Drugs, Crime, and Aggravated Felony Deportations: Moral Panic Theory and the Legal Construction of the “Criminal Alien”

Abstract

The “aggravated felony” is an oft-overlooked legal distinction that provides the basis for the removal of thousands of immigrants each year. This category’s broad expansion and definitive results draw from a punitive turn in crime, drug, and immigration policy, which occurred in the 1980s and 1990s. The concept of “moral panic” is a useful tool for those who seek to understand the development of punitive responses to perceived social problems. This article revisits the original formulations of moral panic theory in order to highlight the importance of societal context in determining the symbolic salience and punitive outcomes of moral panics. The goal of the article is to evaluate the thesis that a moral panic about immigrant criminality played an important role in the development of the aggravated felony category.

Introduction

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 (Gyory 1998; Kanstroom 2007a, b; Recio 2002). Today, the theme of immigrant criminality is hyper-visible in President Donald J. Trump’s efforts to expand immigration enforcement, increase deportation, and build a wall on the United States’ (US) southern border with Mexico, as well as his infamous campaign-trail assertions that Mexican immigrants are “bringing drugs,” “bringing crime,” and are “rapists” (Lee 2015). Yet, a similar theme is also visible in liberal proposals for immigration reform that call for the amnesty of immigrants deemed deserving (e.g., children, families, students) by contrasting them with those deemed undeserving (e.g., so-called “criminal aliens”). For example, President Barack Obama, whose administration presided over the deportation of close to three million immigrants—more than any previous administration—emphasized the need to remove “criminals, gang bangers, people who are hurting the community, not…folks who are just here because they’re trying to figure out how to feed their families” (Thompson and Cohen 2014). This false dichotomy between “good” and “bad” immigrants not only relies on the idea that those deemed “criminal” could not possibly have positive ties to their families and communities, but it also combines all immigrants with any type of criminal history into one monolithic category: criminal aliens who are deserving of deportation.

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). These numbers are likely to rise in coming years, as the Trump Administration moves to increase the deportation of immigrants convicted for, or even suspected of, crimes (Aja and Marchevsky 2017; Brotherton 2018).

Born from anti-drug legislation, implemented through immigration law, and activated based on criminal offenses, the aggravated felony category’s broad expansion and definitive results draw from a punitive turn in crime, drug, and immigration policy that occurred in the 1980s and 1990s. Now, with immigrant criminality at the forefront of the national conversation, and the deportation of “criminal aliens” framed as a top political priority, there is an increased need for critical research that interrogates the legal basis for their removal and the societal context from which this basis emerged.

The concept of “moral panic,” popularized by critical criminologists Jock Young (1971) and Stanley Cohen (1972), is a useful tool for those who seek to understand the development of punitive responses to perceived social problems. According to Cohen (1972: 1), a moral panic occurs when:

A condition, episode, person or group of persons emerges to become defined as a threat to societal values and interests; its nature is presented in a stylized and stereotypical fashion by the mass media; the moral barricades are manned by editors, bishops, politicians and other right-thinking people; socially accredited experts pronounce their diagnoses and solutions; ways of coping are evolved or (more often) resorted to; the condition then disappears, submerges, or deteriorates and becomes more visible.

While the original formulation of the concept was theoretically precise and based in a particular historical context of cultural conflict and social transformation, it has since been diluted as a catchphrase of sorts, used by a variety of commentators in reference to any issue that attracts even a minor flurry of media attention and/or public outrage (Garland 2008; McLaughlin 2014; Young 2009). Young (2009, 2011) warns against the expansion of the moral panic concept beyond its theoretical boundaries and emphasizes that, in assessing the existence of a moral panic, one must look for specific criteria concerning the panic itself and also for particular cultural and social conditions in the context in which it occurs.

With this in mind, 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. By beginning with a review of the scholarly tradition and historical context from which moral panic theory arose, I strive to maintain the full strength of the concept in my subsequent examination of modern panics linking crime, drugs, and immigration. In the following sections, I apply moral panic theory in an assessment of societal fear and public policy linking crime, drugs, and immigration in the US in this period, with a focus on the development of the aggravated felony. By examining the content of the alleged moral panic about immigrant criminality in the specific historical context in which it arose, I aim to better understand the symbolic power of the panic and thus its influence in the shaping of policies that continue to have widespread and severe effects.

