Segregation of non-citizen defendants
Crimmigration law has carved out both formal and functional spaces in which noncitizens are segregated from citizens in the criminal justice system. Formally, the US criminal justice system treats citizens and non-citizens alike, at least in the adjudication of traditional crimes such as theft where migration is not at issue. A growing body of laws and practices, however, create impacts that run contrary to traditional criminal justice principles. First, they impose different or heavier sanctions on noncitizens and establish procedures applied only to non-citizens. Second, they fail to distinguish between non-citizens as individuals, treating them instead as an undifferentiated mass.
The still-evolving legal frameworks that set non-citizens apart from citizens through both formal law and functional practice result from the incongruence of applying to non-citizens a criminal justice system grounded in conceptions of citizenship, as Lucia Zedner (Chapter 2 in this volume) points out. Zedner illustrates that competing justifications for a criminal justice system that empowers the government to punish tend to centralize citizenship.
Citizenship explains both the obligations individuals owe to the state and the obligations the state owes to the accused, such as procedural protections and the guarantee of a fair trial. The classic liberal and communitarian schools of thought on the authority of criminal law both rely on citizenship. The liberal camp conceives of the relationship between state and individual as grounded on a hierarchical social contract in which citizens consent to cede some liberty to the state in exchange for protection and the maintenance of order, among other things. The communitarian approach, in contrast, locates the source of authority of the criminal law in the relational bonds among citizens. The obligations those bonds place on members of the community, and the state’s authority to censure, are grounded in a ‘linguistic and normative commonality’ associated with citizenship (Zedner, Chapter 2 in this volume).
Zedner notes that both the liberty-restraining power of the state and the limits on that power become ambiguous in the absence of legal citizenship. When the theoretical justifications for the exercise of state power to punish are based on citizenship, the justification for recognizing rights and protections for non-citizen defendants weakens. This weakness manifests in the US criminal justice and immigration systems in ways that single out and exclude non-citizens.
Unauthorized border crossing has long been a criminal violation in the United States, but it was traditionally addressed through a non-criminal deportation proceeding. Process leading to deportation was often minimal. Border patrol agents sometimes effected deportation of Mexican nationals after unlawful entry by turning them around and ushering them across the border (Kanstroom 2007).
Since then, more federal prosecution of these acts as crimes and more intense immigration enforcement has resulted in heightened deportation counts and enforcement operations, such as Operation Streamline, that target specific areas of the border. States like Arizona and Alabama have passed laws criminalizing the same conduct that federal immigration law prohibits or surpassing the federal prohibitions by criminalizing a non-citizen’s unauthorized presence within the state. These laws have created a new procedural channel to state-imposed punishment. Non-citizens prosecuted under these laws still face possible deportation proceedings and federal criminal prosecution for the same conduct (Chin et al 2010: 50; Chin and Miller 2011).
Crimes related to unlawful presence in the United States are in a category oftheir own. In contrast to traditional criminal violations which target conduct, migration crimes are unique in requiring as an element the status of being a non-citizen without federal immigration authorization. In other words, it is not conduct but rather a person’s citizenship status that defines the violation of criminal law. The same conduct, committed by a US citizen (or a lawfully present non-citizen), would not constitute a crime.
Shifting from a civil to a criminal response to unlawful presence and unlawful entry places two different burdens on non-citizens caught up in the process. The first is a straightforward heightening of the sanction for unlawful border crossing. In addition to deportation, the government imposes a criminal conviction and sentence for these acts. Added to that is the expressive power of the conviction in labelling the conduct a crime and its perpetrator a criminal (Garland 2001).
Moreover, for lawful permanent residents, imposing deportation on top of the criminal sentence seems to have little purpose other than to exacerbate the punishment for the conviction. This is especially true for criminal deportation grounds that apply retroactively, rendering removable lawful permanent residents who had reason to believe, upon serving their sentences, that the state had exhausted its power to punish for that crime.
Mass arrest and prosecution processes for migration-related crimes impose unique burdens on non-citizens. Arrests for the crimes of unlawful entry or re-entry, administrative arrests for working without authorization, and criminal arrests for using false or fraudulent documents are undertaken on a mass scale. These mass proceedings can result from workplace or neighbourhood raids or human-smuggling apprehensions.
Mass criminal prosecution of non-citizens for migration-related offences sends a singular message (Newburn and Jones 2007). In Postville, the mass roundup and processing of the convictions communicated that the employees were so distinct from other criminal defendants that they warranted special procedures. The operation diverted the non-citizens from the low-level criminal court that was the usual venue for criminal defendants accused of equivalent crimes (Preston 2008a; Preston 2008b). Using a force of immigration enforcement agents and police, a fleet of white transport vans, and rented fairground space to detain and process the large groups of arrested migrants marked them as too numerous, too poised for flight, the situation too unique for the ordinary workings of the criminal court.
