“Immigrants are Not Criminals”: Respectability, Immigration Reform, and Hyperincarceration (Rebecca Sharpless, Houston Law Review, 2016, Vol.53(3))

Mainstream pro-immigrant law reformers advocate for better treatment of immigrants by invoking a contrast with people convicted of a crime. This Article details the harms and limitations of a conceptual framework for immigration reform that draws its narrative force from a contrast with people—citizens and noncitizens—who have been convicted of a criminal offense and proposes an alternate approach that better aligns with racial and class critiques of the U.S. criminal justice system. Noncitizens with a criminal record are overwhelmingly low-income people of color. While some have been in the United States for a short period of time, many have resided in the United States for much longer. Many are lawful permanent residents with strong family ties, including U.S. citizen children. Convicted noncitizens who have served significant time in our penal system have experienced the well-documented harms associated with both criminal and civil incarceration. Despite the significant size of this population and its location at the convergence of two heavily criticized law enforcement regimes, these individuals rarely serve as an example for what is wrong with our immigration system. To the contrary, convicted noncitizens are typically regarded as foils for more deserving immigrants. Immigration reformers are not the first to employ a deserving/undeserving narrative as a means of obtaining political gains for some at the expense of others. Across all areas of law reform, policy makers and advocates have sought to generate empathy for groups of people by invoking a contrast with others. In drawing a contrast between a favored group and others who are degenerate, deviant, or less deserving, the “politics of respectability” depends on a contrast with an “out” or deviant group. Racial justice proponents, much more than immigration reformers, have made significant headway in moving beyond respectability politics, especially when critiquing hyperincarceration. This Article describes a different conceptualization of immigrants and crime as well as examples of how certain immigration reform groups have sought to implement aspects of this alternate frame.