Moral Panic Theory

Moral panic theory was born out of a revolutionary period in criminology and the sociology of deviance. Cultural conflicts and societal transformations that occurred in Great Britain and the US in the 1960s and 1970s were paralleled by major changes in the scholarly study of deviance and crime. Prevailing functionalist theories of the mid-1950s were questioned by American New Deviancy scholars, who emphasized individuals’ creation of deviant subcultures in response to societal constraints (see Cohen 1955; Matza 1964), and who examined the ways in which official definitions of deviance contribute to the pathologization of deviant acts and the exacerbation of harm through stigma and self-fulfilling prophecies (see Becker 1963; Goffman 1963). In 1968, a group of British critical criminologists and sociologists convened at the National Deviancy Conference, creating a forum for radical theories of deviance, which drew upon the micro-level advances of American New Deviancy theorists. With the assertion that both deviant behavior and social control responses should be viewed as products of the same cultural and structural conditions, situated within the historical context from which they arise, the new British scholars pushed for a more macro-level, historically situated, and politically oriented study of deviancy (Young 2011).

Although the concept of “moral panic” was first used by media theorist Marshall McLuhan (1967), Young’s (1971) study of the public condemnation of hippie drug users in Notting Hill introduced the term to the sociology of deviance (McLaughlin 2014). Drawing from Becker (1963), Young explained how “moral crusaders” fanned the flames of public indignation about drugs in the hopes of bringing about harsher rules and enforcement. Young (2009: 6) saw mass media attention to the issue as both condemning and seducing, creating a “spiral of public fear and indignation that pushes for the action of control agencies.” Most importantly, Young found that the panic was not about the drugs themselves, but about the people who were using them and the culture they represented. In his analysis, both the existence of the hippie culture and the moral indignation that arose in response to it could be attributed to the same major value shifts and economic transformations happening in greater society at the time. The hippies and the drugs they used served as symbols of a free and self-indulgent culture that challenged fiercely held societal values emphasizing discipline and deferred gratification. The same inconsistencies and problems that led the hippies to reject the meritocratic fantasies of mainstream society also existed somewhere in the back of the minds of those still holding tight to the status quo. In this sense, the symbolic power of a moral panic about hippie drug takers was based in the mainstream public’s indignation—and simultaneous desire for—a freedom they could not allow themselves (Young 2009).

In the seminal work, Folk Devils and Moral Panics (1972), Stanley Cohen extended moral panic theory based on a case study of the intense societal outcry provoked by the 1964 conflicts between “Mods” and “Rockers,” two British youth subcultures of the era. In the panic studied by Cohen, a series of relatively minor bouts of teenage fighting and vandalism in seaside resort towns resulted in an outpouring of media sensationalism, public indignation, and social control measures aimed at dealing with the problem of youth violence and “hooliganism.” Furthermore, the subcultural groups involved came to be villainized and persecuted as “dangerous delinquents.” For Cohen, the creation of “folk devils”—or deviant stereotypes that are used to identify and demonize the human source of the supposed problem—is essential to the construction of a moral panic. Like the hippies who became a personified symbol of drug use in Young’s study, Mods became a symbol of youth delinquency and violence.

In Cohen’s formulation, moral panics often begin with an initial escalation of media attention to an issue, which is followed by a process of “sensitization” among the public as a whole. As Cohen (1972: 80) explains, “[a]ny item of news thrust into the individual’s consciousness has the effect of increasing the awareness of items of similar nature which he might have otherwise ignored.” In this process, people begin to see outcomes and behaviors, to which they would give little attention under normal circumstances, as negative effects or deviant acts attributable to the subject of the moral panic and the groups associated with it. In the case studied by Cohen, a media uproar about youth hooliganism led people to define all kinds of normal rule breaking by youth as being part of the “Mods and Rockers phenomenon” (Cohen 1972: 81).

This sensitization in the general public is exploited by “moral entrepreneurs” and interest groups as they vie for support for their cause and work to shift policy (Cohen 1972; see also Becker 1963). Attention to the issue is “diffused” to jurisdictions beyond the locality where the initial problem occurred, as politicians and social control agencies become involved in efforts to control the deviant behavior under focus. Enforcement is “escalated” and the whole culture of control becomes more stringent in order to respond to what has been framed as an dangerous and urgent phenomenon. Finally, new methods of control are “innovated” as lawmakers expand current policy or create new rules with regard to the behaviors and groups implicated by the moral panic (Cohen 1972). Such measures often have adverse effects, as stigmatization and criminalization end up increasing the amount of social harm linked with what began as a fairly minor problem (Cohen 1972; Young 2009).

