Abstract

Excerpted From: Enrique Alvear Moreno, The Paradox of Sanctuary: How Punitive Exceptions Converge to Criminalize and Punish Latinos/as, 49 Law and Social Inquiry 2466 (November, 2024) (3 Footnotes/References) (Full Document)

In 2017, I came across the story of Wilmer Catalan-Ramirez, an undocumented resident who, in the aftermath of Hurricane Katrina in 2005, joined thousands of other migrants to help rebuild the Gulf Coast in Louisiana. Wilmer had left Guatemala to seek employment and economic opportunities in Baton Rouge following the natural disaster. Only weeks after his arrival, however, federal immigration authorities arrested Wilmer during a workplace raid and charged him with fraud and misuse of documents. He served seven months in jail and was then deported from the United States. After returning to the United States, Wilmer found work in Georgia and met his future wife, Celene. In 2009, Wilmer and Celene relocated to Chicago. As Wilmer told me, “People said that Chicago was a sanctuary city and that it would be better for us” (Interview 2017).

“Sanctuary” is a category claimed by US cities that usually endorse laws and urban policies that restrict the engagement of local authorities, including the police, in the enforcement of federal immigration laws. Although the term ““sanctuary” encompasses a variety of practices and policies, including providing religious shelter to refugees and undocumented immigrants (Coutin 1993), statements of public solidarity with immigrants (McMillam 1987) and policies that make state and city services available for noncitizens (Kagan 2018; Motomura 2018), there is still an ongoing conversation about the meaning of “sanctuary” in the US (Villazor 2008, 137; Villazor and Gulasekaram 2018; Ayers 2021).

Indeed, most scholarship continues to frame sanctuary cities as urban spaces historically engaged in contesting immigration control by refusing to share information, personnel, and facilities with federal immigration authorities to police immigrants (Wells 2004; Ridgley 2008; 2012; Varsanyi 2010; Villazor 2010; Armenta 2017; Bauder 2017; Colbern 2017; Garcia 2018; Collingwood and Gonzalez O'Brien 2019; Kramer 2020; Su 2020; de Graauw 2021). Existing research suggests that the notion of “urban sanctuary” (Bauder 2017) reconceptualizes cities as “generative sites of resistance” (Ridgley 2008) that aim to contest the criminalization of migration (Ridgley 2008; 2012). A growing literature, however, criticizes excessively optimistic versions of sanctuary cities by unpacking how the urban sanctuary, in practice, perpetuates relations of privilege, social hierarchies, and exclusionary politics against certain immigrant and refugee categories in countries such as the United States, Canada, and the United Kingdom (Bauder 2017; Bagelman 2013; Darling and Squire 2012; Scherr and Hofmann 2016; Houston and Lawrence-Weilmann 2016; Walia 2014). And yet, most of these studies conceive of urban sanctuary as local policies originally designed to contest federal power, and thus fail to fully capture how and under what conditions sanctuary policies could actually rely on immigration enforcement and the criminalization of migration to govern cities' larger political urgencies.

This article uses Chicago as a case study to investigate how and why the urban sanctuary expands immigrants' rights while reinforcing immigration policing with punitive implications for Latino/a undocumented workers. To shed light on this insidious dimension of sanctuary city laws (Bagelman 2013), I draw on archival materials housed by the Office of the City Clerk of Chicago from the first sanctuary city policy in 1985 until the end of Chicago Mayor Rahm Emanuel's first term (2011-2015). This material includes sanctuary city laws, the City Council's decisions, as well as newspaper articles that trace the history of sanctuary movements and policies in the city. From analyzing these data, I found that sanctuary city laws effectively expanded some immigrants' protections by restricting the city's cooperation with federal immigration authorities. At the same time though, the city has embraced an exclusionary logic that intensifies immigration policing when: (1) new state/federal laws or court decisions consider it necessary (jurisdictional power), (2) the offenses are viewed as “threatening to public safety” (serious crimes), or (3) immigrants are conceived of as criminals or gang-associated (undeserving noncitizens). I coin the term punitive exceptionalism to describe the logic by which sanctuary policies suspend their refusal to cooperate with immigration enforcement laws and introduce expansive policing regimes by targeting Latino/a immigrants in the three cases outlined above. These cases illustrate how and under what conditions punitive exceptionalism evolves and becomes cumulative over time to address different political problems that are continuously racialized as Latino-related issues in Chicago's labor market and the so-called problems of crime and violence.

