Three main issues are considered when looking into the topic of immigration that have changed over the last fifteen years. First is that enforcement was first set out to be a strictly federal duty. In 1982 Texas tried to gain power in terms of enforcing immigration with a statute which would deny free and public education to illegal immigrants. The law was held to be unconstitutional in violation of the Equal Protection Clause of the Fourteenth Amendment, because discrimination on the basis of immigration status did not further a substantial state interest. Another case that came up recently was with an Arizona state legislation aimed to control migration with S.B. 1070.During the court proceedings the Supreme Court decided on 2012 in favor of the federal government insuring them the duty of protecting its borders in Arizona.
Fifteen years ago the federal government was unable to enforce its standing immigration laws. In many cases it was so because the labor industry controlled the flow of immigration, therefore those who primarily held interest did not pursue the apprehension and prosecution of illegal immigrants. There has been significant rise of enforcement efforts which ultimately consist of giving the U.S. Customs and Border Protection $12.9 billion budget, and over 63,560 employees. Another part to enforcement along the border was the Secure Fence Act of 2006 which built a 700 miles wall which would ultimately protect the United States from drug trafficking, terrorist attacks as well as illegal immigration.
In the past local and state municipalities had a small role in regulation and had nothing to do in terms of enforcing and capture of illegal immigrants. In the past years there has been rise in local and state level enforcement. With Secure Communities Program, the federal government has mandated local and state participation in enforcement. Immigration and Customs Enforcement (ICE) is in the forefront of enforcing immigration nationwide.
Overcriminalization is considered when the seriousness of the crime is met with a punishment considered too excessive. Also when too many activities are defined as one crime. Unexamined discretion and misallocated resources also pertain to overcriminalization.
Monetary costs is one of the ways the criminal system has measured out its resources in order to punish migrants which is unproportional to the crime, and is considered as overcriminalization. Chacόnclaims that the spending on criminal investigations in skewed towards the prosecution of illegal immigrants,while they should be allocated towards violent and dangerous crimes.
Racial profiling is another reason Chacόn has categorized the issue of immigration as being over-criminalized. The reason being that law enforcement has been sanctioned to rely on the use of appearance as a standard for targeting illegal immigrants. Section 2 of S.B. 1070 was an instance in which law enforcement was allowed to do so. Chacόnclaims that there are already available statistics that show an immense increase of low-level crimes committed by Latinos in an attempt to apprehend illegal immigrants.
Jennifer M Chacón. OVERCRIMINALIZING IMMIGRATION. Journal of Criminal Law & Criminology.2012;102:613