While acting upon differences between the Postville prosecution and the everyday low-level criminal case, the prosecutors recognized none of the differences that existed between the employees. They approached the group of employees as a featureless throng suited to a common process and a common sanction. The workers were too much like criminals for mere deportation, but too much like each other in their foreignness and their alleged immigration-related crimes for individual processing in the criminal court. Both perceptions were necessary to justify a mass, fast-tracked process that foreclosed immigration relief and separated the workers physically and procedurally from ordinary criminal court and immigration proceedings. At the same time, the process played out on the national stage, telling a political narrative about waves of unauthorized migrants that only exceptional innovations in criminal and immigration procedures could thwart.
As the process proceeded, however, distinctions between the non-citizens emerged. Some of these distinctions seemed inconsequential but had major legal impacts, such as higher sanctions imposed on employees who unknowingly had used a Social Security number that belonged to a real person rather than being merely false. Other distinctions between the employees may have been significant in a deportation proceeding but not in criminal law, such as whether the noncitizens had US family members or other US ties. Because the non-citizens waived via the criminal process the right to raise these US ties in an immigration proceeding, they remained personally consequential and yet legally unrecognized.
The theatrical nature of the Postville proceeding—from the fleet of white vans holding throngs of arrestees, to the transformation of a cattle showground into a temporary detention centre, to the ephemeral courtroom constructed with black curtains through which prosecutors paraded the shackled defendants—illustrates a way in which crimmigration at times operates as a form of symbolic politics. Crimmigration exercises significant symbolic power. The commingling of criminal law and immigration law suffuses the process in both legal arenas with elements of lawlessness and foreignness. The Postville operation told a compelling political narrative with the public as the audience. The volume of arrested migrants promised to stoke submerged fears of a mass influx of aliens unchecked by porous borders and permeating the innermost regions of the United States. This unique threat required a distinct form of justice.
The Postville operation made a public splash, but it was not unprecedented. Along stretches of the south-west border with Mexico, immigration enforcement authorities have cooperated with prosecutors to arrest, detain, and convict for unlawful entry or unlawful re-entry almost every non-citizen caught crossing the border without authorization (US Customs and Border Protection 2005; Eagly 2010: 1328-1330). Operation Streamline was intended to increase the costs to non-citizens of unlawful border crossing by imposing both a criminal and an immigration consequence, adding a conviction and sentence to the deportation sanction.
The streamlined process, however, itself became a sanction. As in Postville, Operation Streamline employed a fast-track process that required mass processing of the arrested non-citizens. US judges handling Streamline cases accepted plea agreements from as many as 80 non-citizen defendants at one time, asking them as a group to confirm the knowing and voluntary waiver of their constitutional rights. The expeditious proceeding and the treatment of the defendants as an indistinct group guilty of the same crime suggested that, in the eyes of the law, these defendants both differed from ordinary criminal defendants yet remained functionally identical to one another, lacking the individual circumstances that could lead to distinct formal outcomes.
There is another way in which the experience of the criminal justice system is unique for non-citizens. Criminalizing acts of migration is changing the nature of the lower criminal court proceeding by raising the stakes ofpre-trial processes. Plea bargaining has become more than a step toward a conviction and criminal sanction.
It has become a gateway to expulsion from the country. A plea agreement may contain an explicit provision requiring the defendant non-citizen to depart the country after completing any other term of the plea agreement, or deportation may be implicit—an unexpected consequence of an agreement to plead guilty to a crime for which conviction requires removal.
Under Padilla, many non-citizens became entitled to their defence counsel’s advice about the immigration consequences of a guilty plea. That advice had the potential to change the stakes oftaking the plea deal. It put pressure on non-citizens invested in continued US residence to take their chances at trial rather than agreeing to a conviction that would almost certainly render them deportable. After Padilla, non-citizens were more likely to learn of the consequences of conviction at a time when they could choose whether to take the immediate plea or extend the process by rejecting it and going to trial.
In sum, the punishment for crossing the border without authorization is the piling on of process. In place of the former civil deportation scheme, criminalizing unlawful border crossing meant that non-citizens were exposed to an entirely different legal system, and one that often treated them more harshly than other criminal defendants accused of similar crimes.
-  See Chin et al (2010: 50) (noting that ‘S.B. 1070 creates or amends four sections of the ArizonaRevised Statutes, which impose criminal liability based on undocumented presence in the UnitedStates’); Chin and Miller (2011: 251, 253) (exploring the ‘mirror-image theory [which] proposes thatstates can help carry out federal immigration policy by enacting and enforcing state laws that mirrorfederal statutes’).
-  Newburn and Jones (2007: 236) (describing the notion of a ‘policy narrative’ as an element ofsymbolic politics).