Building on these findings, I argue that--as a formof racialized governance--punitive exceptionalism was the central logic driving Chicago's sanctuary laws in response to distinct political urgencies in the city. I suggest that exceptionalism turns distinct immigrant categories (i.e., undocumented workers, “criminal aliens,” and “gangs”) into criminal targets and becomes a cumulative form of state punishment that deepens racialized immigration policing, legal deprotections, and potential expulsions.

This article broadens our understanding of sanctuary cities by demonstrating how Chicago's liberal sanctuary was not primarily concerned with contesting the state's federal power, as most scholars take for granted (Office of the City Clerk 2012). Similar to recent historical research (Fox 2023), this paper challenges the premise that urban sanctuary fundamentally represents local resistance to federal sovereign power by undermining immigration control. Instead, I unpack how Chicago's liberal sanctuary (Paik 2017; 2020; Roy 2019) engages with a set of systematic exceptions to activate a racialized governance wherein law and immigration enforcement identify, punish, and eventually expel Latino/a “undesirable” immigrants. Consequently, this paper offers relevant insights into how urban sanctuary reinforces the “color line” (DuBois 1994) or the “division of society by racial categories” and illustrates how it has historically reinforced the legitimacy of the state and police power (Roy 2019).

[. . .]

Over the last decades, scholars have examined how the urban sanctuary historically limited the ability of cities and police authorities to use local resources and data sharing to enforce federal immigration laws. Much existing research has suggested that sanctuary cities enact a legal space of resistance to federal power and detailed how these localities generatively contest the criminalization of migration by offering alternative understandings of citizenship and rightful presence in the United States, Canada, and the United Kingdom. Emerging critical approaches, however, call attention to the ways in which sanctuary cities, in practice, reproduce citizenship hierarchies and several types of forced confinement and displacement. While both lines of research have offered crucial insights into the significance of sanctuary city policies and practices, most of these studies still identify sanctuary cities with noncollaborative policies toward federal immigration control and thus neglect to disentangle to what extent the urban sanctuary expands the criminalization of migration in such a way as to govern cities' broader political problems. Scholars occasionally acknowledge the core paradox of sanctuary cities that expand the rights of law-abiding immigrants at the expense of denying these protections to foreigners conceived of as “criminal aliens” (see, for example, Paik 2017; 2020; Roy 2019) but they still presume that sanctuary policies were originally created to resist to federal power.

By challenging the idea that sanctuary necessarily portrays local contestation to federal sovereignty, this article takes the case of Chicago's sanctuary policies to explore whether and how sanctuary laws simultaneously contest and reinforce immigration control and their punitive consequences. By analyzing extensive archival research of materials housed by the Office of the City Clerk of Chicago and newspaper articles, this study found that sanctuary policies have essentially increased “law-abiding” immigrants' access to welfare benefits and legal protections from immigration enforcement by restricting the city's cooperation with federal immigration authorities. Nonetheless, the sanctuary refusal of collaboration with the enforcement of immigration laws embraces a racialized exclusionary logic that removes protections for and amplifies immigration policing of Latino/a noncitizens considered criminals or gang members. I proposed the term punitive exceptionalism to illustrate this logic by which sanctuary laws employ a set of exceptions to suspend sanctuary protections and eventually authorize law and immigration enforcement to converge and control Latino/a immigrant subjects.

Punitive exceptionalism, however, is not a static phenomenon that evolved in response to racialized political urgencies around immigrants' labor rights, access to the city's welfare benefits, and debates about crime and violence in the city. When analyzing the legal making of punitive exceptionalism, I found that sanctuary policies have historically used three major forms of exceptionalism in Chicago: (1) jurisdictional power, (2) serious crimes, and (3) undeserving noncitizens. Although distinct, these three forms of punitive exceptionalism are not mutually exclusive; in fact, they build upon one another, resulting in an accumulation of exceptions.

