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Jennifer M. Chacón

Excerpted from: Jennifer M. Chacón, Overcriminalizing Immigration, 102 Journal of Criminal Law and Criminology 613 (Summer 2012)


      Although there is a burgeoning literature on the criminalization of migration, immigration issues are not usually included in academic conversations surrounding overcriminalization. Criminal law scholars may not have been particularly attuned to developments in the world of immigration law because they have understood it to be primarily the domain of civil or administrative law. For most of U.S. history, this has been the case. Or perhaps the failure to consider immigration law in overcriminalization discussions has occurred because widespread enforcement of criminal immigration laws is a relatively new phenomenon. Whatever the reasons, in an era when about half of all federal criminal prosecutions are of immigration crimes, and when many states and localities are enacting ordinances aimed at criminalizing offenses related to migration, now is a good time to start including immigration policy in the broader conversation on overcriminalization. Increasingly, our immigration policy provides a paradigmatic example of overcriminalization, whereby governments-- both state and local--are creating “too many crimes and criminaliz[ing] things that properly should not be crimes.” Like the war on drugs before it, the growing war on unauthorized migration is suddenly and dramatically being waged through the criminal justice system. The distorting effects of this use of state and federal criminal justice systems are only beginning to show. Therefore, it seems particularly critical for scholars concerned with overcriminalization to take stock of recent developments in immigration enforcement.

      This Article argues that contemporary immigration policy is a site of overcriminalization. To explain how this came to be the case, the Article first evaluates the major developments in immigration law and immigration enforcement that have increased the criminalization of immigration. In the latter half of the twentieth century, three important assumptions undergirded immigration enforcement. The first assumption was that the federal government had the exclusive power to regulate immigration. The second was that, although it was essentially the sole responsibility of the federal government to make and enforce immigration laws, the federal government was actually unable to achieve widespread enforcement of the federal immigration laws on the books. And the third assumption was that state and local governments not only had no role in the regulation of immigration, but also had very little to do with the enforcement of federal immigration law. Of course, these three general statements stand in for a more nuanced set of facts on the ground, but at a basic level, they generate a fairly accurate picture of the state of immigration enforcement as recently as fifteen years ago.

      Over the past fifteen years, however, all three of these assumptions have given way to new realities. This Article describes the transformation of these three fundamental assumptions of immigration law and discusses the new realities that have replaced them. It also explains how the resulting changes in the underlying structure of immigration law and its enforcement have increased significantly the use of the criminal law as a means to effect immigration control. Part I discusses the apparent decline of federal exclusivity in immigration regulation and the rise of state and local legislation--particularly state criminal laws--aimed at controlling migration. Part II discusses the significant expansion of federal immigration enforcement efforts and, in particular, the recent dramatic rise in the use of federal criminal sanctions as a means of enforcing immigration laws. Part III discusses the rise of state and local participation in the enforcement of federal immigration laws and the consequent increase in the policing of low-level state criminal offenses in certain communities.

      While no one would dispute that the criminalization of migration has increased over the past decade, this leaves open the question of whether this is an appropriate policy response or whether the resulting policies can be described as overcriminalization. Therefore, the final section of the paper explains why these policies constitute overcriminalization and suggests alternative approaches to immigration enforcement specifically and to immigration policy more generally.

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      * * * [T]here has been an increased criminalization of immigration in recent years. Federal prosecutions of immigration are at all-time record highs, and immigration offenses are now the single most commonly prosecuted federal criminal offenses. State and local governments now are assisting actively in federal immigration enforcement efforts. Moreover, states and localities are attempting to regulate immigration through their own laws, which routinely include criminal ordinances.

      Aggregate per capita expenditure on law enforcement by local, state, and federal governments remained flat--and even fell slightly when adjusted for inflation--in the period from 2002 through 2007. At the federal level, per capita expenditures for judicial and legal services declined 7% in this period, as did per capita expenditure on corrections, while per capita expenditure on protection fell 2%. Yet during this period, expenditures on immigration enforcement expanded significantly, meaning that such expenditures have put even further fiscal pressure on other enforcement efforts and on other government programs. It is difficult to determine exactly what is happening on the state level, but similar trends are probably emerging in states with an active immigration-enforcement agenda. Several scholars have recently noted that states have moved to focus scarce criminal justice resources on traditional criminal justice areas. Yet this is happening at a time when states and localities are aiming new criminal sanctions and new enforcement efforts at unauthorized migration. So surely, in at least some places, a shift in law enforcement resources is occurring.