Cohen’s elaboration of moral panic theory was based on an attempt to explain how a relatively innocuous and unoriginal problem can trigger such intensely disproportional societal reactions. Therefore, one central criterion in assessing the existence of a moral panic is that the initial increase in media attention and social indignation is seemingly overblown and unreasonable in relation to the actual harm caused by the issue or issues with which it is concerned (Cohen 1972; Goode and Ben-Yehuda 1990). This does not mean that moral panics can be viewed simply as irrational overreactions to random issues. Instead, just as Young (1971) demonstrated in his initial formulation of the concept, Cohen (1972) clearly emphasizes that the content of moral panics and the folk devils which they persecute are symbolic points of focus that obtain their strength from anxieties and tensions within the greater cultural and structural context (see also Young 2009).

A parent culture ingrained with postwar austerity and emphasizing hard work and delayed gratification was already coming under assault by an emergent teenage culture centered on consumption and instant satisfaction (Cohen 1972; Young 2009). Working-class youth saw little reason to adhere to the traditional value system espoused by their parents. In this context, Cohen (1972: 218) explains,

The Mods and the Rockers symbolized something far more important than what they actually did. They touched the delicate and ambivalent nerves through which postwar social change in Britain was experienced. No one wanted depressions or austerity, but messages about “never having it so good” were ambivalent in that some people were having it too good and too quickly…Resentment and jealousy were easily directed at the young, if only because their increased spending power and sexual freedom. When this was combined with a too-open flouting of the work and leisure ethic, with violence and vandalism… something more than the image of a peaceful Bank Holiday at sea was being shattered.

Therefore, just as Young’s moral panic about hippie drug takers drew its symbolic power from the mainstream society’s simultaneous fear of and desire for the self-indulgence and freedom of hippie culture, the moral panic about violent youth subcultures drew its symbolic power from the older generation’s resentment of young people who so blatantly rejected a meritocratic value system which they, too, had reason to question (Cohen 1972; Young 2009).

By contextualizing the moral panics they studied in the societal transformations of their time, the original formulations of moral panic theory put forth by Young and Cohen show how the deviance of emergent youth subcultures and the societal indignation with which they were met both stem from the same cultural transformations and structural strains. More generally, they demonstrate that rather than viewing moral panics as the spontaneous accumulation of societal attention to a random issue, we must see them as important symbolic events, which often have very real consequences. Only through a thorough examination of the societal conditions which give moral panics their symbolic power can we begin to understand the real, and often lasting, effects that such panics can have. In the next sections, I evaluate the role of a moral panic linking immigrants with crime and drugs in the development of the aggravated felony category.

Elements of Moral Panic Predicating the Aggravated Felony

According to the original formulations of moral panic theory, several factors must be present for societal attention to an issue to constitute a moral panic. One major element is the “folk devil” or the personified symbol of the supposed problem. Also key are media attention, public sensitization to the issue, and exaggerated punitive social control responses. In this section, I assess the existence of these elements in the moral panic linking immigrants with crime and drugs throughout the 1980s and 1990s—contributing to the development of the aggravated felony category throughout the same period.

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, the US has a well-established history of passing legislation based on supposed links between crime, drugs, and immigrants (Gyory 1998; Kanstroom 2007a, b; Recio 2002; Warner 2005). Furthermore, Mexicans and other Latinos have been vilified as a “threat” to the so-called “American way of life” since colonial times (Chavez 2008). This tradition continued into the 1980s and 1990s, where the image of the (almost always Latino) immigrant offender served as fodder for public fear and indignation that supported expensive, marginalizing, and less-than-effective policies. As Kurzban (2008: 66) explains,

The antidrug and anticrime rhetoric…could be dragged out and used or reused to keep people in a state of fear and anxiety by recalling specific cases of noncitizens who may have been dangerous and/or engaged in criminal conduct. Often one story, repeated endlessly in the corporate media, was sufficient to demonstrate how necessary undemocratic measures were to protect we the people.

