II. The Procedural Landscape of Crimmigration: When Does Process Become Punitive?

Examining whether crimmigration processes can operate as punishment begins with an inquiry into whether a process can impose punishment in the first place. Malcolm Feeley’s pioneering work on process as punishment in the field of criminal law offers to deepen our understanding of crimmigration law (Feeley 1979). Feeley posited that, at least in the lower criminal court, the power to sanction is distributed beyond the judge to many non-judicial actors with a role in the criminal justice process. Sanctions in the criminal justice system, he found, were not confined to the sentence at the end of the process but appeared at junctures throughout the process. These included pre-trial detention and arrest, as well as the elemental unpleasantness of the criminal procedural experience (Feeley 1979).

Feeley’s taxonomy of how criminal process can become punishment provides the beginnings of a similar taxonomy for crimmigration law. First, the process becomes the punishment when the costs of contesting the criminal charges become higher than the cost of pleading guilty. This cost can be financial, but can also manifest in time, anxiety, and interruptions to work or family obligations.

Second, procedural elements can take the place of traditional criminal punishment. For example, pre-trial detention takes the place ofthe criminal sentence when it is longer than the sentence or when the population in pre-trial detention is significantly higher than those jailed post-trial. Third, the process becomes like punishment when authorities use procedural elements such as arrest or detention for the purpose of imposing a negative experience on an individual, independent of its function as a step toward prosecution for the crime (Feeley 1979: 205-206, 235).

Crimmigration law’s unique procedural architecture contributes to its potential for punitiveness in two additional ways. The interplay between the criminal and deportation adjudication systems relegates one system to a procedural stepping stone to the outcome of the other. Also, crimmigration law creates procedural stratifications within the criminal justice system that set non-citizens apart from citizens. The next sections will analyse these five earmarks.

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