ICE Uses the Failed ‘Broken Windows’ Mentality, With Deadly Consequences

(Credit: Michelle Frankfurter/ACLU)

By Muneeba Talukder, Immigrants’ Rights Legal Fellow

A few weeks ago, Carlos Ernesto Escobar Mejia, a 57-year-old man who had diabetes, high blood pressure, and heart problems tested positive for COVID-19 and died in immigration detention shortly after. Mr. Escobar Mejia had lived in the United States for four decades. He came to the U.S. as a teenager, fleeing from El Salvador with his mother and siblings after one of his brothers was killed in the civil war. He was in ICE custody since January and had been complaining about his symptoms for weeks before he was given medical attention.

In its short press release about the death, Immigration and Customs Enforcement (ICE) chose to dehumanize him by listing out his decades-old criminal convictions. They made sure that anyone reading the release would know that Mr. Escobar Mejia was someone who needed to be kept in civil detention: a criminal alien. Labeling people “criminal aliens” is one way ICE perpetuates the monstrosity of the U.S. immigration detention system, which is the largest in the world. How did it get that way? By expanding who can be detained and deported.

The term “criminal alien” has become an important cover, “a legal violence” for ICE to justify the expansion and intensification of its enforcement regime. ICE often justifies its actions as part of an effort to make communities safer by ridding them of “criminal aliens.” But what ICE’s narrative fails to acknowledge is that the people that they detain are “criminal aliens” because they get caught up in the broken criminal legal system.

It fails to acknowledge how the U.S. maintains the largest carceral system in the world because of the over-policing of Black and brown communities.

It fails to acknowledge racist police practices like stop-and-frisk.

And it fails to acknowledge that the people caught in the dragnet of immigration enforcement are often from these same communities that have a long history of being overpoliced, prosecuted, and put into cages.

The past few months, I’ve spoken to dozens of people like Carlos in immigration detention who are medically vulnerable and who are fighting to be released because they are in jails that are not fit to stop the spread of COVID-19. Many of these people became plaintiffs in our COVID-19 immigration decarceration cases, Thakker v. Doll and Hope v. Doll. Several of them have had contact with the criminal legal system, and, in ICE’s eyes, are “criminal aliens.”

But when I think about the contacts that our plaintiffs have had with the criminal legal system, I inevitably think about the racist policies that they’ve been impacted by — namely, the War on Drugs and the War on Crime. Many of our clients lived in neighborhoods where police interactions were a part of their everyday lives. Some of them were convicted of crimes that are no longer criminal offenses (yet are still offenses for which they can be deported). They come from communities of color, disproportionately impacted by forms of racist policing.

When I think about our clients, I think about “Broken Windows,” a flawed (and now debunked) theory that was popularized in the 1980’s. It argued that policing small level and petty crime would lead to safer communities and reduce more serious crime. While this theory has been debunked several times over, its legacy remains: larger police presence in communities of color and the continuation of harmful police practices that criminalize whole communities.

These consequences are even more harmful for noncitizens for whom any brush with the criminal legal system, even a traffic violation, opens them up to being arrested, detained, and deported by ICE. Because of these policies, noncitizens of color have a higher chance of having contact with the criminal legal system and, thus, a higher chance of being targeted, detained, and deported by ICE.

ICE has expanded the term “criminal alien” so much so that they are including people who have not even been convicted of any crime but instead have criminal charges pending. While the phrase “innocent until proven guilty” means little in a system where racialized inequity dictates how an individual is able — and unable — to navigate the criminal legal system, it means even less to ICE; officers have no qualms with picking up people outside of courthouses, even before they are able to defend their case before a judge.

We refuse to believe that ICE, whose enforcement tactics further perpetuate the over-policing of brown and Black communities and cause devastating consequences to entire communities, is protecting anyone. And we especially refuse to believe it when they erase the stories of people like Mr. Escobar Mejia and continue to keep people in deadly conditions because they have deemed someone a “criminal alien.”

Mr. Escobar Mejia should still be alive. But he isn’t. And that is why we continue our fight for our clients to be alive — and free — during this unprecedented public health crisis.

We are the ACLU’s Pennsylvania affiliate, defending the Constitution and the Bill of Rights through litigation, advocacy, and community education and outreach.

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