      The question is whether this constitutes overcriminalization. Overcriminalization occurs when a legislature defines too many different activities as “crime,” when the system excessively punishes offenses, or both. Scholars have condemned the U.S. criminal justice system for both punishing too much conduct and punishing conduct too harshly, and the word “overcriminalization” is frequently applied to U.S. criminal law and law enforcement. In a system characterized by overcriminalization, law enforcement operates with an undesirable degree of unchecked discretion, procedural protections are undercut, and scarce resources are misallocated in crime control efforts.

      All of the major problems associated with overcriminalization appear in contemporary immigration enforcement. By imposing criminal law solutions on what is (and has always been) primarily an issue of labor migration flow, legislatures have not only failed to address the central dynamics that drive migration, but have also created a series of undesirable and expensive byproducts. The failure of the policies of criminalization is evident in the numbers. Although harsh criminal enforcement of immigration laws may be having a marginal effect on migration flows, any such effect has come at huge cost and could likely have been attained through more effective migration policy outside of the criminal sphere.

      First, there is the monetary cost. The resources meted out to achieve the criminal punishment of migrants are disproportionate to the problem and corrosive to the overall balance of resources in the criminal justice system. As previously noted, the cost of immigration enforcement is crowding out other investments in criminal justice, particularly during a time of scarce resources. Whether through deliberate policy choices or through the necessity of allocating scarce resources, the current immigration enforcement agenda skews spending toward the prosecution of migration offenders and away from the prosecution of violent and dangerous crimes.

      Moreover, converting immigration enforcement into a criminal problem has resulted in several harms that are classically understood as symptoms of overcriminalization. One harm is racial profiling. Because immigration status is impossible to determine at a glance, officials who are enforcing immigration laws without knowledge of a particular individual's status are necessarily relying on profiling--and particularly the racial profiling of those of “Mexican appearance” that courts have judicially sanctioned in immigration enforcement --to make stops and arrests for immigration violations. As state-level criminal sanctions aimed directly at migrants continue to proliferate, the number of actors making these race-reliant stops will increase, and racial profiling will increase as well. The Supreme Court's refusal to uphold the preliminary injunction of Section 2 of Arizona's S.B. 1070, which authorizes state and local officials' investigations into immigration status, ensures that in Arizona and other states, sub-federal actors will be actively engaged in immigration policing. Available data already establishes that many investigators are disproportionately stopping and arresting Latinos for various other low-level criminal offenses in an effort to catch noncitizens in the immigration enforcement dragnet. Indeed, one of the lead charges against Latinos in counties with 287(g) programs is “driving without a license”--a charge that cannot even be established until a stop is made. The fact that such charges against Latinos have risen drastically and in ways that are completely out of proportion to the presence of Latinos in the general population suggests that immigration enforcement is a driving force in the rise of misdemeanor charges against Latinos. In this way, the criminalization of migration also has fueled the overcriminalization of misdemeanors committed by a particular racial group. Unless and until more restrictive guidelines on the use of race are promulgated and the proliferation of migration-related offenses decreases, it is all but certain that the recent and rapid rise in Latino incarceration will continue.

      In addition to the procedural harms generated by profiling, a distinct set of procedural harms has accrued as a result of the “streamlined” procedural mechanisms used to obtain convictions for illegal entry and felony reentry. In criminal courts along the southern border, illegal entry pleas are counseled only nominally, with six to ten defendants pleading at a time with the assistance of one public defender. The Federal Rules of Criminal Procedure concerning plea agreements are routinely and systematically violated in these procedures. Disparate sentences for identically situated defendants are meted out for illegal reentry, depending on where a defendant happens to be apprehended. And as different states enact differing criminal provisions as a form of indirect regulation of migration, the disparate interstate treatment of individuals whose only genuine offense is presence without authorization will increase.

      “[T]he criminal sanction should be reserved for specific behaviors and mental states that are so wrongful and harmful to their direct victims or the general public as to justify the official condemnation and denial of freedom that flow from a guilty verdict.” At the moment, nearly half of federal prosecutions target noncitizens whose only crime is their decision to act on their desire to work and live in a place that affords greater opportunity for themselves and for their children. Our society certainly faces costs and challenges associated with unauthorized migration and should work to forge policies that effectively address the issue. But reliance on the criminal law is not the solution and generates many new problems, including racial profiling, unequal treatment of similarly situated defendants, overreliance on (expensive) incarceration, and the underemphasis of other, more important law enforcement goals.

Professor of Law, University of California, Irvine School of Law.