Based on these findings, I argue that--as a form of racialized governance-- punitive exceptionalism was the central force driving Chicago's urban sanctuary in response to different local political problems. In addressing urgencies that were not primarily related to the defense of immigrants, sanctuary policies created rights and protections for Latino/a undocumented workers to become disposable workers as well as cooperative agents with the police in local crime control. By these means, punitive exceptionalism uncovers the paradox of liberal sanctuary in Chicago by expanding immigrants' protections while embracing an aggressive policing regime over Latino/a “undeserving” immigrants with criminal records and gang affiliations. Despite their best intentions, sanctuary policies introduce a system of punishment via exceptions that ultimately strengthen state legitimacy, police power, and the criminalization of Latinos/as. While more research needs to be done to fully examine the punitive nature of the urban sanctuary over the last few years, the findings presented here provide empirical evidence for how exclusionary sanctuary policies were legally constructed, rearranged immigration policing, and ultimately configured a particular form of racialized state punishment in Chicago.

Conceptualizing punitive exceptionalism as the exclusionary logic of sanctuary laws complicates excessively optimistic visions of the urban sanctuary (Bagelman 2013; Coleman 2012). It does so by exploring the degree to which the urban sanctuary is not only a “generative site of resistance” (Ridgley 2008; 2012; Bauder 2017) but, fundamentally, a space where the criminalization of migration gets reproduced. This study shows how sanctuary protections were not primarily concerned with refusing the state's federal power--as most scholarship on sanctuary cities suggests. Instead, sanctuary policies seek to govern distinct political urgencies where law and immigration enforcement converge to detect, confine, and eventually expel Latino/a ““undesirable” immigrants. As a theoretical framework, punitive exceptionalism helps to envision why and how Chicago's urban sanctuary enacts expansive forms of social control, policing, and punishment of Latino/a noncitizen categories. In so doing, punitive exceptionalism recenters the logic of exceptions in the state's production of immigration policing throughout liberal sanctuaries by excavating the historical process by which certain immigrant categories become ““legally” criminalized while paying attention to the symbolic and material consequences of this process.

More broadly, punitive exceptionalism constitutes a “conceptual roadmap” (Vargas 2016) for considering multiple forms of exception-based punishment that might be at work in other urban sanctuaries and non-sanctuary cities (one can see, for instance, punitive and selective exceptions in Seattle's sanctuary ordinances in Cházaro 2012). Additional work should consider, for example, what punitive exceptionalism looks like in other US sanctuary cities, how it eventually shapes other public policies across the country, and the ways in which punishments via exceptions have been reshaped in different historical periods. Moreover, researchers could also consider whether and how other liberal policies, particularly those that formally expand civil rights and social welfare, enact punitive exceptions by targeting selective racialized subjects.

Such studies might confirm that the paradox of liberal sanctuary is not specific to sanctuary policies per se but rather a core element of the larger “framework of liberal democracy and law” (Paik 2017, 16). While scholars need to pay attention to this possibility, the framework of punitive exceptionalism reveals that so-called policies that expand immigrants' rights and social welfare can effectively embrace local-scale, site-specific, and differentiated forms of state penal power. But, as this study demonstrates, the criminalization of immigration is not equally distributed among foreign nationals, even in well-known sanctuary cities such as Chicago. Rather, according to the logic of exceptionalism, the state's exclusionary power operates through racial distinctions and differential policing regimes within the larger category of “immigrants” (see, for example, Valdez 2016).

Acknowledgments. The author is grateful to Latino immigrants, Organized Communities Against Deportation (OCAD), social movements, and transformative justice organizations engaged in the Expanded Sanctuary campaign in Chicago, the Policing in Chicago Research Group (PCRG) in the Sociology Department at the University of Illinois, Chicago, and all participants who contributed to this research. He would also like to thank Andy Clarno, Patrisia Macias-Rojas, Reuben J. Miller, Laurie Schaffner, John Hagedorn, Ronak Kapadia, Michelle Phelps, Erin Eife, and Yesenia Vargas for their critical and insightful feedback on earlier drafts of this article. This article has also benefited from thoughtful feedback from Monica Bell, Rahim Kurwa, and Asad L. Asad during the Law and Society Association 2019 Annual Meeting and the anonymous reviewers at Law & Social Inquiry. Any mistakes and shortcomings are my own

Enrique Alvear Moreno is a PhD Candidate in Sociology at the University of Illinois, Chicago and an Incoming Assistant Professor of Criminology and Law Studies at Marquette University.