fewer rights. For example, the courts have been more flexible in search and seizure requirements and often allow illegally obtained evidence to be presented in deportation hearings; Homeland Security’s Immigration and Customs Enforcement (ICE) has thus been aggressive in testing the limits of the Fourth Amendment, a habit that police will likely carry with them into criminal investigations as well. Police may also take advantage of the lower standards and decide to treat immigration enforcement as a cover for criminal investigations, using ICE databases, civil warrants, and immigration holds for other purposes.115
Police involvement began in earnest in 2002, when Florida entered into an agreement with the federal authorities under which local cops would be trained and deputized as immigration officers. Such arrangements had been authorized by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, but the provision, section 287(g), had never been used before. Soon others followed suit—Alabama in 2003, six more jurisdictions over the next three years; by 2013, thirty-five agencies in eighteen states had some 287(g) agreement.116 At the same time, other federally-driven programs, such as the Criminal Alien Program and Secure Communities, have greatly increased the flow of information between agencies. When local police make an arrest, they now run the suspect’s fingerprints, not only through federal criminal databases, but immigration databases as well.117 In the first year of the Secure Communities program’s implementation in California, it resulted in 19,109 deportations, 25 percent of which occurred without a conviction.118
All of that has meant a great deal more scrutiny on the Latino community, including checkpoints, neighborhood sweeps, and workplace raids—as well as armed vigilante patrols along the U.S./Mexico border.119 Undoubtedly the man who has personified the worst of these practices—or, as he would have it, the “toughest”—is Sheriff Joe Arpaio of Maricopa County, Arizona. Arpaio, who has served as sheriff since 1993, has always courted controversy and regularly shrugged off concerns about constitutionality. He first came to national notice when he erected an outdoor tent city to hold the county’s prisoners and subjected them to a host of petty deprivations—no cigarettes, no coffee, no movies, no pornography, no hot lunches, no salt. He instituted chain gangs (even for juvenile offenders), dressed inmates in cartoonish black-and-white striped uniforms, and outfitted everything in the men’s prisons—towels, sheets, underwear, handcuffs—in Pepto-Bismol pink.120 (Ostensibly the pink was to deter theft, but Arpaio admits “there was the matter of embarrassing the prisoners.”)121 His jail guards, meanwhile, gained a reputation for strapping inmates into restraint chairs and torturing them with tasers.122
Beginning in 2006, Sheriff Joe (as he likes to be called) turned his attention to immigration. He started arresting immigrants as co-conspirators in human trafficking. He led deputies, as well as his 3,000-strong volunteer posse, on raids of workplaces looking for undocumented immigrants—including an after-hours raid to arrest the cleaning staff at the Mesa City Hall. It’s always the staff, too; in only three cases has he arrested their White employers. And in the City Hall case, the workers turned out to be legal residents. Sometimes his raids target entire towns, as when deputies besieged the hamlet of Guadalupe with mounted patrols, a mobile command center, and helicopter coverage for two days in 2008.123
A 2012 Justice Department investigation found that in Maricopa County “Latino drivers were between four to nine times more likely to be stopped than similarly situated non-Latino drivers,” with 20 percent of traffic stops failing to meet the legal standard of reasonable suspicion. It represented, in the estimation of one consultant, “the most egregious racial profiling in the United States.”124 The Justice Department also expressed concern about the “pervasive culture of discriminatory bias” in the sheriff’s office, including not just racial profiling, but racial slurs and racist jokes.125
Phoenix Mayor Phil Gordon was blunt in expressing his views on Arpaio:
The sheriff’s method is to profile people with brown skin and to ignore the civil rights we should all be enjoying. It is unconstitutional and wrong.… Citizens are being stopped because they are brown. Immigrants here quite legally, carrying their paperwork, are detained.… These stories have nothing to do with green cards. They have everything to do with brown skin. They were about racism and nothing else.126
Of course, it’s not just Arpaio.127 Police across Arizona search Blacks and Latinos more than twice as often as Whites, and search Native Americans three times as often. Likewise, in 2006, two thirds of the law enforcement agencies in Texas reported searching the vehicles of Latino drivers at a higher rate than those of Whites; more than a quarter searched Latinos at twice the rate of Whites.128 Racial profiling—blessed by the Supreme Court129—is an inevitable result of proactive immigrant-hunting. As Nancy Morawetz and Alina Das observed, writing for the Police Foundation:
Local officers will not be able to “observe” an immigration violation the way they might observe a violation of criminal law. Under such circumstances, there is a serious risk that the grounds for suspicion will in fact be nothing more than a series of assumptions that begin with a profile about people who speak another language or have a particular racial or ethnic profile.… Such tactics may well be ingrained in certain federal immigration enforcement efforts.130
Raymond Dolourtch, a St. Louis attorney, describes a pattern he has seen in recent cases: Police pull over Latino drivers, usually on some pretext. Since undocumented immigrants cannot apply for a driver’s license, they will be arrested for operating a vehicle without one. In jail, then, police will run their prints and check their status—leading to criminal charges or deportation.131 In towns like Waukegan, Illinois and Rogers, Arkansas, police set up checkpoints for the same purpose.132 Obviously traffic safety is just a pretext in these operations, a seemingly race-neutral rationale for rounding up members of a target population. But then, some Rogers cops have dispensed with the pretext altogether, asking people directly about their status without making an arrest.133 Likewise, in Irving, Texas, once the jail started reporting to ICE, the police began arresting greater numbers of Hispanics for low-level public order offenses.134
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