Criminal Justice in an Era of Mass Deportation

Abstract

After a sustained period of hypercriminalization, the United States criminal justice system is undergoing reform. Congress has reduced federal sentencing for drug crimes, prison growth is slowing, and some states are even closing prisons. Low-level crimes have been removed from criminal law books, and attention is beginning to focus on long-neglected issues such as bail and criminal court fines. Still largely overlooked in this era of ambitious reform, however, is the treatment of immigrants in the criminal justice system. An unprecedented focus on immigration enforcement targeted at “felons, not families” has resulted in a separate system of punitive treatment reserved for noncitizens, which includes crimes of migration, longer periods of pretrial detention, harsher criminal sentences, and the almost certain collateral consequence of lifetime banishment from the United States. For examples of state-level solutions to this predicament, this Essay turns to a trio of bold criminal justice reforms from California that (1) require prosecutors to consider immigration penalties in plea bargaining; (2) change the state definition of “misdemeanor” from a maximum sentence of a year to 364 days; and (3) instruct law enforcement agencies to not hold immigrants for deportation purposes unless they are first convicted of serious crimes. Together, these new laws provide an important window into how state criminal justice systems could begin to address some of the unique concerns of noncitizen criminal defendants.

Undoing resilience: immigrant status and poor health following incarceration

“…Even though immigrants are less likely to engage in crime, to be incarcerated, and to recidivate than native-born citizens (Bersani, 2014 ; Bersani, Loughran, & Piquero, 2014 ; Ousey & Kubrin, 2018 ), there is a growing number of immigrants becoming involved with the criminal justice system due to “crimmigration” policies (Immigration & Customs Enforcement, 2018 ). Crimmigration is used to describe the ways in which immigration control and criminal justice goals are increasingly intertwined (Eagly, 2017 ; Light et al, 2014 ). “Illegality” is defined by government yet experienced in the form of legislation that increases the difficulty of immigrants to become U.S. citizens, restricts federal support for immigrant families, and expands the range of deportable offenses (Becerra, Wagaman, Androff, Messing, & Castillo, 2017 ; Chavez, 2008 ).…”

Criminal Law & Migration Control: Recent History & Future Possibilities

“…55 The state also amended 129 Jennifer M. Chacón its criminal code to cap the maximum sentence for misdemeanor offenses at 364 rather than 365 days in an effort to ensure that misdemeanor offenses would never count as "aggravated felonies" for purposes of federal immigration law. 56 Such reforms of the state criminal codes benefit many communities, but they have significant immigration consequences. These efforts highlight the centrality of criminal law and policing reforms in the quest for fair and equitable immigration policies.…”

The Politics of a New Legal Regime: Governing International Crime through Domestic Immigration Law

“…Most recently, scholars have focused on the state and local dimensions of crimmigration, emphasizing the ways in which local law enforcement has been deputized to fulfill immigration policy objectives (Chacón ; Eagly ). Much less attention has been paid to the internationalization of the crimmigration phenomenon.…”