Excerpted From: Juliet P. Stumpf, Crimmigration and the Legitimacy of Immigration Law, 65 Arizona Law Review 113 (Spring, 20230 (243 Footnotes) (Full Document)


JulietPStumpfIn 2018, the spectacle of immigration enforcement officials at the border forcibly separating Central American children from their parents gripped the nation's attention. Family separation was a flash point in an ongoing controversy over the role of crimmigration--the merging of immigration and criminal law immigration policy. Crimmigration was central to family separation, grounding the decision to separate families on a “zero tolerance” policy that required criminal prosecution of all adults who crossed the border without permission, including adults traveling with children.

Family separation centralized crimmigration in efforts to heighten immigration policing and sharpened the controversy around it. Even before the 2018 family separation episode, the nation had been embroiled in debate about the content of its immigration laws, the means of enforcing those laws, and the relationship between immigration policing and communities of color associated with immigration. Concerns about immigration enforcement have consternated presidential policymakers, consumed copious congressional energies, and driven the legislative and enforcement priorities of states and localities. In 2008, an immigration raid and federal prosecution of almost 400 Latino, noncitizen assembly-line workers led to prolonged public debate--including a congressional investigation--about whether criminal prosecution and deportation of immigrant workers was an appropriate use of federal government power. In 2010, a 5-4 decision of the U.S. Supreme Court declared unconstitutionally infirm the plea agreement of Jose Padilla, a long-term lawful permanent resident of the United States, because he had not been advised that the conviction meant almost certain deportation.

This national dilemma about the expansion of crimmigration operated at the state level as well. The same year that Padilla v. Kentucky was decided, Arizona passed SB 1070, a bill designed to use the state's criminal laws and enforcement arms to pursue a policy of “attrition” of unauthorized noncitizens. The severity of the law roused a national outcry, as well as copycat laws in other states. In 2016, the election of Donald Trump similarly triggered a proliferation of “sanctuary” cities and states vowing to resist the criminalization and mass deportation of immigrants, while other jurisdictions doubled down on police collaboration with immigration officials. The election of President Joseph Biden in 2020 reawakened the potential for a major update of statutory immigration law and revived the tug-of-war between inclusive and restrictive immigration policies.

This controversy over immigration enforcement has been a major stumbling block to comprehensive immigration reform. Some contend that immigration enforcement officials are either unwilling or unable to stem undocumented immigration and argue that until immigration enforcement officials deport the current population of unauthorized immigrants and deter others, immigration law reform is doomed to failure. Reform efforts thus have tended to seek compromise by trading more expansive grounds of admission and legalization of current unauthorized residents for harsher criminal deportation grounds and enforcement methods.

This logic holds that legalizing unauthorized noncitizens must be in lockstep with expanding crimmigration law. Such an expansion would employ criminal law and enforcement tools to increase exclusion and deportation, while using immigration policing to expand criminal arrest and prosecution of noncitizens. Failing to expand enforcement in both the deportation and criminal law sectors will, in this view, undermine the legitimacy of immigration law itself. Reform provisions that would regularize the immigration status of current residents are possible, then, only when paired with expanding crimmigration law.

This tradeoff between expanding crimmigration methods in exchange for legalization is illusory, however, if one side of the bargain undermines the other. This Article concludes that far from legitimizing immigration law, expanding crimmigration law has a strong potential to undermine immigration law by degrading its procedural legitimacy.

My prior work coined the term “crimmigration,” described its anatomy and racial impact, and sought to explain its influence in diverse legal arenas such as criminal law, constitutional law, and federalism. This Article uses psychological jurisprudence research to explore how crimmigration law affects perceptions of the legitimacy of immigration law.

Tom Tyler, writing in the intersection of law and psychology, pioneered psychological jurisprudence research. His pathbreaking work has shone a spotlight on the importance of procedural justice in legal policymaking and interpretation, particularly in criminal law. He established that perceptions of the legitimacy of the law and of legal authorities are strengthened when people perceive those laws as fairly made and legal officials as treating them fairly. Those perceptions of procedural justice--of fair decision-making and fair treatment--are often more important than a favorable outcome, such as winning the case or avoiding arrest.

One of the contributions this Article makes is to locate the psychological jurisprudence literature within the landscape of crimmigration law scholarship. On the one hand, procedural justice research seeks to explore why people obey the law, concluding that greater procedural fairness leads people and institutions to a greater willingness to cooperate with legal authorities. This does not mean, however, that if noncitizens experience procedural fairness, they will be more likely to cooperate with their own detention or deportation. For people who migrate across national boundaries without authorization, whether immigration authorities treat them fairly may play only a minor role in the decision to attempt a border crossing, with other economic, moral, or situational factors having much more sway.

This Article relies on this social science research to reveal how core procedural deficiencies of crimmigration law decrease perceptions of the legitimacy of immigration law that those subject to immigration law, other affected individuals, and institutions hold. Lack of legitimacy has implications for genuine public assessment of the effectiveness of immigration law, the direction and shape of immigration reform, and the extent of cooperation by institutions as diverse as police, local governments, employers, advocates, and communities, including communities of color. If legitimacy depends on procedural justice, then creating procedural justice is a necessary ingredient in reforming immigration law and making that reform stick. Psychological jurisprudence can thus inform policy choices, legal theories, and judicial precedent at the intersection of immigration and criminal law.

Other scholars, particularly Emily Ryo and Ming Chen, have extended psychological jurisprudence research to immigration law in different and pathbreaking ways. Ryo's empirical studies have shed light on noncitizens' perceptions of the procedural legitimacy of immigration law and immigration authorities. Ryo has stressed the importance, given the growing convergence of the criminal law system with immigration enforcement, of further research to better understand how the immigration and criminal enforcement systems might work in tandem to shape procedural justice perceptions and legal attitudes of noncitizens. Chen has applied psychological jurisprudence research to the willingness of institutions like state agencies to cooperate with immigration officials and federal agencies to support immigration policies. She concludes that procedural legitimacy is critical to persuading states, localities, and agencies to cooperate with immigration policies when they are not required to.

This Article builds on these scholars' foundational work to explore how the procedural deficiencies of crimmigration law impact the legitimacy of immigration law as a whole. Part I presents the procedural justice research, locating it in theoretical opposition to the deterrence model of law enforcement. It then sketches the contours of crimmigration law, highlighting its procedural anatomy. Part II lays out the criteria that influence people when they make assessments about procedural justice. It concludes that the procedural deficiencies that crimmigration law introduces into immigration law match the factors that social scientists have determined lead to a lack of trust in the law.

Part III addresses potential problems with applying psychological jurisprudence research to crimmigration law. It then examines the consequences if people and institutions perceive crimmigration law as undermining procedural justice, including the potential for undermining the broader public's perceptions of legitimate immigration laws and methods of enforcement. Looking ahead to immigration reform, it concludes that any compromise struck with crimmigration at its core will embed distrust more deeply into the public discourse around immigration law.

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Advances in psychological jurisprudence raise a fresh opportunity for scholars and others to assess policy choices, legal theories, and the rationales in court decisions surrounding the deepening confluence of immigration and criminal law. Exploration in legal scholarship of the application of this empirical research to immigration and crimmigration law is critical to enriching the often polarized discussion about the direction of immigration policy and informing legal theories about crimmigration law.

Robert E. Jones Professor of Advocacy & Ethics, Lewis & Clark Law School.