Throughout this period, the Mexican–US border was painted as a “war zone” that had be contained by militarized action (Chavez 2013), and the stereotype of the Latino “criminal alien”—often tied with drug trafficking—was invoked frequently by entertainment and news media (Bender 2003; Brown 2016; Taylor and Bang 1997; Vargas and DePyssler 1998; Warner 2005).

The image of the criminal alien became more pronounced through general media attention and public sensitization to the issues of crime, drugs, and immigration. 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). Garland (2001) describes a “culture of control,” which emerged in the late 1970s and early 1980s, as the prominent American ideology regarding crime control shifted from the aim of rehabilitation to the goal of punitive retribution. Drugs, in particular, were the focus of a great deal of media and public attention during this period, especially with the arrival of crack cocaine in the mid-1980s (Belenko 2000; Reinarman and Levine 1997). 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). Media interest and preoccupation with the subject of drugs fueled public obsession with the topic (Meares 2003). 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).

Similarly, while there is a long tradition of negative media and societal stereotyping of immigrant newcomers to the US (Bender 2003; Warner 2005), a dramatic shift in public sentiment around immigration began in the 1980s. Throughout the 1960s, 1970s, and early 1980s, both public opinion and public policy demonstrated at least a nominal focus on human rights and humanitarian values when it came to the regulation of immigration to the US. During this period, immigration policy emphasized family reunification for naturalized citizens and lawful permanent residents, the generous admittance of—and the provision of public welfare benefits for—refugees, and respect for the natural rights of immigrants. 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).

Public sensitization to the issues of crime, drugs, and immigration in the 1980s and 1990s was reinforced by political prioritization and repressive social control measures in all three policy areas—pushed by Democrats and Republicans alike (Macías-Rojas 2018; Murakawa 2014). Furthermore, the image of “immigrant as criminal” was strengthened by the disproportional criminalization of Latinos (alongside other communities of color) under newly punitive laws (Hagan and Palloni 1999). From the mid-1980s to the mid-1990s, the country witnessed the adoption of increasingly punitive drug legislation, prioritizing criminalization and enforcement over prevention and treatment (Alexander 2012; Reinarman and Levine 1997). Domestically, the policing and enforcement of the War on Drugs focused disproportionately on poor Black and Latino communities (Alexander 2012; Small 2001), while internationally, attention to the interdiction of drugs from Mexico and Latin America increased (Andreas 2000; Francis and Mauser 2011; Payan 2006). Hence, both major fronts of the highly publicized US War on Drugs helped to further solidify assumed connections between crime, drugs and Latino immigrants.

The invigorated focus on drugs was accompanied by an era of “get-tough-on-crime” criminal justice policy, characterized by retributive laws, increased enforcement, and astronomically high levels of incarceration (Lusane and Diamond 1991; Rowe 2006). Throughout the 1980s and 1990s, the “get-tough” paradigm became the dominant American crime control framework, as increased funding for law enforcement and prisons, extensive mandatory minimum sentencing laws, “three-strikes” provisions requiring lengthy or life sentences after three felonies, and aggressive policing tactics all contributed to the US quadrupling its prison population—becoming the country with the highest rate of incarceration in the world (Chambliss 2003: 295). The harsh laws of the War on Drugs played an important role in this increase, bolstering the disproportionate representation of Black and Latino communities in the growing prison population (Alexander 2012; Bobo and Thompson 2006).

At the same time, immigration policy in the US also became more punitive, as law after law expanded the range of deportable offenses and eviscerated due process rights for undocumented immigrants and so-called criminal aliens (Brotherton and Kretsedemas 2008; Warner 2005; Welch 2003). The new crackdown on immigration was typified by the same “get-tough” rhetoric as the parallel shifts in crime and drug policy and was implemented through many of the same laws (Dowling and Inda 2013; Stumpf 2006)—such as the aggravated felony, introduced in the Anti-Drug Abuse Act (ADAA) of 1988. An increased focus on criminal deportation, combined with the militarization of the US–Mexico border, intensified (and highly racialized) policing of immigrant communities, and expanded incarceration for immigration offenses all served to reinforce the image of the dangerous, Latino criminal alien throughout the 1980s and 1990s (Hagan and Palloni 1999; Nevins 2002; Romero 2006; Warner 2005).

