Crime, Punishment and Migration

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Dario Melossi

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  • Compact Criminology

    Series editors: Nicole Rafter and Paul Rock

    Compact Criminology is an exciting new series that invigorates and challenges the international field of criminology.

    Books in the series are short, authoritative, innovative assessments of emerging issues in criminology and criminal justice - offering critical, accessible introductions to important topics. They take a global rather than a narrowly national approach. Eminently readable and first-rate in quality, each book is written by a leading specialist.

    Compact Criminology provides a new type of tool for teaching and research, one that is flexible and light on its feet. The series is designed to address fundamental needs in the growing and increasingly differentiated field of criminology.

    Other Compact Criminology titles include:

    • Crime and the Economy by Richard Rosenfeld and Steven F. Messner
    • Comparing Criminal Justice by David Nelken
    • Crime and Risk by Pat O'Malley
    • Experimental Criminology by Lawrence Sherman
    • Crime and Terrorism by Michael Stohl and Peter Grabosky

    Compact Criminology International Advisory Board:

    • Jan van Dijk, Tilburg University
    • Peter Grabosky, Australian National University
    • Kelly Hannah-Moffat, University of Toronto
    • Alison Liebling, University of Cambridge

    Copyright

    View Copyright Page

    Dedication

    To Peggy and Emilia loving companions of my personal migration

    Preface

    This volume in the Compact Criminology series is dedicated to a classic theme in the history of criminology, and indeed in the history of the sociological tradition — the question of migration. Beyond being a truly classic sociological theme, the issue of migration is also a well-established theme in the history of criminology and one that particularly lends itself to discussion of some of the central cores of criminological debate. In this, it is quite similar to other crucial axes of social categorization, such as gender, social class, race. Indeed it has deep interconnections with all these dimensions of sociality. And as with any of them, it quickly brings the researcher towards a basic discussion that is constitutive of any sociological criminology worth its name — indeed, the absence of any such reasoning is synonymous with a very poor (and misleading) sociology indeed. That is, it lends itself to asking the question, are the processes of criminalization directed toward those who are socially described as migrants, the result of criminal behaviour enacted by the migrants, or the result of social processes that end up targeting migrants more intensely than other groups? And, even if we were to come to the conclusion that those very processes of criminalization are indeed the result of migrants’ behaviour, are there social processes that expose migrants to a higher danger of falling into that kind of behaviour?

    As we shall see, these questions have not been asked always with the same degree of urgency. Sometimes they have been all but forgotten, according to the degree of attention that has been paid in specific historical periods and specific social circumstances to the question of migration, in public spheres of discussion and therefore also in sociologists’ and criminologists’ discourses. There is probably also some kind of deep-seated and not so obvious connection between the perception of issues of marginality — whether referring to migrants or poor or ethnic minorities — and the emergence of critical views of the established manner of thinking, therefore also of established criminological and sociological theories. Indeed, in the pages that follow (as well as in a book (Melossi 2008) where I have examined this more systematically in connection with the development of the criminological tradition) I attempt to show that there are oscillations in the ways in which, both in society and within criminology itself, the questions of social order and the treatment of marginality are connected.

    There is no doubt that interest in the issue of migration for criminologists has dovetailed with the interest of society itself. During periods of intense migration flows, the sociological and criminological spotlight has focused on migration. Migration — like race and ethnicity, with which it is strictly linked (but certainly not identical) — is a very good example of a broader criminological truth. In other words, that it is practically impossible to sever the study of criminal behaviour from the study of the processes that define, discover, label and punish behaviour as indeed criminal. It has been particularly unfortunate, in my opinion, that the last wave of international migration, large and long-lasting enough to compete with the one at the turn of the nineteenth and twentieth centuries, has happened at a time when the critical sensibility of criminological sociology, particularly strong in the 1960s and early 1970s, had been rejected within the more general cultural backlash that started in the late 1970s. A “criminology of the restoration” followed, that accompanied the emergence and growth of a moderate/conservative consensus, the cultural penchant of the “neo-liberal” revolution that started with the premiership of Margaret Thatcher in the United Kingdom and the presidency of Ronald Reagan in the United States.

