III. Burdens versus Punishment

The intermingling of immigration and criminal law has expanded and complicated the processes that government actors and others use to regulate non-citizens. Whether these processes impose the kind of burden that rises to the equivalence of criminal punishment is an ongoing debate. The opacity of the proceedings, segregation from the normal criminal justice system, mass processing, and obstacles to later lawful entry that result from the interlocking complexities of crimmigration law lead us to question whether the processes of crimmigration have generated a form of punishment uniquely imposed on non-citizens.

Crimmigration pushes the boundaries of the legal space circumscribing punishment. Criminal sentences and deportation deprive individuals of liberty, but so do the procedural steps leading up to or supplanting those outcomes. The intersection of criminal and immigration law has significantly extended the government processes that lead to removal determinations and expanded the contact between law enforcement and migrants. Crimmigration law has reached beyond legislative changes in substantive law to enact procedural changes and enforcement strategies with major consequences for non-citizens. This set of sanctions is more functional than formal, experienced as a sanction and often exacerbated by the bewildering subjection to an unfamiliar legal system. Moreover, as with Feeley’s low-level criminal defendants, this punitive procedural experience is visited on both the innocent and the guilty.

As a result, non-citizens may experience the process through which the government determines whether it will impose a criminal or immigration sanction as so similar to the criminal sentence or deportation, as detention is to post-trial incarceration, as to amount to punishment. In addition, the government system or actor may intend to impose an experience—a deprivation of liberty like an arrest or detention—as a way to sanction individuals for their conduct or status. When the government seeks to impose a penalty through crimmigration law, or non-citizens widely experience as punitive the procedural web that crimmigration has woven, the process has become the punishment.

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