When one looks at this history, punitive approaches to the issues of crime, drugs, and immigration seem to have more basis in moral panic than in any evidence of their ability to actually ameliorate social harms associated with these issues. Indeed, the escalation of the War on Drugs came at a time when American drug use was actually in a state of decline (Bertram et al. 1996; Tonry 1995), and although crime rates in the US had been rising since the 1960s, many researchers have shown that punitive crime control and drug control policy frameworks were introduced and continued despite little to no evidence of their ability to achieve purported aims of curbing drug use, drug trafficking, and violent crime (Andrews and Bonta 2010; Bertram et al. 1996; Mauer 1999; Gray 2001). Furthermore, while immigration to the US was certainly increasing during the 1980s and 1990s, there is a large body of research demonstrating that the supposed link between immigration and crime is without merit (Adelman et al. 2017; Hagan et al. 2008; Lee and Martinez 2009; Light and Miller 2018; Ousey and Kubrin 2018; Vélez and Lyons 2012; Wadsworth 2010; Zatz and Smith 2012). Despite this, the US has continued to deal with immigration in more and more punitive ways, with an ongoing focus on so-called “criminal aliens.”

Several elements of moral panic—including a scapegoated “folk devil,” amplified media attention, intensified public sensitization, and disproportionately punitive social control responses—are apparent in the era in which the aggravated felony category developed. Yet, as I attempted to make clear in the discussion above of the original formulations of moral panic theory, the eruption of a moral panic cannot be attributed simply to media misinformation, public notice, and irrational policy responses. Instead, one must remember that the panic gains its power from the unique context in which it arises. In the following section, I analyze the role of context in empowering a panic about immigrant criminality to influence the development of the aggravated felony, before examining the role of moral crusaders in the transformation of panic into policy.

Contextualizing Panic: Immigrant Criminality’s Symbolic Salience in Neoliberal Late Modernity

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. Therefore, in this section, I evaluate the role of more general developments in the US in the 1980s and 1990s that contributed to the emergence of a panic about immigrant criminality powerful enough to impact policy. I argue that the period of history from which the aggravated felony emerged was characterized by specific cultural and structural forces, which combined to enhance societal insecurities in a way that made a racialized panic about linking immigrants with crime and drugs so resonant and influential.

The creation of folk devils, an essential aspect of moral panic, is a form of “othering” which allows certain (usually powerful) members of society to place the blame for social problems on a group of people or segment of the population seen as alien and different. In The Vertigo of Late Modernity, Young (2007: 141) describes the roots of modern racist and nationalist othering as “a vertigo of insecurity” based in the “disembededness of late modern society, the shock of pluralism, the fear of the ever possible loss of status or of downward mobility.” In the case at hand, the othering of immigrants through the reinforcement of the criminal alien folk devil was particularly powerful in the context of the US in the late 1980s and early 1990s, characterized by ideological shifts concerning the government’s role in dealing with social problems, economic changes which increased social inequality, and demographic transitions toward an increasingly diverse nation.

According to Garland (2001), the punitive turn in American criminal justice policy can be attributed largely to ideological transformations concerning the place of government in dealing with social problems. 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 (Mauer 1999; Garland 2001).

Peck and Tickell (2002) explain the way in which the “roll-back neoliberalism” of the 1980s, characterized by the deregulation of the market and the dismantling of governmental social programs, was followed by the “roll-out neoliberalism” of the 1990s—a period of statecraft during which pervasive systems of neoliberal regulation and control were constructed, “concerned specifically with the aggressive reregulation, disciplining, and containment of those marginalized or dispossessed by the neoliberalization of the 1980s” (Peck and Tickell 2002: 389). By linking the move from welfarist, rehabilitative criminal justice policy to a more punitive framework necessary to protect the country from criminal aliens, a moral panic about immigrant criminality lent important support for policies which would have seemed oppressive and cruel had they been seen as geared toward white Americans instead of immigrants and other marginalized populations.