    As I will try to show in these pages, such a coincidence was not entirely by chance. The strength of criticism in the social sciences accompanies the strength of critique socially produced more generally, and it is in times when class division and conflicts are more pronounced that these critiques are more liberally advanced. On the contrary, in periods of conservative hegemony such criticism is usually muffled. However, it just so happens that these periods are also periods when the power of social and economic elites in restructuring society is so broad and compelling that large migration movements again become a possibility (in the specific case of the last wave of globalization between the 1980s and the great crisis that started in 2008 such large migration flows were consequential to the world-wide victory of capitalism against its major competitor, the Soviet Bloc).

    As a consequence of this very complex situation, it was difficult for the social sciences to see how the processes of criminalization of migrants were part of a more general picture. Particularly negative, and specific to the sociology of deviance, was the removal of the sensibilities linked with a so-called labelling approach, the radical consequence of which had culminated in David Matza's Becoming Deviant (1969). By the same token, such sensibilities had been crushed in the reaction of the mid-1970s, most symbolic for criminologists, the closing of the Berkeley School of Criminology, part and parcel of Ronald Reagan's unrelenting fight, as Governor of California, against radicalism at the University of California and more specifically at its flagship campus.

    Likewise, the spreading of American criminology's power and prestige from the United States to Europe happened under a solid moderate hold. This gave to the European conservative establishment that was firmly in charge during the globalization wave the intellectual and cultural instruments and tools that allowed for a reading of social conflict in Europe — most notably about the issue of migration — that was disconnected from the study of processes of criminalization. Such a study — as I try to show in the pages that follow — would have in fact made quite clear the political responsibilities of those elites. This lack of awareness was probably less pronounced in the UK, where the presence of a critical sociology of deviance in the 1970s had been such that it was difficult to overcome it totally. How much easier was it for such nonchalance to take hold where the sociological tradition in deviance studies was so thin that it could not really hold against the onslaught of governmental funds under the new agenda of “security,” as happened more or less everywhere in Continental Europe. Indeed, in the 1980s the new age of globalization started, and with it the planetary development of the social form that Ralf Dahrendorf (1985) had called “the society of two thirds” — a society of middle classes that was to replace a class-divided society. The question of “security” was then reinforced by the events of September 11 and the start of the “war on terror”. It became the most prominent aspect of a set of policies where, in Loïc Wacquant's (2009: 287–314) apt metaphor, the “right hand of the State,” the penal hand, increasingly expanded at the cost of the “left hand,” the social hand.

    What I shall try to make clear in this short work is that in many countries, and on different continents, the degree of criminalization of migrants became a function of the attitudes towards them, legally (both normatively and de facto), economically, socially and culturally. Therefore, sensitivity to the issue of “labelling” — which, as we have seen, had been unfortunately set aside — should be part and parcel of a more capacious account of migration phenomena. It may substantially contribute to a sociology of migration in pinpointing a crucial missing link in the relation between structural phenomena and the “agency” of migrants.

    Acknowledgements

    When my good friends at SAGE asked me to write this small book, I accepted enthusiastically, not only for its subject matter but also because they said they needed “only” about one hundred pages. I should have known better! The pages that follow took a long time to come and were the results of many steps in between. Among other things, I took advantage of the chance I was given to discuss some of the ideas in a number of lectures and conferences that I happened to give around the world, between 2011 and 2014. I thank all the friends and colleagues who invited me and who offered me a chance to discuss and, hopefully, improve, my ideas. Let me just thank them heartily, in no specific order: Ksenija Vidmar-Horvat, Aleksandras Dobryninas, Roberto Catanesi, Ian Loader, Carolyn Hoyle, Katja Franko Aas, Mary Bosworth, Nando Sigona, Bridget Anderson, Elena Larrauri, Gonzalo Escobar, Ignasi Bernat, Niki Lacey, Zelia Gallo, Leonidas Cheliotis, Valsamis Mitsilegas, Alessandro Spena, Karen Joe, Rossella Selmini, Malcolm Feeley, Jonathan Simon, Rosann Greenspan, José Ángel Brandariz-García, Maximo Sozzo. And their institutions: the University of Ljubljana, the University of Vilnius in Lithuania, the Italian Society of Criminology (which invited me to give a “Lectio Magistralis” on their 27th Congress), the Centre for Criminology and All Souls College at Oxford, as well as the ESRC Centre on Migration, Policy and Society at the same University, the University Pompeu Fabre of Barcelona, the University of Girona, the Centre for Criminal Justice at Queen Mary University in London (at the 2012 WG Hart Legal Workshop), the London School of Economics, the University of Palermo, the University of Hong Kong, the University of A Coruna (Spain) and last, but certainly not least, the Universidad Nacional del Litoral, Santa Fe (Argentina). I would also like to thank the friends and colleagues of the Città sicure Project of the Regional Government of Emilia-Romagna as well as those of the Italian journal Studi sulla Questione Criminale. A very special thanks goes to the Centre for the Study of Law and Society at the School of Law of the University of California at Berkeley, which hosted me on numerous occasions in these three years and gave me a chance to “rinse my language” (and my thoughts) if not in the Arno river — as a famous Italian writer wrote — at least in the Pacific Ocean! A very special thanks goes to Rubén Rumbaut for permission to reproduce Table 2.1 and to Emmanuel Saez for permission to reproduce Figure 4.1.

