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Excerpted From: Walter I. Gonçalves, Jr., Banished and Overcriminalized: Critical Race Perspectives of Illegal Entry and Drug Courier Prosecutions, 10 Columbia Journal of Race and Law 1 (2020) (439 Footnotes) (Full document)

WalterIGoncalvesJrIllegal entry and drug courier prosecutions are the most prevalent cases brought in the federal criminal courts. Although Latinxs only represent seventeen percent of the United States population, they constitute the majority of defendants charged under these statutes. This sordid reality would be less alarming if Latinx defendants did not experience disparate treatment in all phases of the criminal process because of implicit biases among prosecutors, judges, defense lawyers, and probation and pre-trial service officers. The criminal justice system has failed to address the biases of these professionals, so most are ignorant of the impact of race on litigation. This lack of knowledge facilitates a colorblind approach that permits racial biases to influence how professionals make decisions from bail to sentencing. In my experience, public defenders with many clients, unaware of the negative influence of implicit racial and ethnic bias, spend less time meeting with a Latinx or African American client at a detention facility compared with a White client. Likewise, trial judges, unaware of implicit racial bias's pernicious impact on sentencing or bail decisions, speak in harsher tones and use more disparate words to describe Latinxs compared to Caucasian criminal defendants.

To help alleviate this problem, this Article analyzes concepts of Critical Race Theory (CRT) by applying them to illegal entry and drug courier prosecutions. It then proposes strategies to help the lawyer practice in a way that reduces implicit racial and ethnic bias. As CRT scholars have yet to tackle federal crimes such as illegal entry and drug trafficking, the Article contributes to a new body of CRT research involving Latinxs and border crimes.

The process of overcriminalization and banishment began in the early part of the twentieth century, when the federal government first created illegal entry and drug laws. It climaxed in the early 2000s with the Drug War and in the early twenty-first century with the advent of crimmigration, the merging of criminal and immigration law. These historical processes contributed to implicit biases present today. The thesis of the Article is that the criminal justice and immigration systems overcriminalize and then banish illegal entrants and drug couriers from the United States, despite their relatively low level of criminal threat and responsibility.

Part I highlights points of focus in the existing literature on illegal entrants and couriers pertinent to the Article's investigation. Although certain researchers focus on race, it is never a central part of their analyses. Part II articulates new ways of understanding these cases through the lens of CRT. Armed with this theoretical background, Part III proposes new, CRT-based ways for defense lawyers to litigate these cases so the system can minimize racial disparities.

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Beginning in the early twentieth century, when the federal government first created illegal entry and drug laws, the criminal justice system slowly began to overcriminalize the actions of couriers. At that time, the immigration system treated Latinx immigrants differently than newly arrived Europeans. Overcriminalization of offenses committed by low-level couriers escalated in the 1980s with the War on Drugs. Banishment climaxed in the early part of the twenty-first century with crimmigration, the merging of the criminal and immigration systems. All of this took place despite couriers' and illegal entrants' low level of criminal threat and responsibility.

The experience of couriers and illegal entrants, as seen through the lens of CRT, shows that American society not only selected them for prosecution, harsh sentencing, and deportation, but also, at an earlier time, lynched them. Couriers and migrants also experience multiple levels of prejudice as seen through intersectionality. These historical exploitations have made it easy for mainstream American culture to transmit implicit biases through several past generations to the present day. These processes led to contemporary stereotypes, which criminal justice professionals are unequipped to mitigate.

As there are presently no CRT studies of illegal entrants and drug couriers, and few sets of tools for defense lawyers to mitigate implicit bias, this Article begins a conversation to encourage scholars to pay more attention to biases against Latinxs in federal criminal defense as a whole. A CRT approach can begin a larger process of change within the criminal courts, starting with criminal defense lawyers, the only voice providing legal representation for migrants and low-level couriers.

Assistant Federal Public Defender, District of Arizona.

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