Furthermore, from this viewpoint, 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. The growing power of corporate media made it even easier to frame the “deterioration of everyday life” felt by the middle classes as something to be blamed on a criminal alien folk devil (Kurzban 2008: 67; see also Corva 2008). Young (2007) explains how a mainstream perspective that denies the fact that crime and disorder are attributable to problems inherent to modern First World societies (e.g., extreme inequality and stigmatization) must look elsewhere for the source of such social ills. Drug use is one place where the blame can be placed and, alongside native-born racial and ethnic minorities, such as African Americans in the US, “the immigrant other is a very useful addition to such a narrative of denial. As an outsider, an alien, the immigrant […] brings in crime to society, it is obviously not a problem of the social order but the problem group imported into society” (Young 2007: 143). Hence, a moral panic linking crime, drugs, and immigrants affirms a narrative that overlooks the place of inherent structural inadequacies and inequalities in the creation of social disorder.

Finally, 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. Massey (1995: 633) explains how, after the US went through a “long hiatus” from about 1931–1970 during which immigration was fairly limited, a “new regime” of large-scale, non-European (mainly from Latin America and Asia) immigration began, which continued through the end of the century. By 1998, Mexico was the largest single source of immigrants to the US (Martinez and Lee 2000: 495). Growing pluralism contributed to cultural insecurities, which were easily manifest in nativism and the othering of Mexicans and other dark-skinned Latino immigrants who came from a different culture, and who spoke a different language (De Genova 2004; Massey 1995). The othering of new groups through criminalization is not novel in the US or elsewhere (Costelloe 2008; Martinez and Lee 2000; Martinez and Valenzuela 2006; Preston and Perez 2006), and by linking immigration with crime and drugs, a moral panic about criminal aliens was a perfect avenue for such othering.

Therefore, in addition to the presence of the elements of moral panic identified above—the creation of a folk devil, media attention, public sensitization, and punitive social control responses—the context of the 1980s and 1990s was characterized by cultural and structural factors that gave symbolic salience to a moral panic about immigrant criminality. Still, to assess fully the way in which this panic linking crime, drugs, and immigration played a role in the aggravated felony category’s development, we must examine the actors involved. Original formulations of moral panic theory acknowledge the important role of moral “crusaders” or “entrepreneurs” in drawing attention to issues and pushing for more stringent rules and regulations—often with personal motivations (Becker 1963; Cohen 1972; Young 1971). In the next section, I describe the role of key actors who enabled the translation of a moral panic about immigrant criminality into entrenched punitive policies—including those that created and expanded the aggravated felony.

From Panic to Policy: Moral Crusaders and the Development of the Aggravated Felony

In order to understand the way in which moral panic becomes policy, one must look for the actors that Becker (1963), Young (1971), and Cohen (1972) refer to as “moral crusaders” or “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 (Nicholson-Crotty and Meier 2005).

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. In the mid-1980s, the majority of national attention to immigration was focused on the issue of unauthorized (“illegal”) immigration. Republican Senator Alfonse D’Amato of New York was one of the first politicians to raise the issue of immigrant criminality in this period, requesting in 1985 that the US Government Accounting Office (GAO) inspect the performance of the Immigration and Naturalization Service (INS) in removing non-citizens with convictions in the New York City area. Playing off the fears of his conservative constituents during a period of intensified racial tensions and perceived high rates of crime in the city, D’Amato claimed that criminal aliens were “savaging our society” and pushed for action by Congress (Kanstroom 2007a; Schuck and Williams 1999). Democratic Senator Lawton Chiles from Florida, another state with a large immigrant population, stood by D’Amato in his crusade against criminal aliens, claiming that “[a]lien felons are rapidly becoming the most violent network of organized criminals in the country” (Swearingen 1988). Senator Chiles organized hearings in 1987 and 1988 on the INS’s failure to effectively remove immigrants with convictions and proposed the legislation that laid the groundwork for the Anti-Drug Abuse Act (ADAA) of 1988—the law creating the aggravated felony (Schuck and Williams 1999).

Born out of drug policy, administered through immigration law, and triggered by criminal offenses, no other law has penalized immigrants with criminal convictions to the extent or severity of the aggravated felony legal category. The category’s original manifestation in the ADAA of 1988—which was passed by a Democratic Congress and signed by a Republican President—Ronald Reagan—provided that non-citizens (both documented and undocumented) convicted of drug trafficking, murder, or weapons trafficking could become subject to deportation. Pursuant to the ADAA, non-citizens convicted of aggravated felonies were subject to mandatory detention without bond while awaiting trial for deportation; deportation was mandated for those facing prison sentences of at least 5 years. Once deported, immigrants with aggravated felony convictions were barred from returning to the US for 10 years (Cook 2003; Miller 2003; Podgorny 2009). Due in a large part to these new provisions, 30,000 people were deported in the 1980s alone for criminal or narcotics violations, as compared to 48,000 criminality-based removals from 1908 to 1980 (Yates et al. 2005: 886).