    Another very special thanks goes to Warner Bros for the permission to use a still from the very beautiful film America America by Elia Kazan (1963) for the image on the cover of the book. And grazie mille to the Editors of this series, Niki Rafter and Paul Rock, for their wonderful support and continuous feedback! Finally, special thanks go to the Criminology Editor at SAGE, Natalie Aguilera (and her Associate Editor James Piper), Amy Jarrold and George Knowles, for their support and patience! Thank you all!

  • In Conclusion: Crime, Migration, Social Change and Innovation

    The processes of criminalization of migrants depend therefore, to a large extent, on the receiving norms and practices of the countries where they are admitted. The issue of legal status in particular is paramount for processes of criminalization. A key element seems to be the possession, by recent immigrants, of legal documentation that enables them to work. Work is an essential element of integration, and usually the possession of legal documents is a prerequisite for work. So in European countries generally the process of criminalization is related not so much to the status of immigrant as to the status of “undocumented” immigrant. The tradition of the continental police state is quite important in this respect (Foucault 1976; Campesi 2009). As we have seen, in many parts of Europe, at least before the “great recession” that started in 2008, migrants and asylum seekers were coming undocumented or overstayed waiting for the (at least in the pre-crisis era) almost unavoidable provision that “regularized” them, whether collectively or individually. In between, a dangerous period of lack of documentation ensued, fraught with the necessity of all sorts of illegalities.

    We have seen that the situation in the United States is instead quite different. In short, the easier the processes of legal integration in the host society (residency and naturalization), the lower the criminalization processes. Conversely, the harder the process of legal inclusion, the higher the numbers of criminalized foreigners. Already in 1999, in a pioneering comparative study, James Lynch and Rita Simon had pointed out that “immigrant nations,” such as the United States, Canada and Australia, have relatively open immigrant policies and high proportions of foreign-born within the resident population. Germany and Japan (“non-traditional immigrant nations”) have restrictive immigration policies, strict policies for the control of resident aliens and restrictive naturalization policies. France and England have restrictive admission policies based on race and national origin, but naturalization policies are relatively open. Comparing the incarceration rates, the pattern that emerges across the seven nations is that, overall, immigrants in traditional immigrant-receiving countries have lower criminalization rates than non-traditional immigrant nations. The apparent relationship between the inclusiveness of immigration policies and the criminal involvement of aliens suggests that the more restrictive the policy, the greater the criminalization of foreigners.

    So, in a sense we can say that basic features of society generate the policies of reception toward the various groups. There may be, of course, various economic periods and economic needs. What I think emerged from this all too brief review, however, was that there are different cultural attitudes toward “migrants,” “strangers” and specific groups of minorities that may or may not overlap with migrants. These attitudes tend to drive, by and large, the policies of reception and create the environment inside which phenomena of crime and punishment — that, as we know from the core of criminological reflection, can never really be separated in so far as one constitutes the other — do somehow relate to the issue of migration. So, in societies where the migrant status is essentially considered in a benign way, and where it is connected to a “democratic” view that promotes social change and social innovation — change and innovation of which migrants are in a sense the torchbearers — such as in the United States, the rates of criminalization of migrants are lower. Here there is, however, at the same time a long history of racism, rooted in the question of slavery and in deep forms of racial prejudice at the time of the nineteenth century. Then, the societal attitude toward migrants does not transform itself into processes of criminalization until the migrants’ second generations, when the children of migrants settle in social areas marred by marginalization, poverty and forms of ghettoization. These forms of ghettoization, however, are much harsher for children of migrants who are perceived as belonging in certain ethnic groups. Criminalization reflects these social conditions because these are at the same time at the roots of differential participation in criminal behaviour and differential exposure to the risks of criminalization — first of all through the work of police and secondarily of the other formal control apparatuses (courts and prisons essentially).

