Costs of procedure ordain outcomes

When the burdens the process imposes determine the decisions people make about whether to accept deportation, plead guilty, or agree to a sentence, the lines between the process and the outcome blur. In crimmigration law, the experience ofarrest and detention imposes heavy costs, especially in combination with elongation of the procedural precursors to adjudication. The experience of the criminal or deportation process can also contribute to making the costs of the process comparable to or greater than the cost of the ultimate outcome. Especially for non-citizens who arrived relatively recently in the United States, being thrust into a foreign criminal justice system can be particularly unsettling and may outstrip the formal sanction that follows that process.

Any arrest for a criminal or immigration offence brings individuals into contact with law-enforcement officers exercising one of their greatest powers. For low-level offences, the confrontational nature of that interaction and the role of arrest as the gateway to the rest of the criminal or deportation process alone may surpass the formal sanction in terms of time, uncertainty, and unpleasantness (Feeley 1979: 199—201; Motomura 2011).[1]

Pre-trial detention similarly puts pressure on non-citizens. Defendants facing minor criminal charges may accede to a plea agreement on the prosecutor’s terms because the cost of contesting the charges is often higher than taking the plea. Noncitizens arrested on deportation grounds may agree to deportation if, like the Postville defendants, immediate release would allow them to care for children or find new work. That will especially hold true if the longer term consequences, such as ineligibility for later lawful entry, are distant.

Elongation of the process plays an important role. Choosing to contest the criminal or deportation charges can prolong pre-trial custody and immigration detention. It can impose costs such as loss of work or childcare time, attorneys’ fees for those not represented by a public defender, and the stress and aggravation that comes with being submerged in the procedural gamut of criminal litigation. From the point of deciding to contest the charges to the day of the actual trial, criminal defendants often experience a series of pre-trial hearings, delays, and reschedulings. Upon reaching their ‘day in court’, they are relegated to the role of minor players in the courtroom (Feeley 1979: 154-158). Immigration proceedings lack the motivating stick of a speedy trial requirement or constitutional bail rights, so for many, overflowing dockets and detention mandates result in long waits in detention for deportation hearings.

  • [1] See Motomura (2011) (explaining that the decision whether to arrest often determines theoutcome of crime-based immigration cases).
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