Throughout the late 1980s and early–to–mid-1990s, the issue of immigrant criminality became an increasingly relevant factor in policymaking (Friman 2008; Newton 2008; Tichenor 1994). The aggravated felony category expanded and became more and more stringent in its effects over the course of the same period, culminating in the landmark immigration reforms of 1996. Just two years after its creation in 1988, the aggravated felony category was expanded by the Immigration Act of 1990 to include lesser drug crimes and violent crimes with prison sentences of at least five years—offenses that “are far less serious than the crimes denoted in the ADAA” (Cook 2003: 300); both state- and federal-level drug offenses with sentences of at least one year became aggravated felonies under the Immigration Act of 1990 (Yates et al. 2005). In addition, the Immigration Act of 1990 provided that those deported because of aggravated felony convictions could not return to the US for twenty years after their conviction, in contrast to the previous requirement of ten years. Perhaps most importantly, the Immigration Act of 1990 reflected the beginning of the erosion of judicial discretion that would only intensify over the next several years.

Before 1990, legal permanent residents of the US convicted of crimes, including aggravated felonies, could apply for a 212(c) waiver of deportation. In order to qualify for a 212(c) waiver, such non-citizens had to demonstrate that deportation would cause “extreme hardship” to their self or their family, that they had accrued at least seven years of continuous presence in the US, that their individual absences from the US were “brief, casual, and innocent,” and that they had good moral character (Podgorny 2009: 292). These factors made it easier for aliens with strong family ties to the US to escape deportation. Under the Immigration Act of 1990, immigrants convicted of aggravated felonies who were imprisoned for at least five years became ineligible for this waiver, removing the discretion of the Attorney General to consider mitigating factors for a whole category of deportation cases (Cook 2003).

After a small expansion in the Immigration and Technical Corrections Act of 1994, the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996—both passed by a Republican Congress under Democrat President William Jefferson Clinton—broadened the aggravated felony’s scope in unprecedented ways. AEDPA “expand[ed] the aggravated ‘grab-bag of convictions’ to include less serious crimes, such as bribery, counterfeiting or mutilating a passport, obstruction of justice, gambling offenses, and transportation for purposes of prostitution” (Cook 2003: 305). IIRIRA, passed just six months after AEDPA, expanded further the list of crimes that qualify as aggravated felonies to include assault, burglary, petty larceny, second-degree theft, sexual abuse, and the transport of an illegal alien into the US, along with host of other offenses. It also reduced greatly the monetary minimums for a conviction of deceit, fraud, money laundering, and tax evasion, and reduced the sentencing requirement defining less serious crimes as aggravated felonies from five years to one year (Cook 2003; Podgorny 2009). Furthermore, the law was made retroactive, so any non-citizen with a previous conviction for an offense defined as an aggravated felony under the either of 1996 acts became an “aggravated felon” subject to deportation (Miller 2003). IIRIRA also instituted administrative removal processes, which were controversial in terms of due process, given that non-citizens convicted of aggravated felonies could now be deported without ever being granted an appearance in front of an immigration judge (Cook 2003). Moreover, the punishment associated with the category became much more severe, as IIRIRA mandated detention for all immigrants convicted of aggravated felonies, and required that once deported, such individuals would be barred permanently from returning to the US (Cook 2003; Miller 2003). IIRIRA also limited judicial ability to take mitigating factors into account in deportation decisions by repealing the 212(c) provision of the INA and supplanting it with new language essentially excluding all non-citizens convicted of aggravated felonies from discretionary relief (Podgorny 2009).

