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Many people view the call to abolish ICE, the Immigration and Customs Enforcement agency, as an irresponsible act of radicalism. Republicans certainly frame it that way.
But there is nothing inevitable — or even especially long-lived — about ICE. In 2003, Congress detached different components of immigration and customs functions from the Departments of Justice and Treasury to form ICE. Its new home in Department of Homeland Security dictated an institutional posture that all immigration to the United States posed a threat. That reorganization — including the startling proposition that supports it — is at least as radical as its unwinding would be.
Left unchecked, the egregious harms imposed by ICE — deportations that do more to disrupt than protect American communities; the ill-conceived preference for immigration detention executed via a system that is a human rights disgrace — will resolve into a “new normal.”
That is the fate of recent conservative state-building in the United States: Policies and offices do not survive scrutiny so much as simply evade it.
I can say this with confidence because five years ago, I published a book examining the history of the worst policy failure in modern US history: the government’s war on drugs. In light of drug prohibition’s abysmal results, I made several recommendations, including abolishing the Drug Enforcement Administration, the architect and emblem of the government’s war on drugs.
I did so not because I think illicit drugs present trivial dangers, but because I know they carry very real and distressing ones. When evaluated on the basis of its own selected benchmarks, the drug war has driven key performance indicators like illicit drug price and potency in exactly the wrong direction.
Agencies run astray when their main policy tools are the “gun and the badge”
But conservative state-building is never judged on the basis of results — a simple point that bears closer inspection. Take, for example, the remarkably similar history and trajectory of ICE and the DEA. Like ICE, the DEA was formed by combining two offices — one from the White House, and one from the Treasury Department. Typically, executive departments are organized around a particular policy portfolio (like education), and they focus on overarching goals, weighing various tools and approaches to meet those goals.
Whether those tools work to advance an agency’s valued objective is a question that the officials in and out of the organization attempt to answer. If found wanting, tools can be modified or abandoned — unless they happen to belong to units dedicated overwhelmingly to enforcement, tucked into executive departments that dramatically misconceptualize the target of their intentions. In that case, no meaningful evaluation takes place at all.
The US government once construed drugs as a trade. The Bureau of Narcotics (the main predecessor agency to the DEA), seated in the Department of Treasury, was armed with sanctions that could diminish the flow of illicit drugs. The formation of the DEA crystallized a very different notion —namely, that illicit drugs were a crime.
In an analogous fashion, the Immigration and Naturalization Service (INS) once sat in the Department of Labor, on the supposition that people came to this country seeking work; it later moved to the Department of Justice. Before the creation of ICE, as the Atlantic’s Franklin Foer points out, “enforcement was housed in an agency devoted to both deportation and naturalization.”
Today these functions belong to an agency predicated on thwarting terrorist threats, and the instruments it deploys have not been shown to deter illegal immigration, nor do terrorist threats concentrate in the migrant communities most subjected to its punitive measures.
Tasked with Sisyphean chores and supplied with counterproductive tools, it is not surprising that the DEA and ICE share some dysfunctions. Their leadership rejects meaningful distinctions — whether between drugs, or between and among undocumented migrants — because drawing them would raise real questions about the implicit premise that resides in their institutional location. The workforce of both ICE and the DEA features agents who harbor a siege mentality, fostered by a culture of secrecy and resentment of oversight, and susceptible to corruption.
Neither is overseen by an official who must weigh the effectiveness, and decide the budget, of enforcement relative to a different approach to the same problem. Both are capable of moderating only the degree of the application of punitive enforcement, and incentivized in the direction of ever-greater amounts. To think differently, to drop one set of tools in favor of another, would amount to an act of institutional self-repudiation.
No matter how many indictments and interdiction efforts the DEA claims as a success, it has no measurable impact on the drugs wending their way through black markets. Inspecting the record, it’s surprising that these misplaced enforcement agencies command much approval at all.
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Inertia helps to keep clearly failing agencies alive. That makes focused opposition all the more important.
That brings us to the second simple but crucial observation regarding conservative state-building: Agencies like the DEA do not draw political strength from defenders so much as they do from a kind of aggressive complacency — a Beltway mindset that treats change as an antagonist.
Unless faced with a committed opposition, an agency like the DEA will easily defeat critics, not because its proponents will mount superior arguments, but because those proponents won’t feel compelled to make any arguments at all. One of the most astonishing things about the DEA’s pervasive, passive support is the way in which policy discussions deemed “serious” omit drug prohibition from the very problems it is most implicated in.
Examinations of the falling rate by which US law enforcement makes an arrest in cases of homicide is one example of this “motivated” silence. Once more than 90 percent, the so-called “clearance rate” for homicides now holds steady at roughly 65 percent; in some places, like Chicago, the clearance rate for homicide in 2017 came in at 17.5 percent.
