Post by Jennifer M. Chacón, Professor of Law, University of California, Irvine School of Law. This post is the first installment of the Border Criminologies Themed Week on Migration, Criminal Law and Criminal Justice organised by Ana Aliverti.
In the 1990s, Sheriff Joe Arpaio of Maricopa County, Arizona, came to prominence on the national scene. Given recent political and legal developments, one might guess that he initially drew attention to himself through policies and practices aimed at targeting unauthorized migrants in his jurisdiction. In fact, in his early years as sheriff, Sheriff Arpaio wasn’t particularly concerned with the issue of unauthorized migration. Instead, he was known for his harsh approach toward those convicted of crimes. He became famous for his rough treatment of prisoners: his high-profile efforts to both reify gender hierarchy and exploit it by requiring male inmates to parade publically from one penal institution to another wearing pink underwear, his creation of tent prisons without air conditioning in a region that routinely has temperatures in excess of 40 degrees Celsius in the summer months, and his relentless efforts to cut the cost of food in jails by cutting out luxuries like salt, pepper, and―more recently―meat. He has proudly proclaimed himself ‘America’s toughest sheriff.’
In a decision filed on 15 October 2014, the Ninth Circuit ruled that Proposition 100 violates non-citizens due process rights because the deprivation of liberty in criminal proceedings requires an individualized determination that a person poses a flight risk or danger to the community. While the Ninth Circuit acknowledged that categorical analyses could be employed in making such determinations, it found that ‘the record contains no findings, studies, statistics or other evidence… showing that undocumented immigrants as a group pose either an unmanageable flight risk or a significantly greater flight risk than lawful residents.’ By denying certiorari, the Supreme Court renders the Ninth Circuit decision the last word on the issue.
The Lopez-Valenzuela case put to rest one attempt to legalize the differential treatment of unauthorized migrants in the criminal justice system, but this denial of cert doesn’t mean, as a practical matter, that immigration status is irrelevant in criminal proceedings in the US. A recent empirical study by Michael Light and others, published in October in the American Sociological Review, found that non-citizens are penalized more harshly than similarly-situated citizens in the US criminal justice system. Earlier work by Ingrid Eagly, published in the NYU Law Review in 2013, found that government agents in Maricopa County took immigration status into account in the criminal justice process in ways that designedly resulted in heavier punishments for noncitizens. In short, citizenship status definitely matters in the US criminal justice system.
The outcome of the Lopez-Valenzuela case is unlikely to impact significantly the broad range of practices―from bail denials to sentencing schemes―that generate the disparities uncovered in these recent scholarly accounts. More work is needed to fully document the specific mechanisms that generate disparate outcomes for citizens and noncitizens across the criminal justice system. This work should be accompanied by systematic efforts to explicate and test the justifications offered in support of the differential treatment of citizens and noncitizens. In future work, I hope to explore these themes by studying anti-trafficking laws, which are alienage-neutral on their face, yet may nevertheless be used to focus criminal justice resources on noncitizens. I also hope to use that case study to better understand how racial bias in the criminal justice system may intersect with and confound apparent citizenship bias.
Themed Week on Migration, Criminal Law and Criminal Justice:
- Monday, 15 June: Crime, Justice and Migration (A. Aliverti)
- Tuesday, 16 June: Bail Denials and Beyond: Lopez-Valenzuela and the Role of Immigration Status in Criminal Justice (J.M. Chacón)
- Wednesday, 17 June: The Deportation Trap of Juvenile Transfers: How A Child Becomes A Desperado in the Eyes of the Law (J. Nogo)
- Monday, 22 June: Language Interpretation in the Criminal Courts: An Essential but Unstable Service (R. Seoighe)
- Tuesday, 23 June: The Function of the Criminal Law in the Prosecution of Refugees (Y. Holiday)
- Wednesday, 24 June: Mapping out a (Brief) Research Agenda for Border Criminology (M.T. Light)
- Thursday, 25 June: Remote Adjudication in Immigration (I.V. Eagly)
How to cite this blog post (Harvard style):
Chacón, J.M. (2015) Bail Denials and Beyond: Lopez-Valenzuela and the Role of Immigration Status in Criminal Justice. Available at: http://bordercriminologies.law.ox.ac.uk/immigration-status-in-criminal-justice/ (Accessed [date]).