Crimmigration and Discretion

For people like me who do not regularly follow immigration law and who are only dimly aware of the recent emergence of the new field of legal practice and scholarship known as “crimmigration,” David Alan Sklansky has a terrific new article with a wealth of data demonstrating the “vanishing boundary” between criminal law and immigration law, as criminal enforcement of immigration laws has skyrocketed and as deportation has increasingly become a favored tool of law enforcement in dealing with suspected criminals.  In addition to the fascinating data, Sklansky also supplies an insightful new explanation for the rise of crimmigration — one that centers on what he sees as a growing comfort level in the United States with the idea of giving front-line actors wide discretion to select from a range of law-enforcement tools in order to address threats to public safety.  I’d like to add another layer of nuance to Sklansky’s theory of discretion, but, first, here are some of the numbers from the article that I found particularly striking:


  • Between 1997 and 2009, immigration prosecutions grew from less than 9,000 per year to more than 90,000 (166).
  • Immigration prosecutions now constitute a majority of all federal criminal prosecutions (167).
  • In New Mexico, Texas, and Arizona, immigration prosecutions constitute 80% or more of federal prosecutions (168).
  • Immigration prosecutions also constitute more than 20% of the federal criminal docket in ten other states (168).  (Wisconsin, though, seems curiously unaffected by the national trend, with immigration providing only 6% of the docket.)
  • Immigration prosecutions spiked after 2004 thanks in part to the implementation of “Operation Streamline” in several courthouses near the Mexican border; initial appearance, arraignment, plea, and sentencing for dozens of defendants are often handled en masse in a single hearing (170).
  • Prosecution is not necessarily reserved for dangerous or hard-core offenders; in many recent years, the most commonly prosecuted immigration offense has been violations of 8 U.S.C. § 1325, the basic illegal reentry offense, and the average sentence for Operation Streamline defendants has been only about 30 days (167, 170).
  • Although (or perhaps to some extent because) prosecutions are way up, the number of border apprehensions dropped from 1.8 million in 2000 to little more than 600,000 in 2009, meaning that the percentage of apprehensions leading to prosecution has increased in the same time period from about 1% to 10% (173-74).
  • The number of removals of noncitizens based on criminal convictions grew from a negligible 500 in 1981 to 40,000 in 2005.
  • In 2001, the INS had fewer than 2,000 enforcement agents; ICE, its successor agency, has 20,000 (180).
  • Since 2005, through an initiative called Operation Community Shield, ICE has worked with local law enforcement agencies to target suspected members and associates of violent street gangs for deportation (180).
  • Between 1994 and 2009, the immigration detainee population exploded from less than 7,000 to nearly 34,000 (182); it is said that ICE now operates the largest detention system in the country (183).

What explains the rise of crimmigration?  Although the U.S. has gone through periods of intense nativism in the past, Sklansky argues that never before has there been such a blurring of the lines between criminal law and immigration law.  Criminal laws, procedures, and enforcement agencies are now routinely deployed in the service of immigration policy, while ICE and deportation processes are routinely deployed for the purpose of incapacitating suspected criminals.

I imagine that many members of the public would respond to this question by saying that the merger of criminal law and immigration law represents a pragmatic response to a rising tide of crime perpetrated by noncitizens.  However, as Sklansky demonstrates, there seems little evidence to validate the crime-wave hypothesis.  Indeed, there is some data indicating that crime rates among the foreign-born are considerably lower than among the native-born in this country (190).  Moreover, crime rates in border cities like Brownsville, El Paso, Laredo, and San Diego tend to be considerably lower than the U.S. average (192).

It is true that the percentage of the U.S. population that is foreign-born is at an unusually high level right now, at least as compared with the norms from the past century (193).  This no doubt contributes to the common perception that this country is losing its moral cohesion — a perception that may have fueled much of the tough-on-crime politics of the past generation (see my blog post here).  So, we may see crimmigration as just another instance of the way we lash out as a society against those we perceive to be contributing to a wider breakdown in civil society.

But there is another aspect to the crimmigration story that I think Sklansky is right to emphasize, something that he calls “ad hoc instrumentalism”:

By that I mean a particular way of thinking about law and legal institutions, a way of thinking marked both by skepticism of formal legal categories and by skepticism of the idea that official discretion needs to be, and can be, cabined and controlled.  Ad hoc instrumentalism is certainly not a complete explanation for the rise of crimmigration, nor even, perhaps, the most important explanation, but it has helped create conditions hospitable for that development.  (197)

Ad hoc instrumentalism ascribes no particular significance to the fact that American law has traditionally recognized clearly differentiated categories of doctrine called “immigration law” and “criminal law,” but rather sees in these bodies of doctrine a diverse set of legal tools that should be made freely available to front-line actors as they see fit to address the social problems of the day.

So, ad hoc instrumentalism only makes sense to the extent that one is comfortable with front-line actors (ICE agents, local cops, federal prosecutors, etc.) exercising a lot of discretion without much by way of formal legal constraints.

Sklansky thinks that we are indeed comfortable with this sort of discretion today, reflecting a surrender in the efforts to limit official discretion that were so prominent a generation ago — efforts that were embodied, for instance, in the Warren Court’s regulation of policing and the development of sentencing guidelines.

The story that Sklansky tells about acceptance of discretion seems to focus on academics and legal elites, and runs along parallel tracks with other explanations of crimmigration that he credits: nativism and diffuse social anxieties about crime and criminals.  But I wonder, if we shift focus from the academics and legal elites, whether the discretion story isn’t actually bound up in synergistic ways with the nativism and social anxiety stories.

A few years back, I tried in this article to develop an argument that being subjected to official discretion is, in and of itself, stigmatizing and degrading.  It smacks of slavery to give a police officer or prosecutor or judge unchecked authority over the fate of another human being.

If I’m right about that, then it’s possible that the “acceptance” of criminal-justice (and immigration) discretion has a lot to do with the fact that those who are subjected to this discretion are overwhelmingly the politically, socially, and economically marginalized.  In-groups can live with official discretion in these realms because they know that it is not likely to be something that they will ever have to experience directly.  Indeed, discretion — and the fact that it is imposed on others — serves to confirm their elevated social status.

This suggests that the acceptance of discretion may not have operated wholly independently of nativist and other social anxieties, but may also to some extent have served as a way of expressing those anxieties.

Whatever the social dynamics propelling crimmigration, it does seem one of the most important stories in criminal justice of the past quarter-century.

Sklansky’s article is “Crime, Immigration, and Ad hoc Instrumentalism,” 15 New Crim. L. Rev. 157 (2012).