The reason for this collapse is well known: Other than forensic evidence, witness testimony remains the crucial factor in building a case against a suspect. But in the same neighborhoods that experience the most murders, witnesses have gone silent, unable or unwilling to confide in members of a police force viewed as adversaries.
Rather than consider why the police mission has been discredited in the places where it is most needed, we typically lament “community mistrust,” on the apparent belief that ordinary people have invented some suspicion that was too convenient to resist, too hard to dispel, yet without reason or rationale.
That’s simply not the case: As I discuss in my book, residents of urban black neighborhoods that had long gone unpoliced were first able to regard themselves as clients, not just targets, of law enforcement services in the 1950s. Yet this newfound status of “citizens worthy of service provision” was heavily conditioned by different agendas of social control: Arrests for loitering and public drunkenness were common, for instance.
Among the various police tactics of subjugation, by the 1970s, only the drug war toolkit survived challenges of civil rights jurisprudence and police professionalization. It nurtured a mode of policing that offended onlookers and alienated potential allies.
When combined with the profits made available to criminal gangs via drug prohibition — a policy enshrined in the Controlled Substances Act of 1970 — our drug war has produced a toxic combination: entrenched networks of crime sustained by gun violence, and a legacy of community suspicion of police. Yet we treat both phenomena as ex nihilo, sprung from nothing and out of nowhere.
Other conversations bear the imprint of a failed drug war, though we inspect the tracks as if laid by the mysterious Bigfoot. Drug prohibition drives but is inexplicably absent from analyses of the mounting lethality of the opioid crisis. Few who chide illicit opioid manufacturers for overprescribing opioids recall that a century ago, heroin was among the pain medications they sold.
As reports of misuse mounted, legislators responded by declaring heroin contraband, surrendering the drug to underground production and forfeiting the ability to regulate it in any way. The result is a drug many times more dangerous than its original formulation; with the recent addition of chemical synthetics like fentanyl, illicit heroin now regularly kills its consumers.
The drug war, a creature of our own creation, stalks us with its perverse consequences; still, we report being mugged by a stranger.
To be clear, illicit drug trafficking is now a fact of global trade, not a genie we can put back in the bottle. But to be equally clear, our refusal to acknowledge the drug war’s ever-present failure, including our refusal to consider abolishing the DEA, impoverishes analysis and blinds us to possible alternatives. Instead of trying to arrest and interdict our way out of the program, for instance, we might follow the advice of Sen. Rob Portman, who represents the heavily opioid-afflicted state Ohio, and prioritize the illicit production of fentanyl in trade talks with China.
Worse yet — and similar to a punitive approach to immigration enforcement — in perpetuating meaningless enforcement, we pathologize poverty, criminalize and imprison difference, perpetuate institutional racism, and degrade legal practices long considered essential to our freedom. We cheat ourselves of honest and productive relations with other countries, especially those in Central and South America.
Claiming the right to name and discuss these failures, and confronting conservative state-building of any sort, involves seeing the past in our present; it means grounding our analysis in the problem as it exists, rather than in the terms in which it is typically couched; it demands acknowledging something other than the white experience.
It has never been more important to enrich our perspective in precisely these ways. Typically institutions like the DEA and ICE loiter, like uninvited guests, at the margins of public discussion. Our post-9/11 world makes this neglect untenable. A war on terror, like the one waged against drugs, is both a mindset and a massive proliferation of enforcement policy and institutions — effectively a New Deal for the carceral and surveillance state.
Progressive approaches to recurring problems like terrorism, drugs, or illegal immigration do not suffer from poor evidence; they struggle for narrative context. Our political establishment caricatures progressive designs as extreme even when cautious: It appraises them as costly despite material savings; it judges them according to any failure, no matter how infrequent, unrelated, or trivial; it marginalizes these ideas as eccentric and irrelevant.
The opposite assumptions frame an approach of the “gun and the badge” (my phrase to denote enforcement-centric policy solutions): always treated as reasonable regardless of how radical; absolved of all sins, no matter the gravity or number; and received by serious people as indispensable and efficient, even when ineffective and expensive.
In this light, the call to “abolish ICE” has a place among efforts to expose other kinds of double standards in our world. It may well rank as among the most difficult. A progressive institutional and policy agenda is the ultimate outsider, a perpetual interloper who must do twice the work to garner half the credit. Meanwhile, the “gun and the badge” proves nothing to no one yet is accorded great deference.
And so, in league with other politics intended to challenge privilege, I say again: Abolish the DEA, and abolish ICE. Any redeeming aspect of their respective agencies can be transferred to a place where enforcement must demonstrate its effectiveness when judged against other approaches, operate under an appropriate executive mission, and show a return on investment based on outcomes that improve the lives of ordinary Americans.
Kathleen Frydl has examined conservative state-building in an award-winning book on the GI bill; a book on the drug war; and in articles on the FBI as well as the care of foundlings. Find her on Twitter @kfrydl.
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