Ana Aliverti, The Wrongs of Unlawful Immigration, Criminal Law and Policy, June 2017, Volume 11, Issue 2, pp 375–391, https://link-springer-com/article/10.1007/s11572-015-9377-y .
Yesterday I participated in the first in a series of facilitated dialogues about immigration. I volunteer for these facilitated dialogues here at the law school every year because it gives students who are taking the Lawyer as Facilitator class the chance to practice their skills on real humans who are talking about difficult things.
The interesting thing for me about this experience is that I HATE hard conversations and confrontation and differences of opinion. As with many people who have domineering parents and/or self esteem issues, every disagreement becomes, in my mind, a personal attack. And yet, I still volunteer to do this every year. I always hope it will help me get better at and feel better about having difficult conversations in relatively safe spaces, and yet every year I feel just as inept at doing this as I ever did.
Anyway, I have OPINIONS about immigration. They come from a lot of places, including the following:
- Where I grew up (Southern California)
- Who my parents were/are (very conservative white people)
- My generational demographics (Gen-Xer born in 1971 — the narrative during the Reagan/Bush years was heavily influential on how my politics developed early on in my life)
- My own personal viewpoint on several issues, including the sanctity of the rule of law in civilized society
I am working my way through these things. But I also realize that, as a US-trained lawyer and a person who needs to chew on things intellectually to feel more comfortable with what I think I believe, I need more than just a conversation involving people’s opinions on this topic.
So I did what I always do: I searched for articles that discuss why immigration law might be unfair. I actually put terms that basic and simple in my search query and got a lot of interesting results back. One of the more appealing of them was this article by Ana Aliverti. Even though she is discussing the UK more than the US, the larger discussion is the entire phenomenon of criminalizing violations of immigration law in the context of criminal law theory.
Finally! I can look at this issue as the trained lawyer that I am.
The author argues that the use of criminal law to regulate immigration is “objectionable” for several reasons: (1) immigration offenses can and often do lack requisite elements of crime that are required under criminal law theory, (2) criminalizing immigration offenses does not prevent the harm to society caused by people who commit them, and (3) given the level of presumed societal harm caused by illegal immigration, using imprisonment to punish immigration offenses is “disproportionate and excessive.”
Criminal immigration laws represent a unique area of criminal law, according to the author, in that they (a) often involve strict liability and (b) can be applied in cases of omission rather than overt action. In general, criminal laws under the Anglo-American system require that the perpetrator have a particular mental state that represents intent (mens rea) when committing an wrongful act (actus reus).
The author posits that, if you think about some types of immigration crimes, one or both of these elements are not really required to lead to a finding of guilt. If, for example, simply being in the country without proper authorization is determined to be a criminal act, then it doesn’t matter what the person’s mental state or intent are — because it is a strict liability crime, criminal intent does not need to be proven. Another example is the criminalization of failing to produce identity documents when an immigration authority asks for them, which is essentially a crime of omission rather than an overt action. In those cases, there may not be sufficient mens rea or actus reus, at least within an Anglo-American criminal law theory framework, to justify criminalizing the activity.
Next, the author argues that, under the “harm” principle, which “bans criminal proscription in the absence of harm done or threatened,” criminalizing immigration offenses is unjust. How much societal harm to everyday citizens is actually caused by unauthorized immigration? Maybe it depends on who you ask. But the presence of otherwise law-abiding undocumented immigrants in a country cannot possibly create a sufficient level of societal harm to justify harsh criminal sanctions, at least without reliable data that illegal immigration definitively leads to an uptick in more serious crimes, takes away jobs from citizens, causes an increase in the fraudulent acquisition of social benefits, etc.
Finally, the author unequivocally states that imprisonment for violating immigration laws, especially given the relative level of societal harm that the commission of these offenses presents, is “disproportionate and excessive.” Putting people who break immigration laws in jail creates a real, unjust level of pain and hardship for these defendants. Therefore, the author argues, even if we must criminalize immigration violations, it is unnecessary to punish them with incarceration.
I appreciated this article a lot, because it, logically and without emotion, presented several legitimate reasons for believing that these laws might be unfair. It moves away from the emotional reasons for this belief, which to me provides very helpful guidance about how I might want to think about this issue as I continue to formulate my own opinion about it. Emotional appeals are too much like guilt trips to me, and work a bit too well to throw me off my game. That is my own issue to work on. But one way that I can combat it is to find the literature that dispassionately presents a reasonable and logical discussion, and really take it on board and think about it carefully.
By the way, the title of this blog post represents more than just the immigration discussion. I also have been thinking a lot about the nature of wrongdoing. I went to a talk for a book about forgiveness in law today. There were a lot of specific examples presented by the speakers about how we, as a society, can do a better job with forgiveness and mercy when confronted with wrongdoing. In principle I do not have a problem with this concept, but in application I can help but wonder how the idea of contrition fits in with all of this. If someone does something wrong and shows no recognition or remorse, is it still the right and just thing to do to forgive them? How is that just for the person who has to do the forgiving?
I don’t have an answer to that question, but I know it’s difficult. I don’t want to be unkind, but I also don’t want to be taken advantage of or for people to benefit from their wrongdoing. I am also a firm believer in the rule of law, and swore an oath to uphold our laws when I was admitted to the California bar as a lawyer.
What does that mean in this context? I’m not sure. But it’s complicated and difficult.