Excerpted From: Jason A. Cade, Challenging the Criminalization of Undocumented Drivers Through a Health Justice Framework, 41 Wisconsin International Law Journal 325 (Spring, 2024) (222 Footnotes) (Full Document)

JasonACadeDalila, a single mother of two children who have U.S. citizenship ... says the hardest part of not having a driver's license is not being able to take her children to the emergency room when they need immediate care. She has a son with special needs and five to eight medical appointments a month that are difficult to get to without driving. Making matters more difficult is the fact that her daughter's school is a few miles away, and it takes her three buses to get there without driving.

“The last time I got stopped, [my children] were crying really bad. [Now] they see the cops, and they are like 'Mommy, you got to hide, you got to hide!’ ... My five-year old wakes me up at night, saying 'I had a bad dream they deported you.’ And my ten-year-old told me he can't concentrate at school, because he's thinking about ... if I will come home from work.”

Merriam-Webster defines a driver's license as “a license issued under governmental authority that permits the holder to operate a motor vehicle.” That simple dictionary definition belies the massive, real-life significance that attends the grant or denial of the right to drive. In all but a few parts of the United States where public transportation is serviceable, driving is a life-sustaining activity for individuals and families. The license itself represents the primary form of accepted identification in this country for most economic and civil activities; even more importantly, freedom to drive--or lack thereof--is tightly connected to key social determinants of health.

Increasingly, states use driver's licensing to achieve objectives unrelated to road safety. For example, many states now suspend driver's licenses to compel court appearances and to recoup debt or unpaid tickets. States also employ regulatory and criminal laws concerning driver's licenses to achieve immigrant enforcement objectives that cannot be pursued directly. Although state governments cannot lawfully prohibit migrants from entering or remaining in a state, licensure prohibitions coupled with criminal penalties provide a facially neutral means of policing and punishing noncitizens who lack status. In this way, no-license laws have been weaponized against migrant residents, facilitating a proxy form of state immigration regulation.

The weaponization of no-license laws against immigrants and their families has received scant attention in academic literature. In articles now two decades old, Kevin Johnson and María Pabón López both recognized the primacy of driver's licenses for immigrant communities and framed access as a civil rights issue. More recently, Annie Lai explained how driver's license schemes work to effectuate state or local immigration policies that cannot be pursued directly. But even among the few articles to have problematized the criminalization of undocumented drivers, identification of viable legal interventions to push back against proliferating license restrictions has remained challenging.

In this symposium contribution, I employ a health justice lens to refocus the conversation about the use of safety regulations and criminal laws to punish residents on the basis of immigration status. Health justice is a nascent but already robust framework for both scholarly discourse and movement building around the “role of laws, policies, and institutions in creating, perpetuating, and (potentially) dismantling subordination ... as the root cause of health inequities.” Disparities in health, in other words, are influenced by social determinants, which include laws that enact discriminatory barriers to health-promoting resources and opportunities. The health justice movement recognizes how law can be employed as a tool to either erect or dismantle the macro-level conditions that structure conditions of wellbeing, especially for less privileged groups. For example, health justice interventions have taken aim at disparate enforcement of safety codes and racially disproportionate housing inequities. In these and other ways, the health justice movement seeks a society in which all people have a fair opportunity to attain their full health potential without being disadvantaged by their social circumstances.

Motor vehicle licensure prohibitions, especially when coupled with severe criminal penalties for those who drive without authorization, implement a set of discriminatory structural conditions that lead to and exacerbate health inequity. Driving is an essential gateway for employment opportunities, food security, and medical care. The automobile provides the means to access community gatherings, religious ceremonies, places for exercise, and many other sites of interaction that affect short- and long-term wellbeing and that nurture mental and spiritual health. And it is not only adult undocumented individuals who are affected, as the deprivation of a parent's license implicates the wellbeing of their family members, including children who often are US citizens. Unlike their peers whose parents are authorized to drive, the children of undocumented parents experience diminished access to preventative healthcare, educational opportunities, and a host of extracurricular and wellness activities, all of which compound and coinfluence health outcomes over a lifetime. Simultaneously, the children and family members of undocumented residents experience increased stress whenever their relative gets behind the wheel without authorization.

Nevertheless, most people who live in the United States must regularly drive, by necessity, even if they are denied access to a license. In so doing, however, they risk arrest and severe criminal penalties, often including mandatory jail time and hefty fines. Police interactions also increase the likelihood of immigrant detention, as law enforcement officers funnel presumably deportable noncitizens to federal immigration authorities. Chronic stressors, such as fear of separation--or actual separation-- from a parent, also contribute to negative health outcomes.

Armed with these insights, I outline how a health justice framework might guide future advocacy regarding driver's license laws. While litigation has failed to gain traction thus far, understanding the health consequences of subordination through driver's license schemes should bolster potential legal interventions. The underlying proportionality, equal protection, and due process concerns all stand to gain heft when the health-harming nature of no-license laws is foregrounded, particularly with respect to the implications for children in families with undocumented drivers.

Additionally, by widening the frame to view the structural inequities that no-license schemes impose on undocumented drivers and their children as a public health issue, broader coalitions interested in pursuing reform become possible. As a strategic matter, recasting the debate as a matter of public health (particularly concerning the health of communities and children) is not only more accurate but also represents a more viable strategy for reform in light of perennial political hostility towards immigrants. New coalitions-- including child welfare advocates, school officials, medical professionals, and frontline community advocates--can advance narratives that cast the question of driver authority as a community health concern, rather than as a matter of immigration control.

Some lawmakers and government officials--if made aware of the breadth of community harm implicated by the criminalization of undocumented driving, and the discriminatory subordination that such laws impart on children in particular--may endeavor to change the law. And in those states where legislatures remain unpersuaded, police and prosecutors might nevertheless consider whether the proper exercise of prosecutorial discretion is necessary to avoid unjust harms in no-license cases on either categorical or individual levels.

The remainder of this Article unfolds in three parts. Part I provides background on the weaponization of no-license laws against noncitizens and their families. Part II introduces the health justice framework and then explains how the creation and criminalization of undocumented drivers implements a system of structural subordination with significant health consequences. Part III then outlines how viewing no-license laws through a health justice lens can help guide future legal challenges and legal reform efforts.

[. . .]

In this symposium Article, I reexamined the criminalization of undocumented driving through a health justice framework. Drivers who lack lawful status, as well as their children (including those who are US citizens), experience health disparities caused by denials of driver's licenses, criminalization of DWOL, and the negative social determinants of health that accompany lack of access to other means of reliable and effective transportation. Lawmakers and law enforcement officials will continue to underappreciate the high stakes of no-license regimes until the frame is widened enough to confront the community health consequences. Strategically reframing the driver's license issue through a health justice lens may yield benefits in light of ongoing political hostility toward immigrants. Viewed as a public health issue, the weaponization of no-license laws can be addressed by new legal interventions, broader coalitions, and policy reforms.

Associate Dean for Clinical Programs and Experiential Learning, J. Alton Hosch Professor of Law, and Community HeLP Clinic Director, University of Georgia School of Law.