Newton (2008) compares the symbols and imagery present in the legislative development of IIRIRA with that of the Immigration Reform and Control Act of 1986 through discourse analysis of the Congressional Record. In the mid-1980s, she found a nuanced discussion of the complex push and pull factors driving “illegal immigration.” By the mid-1990s, the conversation had shifted to paint immigrants as “unlawful” and “undeserving.” Two important storylines that emerged in congressional hearings leading to the passage of IIRIRA were what Newton (2008: 118) refers to as “The Criminal Alien Narrative,” which labeled immigrants, and especially those who are undocumented, as inherently criminal, and “The Lawless Border Narrative,” which painted the border as a “breeding ground for smugglers, drugs, violence, and generalized chaos.” These narratives were exemplified in statements such as, “[w]e look at the drugs coming across the flow, and on those drug ride-alongs, 99% have involved legal aliens,” and with regard to the border, “[s]muggling is organized crime, both the smuggling of people and drugs. You have certain parts of turf that are staked out by these criminals. You don’t just move from Tijuana over to Mexicali for example without getting your kneecaps blown off…” (Newton 2008: 218–219).

Moral entrepreneurs, in the form of anti-immigration interest groups and legislators alike, played an important role in transmuting societal panic about immigrant criminality into the punitive immigration law overhaul of 1996. Organizations, such as the Federation for American Immigration Reform, classified as a white supremacist hate group by the Southern Poverty Law Center (2018), gained power and influence throughout the 1990s as they “fueled and echoed” concerns about the links between immigration and crime (Friman 2008: 5). By the mid-1990s, organizations which had garnered only “meager support” during the 1980s (Tichenor 1994: 12) were working directly with policymakers in the drafting of punitive legislation. Noted legal scholar Ira Kurzban reflects on the central role of anti-immigrant moral entrepreneurs in the drafting and passage of IIRIRA:

…Lamar Smith, who was the Chairman of the House Immigration Subcommittee at the time, rewrote the immigration laws by hiring lawyers from FAIR (Federation for Immigration Reform), an anti-immigration group. He knew he could not simply eliminate all waivers so he and his staff rewrote the waivers to make them far less useful to most people. The Republican members of Congress deferred to Smith and the Democrats were only provided the IIRIRA legislation less than 72 h before there was a vote. As an author on immigration law, it took me several months to go through the legislation. It is unimaginable that anyone except Lamar Smith and the lawyers who worked with him had any idea of the depth and breadth of changes they proposed and rammed through Congress. (quoted in Rodriguez 2013: 8)

The aforementioned Republican Congressman Lamar Smith of Texas was a key political actor in the passage of both IIRIRA and AEDPA. In support of the eventual AEDPA provisions that expanded the aggravated felony category and “streamlined” the deportation process, Smith argued that these actions were necessary to “counter the escalation of crime [sic] robbing Americans of the freedom to walk their streets, the right to feel secure in their homes, and the ability to feel confident that their children are safe in their schools” (Friman 2008: 140). Furthermore, the Clinton Administration and other Democratic lawmakers saw passing and enforcing the harsh immigration bills as an opportunity to demonstrate their lack of leniency for “criminal aliens” and undocumented immigrants (Lind 2016; Macías-Rojas 2018). Therefore, from the ADAA of 1988 to AEDPA and IIRIRA of 1996, it is evident that actors on both ends of the political spectrum drew on the symbolic salience of a panic regarding immigrant criminality to pass the punitive policies that created and expanded the aggravated felony category.

Conclusion

Throughout US history, calls for more restrictive and punitive policy have often been based on purported links between crime, drugs, and immigrants. Still, the punitive treatment of immigrants with criminal convictions that has emerged from the policy developments of the 1980s and 1990s—and from the expansion of the aggravated felony category, in particular—is like nothing seen before, either in terms of the number of immigrants affected or the severity of their treatment. Furthermore, the political focus on “criminal aliens” throughout this era—during periods of both Republican and Democratic leadership, and despite a lack of actual evidence linking immigration with crime—indicates the symbolic strength of this trope in the creation of lasting policy. Therefore, as moral panic theory dictates, we must examine not only increased attention to the issue of immigrant criminality, but also to contextual determinants of the era, which potentially gave the “criminal alien” trope the symbolic salience necessary to contribute toward the evolution of such unprecedented policy responses.

Through an analysis that stresses the importance of context in understanding the emergence and symbolic power of moral panics, we are better able to understand how seemingly irrational and overblown responses to perceived social problems can have enduring effects on policy. Despite the undeniable influence of a variety of factors in the development, implementation, and maintenance of any policy framework, the symbolic salience of a moral panic linking immigrants with crime and drugs during a period of diversification and economic transformation appears to be an important element which allowed for the creation and expansion of the aggravated felony, a key legal tool in today’s deportation regime.