sociology of law

Applying the six elements of moral panic theory to the legal construction of the ‘criminal alien’

“The idea that certain immigrant groups are to blame for social problems, such as crime and drugs, and that their exclusion or removal will, therefore, help to solve these problems is an ongoing myth throughout American history”

Insert Chinese exclusion act image

What is aggravated felony? The “aggravated felony” legal category, first introduced in the Anti- Drug Abuse Act of 1988 and expanded several times since, refers to a category of offenses for which non-citizens can be deported under immigration law (Cook 2003). “Aggravated felonies” need not be “aggravated” nor “felonies.” Rather, the category encompasses a broad range of crimes and misdemeanors, ranging from check fraud and simple drug possession to drug trafficking and murder (Yates et al. 2005). Immigrants convicted of aggravated felonies are subject to mandatory detention and almost certain deportation, as they are ineligible for almost all forms of legal relief (Podgorny 2009). Although the Department of Homeland Security (DHS) does not release official statistics on the number of removals based on aggravated felonies, according to some estimates, hundreds of thousands of immigrants, both documented and undocumented, have been detained and deported over the past 25 years (TRAC Immigration 2006, 2016).

I evaluate the thesis that a racialized moral panic about immigrant criminality played an important role in the development of the aggravated felony category— part of a broader punitive turn in US crime, drug, and immigration policy over the course of the 1980s and 1990s.

Elements of Moral Panic Predicating the Aggravated Felony

1. Folk devil

“The folk devil of the criminal alien is a long-entrenched figure in the American imagination. From the Chinese Exclusion Act of 1882, which drew on societal attitudes linking Chinese immigrants with opium, to the prohibition of marijuana in the 1930s with the support of racist campaigns associating the drug with “dangerous” Mexican immigrants,..”

https://twitter.com/realDonaldTrump/status/1057728445386539008

2. media attention

Various researchers have reported increased attention to crime by the media in the later decades of the twentieth century (Barlow et al. 1995; Cavender 2004).

Various studies have reported increased numbers of articles about drugs in the late 1980s and early 1990s, as well as heightened use of sensational frames, graphics and statistics that exaggerated the severity of drug-related problems (Beckett and Sasson 2000; Chermak 1997; Orcutt and Turner 1993).

3. public sensitization

Between 1986 and 1989, the proportion of Americans who rated drug abuse as the country’s most important problem rose from 3 to 64% (Berke 1989).

In the early 1980s, public opinion on immigration shifted drastically, “from a willingness to absorb and generously resettle refugees and a tolerance of illegal immigration to a growing sense of crisis that the USA had ‘lost control of its borders’ and that US immigration policy was dangerously adrift” (Miller 2003: 8). Analyses of public opinion surveys over the course of the early to mid-1990s reflect this

evolution, reporting predominantly negative views of immigrants during this period (Lapinski et al. 1997; Muste 2013; Pantoja 2006).

4. disproportionately punitive social control responses a. criminalization of immigration (discussed previously) b. criminalization of drugs via war on drugs

5. social context

As the original theories of moral panic theory maintain, it is context that gives a panic the power to influence law and social control in enduring ways.

A. Broader punitive criminal justice shifts a. In the 1970s, American public opinion moved decisively

away from the welfare state economic policy of the postwar era toward a neoliberal belief in individualism and free market competition. This philosophical conversion culminated in the election of President Ronald Reagan in 1980. The fervently neoliberal Reagan Administration quickly discarded any remnants of a criminal justice framework that privileged government-funded social programs and offender rehabilitation as important tools in crime prevention, and pushed for retributive policy that shifted the burden of blame from societal problems and structural issues to individual offenders

B. economic insecurity exacerbated by neoliberal deregulation and removal of social programs could be blamed on an undeserving immigrant other rather than on structural inadequacies or elite power.

https://www.youtube.com/watch?v=toL1tXrLA1c

C. demographic shifts, which were becoming more pronounced in the US of the 1980s and 1990s, instilled cultural fear and insecurity, enabling a moral panic about immigrant criminality to flourish.

https://www.youtube.com/watch?v=RdDhMjFQFbc

6. Moral entrepreneurs

Often leading or running interest groups, organizations, and social movements, moral entrepreneurs work to bring public and media attention to a particular issue. At times, they are politicians themselves, who can build political support by responding to widespread indignation and fear about a particular group

A. Politicians a. Tosh lists many b. In the case of the aggravated felony category, the reified

folk devil of the immigrant criminal was invoked by moral entrepreneurs and lawmakers from both sides of the political aisle in order to pass increasingly stringent policy with regard to criminal aliens.

B. Organizations

Federation for American Immigration Reform

The Center for Immigration Studies https://cis.org/

Others https://guides.library.columbia.edu/c.php?g=709736&p=5072094

In class activity On the Moral Panic slides, pick one of the moral panics identified by Tosh (slide 8). Find evidence for two of the six elements of the moral panic. Upload to blackboard, 100 word minimum.

Remember these are the six elements of a moral panic: Folk devil/scapegoat; Moral entrepreneurs; Media attention; Public sensitization; Rules and enforcement; Societal Context