The Harsh Immigration Law Congress Seems Likely to Sign Will Empower the Worst Sheriffs

January 16, 2024

John Fetterman

Congress appears poised to pass a version of the “Laken Riley Act,” (H.R. 29/ S. 5) with (as of this writing) 48 Democratic legislators giving it the thumbs-up.

The proposed legislation, which is still likely to undergo some amendments, continues the MAGA plan to portray immigrants as “criminals.” The bill would make a few changes to immigration law that would make more people subject to deportation and detention. Most importantly, the bill makes any potentially deportable person who is arrested for a minor crime – like shoplifting, theft, or larceny – subject to mandatory detention and deportation proceedings. The latest version also includes “assault on a peace officer,” which seems designed to target protestors; 70 (including some 20 Democrats) senators approved this amendment. What this amounts to is more people subject to ICE custody without any finding of guilt. (Melissa Gira Grant wrote an excellent piece explaining many parts of the law that I highly recommend.)

I did a thread on Bluesky to talk about how this would work, but here’s the gist. Let’s say a law enforcement officer arrests a group of young men or teens claiming that they are shoplifting, perhaps in an attempt to purchase IDs that would allow them to work. Some may be guilty; some may not, but police arrest and book them all figuring they will sort it out later. Now, they are all subject to mandatory detention and deportation proceedings, without any further proof. The law would plainly lend itself to racial profiling, which already happens.

For sheriffs in particular, the Laken Riley Act would require that they honor all detainers – requests to hold people for 48 hours – and enables these same sheriffs to put more people into deportation proceedings, especially if they have 287(g) agreements that allow them to function as ICE agents. (Usually, on the ground, this means that sheriff deputies question arrestees about their immigration status and, if they aren’t satisfied with the answer, notify ICE.) The act also has a provision allowing Attorneys General to sue local law enforcement who might try to get around these requirements through non-enforcement – basically a provision to get around “sanctuary city” laws, which Tom Homan has expressly condemned.

Donald Trump himself has made it plain that, this time around, his mass deportation strategy will rely on linking immigrants with criminality. Laken Riley, the namesake of the new legislation, was allegedly killed by an immigrant who had previously been cited for theft. Democrat supporters of the bill, like John Fetterman, have similarly argued that immigrants are criminals, just by virtue of existing. The Pennsylvania Senator called the anti-immigrant law “a blinding flash of common sense.”

Jacky Rosen, a Democratic Senator from Nevada said: “"You know, I plan to support it. Because if you're a criminal, you should be held accountable."

Senator Tim Kaine, a Democrat and a lawyer has offered: “Triggering mandatory detention by arrest rather than conviction is unusual.” He supports the Act nonetheless.

Now, there is ample data showing that immigrants are no more inclined to commit crimes than anyone else. I would also point out that deporting people based on shoplifting or theft, especially just the suspicion of it, is a vast expansion of prior deportation priorities, which focused on people charged with crimes like murder and rape. (To be clear, such instances are actually very rare. Most people who are put into deportation proceedings for criminal charges are charged with DUIs.) There is another bill out there, also supported by many Democrats, that allegedly addresses domestic violence and sexual assault by making immigrants convicted of such crimes deportable (which they mostly already are, so I don’t see the point except to encourage more animus).

But I want to push beyond that and point to the ongoing onslaught of propaganda suggesting that immigrants are associated with criminality. A lot of B-roll footage shows immigrants in the desert, particularly young men, on or around the U.S.-Mexico border. They often wear desert fatigues. Such set pieces are designed to reflect a myth that people crossing the border are desperate, dangerously so.

This is a myth as old as American colonial aspirations. In 1878, Richard Josiah Hinton published a travel guide to the Arizona Territory, describing both the landscape and the people as unwelcoming and brutal: “Arizona became a shelter for desperadoes also, and it had long been a shelter for the Mexican gambrusinos, mine robbers, horse thieves and cut- throats.” He argued that the desert was so hostile that it created a different kind of person, a person prone to criminal acts.

The truth is that criminality is constructed by law enforcement by virtue of the people they choose to arrest and detain – and it somehow is never the boss who doesn’t pay minimum wage. There is no such thing as an objective measure of who is more likely to break laws. After all, this country is governed by those many would call “criminals.”