    This is the case for the United States and, to a minor extent, for the other countries that constituted themselves as countries based on immigration. Very different is the case of European countries — even if there are some European countries, such as the UK, France and the Netherlands, where immigration flows were initially connected to their colonial status, where immigration has been going on for quite some time, and where the attitude toward immigration is somewhat less benign than in true immigrants’ countries but more benign than in countries that have never experienced immigration. The latter are most of the other countries that we have mentioned, from Southern Europe to the Middle East to Asia. These are countries that are generally speaking culturally and socially more conservative, with an established social stratification whereby the destiny of migrants is ineluctably to be integrated at the bottom. This basic attitude is reflected in the difficulty in immigrating legally, and in the somewhat hostile attitude toward innovation and therefore also toward phenomena of deviance. These countries experience therefore the marginalization of first generation migrants, given that the need for migrants is there and migrants manage to come or stay anyway even if illegally (but, differently from the US situation, it is much harder for them to “pass” as legal).

    A special case is the European Union, which, as we have seen, should really be considered as a political entity separated from the various national European countries and also different from that peculiar historical and cultural reality that is understood in the concept of “Europe”. As such, the EU has been increasingly trying — in this as in other policy areas — to play an important role of homogenization and harmonization among the various national policies, given that a common immigration policy is a requirement of the construction of the EU as a cohesive economic, political and social reality. Here the role of Germany is essential, not only because it is the most important immigration area in the EU but also because it is increasingly the power core of the EU. In Germany, as we have seen, already in 1998 the new red-green government proclaimed aloud that Deutschland ist ein Einwanderungsland! (“Germany is an immigration land!”) (Monte 2002). Now we need to proclaim aloud that “the EU is an immigration land!” and as such it has to equip itself not only with the norms but also with the institutions and the tools that would allow the EU to actually play the role of an immigration land, to become a true country of immigrants, which is de facto what already it is now. This is by no means the least of the policy areas where the credibility and the reality of the existence of a EU will play out in the next few years. As we have seen, however, this is strictly intertwined with the creation and the struggle for a different European “public sphere” — as Jürgen Habermas would call it — one where, increasingly, social innovation (and therefore internal mobility and mobility from the outside) are welcome. This process is inextricably linked with the construction of a common cultural area and, increasingly in the future, also a common linguistic area. It is indeed impossible to separate — I have argued for this elsewhere at greater length (Melossi 2005) — the three aspects: the construction of the EU and its cultural and linguistic harmonization, the establishment of a cultural area characterized by the hegemony of social change and innovation, and an autonomous and increasingly European policy about immigration. The easing of the legal status of migrants — and the establishment of a different channel to European citizenship for third parties autonomous from the citizenship of the constituent member states — will be the necessary premise for an easing also of processes of migrants’ criminalization. The migrants’ participation in criminal enterprises will in fact reduce and, together with it, also the pressure of formal social control on migrants. In a situation in which, hopefully, the European Union is slowly, unevenly and, even if somewhat licking its wounds, walking toward economic recovery, a more rational, better planned and more receptive policy toward immigrants is an absolute priority because, together with economic recovery, the pressure on European borders will start again and we must be ready to welcome migrants.

    We have seen that countries historically based in immigration show less crime by immigrants and less punishment of immigrants. It is therefore a pity — and it looks like very poor political wisdom — that some of them now want to shy away from a tradition, and a promise, of which they should be proud. Were such changes to be put in effect, they would probably reach an opposite result to the one for which they were ostensibly intended. This is also an excellent illustration of the enduring value of the approach, in the sociology of deviance and crime, which, in the 1960s, was dubbed the “labelling approach”. The experience of Europe and of the United States (in spite of the efforts by conservative Americans to follow, as usual, the worst European examples instead of being true to the best American tradition) teaches us that if we want to decrease the participation and involvement of migrants in criminal activities we have to do exactly the opposite of what we have been told for years, i.e. we have to welcome migrants in our midst. This will also be the best policy in order to prevent migrants’ crime as well as migrants’ criminalization.

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